Madras High Court
M.Mayakal vs The District Forest Officer on 5 November, 2008
Author: S. Manikumar
Bench: S. Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.11.2008 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.25915 of 2006 (O.A.No.6580 of 1995) M.Mayakal ... Petitioner Versus The District Forest Officer, Madurai Division, Madurai. ... Respondent The petition came to be numbered by transfer of O.A.No.6580 of 1995 from the file of the Tamil Nadu Administrative Tribunal praying for Certiorarified Mandamus, to call for the records relating to the order of the respondent, dated 31.05.1994, issued in the reference No.Na.Ka.1526/93/E2, quash the same and to direct the respondent to pay all the terminal benefits due in respect of Mr.Mokkanayan. For Petitioner : Mr.R.Muthukannu For Respondent : Mr.P.Sathish, Government Advocate O R D E R
A moot point which has arisen in this Writ Petition is whether the wife of the deceased Government servant can challenge the order of removal after his death.
2. Facts leading to the Writ Petition are as follows:
The petitioner's husband, Mr.K.Mokkanayan, was initially appointed as Plot Watcher and after serving for nearly 15 years, he was appointed as Forest Reserve Watcher. A charge memo, dated 05.02.1993, was served on her husband, alleging that he had produced a false educational Certificate, mentioning that he had studied upto 5th Standard. According to the petitioner, when the disciplinary proceedings were pending, her husband died on 31.05.1994. An information was sent to the District Forest Officer by telegram on 04.06.1994. After a lapse of seven months, in January' 1995, an order of removal dated 31.05.1994 passed by the respondent, was served on the petitioner. Challenging the order of removal, the petitioner has filed Original Application before the Tamil Nadu Administrative Tribunal, and prayed for a direction to set aside the same with a consequential direction to the respondent to pay all the terminal benefits and the same has been subsequently transferred to this Court and renumbered as present Writ Petition.
3. The respondent in his counter affidavit has submitted that the petitioner's husband was initially engaged as Plot Watcher on Muster Roll basis. As per the directions of the Principal Chief Conservator of Forests in No.P1/10227/89, dated 24.10.1991, a panel of eligible and qualified Plot Watchers, engaged prior to 08.07.1980, for appointment as Forest Watcher was prepared. The petitioner's husband was selected based on his educational qualification by the Conservator of Forests, Madurai Circle, with instructions to appoint him temporarily at Madurai Division and to verify the genuineness of the educational Certificate produced by him, which was the only available document to determine his age. The said certificate was referred to the District Educational Officer, Usilampatty, for verification and report. On verification, the Educational Officer in his proceedings in C.No.5345/A4/92, dated 28.10.1992, reported that the certificate produced by the petitioner's husband was not genuine. Therefore, for production of a false educational Certificate, the petitioner's husband was placed under suspension on 27.11.1992 and a charge memo, dated 05.02.1993, under Rule 17(b) of the Discipline and Appeal rules was issued.
4. The respondent has further submitted that after following the procedure contemplated under the above said rules, a final order of removal was passed on 31.05.1994 by the respondent and the same was sent to the individual through Usilampatti Forest Ranger on 11.06.1994. But the Forest Ranger in his letter dated 07.07.1994 reported that the order could not be served, as the individual had died. Thereafter, the Forest Ranger, Usilampatti, was instructed to serve the order of penalty on the petitioner. Copy of the order of removal, dated 31.05.1994 was submitted to the higher officials, viz., Principal Chief Conservator of Forests, Chief Conservator of Forests (Development) and Conservator of Forests, Madurai Circle on 11.06.1994. Though the petitioner's husband had received the subsistence allowance for the month of May'1994 on 31.05.1994, there was no information about his death till 04.06.1994.
5. The respondent has further submitted that the enquiry officer's report was prepared on 03.05.1994, holding that the charges as proved. It was served on the government servant on 20.05.1994. The final order of removal was passed on 31.05.1994, the date on which, he died. The respondent has contended that the order of removal had come into effect from the moment it is signed in the Office Note and therefore, the master and servant relationship had already been terminated with effect from 31.05.1994.
