Jammu & Kashmir High Court
Shakuntla Singh vs Uoi Th.Min.Of Home Affairs And Ors. on 18 March, 2015
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
SWP No. 1397/2013
Date of decision:18 .03.2015
Shakuntla Singh V. U.O.I & ors.
Coram:
Hon'ble Mr. Justice Janak Raj Kotwal, Judge.
Appearing counsel:
For the petitioner (s) : Mr. Abhinav Sharma, Advocate.
For the respondent(s) : Mr. P.S.Chandel, CGSC.
i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. This is a petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir.
2. Heard. I have perused the record.
3. Petitioner's husband, Ram Parkash Singh, was a member of the Central Reserve Police Force (CRPF). He was appointed on 04.11.1986. In the year, 1996 he was posted as No. 861550202 INSP/GD at Recruitment Training Centre (RTC), CRPF, Humhama, Srinagar (J&K) from where he was transferred to 32 Bn. by an order bearing Signal No. T-IX-1/01-EC-I dated 15.05.2001 2 issued by the Deputy Inspector General (Personnel) RTC Force, CRPF and is said to have been relieved vide Signal/Order dated 17.05.2001. Feeling aggrieved by the said order of transfer, he filed a writ petition bearing SWP No. 725/2001, which came to be disposed of 28.05.2001 with a direction that he shall file a representation before the competent Authority within one week's time and the competent Authority would consider the same within two weeks thereafter. Representation dated 04.06.2001 for cancellation of his transfer from RTC, Srinagar was submitted by the deceased to the Director General, CRPF but the same was turned down vide Order No.T.IX-2/2001-Pers-II dated 25.06.2001 as being without any merit with observation that he was relieved from RTC, Srinagar prior to passing of the Court order. As the deceased did not report to 32 Bn. CRPF, departmental proceedings for the charge of unauthorised absence from duty and disobeying the orders of Competent Authority was initiated against him. Deceased was alleged not to have taken part in the Departmental Inquiry in spite of notice, the inquiry was conducted ex parte and in the result he was dismissed from service on the ground of unauthorised absence from duty w.e.f. 18.03.2004 vide Order No. P-VIII-2/2002-Estt.-3 dated 18.03.2004 issued by the Deputy Inspector General of Police, CRPF, 3 Hyderabad. His unauthorised absence from duty from 09.06.2001 to 18.03.2004 was ordered to be treated as 'DIES NON'.
4. Feeling aggrieved by his dismissal, petitioner's husband filed SWP No. S-650/2005 in this Court to assail the same on various grounds. A learned Single Judge of this Court found that proper inquiry had not been conducted and that the petitioner therein was not provided any opportunity to present his case and produce witnesses and therefore, allowed the writ petition vide judgment dated 19.05.2011. Operative part of that judgment needs to be and is culled out:
".....Accordingly, this writ petition is allowed. The order of dismissal impugned in the present petition is hereby quashed.
Respondents shall pass fresh orders after complying with the rules within a period of four months from the date copy of this order is served upon the respondents."
5. Respondents assailed the judgment of learned Writ Court in LPA (SW) No. 199/2011. It came to be pointed out before the learned Division Bench of the LPA Court that petitioner's husband, Ram Parkash Singh, who was the petitioner in that writ petition, had died during pendency of the writ petition and his wife (herein petitioner) and two daughters, namely, Rashmi Singh 4 and Ruchi Singh, were brought on record as his legal representatives. Learned Division Bench, while according consideration to the appeal, felt that death of deceased husband of the petitioner had skipped the notice of learned Single Judge and therefore, noticing that petitioner's husband died during pendency of the writ petition, held that the operative part of writ Court judgment to the extent of liberty to the respondents to hold fresh inquiry cannot sustain.
6. The learned Division Bench, however, took up for consideration the question whether the order of dismissal slapped upon petitioner's husband is sustainable. While taking up this question, learned Division Bench observed that 'whatever monetary benefits which ultimately would flow towards the legal representatives/dependents would be dependent upon the finding to be returned on that count only.' Obviously, learned Division Bench had taken up the question of legality of the dismissal of petitioner's husband even after his death with the main purpose of determining the availability of 'monetary benefits' to his legal representatives/ dependents.
