Allahabad High Court
Durgawati Dubey vs State Of U.P. & 3 Ors. on 8 October, 2018
Equivalent citations: AIRONLINE 2018 ALL 4499
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved On : 11.09.2018 Delivered On: 08.10.2018 Case :- WRIT - A No. - 40057 of 2013 Petitioner :- Durgawati Dubey Respondent :- State Of U.P. & 3 Ors. Counsel for Petitioner :- A.K. Singh,K.K.M.Tripathi,Manoj Kumar Singh Counsel for Respondent :- C.S.C.,Kunal Ravi Singh,Manjari Singh Hon'ble Neeraj Tiwari,J.
Heard learned counsel for the petitioner, learned Standing Counsel for respondent Nos. 1, 2 & 3 and Sri Rahul Jain, Advocate holding brief of Sri Kunal Ravi Singh, learned counsel for respondent No. 4.
Pleadings have been exchanged between the parties, with the consent of learned counsel for the parties, petition is being decided at the admission stage itself.
By way of present writ petition petitioner is challenging the order dated 10.06.2013 passed by District Inspector of Schools, Siddharth Nagar, by which a recovery order was issued for recovering a sum of Rs. 1,70,000/- as arrears of land revenue.
The case of the petitioner is that her husband Dr. Dwijendra Nath Dubey was Principal in Tilak Inter College Bansi, Siddharth Nagar (hereinafter referred to as the, 'College'). During the course of service, husband of the petitioner died on 18.06.2012 and petitioner was entitled for post death dues, but the same was not paid to her. Therefore, she had no option but to file Writ-A No. 10004 of 2013 (Durgawati Dubey Vs. State of U.P. Thru Secy & Ors.), which was disposed of on 22.2.2013 with a direction to respondent No. 3 to examine the claim of petitioner and pass an appropriate order in accordance with law within three months from the date of production of a certified copy of this order. Pursuant to the order of the Court dated 22.2.2013, instead of making payment, impugned order dated 10.06.2013 has been passed.
Learned counsel for the petitioner contended that the impugned order has been passed by the District Inspector of Schools only on the behest of Manager after the death of husband of petitioner without appreciating this fact that neither any inquiry proceeding can be initiated against a dead person nor any recovery order can be issued. It is further stated that there is no provision under U.P. Intermediate Education Act or the Regulations or any other law for recovery of alleged embezzled amount from a dead employee and in present case, husband of petitioner as arrears of land revenue from the property of petitioner or her late husband. It is specific argument of learned counsel for the petitioner that during the life time of husband of petitioner, no inquiry has been initiated against him neither any order of recovery has been passed. In support of his contention, he has placed reliance upon the judgment of this Court in the matter of Gulam Gausul Azam and others Vs. State of U.P. and others and another judgment in the matter of Onkar Singh Verma Vs. State of U.P. and 2 Ors. which provides that neither any disciplinary proceeding can be initiated against a dead person nor any amount can be recovered.
Learned Standing Counsel appearing for the State has placed reliance on Paragraph Nos. 9 and 10 of the counter affidavit and stated that a sum of Rs. 2,00,000/- was allocated to the College for construction of laboratory and furniture on 15.06.2011 and the husband of the petitioner was posted as Principal in the said College. By means of letter dated 4.2.2013, Manager of the College was directed to produce the consumption/expenditure certificate in the office of Project Director, District Rural Development Agency. He has further submitted that pursuant thereto the District Inspector of Schools, Siddharth Nagar vide order dated 19.3.2013 directed the Manager of the Institution to immediately produce the consumption/expenditure certificate in the office, so that higher Authorities may be made aware about the facts and status. In Paragraph No. 10 of the counter affidavit, it is stated that amount of grant under MLA fund was misappropriated, misused, embezzled and expended in personal use by the husband of the petitioner and he was found guilty of losses, therefore, the aforesaid amount has rightly been directed to be recovered.
Learned counsel appearing for respondent No. 4 has also filed counter affidavit and it is contended that vide order dated 27.06.2011, a fund of Rs. 2,00,000/- was sanctioned in favour of the College for construction, first installment of Rs. 1,20,000/- was withdrawn by the then Principal, the husband of the petitioner by cheque dated 16.07.2011. Vide another office order issued in 2011, Rs. 50,000/- was sanctioned for College to install Water Supply Machine and said amount was again withdrawn by the husband of the petitioner by cheque dated 31.03.2011, but neither construction was carried out by the husband of the petitoner nor Water Supply Machine was installed in the College. Therefore, respondent No. 4 has written a letter dated 08.10.2012 to District Inspector of Schools seeking permission for recovery of said amount from the post death amount of husband of petitioner.