6. The respondent has further submitted that though the qualification for the post of Forest Watcher is ability to read and write in Tamil, the age and date of retirement etc., were to be determined based on the date of birth furnished in the educational Certificate. As the deceased government servant had produced a false certificate as proof of date of birth, charges were framed against him and on enquiry, they were held as proved. As finding of fact had been recorded on evidence and considering the gravity of charge, the respondent has submitted that the petitioner is not entitled to the relief sought for in the Writ Petition and hence prayed for dismissal.
7. Mr.R.Muthukannu, learned counsel for the petitioner submitted that as per the Tamil Nadu Civil Services (Discipline and Appeal) Rules (hereinafter referred to as "the rules"), if a government servant dies during the pendency of a disciplinary proceedings, it stands abated and consequently, the legal representatives are entitled to the terminal benefits. He further submitted that the petitioner's husband had received the subsistence allowance on 31.05.1994 and died on the same day. According to him, the order of removal/dismissal/compulsory retirement would be effective only from the date of its communication and inasmuch as the department had taken nearly seven months to serve the order of removal on the petitioner, the impugned proceedings are void abinitio and therefore, she is entitled to the terminal and death cum retirement benefits, due and payable by the department.
8. Learned counsel for the further petitioner submitted that in the case of suspension, there is every possibility for the government servant to purposefully evade the order of suspension and therefore, it could be even contended that suspension comes into effect the moment the order is signed in the Office records. According to him, suspension would come into effect, even if the order is not served on the government servant. Whereas, the order of dismissal/removal/compulsory retirement being major penalties, terminating the services of a government servant with the employer, the word "Communication" should be interpreted to mean that the order of penalty should necessarily be served on the Government servant and it would come into effect only, when it is actually served on the government servant. As the petitioner's husband died on 31.05.2004, before the order of removal could be served on him, he submitted that it did not come into effect and consequently, the disciplinary proceedings initiated against the petitioner's husband is abated on the death of the government servant. In support of his contention, he placed reliance on various decisions, which are dealt with in the latter paragraphs.
9. Learned counsel for the respondent reiterated the averments made in the counter affidavit and prayed to sustain the impugned order.
Heard the learned counsel appearing for the parties and perused the materials available on record.
10. Analysis of few cases of the Supreme Court on this aspect, as to when the order of suspension or dismissal comes into effect, would be relevant for the purpose of adjudication.
11. In State of Punjab v. Amar Singh Harika, reported in AIR 1966 SC 1313, one of the questions posed before the Supreme Court was whether the order of dismissal can be said to be effective from the date, when it was made known or communicated to the concerned public servant. In the above reported case, though the order of dismissal was passed on June 3, 1949, and a copy thereof was sent to six other persons noted thereunder, no copy was sent to the concerned public servant, who came to know of it only on May 28, 1951 and that too, through another officer. Rejecting the contention of the official respondent that the order became effective as soon as it was issued, the Supreme Court, held that mere passing of the order of dismissal would not make it effective, unless it was published and communicated to the concerned officer.