7. Learned Division Bench after hearing learned counsel for the parties, examining the record on the inquiry file 5 and relying upon reported judgment of the Supreme Court in Capt. M.Paul Anthony v. Bharat Gold Mines Limited and anr., (1999) 3 SCC 679 by its judgment dated 22.11.2011 concluded that the inquiry proceedings initiated against deceased husband of the petitioner was one sided, not a fair inquiry in its true sense, violative of the principles of natural justice and therefore, cannot stand the test of judicial scrutiny. Learned Division Bench also observed that order of dismissal of the deceased on the basis of the said inquiry report and order passed by IGP, CRPF, rejecting the appeal of the petitioner, were passed in most casual manner without dealing with the main issue as if it was a sheer formality. Learned Division Bench, therefore, upheld the quashing of the order of dismissal dated 18.03.2004 ordered by the learned Writ Court.
8. Having upheld the quashing of the order of dismissal of the husband of the petitioner and because of impossibility of initiating fresh inquiry due to his death during pendency of the earlier writ petition, learned Division Bench in order to keep equitable balance found the legal representatives/dependents of the deceased entitled to monetary benefits of the deceased, while taking into account as if petitioner was 6 not dismissed from service. I may reproduce paragraphs 33 & 34 of the LPA Court Judgment as that is important and would facilitate consideration on the questions arising in this writ petition:
"33. Since the petitioner is already dead and no fresh inquiry can be initiated against him in the present set of circumstances, in order to keep equitable balance the only relief which would now flow, if the monetary benefits to the dependents of the deceased as calculated by the appellants themselves in Annexure-F (Pension Calculation Chart) while taking into account as if the petitioner was not dismissed from service. This is up to the stage of his death i.e. October, 2007. Mr. Raina has also accepted this proposal. Accordingly, we order the release of the said amount.
34. As an upshot of the aforesaid discussion, the net result is that the instant appeal stands is missed being devoid of any merit in it. The appellants are directed to release the entire amount as depicted in Annexure-F (Pension Calculation Chart) in favour of respondent No.1, the widow of he deceased, within two months from today. Any delay in it shall call for a stern action."
9. Contextually, it needs to be stated that 'Annexure-F' referred to in the LPA Court Judgment was the Pension Calculation Chart disclosing the amount payable to the deceased employee had he not been dismissed from service, which was prepared by and filed on behalf of the respondents under the direction of learned Division Bench during proceedings in the appeal.
710. Pursuant and in compliance to the judgment of the learned LPA Court, the Deputy Inspector General of Police, CRPF, Hyderabad, the respondent No.3 herein, issued a detailed order bearing No. J. II-32/2012-Estt-3 dated 22nd March, 2012 operative part whereof reads:
"10. Accordingly in pursuant to the Hon'ble Court order dated 22.11.2011 on LPA No. 169/2011 and the approval of the competent authority as conveyed by DIGP (Law) Dte, General, CRPF vide their Signal No. J.II-387/2005-LWP-VI dated 09.03.2012, Smt. Shakuntala Singh, Widow of No. 861550202 Insp/GD Ram Parkash Singh of 32 Bn. CRPF is hereby granted pensionary benefits i.e., Family Pension, DCRG, Leave Encashment etc. W.e.f. 23/10/2007 i.e., the from next day of date of death of her husband on 22.10.2008. The period of absence from duty from 09/06/2001 to 22/10/2007 in respect of the deceased Insp (GD) Ram Prakash Singh of 32 Bn. CRPF is treated as a period spent on duty for which he will not be entitled for any back wages on the notion of no work-non pay. However, this period shall be reckoned for the purpose of granting pensionary benefits i.e., pension (family pension), DCRG, leave encashment, etc. and for notionally fixing pay of the deceased on the date of his death by taking into account as if said official was not dismissed from service up to the stage of his death."
11. Petitioner by the medium of this writ petition seeks:
i) Quashing of order No. J-II-32/2012-Estt.-3 dated 22.03.2012, issued by respondent No.3.
ii) Direction to respondents to pay the petitioner entire salary of her husband till his superannuation.
8iii) Direction to the respondents to consider one of the family members of the deceased husband for a job and;
iv) Direction to the respondents to pay the petitioner
pension for the period as entitled post
superannuation of his husband.
