Punjab-Haryana High Court
Anjana vs Haryana State Federation Of Consumers ... on 18 March, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -1- 2024:PHHC:038518
232
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-9088-2020(O&M)
Date of decision: 18.03.2024
Anjana
...Petitioner
VERSUS
Haryana State Federation of Consumers Co-operative Wholesale Stores
Ltd.
...Respondents
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Dhiraj Chawla, Advocate, for the petitioner.
Mr. Hitesh Pandit, Advocate, for the respondent.
****
JASGURPREET SINGH PURI, J. (Oral)
1. The present petition has been filed under Article 226 of the
Constitution of India by a widow, who was about 50 years of age at the time of
filing of petition in the year 2020. This is a second round of litigation by the
petitioner for seeking the retiral benefits pertaining to her late husband which is
not only a Statutory Right but also a Constitutional Right under Article 300-A
of the Constitution of India which provides that no person shall be deprived of
his property except by the authority of law. Right to property has also been held
to be a Human Right by the Hon'ble Supreme Court.
Factual Matrix:-
2. The facts of the present case are that the husband of the petitioner
was working as an Accountant from the year 1980 in the Haryana State
1 of 33
::: Downloaded on - 23-03-2024 06:42:47 :::
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -2- 2024:PHHC:038518
Federation of Consumers Co-operative Wholesale Stores Ltd. (CONFED)
(hereinafter referred to as 'CONFED'). He retired on 31.08.2015 after attaining
the age of superannuation vide Annexure P-3. In the aforesaid order of
superannuation, it was also ordered that his retiral dues will be released after
finalization of the pending proceedings. Unfortunately, he died on 22.03.2017.
3. While the husband of the petitioner was in service, a charge-
sheet dated 03.12.2012 (Annexure P-1) was issued against him with an
allegation of shortfall due to less moisture gain. Thereafter, second charge-sheet
dated 09.01.2013 (Annexure P-2) was served upon the husband of the petitioner
with a similar kind of allegation pertaining to less moisture gain in the stocks.
In both the charge-sheets no Enquiry Officer was appointed and after the
issuance of charge-sheets, no progress had taken place till the time of the death
of the husband of the petitioner. In this way, disciplinary proceedings after the
issuance of the charge-sheet did not continue at all till the death of the husband
of the petitioner. After the retirement of the husband of the petitioner, he was
served with third charge-sheet dated 21.03.2016 (Annexure P-4) with an
allegation of similar nature with regard to less moisture gain in the stocks.
However, before the proceedings could commence in the third charge-sheet
which was issued after the retirement of the husband of the petitioner, the
husband of the petitioner died on 22.03.2017. In the aforesaid third charge-
sheet, the allegations were pertaining to crop year of 2011-2012 and the
allegations were that during the aforesaid crop year of 2011-2012, there was
less gain delivered by the concerned various purchase of Mandis for which the
husband of the petitioner was alleged to be responsible for 20% share of total
2 of 33
::: Downloaded on - 23-03-2024 06:42:48 :::
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -3- 2024:PHHC:038518
amount of less gain. However, after the issuance of charge-sheet, even after the
retirement of the husband of the petitioner the proceedings did not commence.
4. During the life time of the husband of the petitioner and after his
retirement, he gave representations (Annexure P-5(Colly)) to the Managing
Director of CONFED that his retiral benefits have been withheld and he is
unwell and he is taking treatment from Fortis Hospital, Mohali and he needs
money and the same may be released at the earliest but none of the retiral
benefits was released to the husband of the petitioner. He also stated in the
aforesaid representation dated 29.08.2016 that due to renal failure, he remains
ill and is getting treatment from Fortis Hospital, Mohali and his retiral dues
may be released. After the death of the husband of the petitioner on 22.03.2017,
the present petitioner who is his widow again represented to the Managing
Director on 06.04.2017 vide Annexure P-7 that her husband has expired after
suffering from prolonged illness and his treatment was going on from Fortis
Hospital, Mohali and about 20-25 lacs rupees have been spent on his treatment
and retiral dues of her husband may be released. Thereafter, she again filed a
representation vide Annexure P-8 to the Managing Director by elaborating that
her husband was suffering from renal failure and she is in dire need of money
and also stated in the representation that no enquiry was conducted during the
life time of her husband and it was also requested not to conduct any further
departmental proceeding as they are not able to defend themselves and the
retiral benefits may be released with interest. The petitioner has two children,
one son and one daughter and they also furnished their affidavit (Annexure P-9)
that retiral benefits be given to the petitioner.
3 of 33
::: Downloaded on - 23-03-2024 06:42:48 :::
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -4- 2024:PHHC:038518
5. Since no action was taken by the Managing Director to whom the
representations were addressed repeatedly not only by the husband of the
petitioner during his life time but also by the petitioner, the petitioner filed a
writ petition before this Court bearing CWP No.36058 of 2019 seeking a
direction to release the retiral dues including Leave Encashment, Gratuity and
EDLI (Employees' Deposit Linked Insurance Scheme, 1976) with a further
prayer that although charge-sheets were issued against the husband of the
petitioner but now no departmental proceedings can continue against a dead
man as the proceedings stand abated. The aforesaid writ petition was disposed
of by a Co-ordinate Bench of this Court vide Annexure P-10 on 12.12.2019
with a direction to decide the representation dated 06.07.2019 (Annexure P-8)
by passing a speaking order within a period of three months. This representation
dated 06.07.2019 is attached with the present petition as well as Annexure P-8
in which details were mentioned that on the aforesaid charge-sheets no Enquiry
Officer has been appointed and no proceedings can be carried on against a dead
man. The aforesaid representation is reproduced as under:-
"To
The Managing Director
CONFED, Head Office, Panchkula
Subject:- Release of retiral dues.
Sir,
It is respectfully submitted that I am Anjana wife of Sh.
Anil Kumar Bhadu, resident of Matana, Tehsil & District Fatehabad
and I respectful submit that my husband who retired as Accountant
who has expired after prolonged illness.
2. My husband was issued charge sheet dated 03.12.2012
and another charge sheet dated 09.01.2013 on account of which his
retiral dues were withheld as he retired on 31.08.2015. Subsequently
he was issued yet another charge sheet dated 21.03.2016 pertaining
4 of 33
::: Downloaded on - 23-03-2024 06:42:48 :::
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -5- 2024:PHHC:038518
to the allegations of crop year 2011-2012 alleging that since there
was less gain therefore he is responsible for 20% of the share despite
the fact that Accountant is neither involved in the purchase of the
wheat nor in storage and is not even involved in its disposal therefore
to charge sheet an Accountant on account of less gain or even
damage is patently arbitrary and illegal. It is further relevant to
mention that pursuant to these charge sheets no Enquiry Officer has
been appointed till date and now no further proceedings can be
carried out as he has expired on 22.03.2017.