12. Meaning of the word, "communicate" came to be interpreted by the Apex Court in State of Punjab v. Khemi Ram reported in AIR 1970 SC 214, wherein, the question for consideration was whether the order of suspension passed against a Government servant takes effect when it is made ready or when it is actually served on and received by him. Short facts of the reported case are that the respondent therein was appointed as Sub Inspector, Co-operative Societies Department in the service of the State of Punjab and gained his promotion. While he was serving as Inspector of Co-operative Societies, he applied for the post of Assistant Registrar in Himachal Pradesh and on reference by the Government of Punjab, his services were lent to Himachal Pradesh Government for appointment as Assistant Registrar. While he was serving in Himachal Pradesh, he was charge sheeted on August 9, 1955, by the Registrar, Co-operative Societies, Punjab, in connection with certain matters which occurred in 1950, while he was working under the Punjab Government. The Government of Punjab decided to take disciplinary action against the respondent and informed the Himachal Pradesh Government of it on July 17, 1958. The Himachal Pradesh Government had granted him 19 days leave preparatory to retirement, which was to take place on August 4, 1958. The Punjab Government by its telegram, dated July 25, 1958 informed the Himachal Pradesh Government that they have no authority to grant such leave and requested that the deputationist be reverted to Punjab Government immediately. On July 31, 1958, the Punjab Government sent a telegram to the respondent at his residence. But the respondent had already left for his home town on leave being granted to him as aforesaid. The said telegram read that the respondent was suspended from service with effect from 2nd August, 1958. On the very next day, the Punjab Government sent a charge sheet to the respondent at the address of the Registrar, Co-operative Societies, Himachal Pradesh, who re-directed it to the respondent's home address. Immediately, by its letter dated August' 2, 1958, the Himachal Pradesh Government informed the respondent that his services were reverted to the Punjab Government and that the leave granted to him had been curtailed by two days, i.e., upto August 2, 1958, instead of August 4, 1958, as originally granted. On August 25, 1958, the respondent sent a representation to the Registrar, Co-operative Societies, Punjab, in which, he contended that he had already retired from service on August 4, 1958 and that the order of suspension which he had received after that date and the order for holding the enquiry against him were both invalid. On completion of the enquiry, the Punjab Government dismissed the respondent from service. In the factual background, the Supreme Court, at Paragraphs 16 and 17, held as follows:
"16. The question then is whether communicating the order means its actual receipt by the concerned government servant. The order of suspension in question was published in the Gazette though that was after the date when the respondent was to retire. But the point is whether it was communicated to him before that date. The ordinary meaning of the word communicate is to impart, confer or transmit information. (Cf. Shorter Oxford English Dictionary, Vol. 1, p. 352). As already stated, telegrams, dated July 31, and August 2, 1958, were despatched to the respondent at the address given by him where communications by Government should be despatched. Both the telegrams transmitted or imparted information to the respondent that he was suspended from service with effect from August 2, 1958. It may be that he actually received them in or about the middle of August 1958, after the date of his retirement. But how can it be said that the information about his having been suspended was not imparted or transmitted to him on July 31 and August 2, 1958 i.e. before August 4, 1958, when he would have retired? It will be seen that in all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order is issued and actually sent out to the person concerned the authority making such order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes out of the control of such an authority, and therefore, there would be no chance whatsoever of its changing its mind or modifying it. In our view, once an order is issued and it is sent out to the concerned government servant, it must be held to have been communicated to him, no matter when he actually received it. We find it difficult to persuade ourselves to accept the view that it is only from the date of the actual receipt by him that the order becomes effective. If that be the true meaning of communication, it would be possible for a government servant to effectively thwart an order by avoiding receipt of it by one method or the other till after the date of his retirement even though such an order is passed and despatched to him before such date. An officer against whom action is sought to be taken, thus, may go away from the address given by him for service of such orders or may deliberately give a wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such a meaning of the word communication ought not to be given unless the provision in question expressly so provides. Actual knowledge by him of an order where it is one of dismissal, may, perhaps, become necessary because of the consequences which the decision in The State of Punjab v. Amar Singh contemplates. But such consequences would not occur in the case of an officer who has proceeded on leave and against whom an order of suspension is passed because in his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid.
17. In this view, we must hold that the order of suspension was validly passed and was communicated to the respondent before August 4, 1958, and therefore, was effective as from July 31, 1958. Accordingly, we allow the States appeal and set aside the judgment and order of the High Court. But as the High Court did not decide the aforesaid three questions raised on behalf of the respondent, we remand the case to the High Court with the direction to give its decision thereon in accordance with law. The cost of this appeal will be costs before the High Court."