12. Case set up by the petitioner in this writ petition is that with the passing of judgment dated 22.11.2011 (supra) in the LPA filed by the respondents the quashment of the dismissal of her deceased husband attained finality and her deceased husband was to be treated as in-service for all purposes. As her husband died at a time when he was in active service, the petitioner is entitled to benefits of an in-service officer, which as per rules include monthly salary for some years followed by pensionary benefits. Apart from that, one of the family members of the deceased would be entitled for consideration for job on compassionate grounds. None of these benefits have been given to the family of the deceased inasmuch as respondent No.3 by the impugned order even denied salary of petitioner's husband from 09.06.2001 to 22.10.2007. It is averred by the petitioner that her husband died at the age of 42 and in the normal course he had to attain superannuation at the age of 58. Petitioner even claims 9 that she is entitled to salary of her husband till his age of superannuation followed by pensionary benefits. In regard to refusal of back wages for the period 09.06.2001 to 22.10.2007, it is contended by the petitioner that absence was due to omission and commission of the respondents as her deceased husband was not allowed to perform duties during the said period and there were no mala fides on the part of her husband. In that it is contended that the impugned order is violative of Article 311 of the Constitution of India. In regard to refusal of salary of her deceased husband, petitioner's contention is that respondent No.3 has ignored the setting aside of the dismissal by this Court.
13. Respondents have opposed the writ petition by filing widespread objections which after admission of the writ petition have been treated as counter affidavit. In regard to the back wages i.e. wages from 09.06.2001 to 22.10.2007 it is repeatedly stated in the objections that same were not admissible on the principle of 'No Work No Pay' nor any direction in this regard was issued by this Court. Likewise, in regard to claim for compassionate appointment to a family member stand taken by the respondents is that the same is not admissible as no direction in this regard had been 10 issued by this Court nor the petitioner is entitled thereto. In regard to the claim for the salary of the deceased till the time of his superannuation stand of the respondents is that claim is contrary to the rules as there is no rule to pay such salary. It is contended that the LPA Court vide Judgment dated 22.11.2011 had directed the respondents to release entire amount as depicted in Annexure-F therein (Pension Calculation Chart) and therefore, all such benefits, that is, leave encashment and family pension, have been released.
14. Mr. Abhinav Sharma, leaned counsel for the petitioner, argued that with the quashing of the dismissal of the deceased husband of the petitioner by learned Writ Court in SWP No. S-650 followed by judgment in the LPA, withholding of the back wages neither was legally correct nor justified. On the strength of plea taken in the writ petition, Mr. Sharma argued that absence from duty of the deceased was due to acts of omission and commission on the part of respondents so the deceased could not have been nor his legal representatives can be deprived of wages for that period after setting aside of the dismissal. Mr. Sharma relied upon a judgment of the Supreme Court reported as AIR 1999 SC, 983. He also relied upon a DB judgment 11 of Orissa High Court in O.J.C. No.290/1980 decided on 21.02.1985.
15. Mr. Abhinav Sharma argued further that with the dismissal having been quashed by this Court and in compliance with the judgements of this Court the competent Authority (respondent No.3) having treated absence from duty of the deceased from 09.06.2001 to 22.10.2007 as period spent on duty the deceased would be said to have died while in active service so his legal representatives were entitled to full salary of the deceased for the period permitted under rules followed by family pension as per the rules. Likewise, argued Mr. Sharma, dependents of the deceased are entitled to benefit of compassionate appointment.
16. Per contra, Mr. P.S.Chandel, learned CGSC, submitted that the deceased husband of the petitioner had remained unauthorizedly absent from duty and even if his dismissal was quashed on a technical ground, neither he could have nor his legal representatives can claim wages for the period of such absence and the principle of No Work No Pay was fully applicable. Mr. Chandel relied upon a judgment of the Supreme Court reported as (2007) 10 SCC 561. He also relied upon a Judgment of Allahabad High Court in Civil Misc. Writ 12 Petition No. 36075 of 2008 dated 7th February, 2014. Mr. Chandel argued further that under the direction issued by the learned Division Bench in LPA judgment dated 22.11.2011, respondents were required to pay entire amount as per the Pension Calculation Chart, Annexure-F therein and that petitioner or the legal representatives of the deceased are not entitled to full salary under rules as claimed nor compassionate appointment.