3. That my husband vide his representation dated
08.08.2016 and 29.08.2016 represented to the CONFED to release
his retiral dues as he was suffering from renal failure and was
undergoing treatment at Fortis Hospital at Mohali and was in dire
need of money but to no avail and unfortunately he died on
22.03.2017. Since no enquiry was conducted during his life time
therefore now you are requested not to conduct any departmental
proceeding because we are not aware of any facts and as such cannot
defend ourself.
In view of the above you are requested to release his
retiral dues with interest.
Yours faithfully,
Anjana wife of Sh. Anil Kumar Bhadu
VPO Matana, Teshil & Distt.
Fatehabad Mobile No.72320-00029
Dated: 06.07.2019"
6. After the directions issued by a Co-ordinate Bench of this Court
vide Annexure P-10 on 12.12.2019, the Managing Director of CONFED
issued a show-cause notice to the petitioner vide Annexure P-11 after 12 days
i.e. on 24.12.2019. In the show-cause notice, reference was made to the
aforesaid three charge-sheets wherein the total amount of loss of Rs. 5,96,101/-
was stated and it was also stated that there was another loss caused by the
husband of the petitioner for the wheat stock year of 2011-2012 which was
5 of 33
::: Downloaded on - 23-03-2024 06:42:48 :::
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -6- 2024:PHHC:038518
attributable to the husband of the petitioner to the tune of Rs. 1,11,85,976/- but
the husband of the petitioner expired on 22.03.2017 and therefore, the total loss
caused by the husband of the petitioner was Rs. 1,17,82,077/- (Rs.5,96,101/-
+Rs. 1,11,85,976/-) because of dereliction of duties by the deceased Ex-
employee during his service in the Federation. It was also mentioned in the
aforesaid show-cause notice that an advice was sought from the Legal
Remembrancer, Haryana and one paragraph of the aforesaid advice
/recommendation was also reproduced in the show-cause notice and in this
way, a show-cause notice was issued to the petitioner for recovery /adjustment
of the aforesaid amount of Rs. 1,17,82,077/- caused by her late husband to the
Federation to be adjusted from the retiral dues of the husband of the petitioner
and with regard to the remaining amount as to why civil suit be not instituted
against the legal heirs.
7. The petitioner filed reply to the aforesaid show-cause notice vide
Annexure P-12 and again explained that all the retiral dues of her husband have
been withheld on account of the charge-sheets where no Enquiry Officer was
appointed and therefore, the truth of the allegation has not been established and
the charge-sheets were never finalized at all and it was also stated in the reply
that now no enquiry could have been conducted against a dead man because a
finding of fact can be recorded only when there are regular departmental
proceedings which have not been done in the present case. It was also stated in
the reply by the petitioner that even otherwise also the husband of the
petitioner was an Accountant and he had no role in purchase or storage of
wheat which is the duty of a District Manager, Assistant Manager, Salesman
and Store-Keeper and therefore, the husband of the petitioner being an
6 of 33
::: Downloaded on - 23-03-2024 06:42:48 :::
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -7- 2024:PHHC:038518
Accountant, the very initiation of the charge-sheet against an Accountant was
bad in the eyes of law as he had nothing to do with the storage or non-storage
of stocks. It was further stated in the reply that the issuance of show-cause
notice is an afterthought because of the directions issued by a Co-ordinate
Bench of this Court as aforesaid.
8. Not only this it was also stated by the petitioner in the reply that
the show-cause notice has been issued on the basis of the advice of Legal
Remembrancer which is completely misconceived and legally unsustainable
since no penalty can be inflicted against a dead man unless it is established by
holding a regular enquiry during the lifetime. It was therefore requested by the
petitioner to release the retiral dues. The aforesaid reply Annexure P-12 filed
by the petitioner is reproduced as under:-
"To
The Managing Director
Haryana State Federation of Consumers Co-operative Wholesale
Stores Ltd. (Confed), Bays 19-20,
Sector 2, Panchkula.
Reference to: No. 5898 dated 24.12.2019.
Subject: Reply to Show Cause Notice.
Respected Sir,
With due respect I am to write to you on the above stated
subject. It is respectfully submitted that my late husband was
appointed on 22.04.1980 as Accountant and during his service he was
issued three charge sheet dated 03.12.2012 for less gain to the tune of
Rs. 3,309/-, charge sheet dated 09.01.2013 for less gain to the tune of
Rs. 3,154/- and subsequently my late husband retired on 31.08.2015,
however another charge sheet dated 21.03.2016 was issued on
account of less gain to the tune of Rs. 5,89,638/-
2. All the retiral dues were withheld on account of these charge
sheets where no enquiry officer was even appointed and therefore the
7 of 33
::: Downloaded on - 23-03-2024 06:42:48 :::
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -8- 2024:PHHC:038518
truth of the allegations could not be established. Be that as it may my
husband expired on 22.03.2017 and till that time none of the above
charge sheets were finalized as no enquiry officer was appointed and
if at all any enquiry officer was appointed then neither any intimation
of the same was given to my husband nor any such enquiry was
concluded during his lifetime.
3. That the law is well settled that no enquiry can be conducted
against a dead man, therefore, in all the three charge sheets the
allegations were not established by holding a regular departmental
enquiry during the lifetime of my husband and as such no recovery
can be ordered against my late husband and his family members or
against his property without having established the alleged loss
during his life time because the allegations are personal in nature
which were known only to my late husband as they relate to his
service and known only to him.
4. That even otherwise also Accountant has no role in purchase
or storage of wheat stock which the duty of District Manager,
Assistant Manager, Salesman and Store-keeper, therefore, the very
initiation of the charge sheet against an Accountant on account of
lees storage gain or shortage is completely illegally and bad in the
eyes of law.
5. That the issuance of show cause notice under reply is a pure after
thought because I had filed CWP No. 36058 of 2019 for claiming
retiral benefits of my husband alongwith interest which was decided
on 12.12.2019 with the following directions:-
"In view of the request made, without expressing any
opinion on the merits of the case or the claim being made by
the petitioner, respondent no.1 is directed to decide the
representation 06.07.2019 (Annexure P-8), by passing a
speaking order within a period of three months from the date
of receipt of a certified copy of this order. In case after the
decision, it is found that the petitioner is entitled for any
monetary benefit, the same shall also be released to her
within a period of next three months."
6. That whereas the show cause notice has been issued on the
advise of L.R Haryana which is completely misconceived and legally
unsustainable because no penalty can be inflicted against a dead man
8 of 33
::: Downloaded on - 23-03-2024 06:42:48 :::
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -9- 2024:PHHC:038518
unless until it is established by holding a regular enquiry during his
lifetime and as such the departmental proceedings after the death of
an employee stands abated.
