Madhya Pradesh High Court
Hemant Kumar Shrimali Dead Thr Lrs Smt. ... vs Cooperative Department on 16 January, 2023
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
ON THE 16TH OF JANUARY, 2023
WRIT PETITION No. 27873 of 2018
BETWEEN:-
HEMANT KUMAR SHRIMALI DEAD THR LRS SMT.
MAMTA W/O LATE HEMANT KUMAR SHRIMALI,
AGED ABOUT 55 YEARS, OCCUPATION:
HOUSEWORK H. NO. 30 B, SHAHID NAGAR,
GURJAR BHAWAN KE SAMNE BHOPAL (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI MANISH KUMAR JOSHI-ADVOCATE)
AND
1.COOPERATIVE DEPARTMENT PRINCIPAL
SECRETARY VINDHYACHAL BHOPAL (MADHYA
PRADESH)
2.COMMISSIONER COOPERATIVE AND
REGISTRAR COOPERATIVE SOCIETIES
VINDHYACHAL (MADHYA PRADESH)
3.DEPUTY SECRETARY COOPERATIVE
DEPARTMENT VINDHYACHAL (MADHYA
PRADESH)
4.DEPUTY COMMISSIONER AND DEPUTY
REGISTRAR COOPERATIVE SOCIETIES SEHORE
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT SINGH SISODIA-GOVERNMENT ADVOCATE)
-----------------------------------------------------------------------------------------------------
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This application coming on for orders this day, the court passed
the following:
ORDER
The petitioner (since dead and now represented through his wife) filed this present petition being aggrieved by action whereby the respondents have treated the period from 11.07.2003 to 28.09.2004 as Dies-Non and withheld the retiral dues and also against an order dated 19.9.2017 whereby the respondent No.4 has withheld his 20% of the pension, gratuity and provident fund etc. on account of wrong promotion given to him (Annexure-P/13).
The facts of the case, in short, are as under:-
1. The petitioner was appointed in the co-operative department of the State of Madhya Pradesh in the year 1980. Vide order dated 09.07.2003 he was transferred from Ratlam to Balaghat. Due to the circumstances prevailing at the relevant point of time, he could not join the transfer place which is 1000 Km. away from Ratlam. He submitted a representation seeking the cancellation of the transfer order. Since no decision was taken on it, he preferred a writ petition No.394/2003 before this Court which was disposed of vide order dated 13.11.2003 with the direction to the respondents to consider a representation sympathetically and decide in accordance with the law. The petitioner submitted a fresh representation on 31.01.2004. The representation of the petitioner was considered and vide order dated 27.10.2004, he was transferred to Dhar in place of Balaghat.
The petitioner gave joining on 29.9.2004 as Deputy Registrar, Cooperative Society, Dhar, which was accepted.
2. The petitioner was served with a show-cause notice dated 4/11/2003 (Annexure-P/10) alleging that he did not join the transferred -3- place i.e. Balaghat, hence the period of unauthorised absence from 11/7/2003 to 28/9/2004 be not treated as dies non and the penalty of stoppage of two increments with non-cumulative effect be not imposed. The petitioner submitted a reply to the aforesaid notice that since his representation was considered sympathetically by the respondents and the transfer place was changed from Balaghat to Dhar hence there was no intention to remain absent unauthorisedly. No decision was taken on the show-cause notice for more than seven years and finally vide order dated 5/10/2011 (Annexure-P/11), the departmental enquiry was dropped by Commissioner, Cooperative and Registrar Cooperative Society.
3. During this period, the petitioner was promoted to the post of Deputy Registrar and permitted to retire from service upon attaining the age of superannuation on 3.03.2017. After retirement, while deciding his pensionary benefits, respondent No.4 the Deputy Commissioner Cooperative, District Sehore vide letter dated 21/2/2018 sought clarification from the Commissioner Cooperative that no decision has been taken from the period from 11/7/2003 to 28/9/2004 when the petitioner was unauthorizedly absent. Thereafter, vide order dated 19/09/2017 respondent No.4 the Deputy Commissioner, Cooperative Society, Sehore has decided to withhold 20% of his pension as he was wrongly given the benefit of promotion and excess payment was made. Hence, this petition is filed.
4. The respondents have filed the reply by admitting that vide order dated 5/10/2011 the departmental enquiry has been closed without punishment to the petitioner but his period of absence is liable to be treated as dies non as for 446 as he was unauthorizedly absent from service. Therefore, only 80% of his pension has rightly been released in -4- his favour.
Appreciations and conclusion
5. The aforesaid facts are not in dispute that vide order dated 09.07.2003 the petitioner was transferred from Ratlam to Balaghat later on the said order was modified and the petitioner was transferred to Dhar where he joined .He remained absent from 11/7/2003 to 28/9/2004 hence, a show-cause notice dated 04.11.2003 (Annexure-P/10) was issued and he was called upon to submit a reply as to why the punishment of stoppage of two increments with cumulative effect be imposed and the said period be not treated as dies non.