Thereafter, respondent No. 4 had written two more letters having the same date of 28.01.2013 with the same reference. Lastly, he has written a letter dated 01.04.2013 to District Inspector of Schools informing about the embezzlement done by the husband of the petitioner. In this letter, it was also mentioned that husband of petitioner died on 18.06.2012. After the death of the husband of petitioner, respondent No. 4 vide letter dated 18.08.2012 had appointed an Inquiry Committee to enquire the matter that when and how husband of the petitioner embezzled the amount in question and whether it is actually spent upon the College or not. During the inquiry proceeding, letter dated 27.04.2012 was also issued to the petitioner (wife of deceased Principal) for submitting his reply with regard to embezzlement done by her husband. After that, inquiry report dated 16.09.2012 was submitted with the observation that notice was given to the petitioner, but she has refused to accept the same and not submitted her explanation. Enquiry was concluded with an observation that husband of petitioner was found guilty of embezzlement of Rs. 1,70,000/-.
In the rejoinder argument, learned counsel for the petitioner has submitted that this fact is not disputed in the counter affidavit that alleged disciplinary proceeding was initiated after the death of husband of petitioner. It is further argued that neither any departmental proceeding can be initiated against a dead person nor any recovery can be made. It is nothing but an attempt to get rid of from the order of this Court dated 22.02.2013 passed in Writ-A No. 10004 of 2013 ( Durgawati Dubey vs. State of U.P. Thru Secy & Ors.).
I have considered the rival submissions made by learned counsel for the parties and perused the record as well as the judgments relied upon by learned counsel for the parties.
By the perusal of records, this fact is undisputed that departmental proceeding was initiated after the death of husband of petitioner. It appears that only after order of this Court dated 22.02.2013, respondents have initiated the departmental proceeding ignoring this fact that husband of the petitioner died much earlier. It is also very ridiculous that Inquiry Officer has issued notice to petitioner to submit the reply for an allegation against her late husband. In fact this act of Inquiry Officer is absolutely suffers from non application of mind and also ignores settled law of departmental proceeding. How it is possible for the petitioner to submit reply with regard to the alleged allegation of embezzlement by her late husband. Whaterver letters are referred in the counter affidavit, either filed by respondent No. 4 or by the State-respondents with regard to the departmental proceeding are undsiputedly after the death of husband of petitioner. Therefore, in such facts, the complete departmental proceeding is ex facie bad as in any case, no inquiry can be initiated against a dead person. Respondents may have initiate the inquiry proceeding during the service period of husband of petitioner or at least before his death, but after death, complete inquiry proceeding as well as impugned order dated 10.06.2013 is bad in law and not sustainable.
Apart from that I have also seen the judgments of this Court as well as other High Courts occupying the field. In the case of Smt. Rajeshwari Devi Vs. State of U.P. and Ors. 2011(2) ADJ 643 decided on 07.01.2011, the Court has held that as soon so as a person dies, he breaks all his connection with the worldly affairs, therefore, no disciplinary proceeding can be initiated against him. Relevant Paragraph Nos. 6 and 7 of the judgment are being quoted below:-
"6. Holding of departmental enquiry and imposition of punishment contemplates a pre-requisite condition that the employee concerned, who is to be proceeded against and is to be punished, is continuing an employee, meaning thereby is alive. As soon as a person dies, he breaks all his connection with the worldly affairs. It cannot be said that the chain of employment would still continue to enable employer to pass an order, punitive in nature, against the dead employee.
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........It is well settled that a punishment not prescribed under the rules, as a result of disciplinary proceedings, cannot be awarded even to the employee what to say of others. The Court feel pity on the officers of Nagar Nigam, Bareilly in continuing with the departmental enquiry against a person who was already died and this information of death was well communicated to the enquiry officer as well as disciplinary authority. They proceeded with enquiry and passed impugned orders against a dead person. This is really height of ignorance of principles of service laws and shows total ignorance on the part of the officers of Nagar Nigam in respect to the disciplinary matters. This Court expresses its displeasure with such state of affairs and such a level of unawareness on the part of the respondents who are responsible in establishment matters. They have to be condemned in strong words for their total lack of knowledge of such administrative matters on account whereof legal heirs of poor deceased employee have suffered."