In view of the above you are requested to withdraw the show
cause notice under reply and immediately release the retiral dues of
my late husband alongwith interest @ 18% per annum failing which I
will be forced to file a contempt petition against you because the
Hon'ble Court had directed you to decide my representation dated
06.07.2019 whereas you have issued a show cause notice for recovery
of Rs. 1,17,82,077/- which is highly contemptuous and illegal as well.
Thanking you. Yours Faithfully
Dated 29.01.2020 Sd/-
Anjana wife of Late Sh. Anil Kumar Bhadu
Posta Receipt No. (Ex. Accountant, CONFED, Fatehabad),
EH800284732IN resident of House No. 135, Village Matana
IVR..6972800284732 Majra, Fatehabad, Tehsil & District GP
Fatehabad Fatehabad.
S.O. Fatehabad 125050
Counter No.2 30.01.2020, 10:54
To M.D. Confed, Panchkula 134109"
9. Thereafter, impugned order Annexure P-13 was passed by the
Managing Director on 18.03.2020 which is also reproduced as under:-
"The Haryana State Federation of Consumers'
Co-operative Wholesale Stores, Limited
SCO 19-20, Sector 2,
Panchkula.
Ref. No. Estt/EA-/7765 Dated: 18.03.2020
ORDER
Smt. Anjana Badhu widow of Sh. Anil Badhu, Ex-Acctt, Confed,
was served a show cause notice Vide No. 5898 dated 24.12.2019 for
proposed recovery of loss of Rs. 1,17,82,077/- from the retiral dues of
her late husband besides filing a recovery suit against the legal heirs of
the deceased, who, during his service had caused the said financial
loss to the Federation.
Smt. Anjana Badhu submitted her reply through her letter dated
29.01.2020 in which she denied the proposed recovery mentioned in the
show cause notice. She was called for a personal hearing on
9 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -10- 2024:PHHC:038518
06.03.2020 so that she could be provided opportunity to convince me
as to why this action should not be taken, which she did not attend.
Meanwhile she had filed a petition (CWP No. 36058 of 2019) in
the High Court and the Hon'ble High Court passed following orders in
the case on 12.12.2019:-
"In view of the request made, without expressing any opinion
on the merits of the case or the claim being made by the
petitioner, respondent no.1 is directed to decide the
representation 06.07.2019 (Annexure P-8), by passing a
speaking order within a period of three months from the date
of receipt of a certified copy of this order. In case after the
decision, it is found that the petitioner is entitled for any
monetary benefit, the same shall also be released to her within
a period of next three months".
In compliance of the said orders dated 12.12.2019 of
Hon'ble High Court the representation dated 06.07.2019 of the
petitioner is hereby decided and keeping in view all pros & cons of the
case and the advice dated 16.10.2019 of Ld. LR Haryana on the issue, I
am hereby confirming the show cause notice issued to Smt. Anjana
Badhu widow of Sh. Anil Badhu, Ex-Acctt. Confed vide No.5898 dated
24.12.2019 and order the recovery of Rs. 1,17,82,077/- to be made for
the retiral dues of Late Sh. Anil Badhu, Ex-Acctt and file a civil suit
against the legal heirs of the deceased for the balance recovery after
adjustment of retiral dues.
Sd/-
Managing Director
Regd:
Smt. Anjana Badhu w/o Late Sh. Anil Badhu,
Village Matana, Teshil & District Fatehabad.
Ref.No.Estt/EA-1/7766-67 Dated 18.03.2020"
10. The present petition has been filed challenging the aforesaid order
Annexure P-13 dated 18.03.2020 and also the charge-sheets issued to the
husband of the petitioner vide Annexures P-1, P-2 and P-4.
10 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -11- 2024:PHHC:038518
Submissions by learned counsel for the petitioner:-
11. Mr. Dhiraj Chawla, learned counsel appearing on behalf of the
petitioner submitted that it is a case where the petitioner who is a widow
having two children, one son and one daughter after losing her husband had to
run from pillar to post for seeking the retiral benefits of her husband who
retired in the year 2015 and was not given the retiral benefits and died in the
year 2017 and it became difficult for her to make her both ends meet and to
feed her family. He submitted that not only the impugned order (Annexure
P-13) is illegal, perverse and unconstitutional but the respondent-CONFED has
been totally insensitive towards the petitioner wherein without any authority of
law, the retiral benefits of the husband of the petitioner have been withheld
because of which the petitioner and her two children had to face immense
difficulties and had to approach this Court twice for redressal of her grievances
and for enforcement of not only her Statutory Rights but also her
Constitutional Rights.
12. He submitted that the basis of withholding /recovering of the retiral
benefits of the husband of the petitioner was three charge-sheets and one
allegation without charge-sheet, as per the show-cause notice. For the sake of
convenience, he referred to all the four as follows:-
(i) Charge-sheet dated 03.12.2012 (Annexure P-1)
(ii) Charge-sheet dated 09.01.2013 (Annexure P-2)
(iii) Charge-sheet dated 21.03.2016 (Annexure P-4)
(iv) No charge-sheet but only allegation after the death of the
husband of the petitioner.
13. He submitted that the aforesaid first two charge-sheets and the
remaining two can be categorized differently being pre-retirement and post
11 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -12- 2024:PHHC:038518
retirement. While referring to first two charge-sheets Annexure P-1 and P-2, he
submitted that it is an admitted case that both the aforesaid charge-sheets
Annexure P-1 and P-2 dated 03.12.2012 and 09.01.2013 respectively were
issued against the husband of the petitioner prior to his retirement with an
allegation that while he was working as an Accountant, there was a shortfall in
gain in the stock. He submitted that when a stock is stored in the Ware House,
then some moisture is gained in the stock and in case there is a shortfall in the
gain in the moisture, then some liability is fixed by the respondent-CONFED.
He submitted that the husband of the petitioner was only an Accountant and not
even Incharge of the Ware House and even otherwise also when the aforesaid
two charge-sheets were issued against the husband of the petitioner when he
was in service, then after the issuance of the charge-sheets no action was taken
against the husband of the petitioner and no Enquiry Officer was appointed for
holding a regular enquiry for the purpose of ascertainment of facts or for the
purpose of proving the allegations and in this way, these charge-sheets
remained as such on the paper and no action was taken by the CONFED at all
qua the husband of the petitioner and eventually the husband of the petitioner
retired in the year 2015 and he died in the year 2017 but till date neither any
order has been passed nor any Enquiry Officer was appointed and in this way,
now in case any recovery is to be effected from the retiral benefits of the
husband of the petitioner without ascertainment of any loss or any liability at
all, the same cannot be permitted. He submitted that even otherwise also as per
affidavit filed by the General Manager of the CONFED dated 25.04.2023, the
loss which has been so depicted pertaining to charge-sheet (Annexure P-1) was
only Rs. 3,309/- and loss pertaining to the second charge-sheet was only Rs.
