Punjab-Haryana High Court
Deepak Kumar Sharma vs State Of Punjab And Another on 23 August, 2013
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CIVIL WRIT PETITION NO.10591 OF 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.10591 OF 2011
DATE OF DECISION: AUGUST 23rd , 2013
Deepak Kumar Sharma .......Petitioner
Versus
State of Punjab and another .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.OP Gabba, Advocate for the petitioner.
Ms.Sudeepti Sharma, Deputy Advocate General,Punjab.
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TEJINDER SINGH DHINDSA, J.
Deepak Kumar Sharma has filed the instant writ petition impugning the order of dismissal from service of his father, namely, Sat Narain, dated 30.9.2010, Annexure P10.
2. Brief facts that would require notice are that the father of the petitioner, namely, Sat Narain was working as Ahlmad in the Court of Civil Judge, Senior Division, Sri Muktsar Sahib. A charge sheet dated 24.12.2004 was issued to Sat Narain by the District & Sessions Judge, Faridkot raising a precise article of charge that he had been absent from duty w.e.f. 3.4.2004 without intimation. The statement of imputation of mis-conduct against father of the petitioner as contained in the charge-sheet read in the following terms:
"Statement of imputation of misconduct against Sh.Sat Malik Sushama Rani 2013.08.26 12:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.10591 OF 2011 -2- Narain Ahlmad of the court of Sh.Bhajan Ram, Civil Judge (Sr.Divn.), Muktsar.
....
1. In the month of April, 2004, Sh.Sat Narain was posted as Ahlmad and since then he is working as such in the court of Civil Judge (Sr.Divn.), Muktsar.
2. Sh.Bhajan Ram, Civil Judge (Sr.Divn.), Muktsar vide his letter No.341, 4.5.2004 has informed that Sat Narain, Ahlmad is absent from duty w.e.f. 3.4.2004 without intimation.
3. Sh.Bhajan Ram, Civil Judge (Sr.Divn.), Muktsar has further informed vide his letter Nos.164, dated 26.4.2004, 165, dated 28.4.2004, 172, dated 1.5.2004 and 341, dated 4.5.2004 that the court work is suffering badly as Sh.Sat Narain was on leave since 19.4.2004. He has also mentioned in his above said letters that Sh.Sat Narain, Ahlmad has also not sent application for 3.5.2004 and 4.5.2004.
4. Sh.U.S.Gera, Addl. District & Sessions Judge, Muktsar held the preliminary enquiry into the matter and submitted report to this office vide his letter No.514, dated 18.11.2004 holding that Sh.Sat Narain, Ahlmad was absent from duty w.e.f. 4.5.2004 without intimation to the Presiding Officer. He has further held in his preliminary enquiry report that since Sh.Sat Narain Ahlmad has not turned up to explain his position with regard to his absence inspite of issuance Malik Sushama Rani 2013.08.26 12:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.10591 OF 2011 -3- of summons to him for three times, it cannot be presumed that he has ever applied for casual leave as the same is not available on the record but the same was not considered.
Sd/-
District & Sessions Judge, Faridkot."
3. Thereafter, vide order dated 30.7.2005, an Enquiry Officer was appointed. Findings of the Enquiry Officer having been furnished against the father of the petitioner, a show cause notice dated 30.6.2010 was issued contemplating the imposition of one of the major penalties as envisaged under Rule 12, clause 2 of the Punjab Subordinate Courts Establishment (Recruitment and General Conditions of Service) Rules, 1997 read with Rule 5 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970. The departmental proceedings have finally culminated in the issuance of the impugned order dated 30.9.2012 at Annexure P10 whereby delinquent Sat Narain, father of the petitioner, has been dismissed from service and such dismissal has been held to be a dis-qualification for his employment in Government service in future. Still further, Sat Narain has been held to be not entitled to any other amount except that already paid to him during his duty period upto the date of passing of the order of dismissal.
4. Upon notice of motion having been issued, written statement of the District & Sessions Judge, Faridkot on behalf of respondents No.1 and 2 has been filed and a separate written statement has also been filed on behalf of District & Sessions Judge, Sri Muktsar Sahib who had been impleaded vide order Malik Sushama Rani 2013.08.26 12:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.10591 OF 2011 -4- dated 2.1.2011 passed by this Court.
