Central Administrative Tribunal - Ernakulam
Suharabi vs Administrator Ut Of Lakshadweep ... on 18 October, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH,
ERNAKULAM
Original Application No. 181/00551/2020
Tuesday, this the 18th day of October, 2022
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J)
Hon'ble Mr. K.V. Eapen, Member (A)
1. Suharabi, W/o late Sayed Shaikoya Thangal,
Aged 48, Puthiyazhikkakam Androth Island,
UT of Lakshadweep - 682551, Mob.7291865747.
2. Sayyid Mohammed Nasarudheen Thangal, S/o. Sayed
Shaikoya Thangal, aged 29, Puthiyazhikkakam, Androth
Island, UT of Lakshadweep - 682551, Mob.7291865747.
3. Sayyid Mohammed Saadudheen, S/o. Sayed Shaikoya
Thangal, aged 29, Puthiyazhikkakam Androth Island,
UT of Lakshadweep - 682551,
Mob.7291865747. ..... Applicants
(By Advocate : Mr. M.R. Hariraj)
Versus
1. Administrator, UT of Lakshadweep, Kavaratti, Pin-682555.
2. Executive Engineer, Electricity, UT of Lakshadweep,
Kavaratti, Pin - 682 555.
3. Union of India, represented by the Secretary to Government of
India, Ministry of Home Affairs, New Delhi-
110 001. ..... Respondents
[By Advocates : Mrs. Sreekala K.L. (R1 & 2) and
Mr. V.A. Shaji, ACGSC (R3)]
This Original Application having been heard on 11.10.2022, the
Tribunal on 18.10.2022 delivered the following:
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ORDER
Per: Justice Sunil Thomas, Judicial Member -
The applicants are wife and children of late S.V. Sayed Shaikoya Thangal, who was an Assistant Engineer (Electrical) under the respondents. While so, Sayed Thangal was issued with Annexure A2 memorandum of charges dated 11.8.2009. It was followed by a domestic inquiry. After long drawn proceedings inquiry was completed, and resulted in Annexure A13 report of the year 2014. Thereupon by Annexure A15 order dated 27.10.2014 penalty of withholding of promotion for five years was imposed on the delinquent. Aggrieved by the above he preferred Annexure A16 appeal before the appellate authority. Pending the appeal he preferred OA No. 75 of 2015 before this Tribunal seeking a direction to the respondents to grant him ACP and MACP benefits. While so, he died on 7.4.2016, evidenced by Annexure A17 death certificate. The wife and children got themselves impleaded in the OA as additional applicants Nos. 2, 3 and 4.
2. The above OA was disposed of by Annexure A18 order of this Tribunal. It was found that the applicant was not entitled to ACP and MACP benefits on the premise that if the officer was not entitled to get promotion, he was not entitled to get the benefits under the ACP/MACP scheme, which were given in the absence of promotional avenues to eligible and qualified officials to avoid stagnation. Since he was not eligible for promotion during the period of penalty and disciplinary proceedings, he was not entitled to get ACP/MACP benefits during that period. However, it was noticed that the 3 applicant had filed an appeal (produced as Annexure A8 in that OA) against the punishment order issued by the respondents therein. Holding that, being a statutory appeal, the respondents are bound to decide it on merits, the OA was disposed of with a direction to the respondents to consider and decide Annexure A8 appeal therein on merits within a period of three months, from the date of receipt of a copy of the order.
3. By Annexure A1 order dated 28.7.2020, the appellate authority held that the proceedings need not be continued consequent to the death of the original applicant. Aggrieved by the above order the legal heirs of the original applicant late S.V. Sayed Shaikoya Thangal, have approached this Tribunal.
4. Heard the learned counsel for the applicants, Standing Counsel for the Lakshadweep Administration and the learned Additional Central Government Standing Counsel. Examined the records.