12 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -13- 2024:PHHC:038518
3,154/- and in the absence of any finding of any nature, the same could not
have been recovered from the husband of the petitioner after his retirement
and more so from the petitioner after the death of her husband.
14. While referring to third charge-sheet dated 21.03.2016 (Annexure
P-4) as stated above, he submitted that this was issued to the husband of the
petitioner after his retirement by alleging similar kind of allegations that there
was a shortage in the gain in the moisture and in this charge-sheet, the
allegations were pertaining to an amount of Rs. 5,89,638/- of the share of the
husband of the petitioner. He submitted that even in this charge-sheet as well,
although the same could not have been issued after the retirement of the
husband of the petitioner, no Enquiry Officer was appointed and no order has
been passed and nothing has been established on record with regard to the
same and it remained as allegation itself. He submitted that apart from the
above with regard to the third charge-sheet (Annexure P-4), the same otherwise
could not have been issued because the same is without the authority of law.
He submitted that in the allegations the event is of the year 2011-2012 and the
charge-sheet was issued on 21.03.2016 which was more than four years
preceding the issuance of the charge-sheet and therefore, even otherwise also
under the Rules such charge-sheet could not have been issued against the
husband of the petitioner after his retirement for an event which was more than
four years preceding the issuance of the charge-sheet and in this regard, he
referred to the Rules which have been reproduced in para No.17 of the writ
petition. As per Rule 60 (2) of Staff Services Rules, 1975 of the Haryana State
Federation of Consumer's Cooperative Wholesale Stores Limited, it has been
so provided that if the departmental proceedings are not institutted while the
13 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -14- 2024:PHHC:038518
employee was on duty either before retirement or during re-employment, it
shall not be instituted save with the sanction of the Competent Authority and it
shall be in respect of an event which took place not more than four years before
the institution of such proceedings Rule 60(2) is reproduced as under:-
"Rule 60(2) Such departmental proceedings, if not instituted
while the employee was on duty either before retirement or during
re-employment:
(i) Shall not be instituted save with the sanction of the
Competent Authority.
(ii) Shall be in respect of an event which took place not more
than four years before the institution of such proceedings.
15. Learned counsel for the petitioner submitted that in this way
otherwise also the third charge-sheet was issued after the retirement of the
husband of the petitioner which was barred by the aforesaid embargo created
under the Statutory Rules and otherwise the same was not maintainable.
16. With regard to serial No.(iv) as aforesaid, the allegations were that
an amount of Rs. 1,11,85,976/- is to be recovered from the husband of the
petitioner. This amount and these allegations figured for the first time when
the impugned show-cause notice (Annexure P-11) dated 24.12.2019 was issued
and qua these allegations neither any notice was issued to the husband of the
petitioner who otherwise had died nor any enquiry conducted nor any Enquiry
Officer was appointed nor any charge-sheet was issued and qua these also, the
allegations pertain to the year 2011-2012, as per the show-cause notice itself.
Therefore, so far as the allegations of loss of aforesaid Rs. 1,11,85,976/- is
concerned, the same has surfaced for the first time when the impugned show-
cause notice was issued in the year 2019 after the death of husband of
petitioner regarding which there had been no proceeding at all of any nature
14 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -15- 2024:PHHC:038518
against the husband of the petitioner and therefore, such kind of allegation
against a dead person and seeking recovery from the retiral benefits of the
husband of the petitioner is not only without the authority of law but is totally
perverse and unconstitutional.
17. Learned counsel also submitted that the law with regard to as to
whether any loss pertaining to the less moisture gain in the stock can be
recovered from an employee or not is no longer res integra. He referred to a
judgment of a Co-ordinate Bench of this Court Annexure P-14 dated
10.07.2019, titled Ram Sawrup Vs. State of Haryana and others which is a
writ petition pertaining to the present Federation i.e. CONFED in which the
reliance was also placed to various earlier judgments of this Court pertaining
to Punjab Warehousing Fields Employees Union, Patiala and others Vs.
State of Punjab, CWP No.3239 of 1993 and also of CONFED in Devat Ram
Vs. Managing Director, The Haryana State Federation of Consumer's
Cooperative Wholesale Stores Ltd. and another, CWP No.4667 of 2016 and a
law has been laid down by a Co-ordinate Bench of this Court that no
punishment can be imposed upon an employee without there being any norms
fixed for showing any less gain in the moisture content and this law is already
settled and therefore, the order of punishment was quashed in that case and
therefore, even otherwise also qua any all the allegations (i) to (iv) as
aforesaid against the husband of the petitioner no such charge-sheet even
could have been issued with regard to the allegation of less moisture gain
because no norm has been fixed and the law was already well established in
this regard pertaining to respondent Federation. The relevant portion of the
aforesaid judgment is also reproduced as under:-
15 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -16- 2024:PHHC:038518
"Learned Senior counsel appearing for the respondents is unable to
dispute the arguments, raised by the counsel for the petitioner that
the question of law that no punishment can be imposed upon the
employees without there being any norms fixed for showing any less
gain in the moisture content is already settled and, therefore, the
order of punishment which has been passed against the petitioner
on 05.10.2015 is contrary to the settled principle of law. Learned
Advocate General, Haryana very fairly submits that the petitioner
is also covered by the said decision, which relates to same
respondent-Federation."
18. Learned counsel appearing on behalf of the petitioner also raised
arguments pertaining to the impugned order (Annexure P-13) which is
purportedly passed in pursuance of the directions issued by this Court vide
Annexure P-10. While referring to the aforesaid order, he raised two fold
arguments. Firstly, that the Managing Director who passed the aforesaid order
has referred and reproduced some part of the advice/recommendation tendered
by the Legal Remembrancer, Haryana. He submitted that it was a clever
attempt on the part of the Managing Director who had reproduced only a part
of the recommendation and not the whole recommendation . He submitted that
in pursuance of the orders passed by this Court on 18.05.2022 directing the
respondent to file an affidavit giving details as to how the amount was
calculated and an affidavit was filed by the General Manager (A) of the
respondent-CONFED. In this affidavit, the entire legal advice/recommendation
of the Legal Remembrancer was reproduced. The aforesaid is reproduced for
sake of convenience as under:-
"Ld. LR Haryana opined on 16.10.2019 that, "It is clarified that
keeping in view the fact of the matter that name of the disciplinary
proceedings and arrived at its final conclusion before the death of
the employee concerned and in some cases no charge-sheet was
16 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -17- 2024:PHHC:038518
served upon the delinquent employee for causing loss to the
Federation. Therefore, it would be appropriate that if the loss
caused to the State Exchequer/Government is attributed to the
conduct of the deceased employee and there is sufficient evidence
in the record to prove the same, then in view of aforesaid legal
position, the recovery of such loss can be made good from the
pending retiral benefits of the deceased employee after issuing a
show cause notice to the legal heirs upon whom the right of
inheritance qua the retiral benefits of the deceased employee
devolves upon. However, it is also advised that if the recovery
cannot be sufficiently made good form his retiral benefits then the
legal proceedings for affecting the same can be initiated by the
Government by filing the civil suit for such recovery before the
competent court of law while considering the fact that such
recovery can be effected from the legal heirs only to the extent of
inheritance of the property devolved upon them from the deceased
employee. It is also clarified that according to Article 12 of the
Limitation Act, 1963, the period of limitation to file such civil suit
on behalf of Government is Thirty years".
