Delhi High Court
Sukhi Devi & Another vs The Delhi Vidyut Board And Others on 22 November, 1999
Equivalent citations: 2000IAD(DELHI)596, 83(2000)DLT358, 2000(52)DRJ355
Author: A.K. Sikri
Bench: A.K. Sikri
ORDER A.K. Sikri, J.
1. The facts of this case are brief and largely undisputed. Before stating the controversy which arises in this case, let these facts be narrated first :
2. One Shri Shital was working in Delhi Electric Supply Undertaking (DESU) (now it is Delhi Vidyut Board), the respondent herein. From 17-7-1989 he started absenting himself from duty. Although it is stated in the petition that he fell seriously ill and could not join his duty for long time, fact remains that he did not intimate the respondent about his illness or submit any leave application. Respondent, therefore, treated him unauthorised absentee. Various communications were sent to him stating that he was unauthorised absent and asking him to resume duties. When he failed to comply with the direction, unauthorised absence was treated as misconduct and charge-sheet dated 13.2.91 was issued on the ground that petitioner was remaining on wilful absence from 17.7.89 onwards. Charge-sheet was sent to him at his last known residential address, which was received by him on 12.3.91. However, he did not submit any reply/communication. In the circumstances, respondent decided to proceed against him under major penalty proceedings and notices were sent to him in this regard. However, the same were returned by the postal authority with the remarks "IS NAM KA KOI NAHIN HA WAPIS". Case was referred back by enquiring authority to the disciplinary authority in view of the aforesaid remarks. The disciplinary authority after noticing all these facts passed order dated 17.3.92 stating that it was not reasonably practicable to give Sh. Shital further opportunity to show cause and exercising the power conferred upon him vide clause (b) of proviso to sub Section (2) of Section 95 of DMC Act 1957 read with Regulation 10 (ii) of DESU (DMC) Service (C&A) Regulations 1976, he dispensed with the requirement of holding departmental enquiry against the charged employee and issuing him a further show cause notice. After taking into consideration the facts and circumstances of the case, disciplinary authority came to the conclusion that petitioner Shri Shital was not a fit person to be retained in the employment of DESU and as such major penalty of dismissal from service was imposed upon the petitioner with immediate effect vide said order dated 17.3.92. This order was sent to the petitioner at his native address in UP as well as Delhi address given by him. This is how services of Shri Shital were terminated in the year 1992. Even after this termination Shri Shital did not react. However, unfortunately Shri Shital died on 21.9.95. After his death widow and son of Shri Shital (who are petitioners in the present writ petition) approached the respondent for getting financial help and job on compassionate grounds some time in the year 1996. On 2.4.1996 letter was written by the respondent to petitioner No. 1 (widow) requiring her to send certain documents mentioned in the said letter to enable the respondent to take further action. On her request to provide employment on compassionate basis to his son, application dated 12.4.96 for compassionate appointment was submitted as per requirement contained in respondent letter dated 2.4.96. As no reply was received, another letter dated 13.5.98 was sent, which was followed by reminder letter dated 28.5.98. As no action was taken on their request, petitioners filed this writ petition on 9.7.98 in which petitioners have sought two reliefs, namely, (1) quashing of order dated 17.3.92 by which services of Shri Shital were dismissed (2) directing respondents to dispose of application/representation of petitioner No. 2 seeking appointment on compassionate basis.
3. It is stated in the writ petition that since Shri Shital was seriously ill, he could not join duty nor could he participate in the enquiry as he was undergoing treatment and due to his prolonged illness he died on 21.9.1995. It is also stated that after the petitioner No. 2 submitted his application for compassionate appointment, initially petitioners were asked to fill the form and only few months back petitioner No. 2 was orally informed that his application/representation for compassionate appointment cannot be considered in view of the fact that services of his father were already terminated vide order dated 17.3.92. This order was never served either upon the petitioners or Shital. After hearing about termination, copy of the said order was obtained by petitioner No. 2 from the Office itself. The termination is impugned on the ground that respondents arbitrarily and without holding enquiry and giving opportunity to Shri Shital to explain the charges of his unauthorised absence terminated his services and this order was in violation of principles of natural justice. It is also stated that extreme penalty of dismissal was not justified in view of the facts and circumstances of the case inasmuch as due to continue and prolong illness Shri Shital could not join duties. It is further contended that such a termination is bad in law. It cannot be put against the petitioners in denying petitioner No. 2 appointment on compassionate ground and the application of the petitioner No. 2 for appointment on compassionate ground has to be considered by the respondents on merits.