5. Before adverting to the rival contentions and the issue involved, it is essential to refer to the operative portion of Annexure A1 order which is extracted as follows:
"Now therefore, in compliance of the directions of the Hon'ble Central Administrative Tribunal, Ernakulam Bench vide order dated 23.1.2019 in the OA No. 181/75/2015, the matter has been examined in consultation with Deptt. of Personnel & Training and it has been decided that the appeal dated 16.6.2015 of late Shri S.V. Sayed Shaik Koya Thangal former AE, UT of Lakshadweep has become infructuous after the death of Shri Sayed Shaikoya Thangal and hence the appeal proceedings in respect of late Shri S.V. Sayed Shaik Koya Thangal former AE, UT of Lakshadweep may not be continued."4
The impugned order shows that before passing the order, the Lakshadweep Administration was directed by the appellate authority to submit their inputs. It was reported by the Lakshadweep Administration by their communication dated 6.3.2020 to dispose of the above appeal in favour of the deceased employee and to exonerate him from the penalty imposed by the disciplinary authority on the angle of humanitarian grounds and natural justice.
6. The learned ACGSC attempted to sustain Annexure A1 order on the ground that the authorities had sought the opinion of the DoP&T in terms of Clause (b) of sub-rule (3) of Rule 15 of CCS (CCA) Rules, 1965. The said rule provided that on receipt of an appeal, the disciplinary authority shall forward or cause to be forwarded, a copy of the advice of the Commission received under clause (a) to the Government servant, who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within the stipulated time. According to the learned ACGSC, since the compliance of the formalities under clause (b) of sub-rule (3) of Rule 15 was not possible consequent to the death of the original applicant, advice of DoP&T was sought. In response DoP&T opined that since the appeal has become infructuous after the death of S.V. Sayed Shaikoya Thangal, the appeal proceedings may not be continued. It was in that circumstance the said order was passed by the appellate authority, it was contended.
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7. We cannot even for a moment accept the above contention nor the stand taken by the authority for rejecting the appeal on a hyper technical reasoning and also without adverting to the real contentions/issues and the legal position involved. Rule 15(3)(b) prescribes that while considering the appeal the Government servant shall be required to submit his response. In cases wherein the Government servant is not available, consequent to his death the authorities are not expected to raise their hands and plead inability to hear the appeal. It also seems that the appellate authority took refuge under the cover of the advice of the DoP&T. It is not clear whether the direction contained in Annexure A18 final order of this Tribunal was ever brought to the notice of DoP&T. It seems that without adverting to the legal position, DoP&T's advise that the appeal proceedings may not be continued, was blindly followed by the appellate authority.
8. The above order exhibit clear ignorance of the appellate authority regarding the legal position involved. It also shows clear non-application of mind by the appellate authority and abdication of duty by the authority who blindly followed the direction of the DoP&T. In Annexure A16 appeal (corresponding to Annexure A8 in OA No. 75 of 2015), the original applicant had assailed the penalty imposed on him on various grounds touching on the merits of the allegation. It was contended that the punishment was also disproportionate. Ultimately he sought to set aside the inquiry report and the order imposing the punishment on the original applicant. He also sought direction to the respondents to grant him all 6 financial benefits due to him. Since he challenged the order imposing penalty on merits and if the appeal was allowed it would have an effect of granting him financial benefits as well which would have dissolved on the legal heirs of the original applicant. Hence, they had a right to continue the proceedings. Accordingly, the right to sue survived and vested with the legal heirs.