(emphasis supplied)
19. Learned counsel submitted that a perusal of the legal advice would
show that it was so adviced/recommended that it would be appropriate if the
loss caused to the State Exchequer/Government is attributable to the conduct of
the deceased employee and there is sufficient evidence on the record to prove
the same and then in view of the legal position, the recovery can be made from
the retiral benefits and it was based upon a fact so recorded in the advice that
the disciplinary proceedings arrived at its final conclusion before the death of
the employee concerned. He submitted that in the present case factually the
position was that the disciplinary proceedings never attained its final conclusion
at all at any stage before the death of the husband of the petitioner and even
otherwise also , it was so adviced by the LR that recovery can be done only
17 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -18- 2024:PHHC:038518
when there is sufficient evidence and record to prove the same. He
submitted that when the show-cause notice was issued only a selective part of
the aforesaid advice/recommendation has been reproduced but the aforesaid
advice/recommendation of the LR that it can be recovered only when there is
sufficient evidence on the record to prove the same was never reproduced in the
show-cause notice and had this Court not directed the respondent-CONFED to
file an affidavit, even this fact would not have come to the notice of the Court
and in this way, the Managing Director while issuing show-cause notice by
selectively choosing some portion of the LR advice has committed a
misconduct.
20. He submitted that a perusal of the aforesaid show-cause notice
would show that the Managing Director who so stated that following the advice
of the LR, a notice is issued to the petitioner, whereas there is no application of
mind by the Managing Director himself. He submitted that when the aforesaid
impugned order (Annexure P-13) was passed, a bare perusal of the same would
show that this order was ex facie unreasoned, perverse and cryptic order and
on the face of it, it was only the ipse dixit of the officer without assigning even
a single reason. While referring to the operative part of the aforesaid order, he
submitted that only reason which has been mentioned in the order was that
keeping in view the pros and cons of the case and the advice of the LR, he
confirmed the show-cause notice. He submitted that such kind of orders are
unknown to basic service jurisprudence. He further submitted that the
perversity of the order has gone to such an extent whereby it was directed
that not only the entire retiral benefits of the husband of the petitioner be
adjusted but also with regard to remaining amount, a civil suit be filed against
18 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -19- 2024:PHHC:038518
the legal heirs for the balance recovery. He submitted that in view of the
aforesaid facts and circumstances, the impugned order dated 18.03.2020
(Annexure P-13), charge-sheets dated 03.12.2012 (Annexure P-1), dated
09.01.2013 (Annexure P-2) and dated 21.03.2016 (Annexure P-4) are liable to
be quashed.
21. Learned counsel for the petitioner also submitted that apart from
the above, at the time of retirement there were only two charge-sheets against
the husband of the petitioner regarding which even as per affidavit filed by the
respondent-CONFED, the total amount comes out to be about Rs. 6,463/- and
for the aforesaid amount of Rs. 6,463/- at the time of retirement of the husband
of the petitioner in the year 2015, the entire retiral benefits were withheld,
whereas it was the bounden duty of the respondent-CONFED to have released
all the retiral benefits and at the most at that point of time assuming for the
sake of arguments, if at all it was so permitted by the law, then an amount of
Rs. 6,463/- could have been adjusted and remaining ought to have been paid to
him.
Submissions by learned counsel for the respondent-CONFED:-
22. Mr. Hitesh Pandit, learned counsel appearing on behalf of the
respondent-CONFED submitted that the impugned orders were passed on the
basis of directions issued by this Court and on the basis of the advice of the LR
since the husband of the petitioner while he was in service was accountable for
the loss due to less moisture gain in the stock stored and since loss has been
caused to the State Exchequer, the liability was to be fastened for the purpose
of compensating the State Exchequer. He submitted that once an advice was
obtained from the Legal Remembrancer, the impugned order by which it was so
19 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -20- 2024:PHHC:038518
directed that an amount of Rs. 1,17,82,077/- is to be recovered from the retiral
benefits and for the remaining amount a civil suit be filed against the legal
heirs cannot be termed to be arbitrary and perverse. He submitted that so far as
the first two charge-sheets against the husband of the petitioner are concerned,
the husband of the petitioner was asked to submit reply to the charge-sheets but
he chose not to file reply to the charge-sheets and that was the reason the
Enquiry Officer was not appointed. He further submitted that when there is a
loss to the State Exchequer, the State has a right to recover the same from the
legal heirs of the deceased as well to the extent of his liability.
Analysis of submissions:-
23. I have heard the learned counsel for the parties at length.
24. The present is a petition which has been filed by a widow having
two children seeking retiral benefits of her husband who died in the year 2017
after his retirement. A perusal of first two charge-sheets Annexures P-1 and P-2
would show that both the aforesaid charge-sheets were pertaining to the time
when the husband of the petitioner was in service but admittedly neither any
Enquiry Officer was appointed nor the same was further continued nor any
order was passed at all at any point of time. So far as the third charge-sheet
(Annexure P-4) dated 21.03.2016 is concerned, the same was issued to the
husband of the petitioner after his retirement i.e. on 21.03.2016 for an event
which pertains to the year 2011-2012 and for this also neither any Enquiry
Officer was appointed nor it further continued nor any order was passed nor
there was any establishment of any fact or ascertainment of any liability by
any authority at all. In this way, all the aforesaid three charge-sheets did not
progress at all and no order at all was passed in any of the three charge-sheets
20 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -21- 2024:PHHC:038518
nor any Enquiry Officer was appointed nor was there any ascertainment of any
liability or loss based upon any evidence or any finding by any authority
whatsoever. In the absence of any enquiry or any finding or any order to that
effect, no recovery could have been effected from the retiral benefits of the
husband of the petitioner.