5. It would be apposite to notice that CM No.10928 of 2013 has been allowed by this Court in terms of which the judgment and decree dated 3.1.2013 passed in Civil Suit No.410- 1 of 22.9.2011 titled 'Deepak Kumar Sharma and others v. General Public have been taken on record as Annexures P16 and P17. In the light of such judgment and decree, Sat Narain has been proved to be missing for the last more than seven years and as such, he has been declared to be dead.
6. Having heard learned counsel for the parties at length and having perused the pleadings on record, I am of the considered view that the impugned order of dismissal dated 30.9.2010, Annexure P10, in respect of deceased Sat Narain cannot sustain on the following two counts:
i) Action of the respondent-authorities in terms of having continued with the departmental proceedings initiated by issuance of charge sheet dated 24.12.2004 that have finally resulted in the passing of the impugned order of dismissal is arbitrary and violative of Article 14 of the Constitution of India.
Broad facts of the case are not in dispute. Father of the petitioner, namely, Sat Narain while working as Ahlmad in the Court of Civil Judge, Senior Division, Sri Muktsar Sahib went missing on 2.9.2004. Accordingly, a report was lodged at Police Station City Muktsar vide DDR No.3 dated 16.9.2004. The present petitioner submitted an application on 14.10.2004, Annexure P7, in the office of District & Sessions Judge, Faridkot intimating that his father had been missing since 2.9.2004 and a report in this Malik Sushama Rani 2013.08.26 12:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.10591 OF 2011 -5- regard had been duly lodged in the concerned Police Station. Such application was duly received in the office of District & Sessions Judge, Faridkot vide receipt No.10446 dated 14.10.2004. Subsequently, an application dated 14.1.2005 at Annexure P8 was also submitted by the petitioner for not proceeding further with the departmental proceedings initiated against his father in the light of issuance of charge sheet dated 24.12.2004. A perusal of the impugned order dated 30.9.2010 would also reveal a vital fact that the present petitioner had even appeared before the Enquiry Officer and made a statement that his father had been missing since 2.9.2004 and his whereabouts were not known.
7. The facts of the case are glaring in nature. The respondent-authorities have continued with the enquiry proceedings against an employee who had gone missing and whose whereabouts were not known. This was inspite of repeated requests having been made by his legal heir i.e. the present petitioner to keep such enquiry proceedings in abeyance. Clearly, the departmental proceedings having been conducted without there having been any association from the side of the delinquent, under the facts and circumstances of the present case, cannot be construed to be fair and reasonable. The respondent-authorities having been repeatedly put to notice that the delinquent had gone missing, a prudent and appropriate course of action would have been to suspend the enquiry proceedings. The impugned order of dismissal which has been passed as a consequence of such departmental proceedings has to be held to be bad in law.
Malik Sushama Rani2013.08.26 12:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.10591 OF 2011 -6-
ii) This Court cannot proceed oblivious of the fact that during the pendency of the present writ petition, a suit filed by the legal heirs of delinquent Sat Narain stands decreed and Sat Narain has been declared dead on account of having been proved that he has not been heard alive for the last more than seven years. On this count alone, the order of dismissal dated 30.9.2010, Annexure P10, cannot sustain.
8. Under normal circumstances, the order of dismissal having been set aside, the matter would have been remanded back to the respondent-authorities/competent authorities for passing of an order afresh. However, in the peculiar facts and circumstances of the instant case, while quashing the order of dismissal dated 30.9.2010, Annexure P10, I am of considered view that the ends of justice would be met upon the father of the petitioner to be treated as compulsorily retired from service w.e.f. the date of order of dismissal passed on 30.9.2010, in other words, from a date prior to the date of declaration by the Civil Court as regards his death. Consequently, the admissible retiral/pensionary benefits be released to the legal heirs of deceased Sat Narain within a period of three months from the date of receipt of a certified copy of this order. No benefit of salary, however, for the period in question i.e. 3.4.2004 till 30.9.2010 shall be given.
9. Petition allowed in the aforesaid terms.
( TEJINDER SINGH DHINDSA )
rd
AUGUST 23 , 2013 JUDGE
SRM
Note: Whether to be referred to Reporter? (Yes/No)
Malik Sushama Rani
2013.08.26 12:07
I attest to the accuracy and
integrity of this document