17. Before taking up the questions arising from respective stands of the parties for adjudication, I may analyse the impugned order to tabulate what has been allowed by the respondents to the legal representatives/ dependents of the deceased and what has been refused are not granted:
a) Wife of the deceased has been granted pensionary benefits, that is, family pension, DCRG, leave encashment etc. w.e.f. 23.10.2007, that is, the day next after death of the deceased.
b) The period of absence from duty of the deceased from 09.06.2001 to 22.10.2007 is treated as period spent on duty with a rider that he will not be entitled for any back wages on the notion of no work no pay.13
c) Period of absence from duty w.e.f. 09.06.2001 to 22.10.2007, however, has been allowed to be reckoned for purpose of granting pension/family pension, DCRG, leave encashment etc. and for notionally fixing pay of the deceased as on the date of his death as if the deceased was not dismissed from service up to the stage of his death.
d) It is seen that even while treating the deceased as on duty for the period of his absence from 09.06.2001 to 22.10.2007 and reckoning this period for the purpose of pensionary benefits, the deceased has not been treated as having died in harness inasmuch as wife of the petitioner seems to have been found entitled to family pension only.
18. First I take up the question, whether salary (back wages) for the period of the deceased's absence from duty from 09.06.2001 up to 22.10.2007 should have been granted or not?
19. It may be restated here that the deceased was transferred from RTC, Srinagar by an order dated 15.05.2001 and as per the respondents he was relieved on 17.05.2001. He did not join his new place of posting 14 and was dismissed from service after departmental proceedings. He died on 23.10.2007. This Court quashed the suspension vide judgment dated 09.05.2011 in SWP No. S-650/2005. Respondent's have taken the period of his absence from duty as 09.06.2001 to 22.10.2007 meaning thereby that initial period from 17.05.2001 to 08.06.2001 might have been excluded as his joining/journey time.
20. Reported judgement in Divisional Controller Gujarat SRTC v. Kadarbhai J. Suthra, (2007) 10 SCC 561, relied upon by respondents' counsel, Mr. Chandel, is based upon two earlier authorities of the Supreme Court in Hindustan Tin Works Pvt. Ltd. v The Employee of Hindustan Tin Works Pvt. Ltd. and ors., (1979 (2) SCC 80 and P.G.I of Medical Education and Research, Chandigarh v. Raj Kumar (2001)2 SCC 54. Placing reliance on these two authorities, Their Lordships in Divisional Controller Gujarat SRTC has concluded that direction of payment of back wages issued by the High Court of Gujarat in that case was not sustainable.
21. In Hindustan Tin Works a three three-judge Bench of the Supreme Court has laid down:
"In the very nature of things there cannot be a straight- jacket formula for awarding relief of back wages. All 15 relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular (See Susannah Sharp v. Wakefield, [1891] AC 173, 179)".
22. In P.G.I of Medical Education and Research, Chandigarh v. Raj Kumar (2001)2 SCC 54, the Supreme Court has observed:
"The Labour Court being the final Court of facts came to a conclusion that payment of 60% wages would comply with the requirement of law. The finding of perversity or being erroneous or not in accordance with law shall have to be recorded with reasons in order to assail the finding of the Tribunal or the Labour Court. It is not for the High Court to go into the factual aspects of the matter and there is an existing limitation on the High Court to that affect."
23. At paragraph 12, their Lordships further observed:
"Payment of back wages having a discretionary element involvement in it has to be dealt with in the facts and circumstances of each case and no straight-jacket formula can be evolved, though, however, there is statutory sanction to direct payment of back wages in its entirety."16
24. Quashing of the disciplinary proceedings and the order of termination and reinstatement of an employee in Government service would not automatically lead to his entitlement to back wages for the period during which he remained unauthorizedly absent from duty or under dismissal or did not render any service to the Government/employer. It is a well settled position in law that on the finding that termination was not lawful there is no automatic entitlement to full back wages. Full back wages though is a normal rule but having regard to facts and circumstances of a case back wages may be refused and in that payment of back wages would be in the discretion of the Court. In according consideration to payment of back wages in a case of reinstatement of a terminated employee or fixing the back wages several factors in their entirety need to be noted and no strait-jacket formula can be evolved.
25. Recently, the Supreme Court in Chairman-cum-
Managing Director, Coal India Limited and others V. Anantha Saha and others, (2011) 5 SCC 142, has held that the issue of entitlement of back wages has been considered by this court time and again and consistently held that even after punishment imposed upon the employee is quashed by the Court or 17 Tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the Court/Tribunal keeping in view the facts in their entirety as no strait jacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled for back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide: U.P.SRTC v. Mitthu Singh, AIR 2006 SCC 3018; Secy., Akola Taluka Education Society & Anr. v. Shivaji & Ors., (2007) 9 SCC 564; and Managing Director, Balasaheb Desai Sahakari S.K. Limited v. Kashinath Ganapati Kambale, (2009) 2 SCC 288).