25. So far as the third charge-sheet (Annexure P-4) is concerned, the
same was issued after the retirement of the husband of the petitioner and it
pertains to an event which was more than four years preceding the issuance of
charge-sheet since as per charge-sheet itself dated 21.03.2016 (Annexure P-4),
it was pertaining to the crop year of 2011-2012. There is an express bar created
under Rule 60 as reproduced above. As per the aforesaid Rule, no departmental
proceedings could have been initiated in respect of an event which took place
more than four years before the institution of such proceedings. Therefore,
there was a clear cut violation of the provisions of the aforesaid Statutory Rules
and there was an express bar for even instituting any disciplinary proceeding
/charge-sheet against the petitioner after his retirement. It is a settled law that
after retirement, the master and servant relationship ceases to exist and action
can be taken only when there is a specific power under the Rules. Therefore, the
issuance of charge-sheet (Annexure P-4) against the husband of the petitioner
was unsustainable and violative of the aforesaid Statutory Rules.
26. Apart from the above, the allegations in all the aforesaid charge-
sheets were pertaining to loss caused due to less moisture gain. This issue as to
whether when the foodgrains are stored in a godown and whether an employee
can be burdened with the aforesaid loss due to less moisture gain in the absence
of any norms to that effect has been so well settled by this Court. Vide
21 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -22- 2024:PHHC:038518
Annexure P-14, a judgment passed by a Co-ordinate Bench of this Court in
Ram Sawrup's case (Supra) while referring to earlier judgments in the case of
Punjab Warehousing Fields Employees Union, Patiala and others (Supra)
and Dewat Ram's case (Supra) pertaining to the present respondent-CONFED
itself, the law has been clearly laid down that no such liability can be imposed
with regard to loss pertaining to the less moisture content and less gain at the
time when the foodgrains are stored. Therefore, even otherwise also the
allegations on the face of it could not be sustained because of the well settled
law as aforesaid.
27. So far as the fourth allegation which came for the first time in the
show-cause notice issued to petitioner in the year 2020 with regard to an
amount of Rs. 1,11,88,976/- is concerned, the same surfaced for the first time
after the writ petition was disposed of by a Co-ordinate Bench of this Court
vide Annexure P-10 on 12.12.2019 . Regarding these allegations there is not
even a show-cause notice or any charge-sheet etc. against the husband of the
petitioner at all at any point of time and therefore, it is not understandable and
it is very strange as to how in the year 2020 for the first time such allegation
has been made in the show-cause notice itself when the husband of the
petitioner had died in the year 2017 and on the basis of the aforesaid allegation
pertaining to Rs. 1,11,85,976/-, impugned order has been passed for the
recovery of the same.
28. Now it would be most appropriate to dissect and analyse the
impugned order itself. A perusal of the aforesaid impugned order would show
that it has been issued on the basis of the advice/recommendation of the Legal
Remembrancer, Haryana, whereas the entire advice itself was never reproduced
22 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -23- 2024:PHHC:038518
in the show-cause notice, whereas now in pursuance of the order passed by this
Court dated 18.05.2022 the entire advice of the Legal Remembrancer was
reproduced in the affidavit now filed. A perusal of the full text of the Legal
Remembrancer advice would show that it has been so opined by the LR that
loss can be recovered if it is attributable to the conduct of the deceased
employee and there is sufficient evidence on the record to prove the same.
However, the aforesaid portion of the advice of the Legal Remembrancer was
never reproduced in the show-cause notice probably to mislead. The advice of
the LR could not have been accepted by segregating the first part from the
second part. It was an arbitrary action on the part of the Managing Director to
have done so. In the present case, there was no evidence on the record to prove
the allegations and it was only charge-sheet and there was no finding of fact by
any authority of law and the Managing Director while issuing of show-cause
notice and passing the impugned order did not refer to the aforesaid portion of
the advice and passed the impugned order against a widow for recovery of an
amount from the retiral dues of a dead person. Even otherwise also an advice
of Legal Remembrancer is merely recommendary in nature and it was the duty
of the Managing Director to have applied his own mind as well which was
never done in the present case.
29. A further analysis of the impugned order passed by the Managing
Director would show that the order of recovery from the retiral benefits of the
husband of the petitioner with a further order to recover the remaining amount
from the legal heirs by filing a civil suit was ipse dixit of the Managing
Director. Not even a single reason has been given by the Managing Director as
to how and by what authority of law recovery could have been made.
23 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -24- 2024:PHHC:038518
30. It is very strange to see and read the impugned order which
actually shocks the conscience of this Court. It is so directed by the Managing
Director that the representation of the petitioner dated 06.07.2019 is decided
keeping in view all the pros & cons of the case and advice of the LR,
Haryana and that is the only direction issued without being backed by any
reason at all. The aforesaid representation dated 06.07.2019 which was directed
to be considered by a Co-ordinate Bench of this Court while issuing direction
vide Annexure P-10, in pursuance of which the present impugned order was
passed is already on the record of the present case as Annexure P-8. A perusal
of Annexure P-8 would show that a comprehensive representation was given
to the Managing Director by taking up all the pleas including the pleas that an
Accountant is neither involved in the purchase of wheat nor is involved in the
disposal and an Accountant is not responsible for less gain. It was further stated
in the representation as reproduced above that pursuant to the charge-sheets no
Enquiry Officer was appointed till date and no further proceedings can be
carried on as the husband of the petitioner expired on 22.03.2017. It was also
stated in the representation that the husband of the petitioner died after
suffering from renal failure and undergoing treatment at Fortis Hospital,
Mohali. However, none of the issues raised in the representation were ever
even noted by the Managing Director. He only stated that keeping in view the
pros & cons of the case, he confirmed the show-cause notice to the petitioner
who is a widow and not only the recovery of the retiral benefits was to be made
but also a civil suit is to be filed against the legal heirs for recovery of the
balance amount.
24 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -25- 2024:PHHC:038518
31. A further analysis of show-cause notice Annexure P-11 dated
24.12.2019 is more revealing and rather shocking. A perusal of first para shows
that after referring to the three charge-sheets of 03.12.2012, 09.01.2013 and
21.03.2016 loss reported is depicted as Rs. 5,96,101. After this, another sum of
Rs. 1,11,85,976/- has been stated to which husband of petitioner was stated to
be answerable. Regarding this amount, it surfaced for the first time in this
show-cause notice whereas husband of petitioner died in the year 2017. In this
way, the aforesaid amount of Rs. 1,11,85,976/- was put on a dead man to be
recovered from his widow without any notice, enquiry or any order of
ascertainment of liability when the husband of petitioner was alive. The
respondents crossed all the boundaries of illegality, perversity and arbitrariness
when the aforesaid amount was directed to be recovered from the retiral
benefits and for balance amount, civil suit against legal heirs was directed to
be filed vide order Annexure P-13.