13. In B.J.Shelat v. State of Gujarat reported in AIR 1978 SC 1109, the Supreme Court had an occasion to consider a case of a Magistrate, who tendered his application, for voluntary retirement on completion of 50 years on 4th December 1961. Before the said date, the Chief Judicial Magistrate, Ahmedabad, on 23th November, 1973, informed him that under the directions of the Chief Justice and Judges of the High Court of Gujarat, he is called upon to submit his explanation as regards certain allegations made in the affidavits. The Judicial Magistrate submitted his explanation on 26th November, 1973. On 11th December, 1973, the High Court issued an order of suspension, as the High Court was of the view that it was desirable to suspend the petitioner pending finalisation of departmental proceedings against him which were under contemplation. Subsequently, he was dismissed from service. Writ Petition filed challenging the order of dismissal was also dismissed. The While testing the correctness of the order of dismissal passed by the High Court with reference to Rule 56 of the Fundamental Rules and Rule 161(1)(aa) of the Bombay Civil Services Rules, the Supreme Court observed that, "But proviso (b) to Sub-Rule 56(k) states that it is open to the appropriate authority to withhold permission to a Government Servant under suspension, who seeks to retire under this clause. Thus under the Fundamental Rules issued by the Government of India also the right of the Government servant to retire is not an absolute right but is subject to the proviso whereunder the appropriate authority may withhold permission to a Government servant under suspension. On a consideration of R.161(2)(ii) of the proviso, we are satisfied that it is incumbent on the Government to communicate to the Government servant its decision to withhold permission to retire on one of the grounds specified in the proviso."
14. In the above reported case, the Judicial Magistrate was not under suspension, when he attained the age of superannuation and no departmental proceedings were pending or under contemplation, as required under the proviso. On the facts of this case, the Supreme Court held that the appointing authority has no jurisdiction to take disciplinary proceedings against a Government servant, who had effectively retired.
15. An appeal preferred under the Motor Vehicles Act was rejected out of time. While determining the starting point for filing an appeal under the above said statute, the Supreme Court in The Assistant Transport Commissioner, Lucknow v. Nand Singh reported in AIR 1980 SC 15, at Paragraph 2, held that, "the date of communication of the order will be the starting point of limitation for filing an appeal under Section 15. Mere writing an order in the file kept in the Office of the Taxation Officer is no order in the eye of law in the sense of affecting the rights of the parties for whom the order is meant. In a given case, the date of putting the order in communication under certain circumstances may be taken to be the date of the communication of the order but ordinarily and generally speaking the order would be effective against the person affected by it only when it comes to his knowledge either directly or constructively, otherwise not."
16. In MCD v. Qimat Rai Gupta reported in 2007 (7) SCC 309, the Supreme Court explained the importance of communication of an order to a person whose status is affected. At Paragraph 27 of the judgment, the Court held that, "27.What is, therefore, necessary to be borne in mind is the knowledge leading to the making of the order. An order ordinarily would be presumed to have been made when it is signed. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the provisions of a statute, the same cannot be changed or altered. It, subject to the other provisions contained in the Act, attains finality. Where, however, communication of an order is a necessary ingredient for bringing an end result to a status or to provide a person an opportunity to take recourse to law if he is aggrieved thereby, the order is required to be communicated.
17. In Union of India v. S.P.Singh reported in 2008 (3) Supreme 609, a member of an Indian Revenue Service submitted an application, dated 10.05.2005 seeking voluntary retirement, w.e.f. 1st September 2005, on having completed 30 years of qualifying service. A communication, dated 25th August, 2005, was sent to his residential address asking him to deposit some outstanding dues, so that his request could be finalised. However, on 9th September 2005, he received an order, dated 30th August 2005, placing him under suspension. By another order, dated 31st August, 2005, his request for voluntary retirement was declined. He challenged the same before the Central Administrative Tribunal and after adjudicating the dispute, the Tribunal held that the order was despatched to a wrong address and therefore, not effective as the order had actually been received by the Government servant only on 9th September 2005, whereas, he had retired on 1st September 2005. The Writ Petition filed before the High Court was dismissed and the Union of India preferred an appeal. Following the earlier decision in State of Punjab v. Amar Singh Harika reported in AIR 1966 SC 493, the Supreme Court dismissed the appeal with following observations:
"the department was well aware that the respondent was residing in NOIDA and had reported for duty before the Board on 21st June, 2005 as the incumbent in Hyderabad had refused to make way for him, yet the suspension order had been sent to Nagpur. We are therefore of the opinion that though the suspension order had been dispatched by facsimile before 1st September 2005 yet it had been dispatched to the wrong address and could not be deemed to have been communicated to the respondent."