26. In applying the aforementioned principles to the case on hand, it has been noticed that in SWP No. S- 650/2005 (supra)the learned Single Judge of this Court vide judgment dated 09.5.2011 had quashed the dismissal of petitioner's deceased husband on technical ground that departmental proceedings 18 against him were held behind his back as notice of inquiry was never served upon him. Learned Division Bench in the LPASW No. 169/2001 (supra) filed by the respondents had similarly upheld the judgment of the learned Writ Court after arriving at a conclusion that departmental proceedings initiated against the deceased were one sided and held in violation of principles of natural justice. The Writ Court or the Division Bench neither had exonerated the deceased of the charge of unauthorised absence nor had entered into the arena of merits of the case. Learned Writ Court rather had directed the respondents to pass fresh orders after complying with the rules within a period of four months. Fresh departmental proceedings, however, could not be conducted as unfortunately petitioner's husband had died during the pendency of the writ petition. It was under such a situation that learned Division Bench while disposing of the LPA vide judgment dated 22.11.2011 had in order to keep 'equitable balance' found the dependants of the deceased entitled to monetary benefits taking into account as if he was not dismissed from service.
27. Contextually, it needs to be restated that the deceased, who at the relevant time was holding a 19 responsible post of the rank of Inspector in a belt force and indisputably was in his mid thirties, was by the order dated 15.05.2001 issued by a competent authority transferred from RTC, Srinagar to 32 Bn after having remained posted there for over four years. He was relieved on 17.05.2001. Instead of complying with the transfer order, the deceased, however, assailed the same by filing SWP No. 725/2001 before Srinagar wing of this Court, which came to be disposed of vide order dated 28.5.2001 with a direction that petitioner (deceased) shall file representation before competent authority within one week and the respondents shall consider the representation if filed by the petitioner within two weeks.
28. It is noticed that while disposing of SWP No. 725/2001 vide order dated 28.5.2001, this Court though had asked the petitioner therein (deceased) to file representation within one week and directed the respondents to accord consideration to the said representation, if filed, within two weeks but had not stayed the transfer of the petitioner. In the petition on hand petitioner has not stated as to why her deceased husband did not comply with the transfer order even after the disposal of the writ petition on 28.5.2001 and there being no direction/ interim direction against the 20 transfer. It is rather vaguely stated in ground (C) that petitioner's husband was not allowed to perform his duties for the period 9.6.2001 to 22.7.2007 due to various acts of omission and commission on the part of the respondents, which however, fails to constitute a plausible plea in regard to deceased's failure to join his new place of posting pursuant to the transfer order. In this regard, as per judgment of learned single Judge dated 19.5.2011 (supra), the deceased official in SWP No. S-650/2005 had pleaded that he was not allowed to perform his duties at RTC, Srinagar without according consideration to his representation and in gross violation of order dated 28.05.2001 rendered by this court in SWP No. 725/2001. This too might not have been taken as a plausible plea to explain failure to join the new place of posting pursuant to the transfer order but the learned writ Court as also the LPA Bench in that case, as mentioned herein above, did not venture into merits of the case as departmental proceedings were found violative of principles of natural justice and quashed on that score.
29. There cannot be any doubt in presuming that after disposal of writ petition in SWP No. 725/2001, whereby the deceased official had assailed his transfer, on 28.5.2001 the deceased as a disciplined 21 soldier should have complied with the transfer order by joining his new place of posting as he had been relieved from RTC, Srinagar on 17.5.2001, however, after availing the permissible preparatory/ joining period. Alongside, the representation pursuant to the direction issued by this Court could have been filed. It would have remained open for him to approach this Court again if there was a reason to feel that some illegality is committed in according consideration to the representation. The deceased, however, seems to have adopted confrontational attitude with the authorities inasmuch as he did not join his new place of posting after the expiry of the preparatory/joining time, which, as pointed out, was available up to 09.06.2001 and adopted the course of continuous unauthorised absence leading to departmental proceedings and his dismissal from service. Remaining absent from duty and rendering no service to the public, therefore, by all standards was deceased's own choosing and cannot not be attributed to acts of omission or commission on the part of the respondents.
30. Having viewed as above, this is not a fit case where discretion of granting back wages for the period during which the deceased official did not render any 22 service to the public and opted to remain absent unauthorizedly leading to departmental proceedings against him should be exercised in favour of the deceased or the petitioner herein even though in the peculiar circumstance of the case legal representatives of the deceased have been held entitled to monetary benefits taking into account as if the deceased was not dismissed from service by the learned LPA Bench and in compliance with that judgment said period has been reckoned as on duty for the purpose of granting pensioner benefits.