32. A Constitution Bench of Hon'ble Supreme Court in "Deokinandan
Prasad Vs. State of Bihar and others", 1971(2) SCC 330, held that pension is
not a bounty of the State and is rather a valuable right. The relevant portion of
the aforesaid judgment is reproduced as under:-
"31. The matter again came up before a Full Bench of the
Punjab and Haryana High Court in K.R. Erry v. The State of
Punjab, ILR (1967) Punj & Har 278. The High Court had to
consider the nature of the right of an officer to get pension.
The majority quoted with approval the principles laid down in
the two earlier decisions of the same High Court, referred to
above, and held that the pension is not to be treated as a
bounty payable on the sweet-will and pleasure of the
Government and the right to superannuation pension including
its amount is a valuable right vesting in a Government servant.
25 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -26- 2024:PHHC:038518
It was further held by the majority that even though an
opportunity had already been afforded to the officer on an
earlier occasion for showing cause against the imposition of
penalty for lapse or misconduct on his part and he has been
found guilty, nevertheless, when a cut is sought to be imposed
in the quantum of pension payable to an officer on the basis of
misconduct already proved against him, a further opportunity
to show cause in that regard must be given to the officer. This
view regarding the giving of further opportunity was expressed
by the learned Judges on the basis of the relevant Punjab Civil
Service Rules. But the learned Chief Justice in his dissenting
judgment was not prepared to agree with the majority that
under such circumstances a further opportunity should be
given to an officer when a reduction in the amount of pension
payable is made by the State. It is not necessary for us in the
case on hand, to consider the question whether before taking
action by way of reducing or denying the pension on the basis
of disciplinary action already taken, a further notice to show
cause should be given to an officer. That question does not
arise for consideration before us. Nor are we concerned with
the further question regarding the procedure, if any, to be
adopted by the authorities before reducing or withholding the
pension for the first time after the retirement of an officer.
Hence we express no opinion regarding the views expressed by
the majority and the minority Judges in the above Punjab High
Court decision, on this aspect. But we agree with the view of
the majority when it has approved its earlier decision that
pension is not a bounty payable on the sweet-will and pleasure
of the Government and that, on the other hand, the right to
pension is a valuable right vesting in a government servant.
32. This Court in State of Madhya Pradesh v. Ranojirao
Shinde and another, AIR 1968 SC 1053 had to consider the
question whether a "cash grant" is "property" within the
meaning of that expression in Articles 19(1)(f) and 31(1) of the
26 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -27- 2024:PHHC:038518
Constitution. This Court held that it was property, observing
"it is obvious that a right to sum of money is property".
33. Thereafter, in "State of Kerala Vs. M. Padmanabhan Nair",
(1985) 1 SCC 429, the Hon'ble Supreme Court observed that pension and
gratuity are no longer any bounty to be distributed by the Government to its
employees on their retirement but are valuable rights and property, in their
hands. This authoritative law was thereafter again reiterated by the Hon'ble
Supreme Court in "Dr. Uma Agrawal Vs. State of U.P. and another", 1999(3)
SCC 438..
34. Thereafter, Hon'ble Supreme Court in another authoritative
judgment passed in "State of Jharkhand and others Vs. Jitendra Kumar
Srivastava and another", 2013(12) SCC 210 again discussed the entire law
regarding valuable rights pertaining to the grant of pensionary benefits. Para
Nos.8 and 16 of the aforesaid judgment is reproduced as under:-
"8. It is an accepted position that gratuity and pension are not
the bounties. An employee earns these benefits by dint of his
long, continuous, faithful and un-blemished service.
Conceptually it is so lucidly described in D.S. Nakara and Ors.
Vs. Union of India; (1983) 1 SCC 305 by Justice D.A. Desai,
who spoke for the Bench, in his inimitable style, in the following
words:
"18. The approach of the respondents raises a vital and
none too easy of answer, question as to why pension is
paid. And why was it required to be liberalised? Is the
employer, which expression will include even the State,
bound to pay pension? Is there any obligation on the
employer to provide for the erstwhile employee even after
the contract of employment has come to an end and the
employee has ceased to render service?
27 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -28- 2024:PHHC:038518
19. What is a pension? What are the goals of pension?
What public interest or purpose, if any, it seeks to serve?
If it does seek to serve some public purpose, is it thwarted
by such artificial division of retirement pre and post a
certain date? We need seek answer to these and
incidental questions so as to render just justice between
parties to this petition.
20. The antiquated notion of pension being a bounty a
gratituous payment depending upon the sweet will or
grace of the employer not claimable as a right and,
therefore, no right to pension can be enforced through
Court has been swept under the carpet by the decision of
the Constitution Bench in Deokinandan Prasad v. State of
Bihar and Ors. (1971) 2 SCC 330 wherein this Court
authoritatively ruled that pension is a right and the
payment of it does not depend upon the discretion of the
Government but is governed by the rules and a
Government servant coming within those rules is entitled
to claim pension. It was further held that the grant of
pension does not depend upon any one's discretion. It is
only for the purpose of quantifying the amount having
regard to service and other allied maters that it may be
necessary for the authority to pass an order to that effect
but the right to receive pension flows to the officer not
because of any such order but by virtue of the rules. This
view was reaffirmed in State of Punjab and Another Vs.
Iqbal Singh(1976) 2 SCC 1".
It is thus hard earned benefit which accrues to an
employee and is in the nature of "property". This right to
property cannot be taken away without the due process of law as
per the provisions of Article 300-A of the Constitution of India.
16. The fact remains that there is an imprimatur to the
legal principle that the right to receive pension is recognized as
28 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -29- 2024:PHHC:038518
a right in "property". Article 300-A of the Constitution of India
reads as under:
"300-A Persons not to be deprived of property save by
authority of law.- No person shall be deprived of his property
save by authority of law."
Once we proceed on that premise, the answer to the
question posed by us in the beginning of this judgment becomes
too obvious. A person cannot be deprived of this pension without
the authority of law, which is the Constitutional mandate
enshrined in Article 300-A of the Constitution. It follows that
attempt of the appellant to take away a part of pension or
gratuity or even leave encashment without any statutory
provision and under the umbrage of administrative instruction
cannot be countenanced."
35. In "Tukaram Kana Joshi and others through Power of Attorney
Holder Vs. M.I.D.C. and others", 2013(1) SCC 353, it was held by the Hon'ble
Supreme Court that right to property is now considered to be not only a
Constitutional or a Statutory Right but also a human right. Para 9 of the
aforesaid judgment is reproduced as under:-
"9. The right to property is now considered to be not only a
constitutional or a statutory right but also a human right.