18. An order of dismissal terminates the status of a government servant from service. It has civil consequences, affecting his service and monetary benefits. The relationship between the Government and its servant is severed when the government servant is inflicted with a major penalty of dismissal or removal, entailing deprivation of benefits of his length of service, like pension and other benefits under the Social Security Schemes. A Government servant, who is removed, is not in a better position than the one who is inflicted with a punishment of dismissal, excepting the right to seek for fresh appointment. In the case of compulsory retirement, the government servant is entitled to atleast monetary benefits on account of his contribution, made by him during the period of service and retiral benefits. Therefore, when the order of dismissal or removal, terminates the relationship between the employer and employee and brings to an end the status of a government servant, mere writing of an order and keeping it in the Office file, shall not be treated to be an order terminating his services nor shall the order be deemed to have been communicated. As the order of dismissal/removal, adversely affects the rights of a government servant, such an order passed by the appointing/disciplinary authority and kept in the file, without communicating it to the officer concerned, in the manner known to law, does not take effect, from the date on which, the order is written by the said authority. The order imposing major penalty would be effective only when it is communicated to the government servant, so as to provide him an opportunity to take recourse to law.
19. As stated supra, Communication of an order of dismissal/removal/compulsory retirement, i.e., actual service in accordance with the procedure, is Mandatory. In the case on hand, husband of the petitioner was facing a disciplinary proceedings. As per the Counter affidavit, the enquiry report was drawn on 03.05.1994 and it was served on the petitioner's husband on 20.05.1994. Perusal of the files produced by the State counsel, at Pages 269 to 272 reveals that the deceased government servant had submitted his further representation dated 25.04.1994 to the District Forest Officer, Madurai Forest Division, Madurai, through proper channel. At Page 271 of the File, there is an acknowledgment of the said explanation, wherein, the Officer concerned had affixed his initial and the date is mentioned as 26.05.1994. Similarly, there is also an acknowledgment at page 269, wherein, some other officer had noted as follows:
"RP 2553/26.05.94, Osilampatti"
20. There is also an official seal of the District Forest officer, Madurai Division, Madurai, dated 30.05.1994, acknowledging the receipt of further explanation submitted by the deceased government servant. The Forest Range Officer, Usilampatti Range, who had received a copy of the further explanation, has forwarded the same to the Madurai Divisional Forest officer, by his proceedings in Mu.Ka.No.211/94, dated 26.06.1994, which had been acknowledged by the District Forest Officer on 26.06.1994. Perusal of the files, makes it clear that before the death of the government servant, his further representation on the findings of the enquiry officer, had been acknowledged by the respondent on 30th May 1994 itself. If that be the case, as per the procedure contemplated under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, 1955, his further representation ought to have been mandatorily considered by the disciplinary/appointing authority, before infliction of a major penalty of removal or dismissal, whereby, the status of the government servant is put to an end. Conspicuously, there is no reference in the impugned order of dismissal about the further representation of the petitioner's husband, acknowledged by the respondent. It is trite law that the amendment to the Constitution of India has taken away only the right of a government servant to show cause against the proposed penalty, but the Supreme Court has mandated that he is entitled to be heard before the imposition of a major penalty.
21. Perusal of the proceedings, dated 02.02.1996, further reveals that on receipt of the telegram dated 04.06.1994, informing the death of the petitioner, a letter in Rc.No.208/94 has been sent by the Forest Range Officer, on the same day to the District Forest Officer, Madurai Division, Madurai. However, the letter of the Forest Range Officer in Rc.No.208/94, dated 04.06.1994 is not found in the files produced before the Court. Letter dated 07.07.1994 found in the files reads that the order of removal passed by the respondent received in his office on 15.06.1994, could not be served on the government servant, since he had passed away.