31. The two authorities relied upon by learned petitioner's counsel, having regard to fact situation in those situations, can neither render any help nor improve the case of the petitioner in the case on hand. In Dipti Prakash Banerjee, AIR No. 1999 SC 983 (supra) appellant was appointed on probation for one year and could have been confirmed, provided the administration was satisfied with the quality of his service. He was, however, terminated by an order issued on 30.4.1997 in background of a letter dated 29.3.1997 written to him by his Director and question arising before the Hon'ble Supreme Court was whether order of termination was vitiated by 'stigma'. Supreme Court found the letter objectionable order of 23 termination was liable to be set aside. While quashing the order of termination, Supreme Court directed that appellant be reinstated with back wages. The notable difference in fact situation of Dipti Prakash Banerjee's case and case on hand is that termination in that case was not result of a deliberate act on the part of the appellant and no fresh departmental proceedings were directed by the Court whereas in the case on hand no plausible plea for the deceased having opted not to comply with transfer order has been taken and the Writ Court had directed departmental proceedings afresh.
32. In Govinda Chandera Rout's case (O.J.C. No. 290/1980) supra final order in the disciplinary proceedings against petitioner therein was issued on 18.5.1979 imposing punishment of suspension for one month from the date of issue of the order. Learned Division Bench of High Court of Orissa declared the order ultra vires and quashed the same holding petitioner entitled to full salary for the period during which he was under
suspension. Learned Division Bench in that case has held petitioner entitled to back wages mainly because of quashing of the suspension order and same principle cannot be applied to the case on hand.24
33. Impugned order for aforementioned reasons to the extent it disallows back wages in respect of deceased official, Ram Prakash Singh does not suffer from any illegality and is liable to be upheld. However, petitioner's claim in regard to entitlement to compassionate appointment as also salary after death of the deceased has merit though in a manner slightly different than it has been claimed.
34. By virtue of the judgment dated 22.11.2011 (supra) rendered by learned Division Bench in the LPA, which has attained finality, dependants of the deceased official were to be paid monetary benefits taking into account as if petitioner was not dismissed from service. It was rather sufficiently indicated in para 33 of the judgment that deceased would be deemed to be in service up to October, 2007. It was in consonance with the judgment that respondents in the impugned order rightly treated the of deceased's absence from 9.6.2001 to 22.10.2007 as period spent on duty and ordered the same to be reckoned for the purpose of pensionary benefits
35. Dismissal of the deceased having been quashed by the Writ Court vide judgment 19.05.2011, the judgment having been upheld by the LPA Bench and deceased's 25 period of absence from 09.06.2001 to 22.10.2007 having been treated as on duty, natural corollary would be that the deceased would be deemed to have died in harness and his legal representatives/ dependents would be entitled to all the monetary benefits/ pension and family pension as are permissible under rules to dependents of a government servant dying in harness.
36. Respondents in this case as per the impugned order passed by respondent No. 3 appear to have sanctioned pension/family pension in favour of the petitioner at the rate it is paid when a Government servant retires on attaining age of superannuation and not at the rate it is paid to dependents of Government servant who dies in harness. Contention raised on behalf of the respondents that as per the judgment of learned LPA Bench, dependents of the deceased were to be paid pensionary benefits only as per Pension Calculation Chart submitted as annexure -F on behalf of respondents before the learned Division Bench is not sustainable and taking such plea would be restricting the intent and implication of the judgment. Leaned Division Bench primarily had found dependents entitled to monetary benefits and such benefits would include all those benefits including 26 pension/ family pension payable to dependants/legal representatives of a Government servant who dies in harness in accordance with applicable rules.
37. For all that said and discussed above, this writ petition is partially allowed by providing that the dependants of deceased Inspector late Shri Ram Parkash Singh are entitled to all the monetary benefits including pension/ family pension at the rate provided under the applicable service rules taking it as a case of deceased having died in harness and not retired on superannuation. Likewise, benefit of compassionate appointment in accordance with rules shall also be available to dependants and by a writ of mandamus respondents are directed to provide all such benefits to the petitioner/dependants of the deceased in accordance of with applicable service rules. Relief in regard to grant of back wages, however, is refused.
(Janak Raj Kotwal) Judge Jammu :
18.03.2015 Pawan Chopra