The relevant para of show-cause notice is reproduced below:-
"vkidks fnukad 10-07-2003 dks dk;ZeqDr fd;k x;k Fkk] fdUrq vkids }kjk LoSfPNd :i ls vukf/kd`r vuqifLFkr jgrs gq, fnukad 31- 10-2003 rd uohu inLFkh LFkku ckyk?kkV esa mifLFkfr izfrosnu izLrqr ugha fd;k x;k gSA mDr vof/k ewyHkwr fu;e 18 ,oa lkekU; iz'kklu foHkkx ds ifji= fnukad 02-02-2000 ds ifjizs{; esa vukf/kd`r vuqifLFkfr gksdj ^^Mk;tuku^^ dh Js.kh esa vkrh gSA mDr d`R; e-iz- flfoy lsok ¼vkpj.k½ fu;e 1965 ds fu;e 3 vodk'k fu;e 17 ,oa ewyHkwr fu;e 18 dk mYy?kau gS] ftl gsrq D;ks u vkids fo:) e-iz- flfoy lsok ¼oxhZdj.k] fu;a=.k rFkk vihy½ fu;e 1966 ds fu;e 10¼4½ ds vUrxZr 2 osru o`f) vlap;h izHkko ls jksds tkus dk n.M vf/kjksfir djus ds vkns'k ikfjr fd;s tkosa ,oa lkFk gh mDr vuqifLFkr vof/k dks vukf/kd`r vuqifLFkfr dh Js.kh esa j[kk tkdj ^^Mk;tuku^^ djus ds vkns'k ikfjr dj fn;s tkos ? "
6. It is clear from the aforesaid show-cause notice that on one charge two punishments were proposed. Firstly, that by the two increments be not withheld with non-cumulative effect, and secondly, the period of his -5- absence be not categorized as unauthorized absence and treated as dies non. But vide order dated 05/10/2011 after considering the entire matter in totality, the Commissioner has closed the departmental proceedings.
The operative part of the order is reproduced below:-
"vr% izdj.k esa lexz rF;ksa ij fopkjksijkar eSa bl fu"d"kZ ij igqaprk gwa fd vkjksih vipkjh deZpkjh }kjk LFkkukarj.k vkns'k fnukad 09-07-03 ds laca/k esa vH;kosnu foHkkx esa izLrqr fd;k x;k] ftldk fujkdj.k ugha gks ikus ds dkj.k mUgsa U;k;ky; dh 'kj.k esa tkuk iMkA U;k;ky;hu funsZ'k ds ikyu esa vH;kosnudrkZ dks ckyk?kkV ds LFkku ij /kkj ftys esa inLFk fd;k x;k Fkk vkSj muds }kjk mDr ftys esa dk;ZHkkj Hkh xzg.k dj fy;k x;kA ,slh fLFkfr esa izdj.k esa vkjksih ds fo:) dksbZ vkxkeh dk;Zo;kgh fd;k tkuk vko';d ugha gSA vkjksih Jh gsear Jhekyh] lgdkjh fujh{kd] ds fo:) lwpuk i= fnukad 04-11-03 }kjk fopkjk/khu vuq'kklukRed dk;Zokgh lekIr dh tkrh gSA"
7. Vide order dated 5.10.2011, neither the punishment of stoppage of increment nor an unauthorized period of absence was treated as Dies-non and enquiry was closed. Therefore, respondent No. 4 has no authority to withhold the pensionary benefits by treating the period from 11/7/2003 to 28/9/2004 as dies non. At the time of retirement, no departmental enquiry or punishment was pending against him. Even after the issuance of charge-sheet, the petitioner was promoted. The order dated 4/10/2011 clearly reveals that the sole departmental proceeding initiated against him vide show-cause notice dated 04/11/203, was closed by the head of the department i.e. Commissioner hence respondent No.4 being subordinate to him wrongly withhold the pension @ 80% and other benefits .
8. In view of the above observation, the Writ Petition is allowed with following directions/writs :-
-6-(1) The petitioner is entitled to get the entire service benefit for the period from 11/7/2003 to 28/9/2004, same be given to the widow of the petitioner.
(2) The remaining pensionary benefit is released forthwith to her for the with if already not released.
(3) Family pension to the wife be started forthwith, (4) All the monetary benefits shall be paid along with the interest @ 6 % from the date of retirement of the petitioner till the date of payment.
9. Before parting with this case, it is important to examine the conduct of the respondents especially respondent No.4 for the purpose of imposing exemplary cost. Since, there was no order for recovery against the petitioner and despite that unnecessary the Deputy Commissioner, Cooperative Sehore has withheld the 20% pension and other pensionary benefits of the petitioner. He died without getting all the pensionary benefits in his hand which was his right and entitlement under the law. Other respondents have also not the case of the petitioner by issuing a clarification to the letter dated 21/02/2018.
10. Looking to the insensitivity and inhuman approach on part of respondents a cost of Rs.1,00,000/- (In words One lack only) is awarded to the petitioner, and same shall be recovered from the responsible officer of the department .
Certified copy as per rules.
(VIVEK RUSIA) JUDGE vs Digitally signed by VARSHA SINGH Date: 2023.01.19 15:18:21 +05'30'