22. Going by the sequence of events and having regard to the fact that there is an omission on the part of the respondent in considering the further representation of the deceased government servant, the possibility of an order being written by the disciplinary authority on coming to know the death of the husband of the petitioner on 31st May 1995 and retaining the same in the file cannot be ruled out. Therefore, the impugned order of removal cannot be said to have come into force, without due and proper communication to the government servant. Therefore, the disciplinary proceedings initiated against the petitioner's husband cannot be said to have reached its finality and consequently, it would stand abated consequent to the death of the government servant.
23. Now coming to the moot question whether an order of removal can be challenged by the legal representatives, viz., wife, in the present case. Had the deceased government servant been communicated with an order of removal, he would have challenged the same before the statutory authority or appropriate forum. But for the challenge made by the wife of the deceased government servant, the factual details culled out from the records and the procedural violation of non-consideration of the further representation of the deceased government servant, would not have come to limelight. In these circumstances, this Court deems it fit to refer few judgments on this issue.
24. In Indrani bai v. Union of India reported in 1994 Supp (2) SCC 256, following a disciplinary proceedings, a government servant, an employee of a gun carriage factory at Jabalpur, was dismissed from service and the appeal before the statutory authority ended in dismissal. His wife made a representation for payment of gratuity, other retiral benefits and also sought for an alternative employment. As the deceased was dismissed from service on the ground of some delinquency, she was denied pension and employment assistance on compassionate grounds. When the rejection order was challenged, the Central Administrative Tribunal dismissed the case. On appeal, the Supreme Court, going through the pleadings, found that the deceased employee was denied a reasonable opportunity, violating Article 311(2) of the Constitution of India. In that circumstances, the Supreme Court, at Paragraph 6, held as follows:
"It is a clear case that the delinquent had not been afforded a fair opportunity, much less a reasonable opportunity to defend himself. That has resulted in violation of the principles of natural justice and fair play offending Articles 41, 21 and 311(2) of the Constitution. The orders of dismissal as confirmed by the appellate authority are accordingly quashed. The respondents are directed to be grant to the appellant the pensionary benefits according to rules and also to consider her case for suitable appointment on any post to which she may be eligible for rehabilitation, on compassionate ground. The respondents are further directed to pay the full salary payable to the deceased delinquent to the appellant from the date on which he was kept under suspension till date on which he would have attained superannuation or 28.02.1985, the proceeding date of his death whichever is earlier, with all consequential benefits after deducting the subsistence allowance already paid, right from the date of suspension order till date of dismissal. The exercise should be done within three months from the date of the receipt of the order."
25. In Sudha Shrivastava v. C & A General of India reported in 1996 (1) SCC 63, the Supreme Court considered whether a legal heir of a civil servant, who was prosecuted in a Court of law, but ultimately acquitted, though by that time he was no more, can be permitted to continue the proceedings before the Court and claim retrospective promotion of the deceased and other consequential monetary benefits. The deceased government servant was a member of Indian Audit and Accounts Services (Class.I). On account of the prosecution launched by the department under the Prevention of Corruption Act, his promotion was kept under sealed cover. The Special Judge convicted the government servant and sentenced him to undergo simple imprisonment for two years. An appeal was preferred by him and during the pendency of the appeal, he died. On application, the legal representatives of the deceased government servant were impleaded. Ultimately, the High Court allowed the appeal and the conviction and sentence were set aside. Thereafter, the widow sent representations to the State Government claiming retrospective promotion and benefits to her, which was rejected by the State. The Central Administrative Tribunal, Patna Bench, Patna held that a civil servant could not claim promotion as a matter of right and any benefit which would have arisen as a result of the promotion, could only have accred to the officer himself and not to his legal heirs, if he had died before the judgment of acquittal was delivered. On appeal, the Supreme Court held that, "whatever the rights the deceased had, as a result of this "sealed cover", the procedure having been followed, stood established as on that date. Along with the right to work in the higher post, if he was to be promoted, he would have also got a right to salary in the higher scale. The effect of the acquittal of the appellant's husband must be regarded as if he had been wrongly convicted. He, therefore, would have had a right to have been placed in the higher scale of pay, if he had been selected for promotion and this is a right which would devolve on the legal heirs, if during the pendency of the proceedings, the said employee expired.