9. The learned counsel for the applicants, to contend that on death of the original applicant the proceedings will not get abated, brought to our attention two decisions; one of the Hon'ble Supreme Court in Shri Rameshwar Manjhi (Deceased) through his son Shri Lakhiram Manjhi v. Management of Sangramgarh Colliery & Ors. [(1994) 1 SCC 292] and another decision of the Hon'ble High Court of Kerala in Ajitha Kumari & Ors. v. South Malabar Gramin Bank & Ors. (2012 SCC Online Ker 17862). In Rameshwar Manjhi's case (supra) the dispute was raised by Rameshwar Manjhi under Section 2-A of the Industrial Disputes Act. Pending the reference he died and his legal heirs sought permission to continue the proceedings. On raising the question as to whether his legal heirs are entitled to continue the legal proceedings, the Hon'ble Supreme Court considered the maxims of 'Actio personalis moritur cum persona' and held as follows:
"12. The maxim 'actio personalis moritur cum persona' though part of English Common Law has been subjected to criticism even in England. It has been dubbed as unjust maxim, obscure in its origin, inaccurate in its expression and uncertain in its application. It has often caused grave injustice. This Court in a different context, in considering the survival of a claim for rendition of accounts, after the death of the party against whom 7 the claim was made, in Girja Nandini Devi v. Bijendra Narain Choudhury observed as under:
"The maxim 'actio personalis moritur cum persona' - a personal action dies with the person - has a limited application. It operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory."
13. It is thus obvious that the applicability of the maxim 'actio personalis moritur cum persona' depends upon the 'relief claimed' and the facts of each case. By and large the industrial disputes under Section 2-A of the Act relate to the termination of services of the concerned workman. In the event of death of the workman during pendency of the proceedings, the relief of reinstatement, obviously, cannot be granted. But the final determination of the issues involved in the reference may be relevant for regulating the conditions of service of the other workmen in the industry. Primary object of the Act is to bring industrial peace. The Tribunals and Labour Courts under the Act are the instruments for achieving the same objective. It is, therefore, in conformity with the scheme of the Act that the proceedings in such cases should continue at the instance of the legal heirs/representatives of the deceased workman. Even otherwise there may be a claim for back wages or for monetary relief in any other form. The death of the workman during pendency of the proceedings cannot deprive the heirs or the legal representatives of their right to continue the proceedings and claim the benefits as successors to the deceased workman".
10. In Ajitha Kumari's case (supra) the wife and children of the employee of the 1st respondent challenged the disciplinary proceedings against the deceased. On raising the question as to whether the legal heirs are entitled to continue the proceedings consequent to the death of employee, the High Court held that the decision on the review petition has very serious civil consequences not only on the deceased but also his legal heirs. That being so, notwithstanding, any provision for personal hearing in the Rules, the respondents ought to have passed orders on Exhibit P14 therein, after affording an opportunity of being heard to the 1st petitioner or his representatives.
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11. From the above it is clear that legal heirs are entitled to proceed even in service matters. In this context it is pertinent to note that the appellate authority failed to note that this Tribunal had also permitted the legal heirs of the original applicant to continue the legal proceedings, taking stock of the fact that they had a right to continue the proceedings as the legal heirs, since the penalty touched the pension and pensionary benefits due to them. In this context the term 'Government Servant' as available in rule 15(3)(b) should have been construed as one including the legal representatives of the original applicant also. This legal position was not correctly understood by the statutory authority.
12. This issue has to be viewed from another angle also. This Tribunal after permitting the legal heirs to continue the proceedings has specifically directed the appellate authority to dispose of the matter on merits (emphasis supplied). In the light of the above order of this Tribunal, the appellate authority had not right to close the proceedings on a technical ground that the original applicant had expired. This amounts to a clear breach of direction given by this Tribunal.
13. Having considered the entire issue from the above perspective, the impugned order at Annexure A1 cannot be sustained at all. The order needs to be set aside.
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14. Accordingly, we are inclined to set aside the order and allow the OA as follows:
a) The appellate authority is directed to take up Annexure A8 appeal in OA No. 75 of 2015 (which is the correspondingly Annexure A16 herein) and to pass appropriate orders strictly on merits alone and on available records, within a period of three months from the date of receipt of a copy of this order.
b) Since the original applicant is no more, his legal heirs shall be permitted to continue the proceedings and they shall be given an opportunity of being heard physically or through video conferencing before passing the order.
c) If they, in the alternative, proposes to submit written submission, that may also be taken into consideration.
d) Since the DoP&T's advice has already been taken and which is found to be legally not sustainable, the appellate authority need not consider the advice of the DoP&T dated 13.7.2020. Fresh orders shall be passed accordingly.