In the matter of Gulam Gausul Azam and others Vs. State of U.P. and others 2014 (5) ADJ 558 decided on 12.05.2014, the Court has held that before disciplinary authority could pass any order on the inquiry report, petitioner died ending the master and servant relationship, therefore, no punishment order can be passed. Relevant paragraph Nos. 10 to 13 of the judgment are being quoted below:-
"10. There is another aspect of the matter. In the present case Abdul Kareem expired on 15.7.2011, i.e. before the disciplinary authority could pass any order on the enquiry report dated 3.7.2011. In the circumstances therefore, the master and servant relationship between Late Abdul Kareem and the respondents also came to an end with his death and therefore, the impugned order dated 21.11.2011 could not have been passed after the death of Abdul Kareem.
11. In my opinion therefore the disciplinary authority could not have passed the order dated 21.11.2011 withholding the retiral dues and other benefits of late Abdul Kareem. When Abdul Kareem died on 15.7.2011 he could not have been said to be a government servant thereafter and therefore the order dated 21.11.2011 on the face of it is a wholly illegal and arbitrary order and has no basis in law and cannot survive.
12. So far as the matter of compassionate appointment of the petitioner no. 1 is concerned, for the same reasons that since the disciplinary authority has not taken any decision regarding the finding of guilt against late Abdul Kareem prior to his death, it could not be said that the charge had been established against late Abdul Kareem as disciplinary proceedings are concluded only with the passing of the order of disciplinary authority and not when the enquiry officer submits his report.
13. In this view of the matter, the writ petition is allowed and both the impugned orders dated 21.11.2011 and 1.3.2012 are quashed. The respondents are directed to take steps for payment of all retiral benefits to the legal heirs of late Abdul Kareem. So far as the order dated 1.3.2012 regarding rejection of the claim of petitioner no .1 for compassionate appointment is concerned, a direction is issued to the District Magistrate, Deoria-respondent no. 3 to take a decision afresh in this regard having regard to the educational qualification of the petitioner no. 1 and availability of vacancy within a period of two months from the date a certified copy of this order is received in his office."
In the aforesaid case, the dispute was that the father of petitioner Abdul Kareem was died on 15.07.2011 before the disciplinary Authority could pass any order on the inquiry report dated 3.7.2011 and the Court has held that after the death, no such order can be passed against the petitioner and further directed the authority to pay full post retiral benefits.
Learned counsel for the petitioner has also placed reliance upon the judgment of this Court in the case of Onkar Singh Verma Vs. State of U.P. and 2 Ors. 2018 (3) ADJ 272, decided on 09.01.2018 and the relevant paragraph of the judgment is quoted below:-
"Finally, the petitioner has died on 14.03.2017, during the pendency of this writ petition and therefore, even if, there had been any power in the rules vested in respondent no.2 to conduct enquiry against the petitioner after superannuation, now it would not have been possible for him to conduct any enquiry. Therefore, the impugned order dated 21.09.2016, passed by respondent no.2, Secretary/General Manager, District Co-operative Bank Ltd., Etah, whereby, recovery of certain amounts have been directed against the petitioner from his gratuity, after his retirement from service is hereby quashed. The respondent no.2 is directed to release the amount of gratuity of the petitioner, by applying new pay scale, along with 7% simple interest for inordinate delay in making payment of the same to the petitioner from the date of his superannuation on 30.06.2013.
The writ petition is allowed. No order as to costs."
In the aforesaid matter, the petitioner died on 14.03.2017 during the pendency of writ petition, therefore, the Court has held that even there had been any power in the rules vested to respondent No. 2 to conduct the inquiry after superannuation, now it would not have been possible for him to conduct inquiry and quashed the order impugned and directed to release the amount of gratuity of petitioner as paid by the petitioner in that petition.