26. In the above reported case, the Supreme Court held that even otherwise, if the husband of the appellant therein was not to be promoted, he would certainly be entitled to receive the salary in the lower post till the date of his death. In the above circumstances, the Supreme Court set aside the order of the Central Administrative Tribunal and the official respondent was directed to open the sealed cover and grant all the benefits to the widow in the light of the observations made in the judgment.
27. A Full bench of the Central Administrative Tribunal, Mumbai in Smt.Vidhata Wd/o. Late Ramnayan Verma v. Union of India reported in 1998 (2) ATJ 506, after considering the difference between the right to file and right to continue the Original Application or appeal by the legal representatives or heirs of the deceased employee, with reference to Section 19 of the Administrative Tribunal Act, held that the legal representatives were not competent to file a fresh application under Section 19 of the Act. However, another Full Bench of the Central Administrative Tribunal, Calcutta in Mrs.Chandra Kala Pradhan v. Union of India reported in 1997-2001 A.T.Full Bench Judgments 406, differing the views of the Mumbai Full Bench and considering the Full Bench decision of the Supreme Court in Rameshwar Manjhi v. Sangramgarh Colliery reported in 1994 (1) SCC 292, in a case where the Apex Court upheld the rights of the legal representatives to continue the proceedings for adjudication, referred the matter to a larger bench of the Calcutta Central Administrative Tribunal. After considering the rival submissions, the larger bench of the Calcutta Tribunal in Mrs.Chandra Kala Pradhan v. Union of India reported in 1997-20001 A.T.Full Bench Judgments 410 held as follows:
"The aforesaid issue, in our view, has already been answered by the Apex Court in the case of Sudha Srivastava (Smt.) v. Comptroller and Auditor General of India, (1996) 1 SCC 63, which decision had arisen out of a claim filed before the Central Administrative Tribunal. Application in that case had been filed before the Central Government employee before the Central Administrative Tribunal and the decisoiin of the Supreme Court in this behalf has already been reproduced in Para 8 of the aforesaid order. The Supreme Court in that case had implicity upheld the jurisdiction of the Tribunal to entertain an application filed by an heir of a deceased government employee."
28. In Sudha Srivastava's case (cited supra), a widow of a Government servant has sought for retrospective promotion and the consequential benefits due and payable to her husband, whose name was considered for promotion and kept in sealed cover. The Supreme Court, having regard to his consideration for promotion before conviction, has taken the view that the government servant had already accrued a right and therefore, even after his death, the legal representatives could maintain a lis, for monetary benefits, which he would have earned, had he been alive and continued in service.
29. The Supreme Court in Rameshwar Manjhi's case has held that the maxim "actio personalis moritur cum persona" depends upon the 'relief claimed'. I have already taken the view that the order of removal, written on 31.05.1994 and kept in the Office file, without actual service or communication to the Government servant in the manner known to law would not come into operation and in such circumstances, the petitioner is entitled to institute and maintain the Original Application before the Tamil Nadu Administrative Tribunal to vindicate her grievance that her husband had been removed without following the principles of natural justice and consequently, seek for retiral benefits due and payable to the deceased government servant.
30. In view of the above discussion, the impugned order of the respondent is set aside and consequently, the respondent is directed to pay all terminal benefits due to the petitioner's husband, taking into consideration that the disciplinary proceedings as abated on account of his death on 31.05.1994. The said exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
31. In the result, the Writ Petition is allowed. No costs.
05.11.2008 skm To The District Forest Officer, Madurai Division, Madurai.
S. MANIKUMAR, J.
skm W.P.No.25915 of 2006 05.11.2008