15. The Original Application is allowed as above. No costs.
(K.V. EAPEN) (JUSTICE SUNIL THOMAS)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
"SA"
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Original Application No. 181/00551/2020
APPLICANT'S ANNEXURES
Annexure A1 - True copy of order No. U14033/6/2019-ANL dated
28.7.2020 issued by the 3rd respondent.
Annexure A2 - True copy of the memorandum No. 1/4/2008
ESTT/ELE/2004 dated 11.8.2009.
Annexure A3 - True copy of the representation dated 10.9.2009.
Annexure A4 - True copy of the order mentioning PART II O.O No. 19
dated 15.1.2010.
Annexure A5 - True copy of the final order dated 31.10.2012 in OA
924/2011 on the file of the Honourable Central
Administrative Tribunal, Ernakulam Bench.
Annexure A6 - True copy of the representation dated 15.3.2010
submitted by the applicant.
Annexure A7 - True copy of representation dated 19.8.2011 submitted by
the applicant.
Annexure A8 - True copy of the request for dropping the proceedings
dated 21.6.2013 submitted by the applicant.
Annexure A9 - True copy of the office memorandum No. 1/4/2008
Estt/Ele.2171, dated 13.9.2013.
Annexure A10 - True copy of the final order dated 27.11.2013 in OA No. 850/2013.
Annexure A11 - True copy of the written brief of the presenting officer was submitted only on 28.1.2014.
Annexure A12 - True copy of written brief of defense on 10.2.2014. Annexure A13 - True copy of the evidence enquiry report dated 17.2.2014.
Annexure A14 - True copy of the objections on the same on 19.4.2014. Annexure A15 - True copy of order No. F. No. 1/4/2008 Estt/Ele.2457, dated 27.10.2014.
11Annexure A16 - True copy of appeal dated 16.6.2015 before the Appellant Authority, Honourable President of India, New Delhi. Annexure A17 - True copy of the death certificate dated 26.4.2016. Annexure A18 - True copy of the final order dated 23.1.2019 in OA 75/2015.
Annexure A19 - True copy of Annexure A20 - True copy of RESPONDENTS' ANNEXURES Annexure R1(a)- True copy of the letter No. 54/1/2020-Per/Ele. Dated 6.10.2020.
Annexure R1(b)- True copy of the letter No. U-14033/6/2019-ANL dated 14.11.2019.
Annexure R1(c)- True copy of the office letter No. 1/4/2008- Estt/Ele(Vol.I)/559, dated 6.3.2020.
Annexure R-I- True copy of the charge sheet vide memorandum No. 1/4/2008 Estt/Ele/2004 dated 11.8.2009.
Annexure R-II- True copy of the disciplinary authority order No. 1/4/2008 Estt/Ele/2437, dated 27.10.2014.
Annexure R-III- True copy of the appeal dated 16.6.2015 against the penalty order before the appellate authority, Hon'ble President of India.
Annexure R-IV- True copy of the order dated 23.1.2019 in OA No. 181/75/2015.
Annexure R-V- True copy of the MHA's letter dated 27.5.2019 sent to the Lakshadweep Administration.
Annexure R-VI- True copy of the Rule 26(3) of CCS (CCA) Rules, 1965. Annexure R-VII-True copy of the Lakshadweep Administration's letters dated 4.2.2020 and 6.3.2020.
Annexure R-VIII- True copy of the Rule 27(2) of CCS (CCA) rules, 1965 and clause (b) of sub-rule(3) of Rule 15 of CCS (CCA) Rulues, 1965, DoPT's instructions vide OM No. 11012/8/2011-Esst.(A) dated 19.11.2014, Gazette 12 Notification dated 31.10.2014 & 2.6.2017.
Annexure R-IX- True copy of the DoPT's note dated 13.7.2020. Annexure R-X- True copy of the Ministry of Home Affairs speaking order No. U-14033/6/2019-ANL dated 28.7.2020.
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