Similar matter was also for consideration before the Bombay High Court in the case of Hirabhai Bhikanrao Deshmukh Vs. State of Maharashtra and another (1985) ILLJ 469 Bom decided on 10.10.1984, the Court has clearly held that provision with regard to dismissal, removal and suspension of the civil servant do not permit holding of any further enquiry into the conduct of such a civil servant after his death. Relevant Paragraph No. 6 of the judgment is being quoted below:-
"6. The provisions with regard to dismissal, removal and suspension of the civil servant do not permit holding of any further enquiry into the conduct of such a civil servant after his death. Such proceedings are intended to impose departmental penalty and would abate by reason of the death of civil servant. The purpose of proceedings is to impose penalty, if misconduct is established against the civil servant. That can only be achieved if the civil servant continues to be in service. Upon broader view the proceedings are quasi-criminal in the sense it can result in fault finding and further imposition of penalty. The character of such proceedings has to be treated as quasi-judicial for this purpose. In the light of the character of the proceedings and the nature of penalty like dismissal or removal, or any other penalties, minor or major, it has nexus to the contract of service. Therefore, if the person who has undertaken that contract is not available, it should follow that no proceedings can continue. Thus when the proceedings are quite personal in relation to such a contract of service, the same should terminate upon death of the delinquent. By reason of death, such proceedings would terminate and abate. We think that such a result is also inferable from the provisions of Rule 152-B of the Bombay Civil Services Rules."
Similar dispute has also come before the Jharkhand High Court in the case of Jayanti Devi Vs. State of Bihar and Ors. 2001 (49) BLJR 2179 decided on 01.05.2001, the Court after following the decision of Bombay High Court had taken the same view and directed the respondents to pay all post retiral benefits to the widow. Relevant Paragraph Nos. 9 and 10 of the judgment are being quoted below:-
"9. In the instant case admittedly the delinquent-employee died on 24.3.1999 and the Enquiry Officer submitted his report on 30.8.1999. In the enquiry report (Annexure F) the Enquiry Officer took notice of the fact that the delinquent-employee died on 24.3.1999. The Enquiry Officer further took notice of the fact that the delinquent-employee had requested the respondents to keep the departmental proceeding in abeyance till the disposal of the case pending before him. However, the Enquiry Officer after the death of delinquent employee called upon the respondents and on the basis of documents produced by them submitted enquiry report and on the basis of that report a formal order of dismissal was passed. In my opinion therefore the manner in which respondents proceeded with the departmental proceeding against the delinquent-employee, the enquiry report as well as the order of dismissal is vitiated in law and is null and void. I am, further of the view that the widow of the deceased employee cannot be deprived of her legitimate claim of death-cum-retirement benefits on the ground of dismissal of the employee on the basis of departmental proceeding initiated after 6 years of the order of suspension and that to on the basis of enquiry report submitted by the Enquiry Officer after proceeding ex parte against the deceased-employee who died much before the date when the Enquiry Officer proceeded with the matter and submitted his report.
10. For the reasons aforesaid, this writ application is allowed and the respondents are directed to release all the death-cum-retirement dues in favour of the petitioner, who is widow of the deceased employee as expeditiously as possible and preferably within a period of 30 days from the date of receipt/production of copy of this order."
Learned counsel for respondent No. 4 has relied upon a judgment of Jharkhand High Court in the case of Nilam Dubey vs. State of Jharkhand & Ors. decided on 10.05.2013, in which the Court has held that inquiry which was initiated against the husband of petitioner can continue even after the death of husband of petitioner and show cause notice issued to son of petitioner is permissible in law.
I have perused the judgment of Jharkhand High Court, first of all the judgment is not applicable in the case of petitioner for the reason that admittedly the inquiry proceeding was initiated after the death of husband of petitioner and secondly this law is bad as after the death of a person, how a show cause notice can be issued to his son. Further it appears that judgment Jharkhand High Court in the case of Jayanti Devi Vs. State of Bihar and Ors. 2001 (49) BLJR 2179 decided on 01.05.2001 was not brought into the knowledge of Court in which the Court has taken a view that no departmental proceeding can be continued after the death of employee.
After going through the judgments and facts of the case, this Court is of the view that against a dead person, neither disciplinary proceeding can be initiated nor any punishment order can be passed. In the present case, facts are not disputed that disciplinary proceeding was initiated against husband of petitioner after his death, which suffers from non application of mind as well as contrary to the law laid down by this Court as well as other High Courts, therefore, the impugned order dated 10.06.2013 is not sustainable and is hereby quashed.
The writ petition is allowed. No order as to costs.
Order Date :- 08.10.2018 Sartaj