Punjab-Haryana High Court
Rajbala vs State Of Haryana And Ors on 25 September, 2023
Neutral Citation No:=2023:PHHC:126082
CWP-1325-2021 2023:PHHC:126082 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(231) CWP-1325-2021
Date of Decision : September 25, 2023
Rajbala .. Petitioner
Versus
State of Haryana and others .. Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Naveen Kumar, Advocate, for
Mr. Vivek Khatri, Advocate, for the petitioner.
Mr. Harish Rathee, Sr. Deputy Advocate General, Haryana.
HARSIMRAN SINGH SETHI J. (ORAL)
1. Present writ petition has been filed challenging the order dated
13.02.2020 (Annexure P-15) by which, the benefit of technical pay scale
granted to the husband of the petitioner has been withdrawn and that too
after his death.
2. Certain facts needs to be mentioned for the correct appreciation
of the issue in hand.
3. The husband of the petitioner was appointed on the post of
Ploughman on 18.05.1981. Thereafter he was transferred from the post of
Ploughman to the post of Machineman. While working on the post of
Machineman, he was further promoted to the post of Turner. Keeping in
view the instructions issued by the respondent-State by which, the technical
pay scale was to be granted to the employees working on technical posts but
said benefit was not being given to the employees concerned, large number
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of writ petitions were filed claiming the said benefit which writ petitions
were allowed by this Court on 18.01.2010 one such writ petition being
CWP No.18754 of 1991 was also allowed after which decision, the
Department of Finance, Government of Haryana generalized the release of
the technical pay scale to its employees working on various technical posts.
The said direction was issued by the Department of Finance on 09.08.2010.
4. After generalization of the instructions by the Department of
Finance, the husband of the petitioner was also granted the benefit of
technical pay scale in April, 2012. While working on the post of Turner, late
husband of the petitioner completed 16 years of service and became entitled
for the grant of 2nd ACP but as the same was not given to him,
representations were filed by the late husband of the petitioner to grant him
the 2nd ACP. Rather than granting the benefit of 2nd ACP, the husband of
the petitioner was issued show cause notice as to why the benefit of
technical pay scale be not withdrawn from him and ultimately, in pursuance
to the show cause notice dated 25.05.2017, the order was passed on
07.07.2017 (Annexure P-13) withdrawing from him the benefit of technical
pay scale.
6. The said order dated 07.07.2017 (Annexure P-13) was
challenged by the petitioner by filing CWP No.16048 of 2017, which writ
petition was decided by this Court on 08.11.2019. The order dated
07.07.2017 withdrawing the technical pay scale was set aside.
7. It may be noticed that the husband of the petitioner
unfortunately died on 12.07.2018 and after the death of the husband of the
petitioner, the respondents passed an order on 13.02.2020 again
withdrawing the benefit of technical pay scale and that too with
retrospective effect and also revising his salary retrospectively, which order
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is under challenge in the present writ petition.
8. Before any order could be passed withdrawing the technical
pay scale, unfortunately, the husband of the petitioner died on 12.07.2018.
9. On 13.02.2020 (Annexure P-15), the respondents passed an
order against the late husband of the petitioner withdrawing the benefit of
technical pay scale with retrospective effect and revising his pay
retrospectively. The said order is under challenged in the present petition.
10. Learned counsel for the petitioner argues that the order which
has been passed on 13.02.2020 is bad in law as the same has been passed
after the death of an employee and once an employee concerned has already
died and there is no master and servant relationship between the employee
and the employer, no order can be passed by the employer against a dead
employee causing prejudice to him/her, hence, the order dated 13.02.2020 is
liable to be set aside on this ground itself.
11. Learned counsel for the respondents, on the other hand, submits
that the initial order has been passed in the year 2017 withdrawing the
benefit of technical pay scale though the same was set aside by this Court
but with liberty to pass a fresh order, hence, even if, the husband of the
petitioner has died before passing of the impugned order dated 13.02.2020,
keeping in view the liberty granted, the Department is entitled to withdraw
the benefit of technical pay scale from the late husband of the petitioner and
refix his salary.
12. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
13. It is a settled principle of law that no order can be passed
against a dead person. Even if any proceedings have been initiated against
an employee and before the culmination of the said proceedings, the
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employee died, the said proceedings abate. The dead employee is not
available to defend himself/herself, hence, immediately upon the death of an
employee, all the proceedings pending against the said employee abates and
no further order can be passed causing prejudice to the dead employee or to
legal representative of the dead employee.
14. In the present case, the husband of the petitioner died on
12.01.2018 whereas, the impugned order has been passed on 13.02.2020
(Annexure P-15). That being so, withdrawing the benefit of pay scale from a
dead employee vide impugned order dated 13.02.2020 (Annexure P-15) is
not at all permissible.
15. Further, as per the settled principle of law settled by this Court
in CWP No.21917 of 2016 titled as Shiksha Devi vs. Haryana State
Federation of Consumers Co-operative Wholesale Stores Ltd, decided on
02.08.2022, this Court has already held that even if the disciplinary
proceedings were pending against an employee, the same abate upon his/her
death. The relevant paragraphs 10 and 11 of the said judgment are as
under:-
"10. In the present case, no rule has been cited by the
respondents to show their jurisdiction to issue a chargesheet
to a retired employee, hence, the chargesheets which have
been issued to the late husband of the petitioner after his
retirement, which have been taken to the logical end by way of
impugned order so as to impose the recovery of Rs.6,44,890/-,
is held to be without any jurisdiction and the same is
accordingly quashed along with consequential proceeding
including the impugned order.
11. Even otherwise, even if it is assumed for the sake
of argument that respondent had jurisdiction to issue the
chargesheets to the late husband of the petitioner even after
his retirement, then also the impugned order of recovery by
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way of punishment can not be sustained for the reason that no
proceeding can continue against a dead employee. The
husband of the petitioner unfortunately died on 16.05.2015. It
is the conceded position that till the said date, none of the
chargesheets had attained finality so as to give jurisdiction to
the respondent to pass any orders on the chargesheet. After
the death of employee, disciplinary proceedings abate, hence,
as the husband of the petitioner had already passed away,
proceeding initiated by the respondents in respect of three
chargesheets could not have continued any further. Keeping in
view the said factual position, the recovery of Rs.6,44,890/-
which has been imposed upon late husband of the petitioner is
held to be bad and accordingly quashed."
16. Similarly, any show cause notice pending against the late
husband of the petitioner for the withdrawal of the pay scale, abate upon the
death of the husband of the petitioner hence, after the death of the husband
of the petitioner, no further proceedings could have been undertaken by the
respondents in pursuance to the said show cause notice and the impugned
order dated 13.02.2020 (Annexure P-15) passed is contrary to the settled
principle of law.
17. Keeping in view the above, the impugned order dated
13.02.2020 (Annexure P-15) is set aside being totally arbitrary and illegal.
18. The present writ petition is allowed in above terms.
19. Any civil miscellaneous application pending if any, also stands
disposed of.
September 25, 2023 (HARSIMRAN SINGH SETHI)
harsha JUDGE
Whether speaking/reasoned : Yes
Whether reportable : Yes
Neutral Citation No:=2023:PHHC:126082
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