4. In the counter-affidavit filed by the respondent, it is stated that appointment on compassionate ground cannot be given to family members of deceased dismissed employee. It is further stated that Shri Shital absented and deserted from duty w.e.f. 17.7.89 onwards. Neither he reported back for duty nor he applied for leave or sent any information to the authorities. The charge-sheet and memos were issued to him at the last known residential address but he failed to submit any reply and that exercising the powers under Section 95(2)(B) of the Delhi Municipal Corporation Act, 1957 read with Rule 10(ii) of Delhi Municipal Corporation (Service ) Regulations, the disciplinary authority dispensed with the requirement of holding a departmental enquiry against the employee as holding of departmental enquiry was found to be not practicable. The major penalty proceedings when sent at the last known address were received back with the remarks of the postal authorities that "Is naam ka koi nahin hai. Wapis" (Nobody of this name lives here. Return). Since the deceased Shri Shital was remaining absent from 17.7.1989 and he had neither given any intimation nor did he join duty and there was no way to serve him or contact him, the disciplinary authority passed an order of dismissal on 17.3.1992. A copy of the dismissal order was also sent to his native place. Village Lalpuria, Thana D Partap Garh (U.P.) but the postal authorities returned the same with the remarks that "BAR BAR JANE PAR BHI NAHI MILTE" (not available even on going again and again). Another copy of the dismissal order was sent to his local address at Trilokpuri, Delhi but the same was also returned with the remarks of Postal Authorities that, "BAR BAR JANE PAR TALA BAND MILTA HAI" (Found locked even on going again and again). The postal authorities had visited the residence at native place on 27, 28, 29, & 30.3.1992. The postal authority visited the Trilok Puri residence on 9, 10, 12, 13, & 14.5.1992. In view of the fact that the petitioner had abandoned the job, did not seek information or apply for leave, as such, his services were terminated on 17.3.1992. It is also stated that inspite of the fact that he was duly served with the charge-sheet, he had absented from duty from 17.3.1989 to 17.3.1992 and, neither he joined duty nor did he inform authorities about his alleged sickness. As such, his family members are not entitled to appointment on compassionate grounds. The alleged medical certificates also do not inspire confidence as, if at all they were issued in the year 1990, the deceased employee or his family members, even after receipt of the charge-sheet, could have informed the authorities. The sickness as alleged in the medical certificates are such that it will not incapacitate an individual. Admittedly, the deceased was not bed ridden nor was the sickness so serious that he could not attend his duty or inform the authorities about his sickness. The services of the deceased having been terminated on 17.3.1992 no relief can be granted.
5. I have heard counsel for both the parties at length.
6. The facts narrated above would show that undisputedly Shri Shital started absenting w.e.f. 17.7.89. Whether it was because of illness or otherwise, facts remains that he did not inform respondents about his illness. He did not submit any leave application. He did not send any medical certificate intimating the respondents that he was sick. Although letters were written by the respondents asking him to resume duties, he did not comply with the instructions contained in the communications. He did not even respond to these communications. Under these circumstances, when he was absenting from duty w.e.f 17.7.89 action of the respondents deciding to initiate departmental proceedings and serving charge-sheet dated 13.2.91 cannot be faulted with. Petitioners have not disputed receipt of the charge-sheet. However, even this was not replied to by Shri Shital. Accordingly, enquiry officer was appointed and he sent notices for enquiry at last known address. These were, however, received back with the remarks that no such person with this name was available. The respondents were supposed to send communication at the last known address. When no whereabouts of Shri Shital were known and he was not responding to any of the communications sent to him and even left the last known address, the opinion of the disciplinary authority that he was satisfied that it was not reasonably practicable to give further opportunity to Shri Shital is valid and proper.
7. Counsel for the petitioners challenged order of dismissal on the ground that respondent should have taken more and further steps to serve the petitioners. In this respect he relied upon the judgment of Supreme Court in the case of Union of India and others Vs. Dinanath Shantaram Karekar and others and particularly para-4 thereof, which reads as under :
"4. So far as the service of show-cause notice is concerned, it also cannot be treated to have been served. Service of this notice was sought to be effected on the respondent by publication in a newspaper without making any earlier effort to serve him personally by tendering the show-cause notice either through the office peon or by registered post. There is nothing on record to indicate that the newspaper in which the show-case notice was published was a popular newspapers which was expected to be read by the public in general or that it had a wide circulation in the area or locality where the respondent lived. The show-cause notice cannot, therefore, in these circumstances, be held to have been served on the respondent. In any case since the very initia tion of the disciplinary proceedings was bad for the reason that the charge-sheet was not served, all subsequent steps and stages, including the issuance of the show-cause notice would be bad".