Though, it is not a basic feature of the Constitution or a
fundamental right. Human rights are considered to be in realm
of individual rights, such as the right to health, the right to
livelihood, the right to shelter and employment etc. Now
however, human rights are gaining an even greater multi faceted
dimension. The right to property is considered very much to be a
part of such new dimension. (Vide: Lachhman Dass v. Jagat
Ram, (2007) 10 SCC 448; Amarjit Singh v. State of Punjab,
(2010)10 SCC 43; State of Madhya Pradesh v. Narmada
Bachao Andolan, (2011)7 SCC 639, State of Haryana v.
29 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -30- 2024:PHHC:038518
Mukesh Kumar, (2011)10 SCC 404 and Delhi Airtech Services
(P) Ltd. v. State of U.P., (2011)9 SCC 354.
36. In the present case, it is ex facie clear that the respondent-
CONFED while passing the impugned order (Annexure P-13) has not only
violated the Statutory provisions but there has been a direct infraction of
Articles 21 and 300-A of the Constitution of India. It is also a settled law that
right to life guaranteed under Article 21 of the Constitution of India includes
right to livelihood.
37. A Constitution Bench of Hon'ble Supreme Court in Olga Tellis
and others Vs. Bombay Municipal Corporation and others, (1985) 3 SCC 545
held that right to life includes right to livelihood. It was observed that an
equally important facet of right to life is the right to livelihood because no
person can live without the means of living, that is, the means of livelihood. If
the right to livelihood is not treated as a part of the Constitutional Right of life,
the easiest way of depriving a person of his right to life would be to deprive
him of his means of livelihood to the point of abrogation.
38. In the present case the petitioner is a widow having two children
and the action of the respondent-CONFED was not only having an effect on the
right to livelihood but also on the right to life itself wherein as per learned
counsel for the petitioner, the petitioner being a widow after the death of her
husband could not even make her both ends meet to feed her children. A perusal
of the representations given by the husband of the petitioner vide Annexure P-
5(Colly) and the representation given by the petitioner herself vide Annexure
P-8 would show that before the death of the husband of the petitioner, he was
suffering from renal failure and he was being treated at Fortis Hospital, Mohali
30 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -31- 2024:PHHC:038518
and about 20-25 lacs rupees have been spent on his treatment and in this state
of emergency and expenditure, the action of the respondent-CONFED was not
only arbitrary and perverse but it amounts to atrocity being committed upon a
poor widow by snatching away her Fundamental Rights.
39. The impugned order has been passed by the Managing Director of
an instrumentality of the State. A specific query was put to the learned counsel
for the respondent-CONFED as to whether the aforesaid Managing Director is
still in service or not to which he stated that he has retired and he was an IAS
Officer. Such kind of order (Annexure P-13) passed by an IAS Officer which
shakes the conscience of the Court on the face of it is highly deprecated. The
Managing Director was supposed to know the law of the land. At the time
when the impugned order was passed in the year 2020, the law with regard to
whether there can be a fixation of liability on the basis of wheat gain or not
already stood settled much prior to the aforesaid order which is clear from
Annexure P-14 and all the earlier judgments passed by this Court. It appears
that the aforesaid officer has ignored the settled law on the subject. Not only
this, he also reproduced some of the portion of the advice/recommendation of
LR, Haryana in the show-cause notice and ignored the relevant portion thereof
and thereafter passed the impugned order based on the advice /recommendation
of the LR, Haryana. Not even a single reason has been assigned by the
Managing Director. A perusal of order Annexure P-10 passed by a Co-ordinate
Bench of this Court shows that it was directed to pass a 'speaking order'
whereas the impugned order Annexure P-13 contains no reason at all.
Conclusion:-
40. In view of the above, the present petition is allowed. The impugned
31 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -32- 2024:PHHC:038518
order dated 18.03.2020 (Annexure P-13), charge-sheets dated 03.12.2012
(Annexure P-1), dated 09.01.2013 (Annexure P-2) and dated 21.03.2016
(Annexure P-4) are hereby quashed. The respondent-CONFED is directed to
pay the petitioner all the retiral benefits accrued to her husband from the date
of retirement of her husband alongwith interest @ 6% per annum within a
period of two months from today. In case, the aforesaid amount is not paid to
the petitioner within a period of 2 months from today, then the petitioner shall
be entitled for future interest @ 9% per annum instead of 6% per annum.
41. This Court has arrived at a conclusion that by way of the impugned
order (Annexure P-13) it had not only infracted the Fundamental Rights under
Article 21 of the Constitution of India and the Constitutional Rights under
Article 300-A of the Constitution of India, besides the Statutory Rules but the
action of the respondent-CONFED was also atrocious. A poor widow having
two children got treated her husband for his renal failure and as per her
representation, she spent Rs.20-25 lacs and thereafter, the husband of the
petitioner died in the year 2017 but no retiral benefits of her husband were paid
to the petitioner by failing to discharge their duties in accordance with law. In
this way, this Court deems it fit and proper to impose exemplary costs upon the
respondent-CONFED. The aforesaid costs are assessed as Rs.5 lacs (Five lacs)
and would also be in the nature of compensation. This Court is conscious of the
fact with regard to the quantum of costs but considering atrocious action on the
part of the respondent-CONFED as aforesaid, this Court is of the considered
view that the quantum of costs is well justified on the strength of authoritative
judgment of Hon'ble Supreme Court in D.K. Basu Vs. State of West Bengal,
1997 (1) SCC 416 wherein it was observed that grant of compensation in
32 of 33
Neutral Citation No:=2024:PHHC:038518
CWP-9088-2020(O&M) -33- 2024:PHHC:038518
proceedings under Article 32 or 226 of the Constitution of India for the
established violation of the Fundamental Rights guaranteed under Article 21 is
an exercise of the Courts under the public law jurisdiction for penalising the
wrong-doer and fixing the liability for the public wrong on the State which
failed in the discharge of its public duty to protect the Fundamental Rights of
the citizen. It was further observed that the Courts have the obligation to satisfy
the social aspirations of the citizens because the Courts and the law are for the
people and expected to respond to their aspirations and a Court of law cannot
close its consciousness and aliveness to stark realities In the concluding part, it
was further observed that it is a well accepted proposition in most of the
jurisdictions that monetary or pecuniary compensation is an appropriate and
indeed an effective and sometimes perhaps the only suitable remedy for
redressal of the established infringement of the Fundamental Right to life of a
citizen by the public servants and the State is vicariously liable for their acts.
The respondent-CONFED is directed to pay the aforesaid costs to the petitioner
within a period of 2 months from today.
42. The aforesaid costs shall be paid by the respondent-CONFED at
the first instance. However, liberty is granted to the respondent-CONFED to
recover the same from the Managing Director who passed the impugned order
by instituting appropriate proceedings including filing of a civil suit.
(JASGURPREET SINGH PURI)
18.03.2024 JUDGE
Rakesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
33 of 33