8. The aforesaid observations of the Supreme Court are to be respected. However, the law laid down in this judgment is not applicable to the facts of the present case as narrated above. There is yet another crucial and significant fact which cannot be ignored. Even after the impugned dismissal order dated 17.3.92, no steps were taken to challenge this order. It is stated in the petition that this order was not served upon the petitioners on Shri Shital. I will revert to this aspect later. Suffice would be to state that even if Shri Shital did not know about the dismissal, admittedly he never approached the Department for resumption of duties. Therefore, insofar as he is concerned from 1989 till the date of his death in 1995 he remained absent. That too without informing respondents about his alleged illness or applying for any leave. Such a long period of absence, whether it is treated till 17.3.1992 i.e. the date of dismissal or till 1995 i.e. the date of his death, is sufficient to conclude that the action of the respondents is proper. We can deal with the matter from another angle as well. As noticed above, it is not disputed and was conceded at the Bar that Shri Shital remained absent w.e.f. 17.7.89 without submitting any leave application or informing the respondents about the cause of his absence. Once this is an admitted fact, the charge of unauthorises absence stands established in view of his admitted fact and, therefore, the action of the respondents is sustainable even on this ground.
9. There is yet another aspect of the matter, which cannot be lost sight. viz. Shri Shital never challenged his dismissal from service although he died more than three years after the said dismissal order passed against him. No doubt it is contended by the petitioners that the said order of dismissal was not served upon Shri Shital. However, it does not inspire any confidence. A perusal of the order shows that it is sent to Shri Shital at his local address at Delhi as well as his native place at UP. Therefore, as far as respondents are concerned they complied with the requirement of issuing and dispatching his dismissal order at the addresses known to the respondents and taking all possible steps in this respect. Therefore, there is deemed service of the dismissal order on Sh. Shital. Therefore, filing of this writ petition six years after the termination of Shri Shital that too by the legal representatives of Shri Shital is clearly misconceived. Position would have been different if Shri Shital had filed the petition challenging the dismissal order during his life time and if he had died during the pendency of the writ petition. Such writ petition could have been pursued by the legal representatives, namely, the petitioners. Therefore, the reliance of the petitioners on the judgment of Supreme Court in the case of Basudeo Tiwary Vs. Sido Kanhu University and others is also of no consequence.
10. During the arguments learned counsel for the petitioners made candid admission that the reason for challenging the dismissal order at this stage was the denial of respondents in giving appointment to petitioner No.2 on compassionate basis. It was argued by the respondents that petitioner No.2, in terms of policy of the respondents on providing appointment on compassionate basis, cannot be considered for appointment on compassionate basis since the services of Shri Shital, his father were dismissed as a result of disciplinary action. Therefore, to overcome this hurdle the dismissal order was being challenged. However, there is no merit in the challenge of dismissal order dated 17.3.92 as held above.
11. Even if the plea of petitioner No.2 to provide appointment on compassionate ground is to be considered de-hors the dismissal order dated 17.3.92, petitioners are not entitled to get this relief. There are certain glaring facts staring at the face of the petitioners which would legitimately deny them this relief. Admittedly, Shri Shital was not performing duties w.e.f. 17.7.89. He had not drawn any salary after this period. This position continued till the death of Shri Shital i.e. till 21.9.95. Thus Shri Shital did not earn anything from 17.7.89 to 21.9.95 i.e. for more than six years. Family members of Shri Shital, therefore, for all these years were not dependent upon the income of Shri Shital as he was earning none. It is now well established law as laid down by series of judgments pronounced by the Apex Court that it is not the right of any person to get appointment on compassionate basis. The purpose of giving appointment on compassionate basis is to enable the family of the deceased employee to sustain at the time of financial crises due to sudden death or the deceased employee while in service.
12. In Umesh Kumar Nagpal Vs. State of Haryana and others Hon'ble the Supreme Court has held that object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment. It is emphasised in the said judgment that as a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Government nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exceptions is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rule to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. In the same judgment Hon'ble the Supreme Court has further held that mere death of an employee in harness does not entitled his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.
13. In this case when the petitioners could sustain themselves without Shri Shital earning any amount right from 1989, for more than six years, it cannot be said that Shri Shital died in harness leaving his family members in penury and without any means of livelihood. This fact itself is sufficient to deny any relief to the petitioners.
14. In view of my aforesaid discussion, this writ petition fails and is hereby dismissed. No orders as to costs.