Allowed

Smt. Santosh Kanwar v. State and Ors.

Rajasthan HC16 Aug 2018CW/2743/2018

Case brief

AI extract

What is this about?

Petitioner challenged termination order of her husband passed without departmental proceedings and sought compassionate appointment. Court quashed termination order for procedural lapse and directed compassionate appointment consideration.

What did the court decide?

Impugned termination order dated 6.9.2017 quashed and set aside; respondent to consider petitioner for compassionate appointment within four months.

Smt. Santosh Kanwar Vs State and Ors. — Pension and Retirement Benefits | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶2

S.B. Civil Writ No. 2743/2018

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Smt. Santosh Kanwar W/o Late Sh. Mangu Singh , Resident Of Village Post Nandiya Kallan, Tehsil Baori, District Jodhpur Raj.

¶4

----Petitioner

¶5

Versus

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State Of Rajasthan Through Secretary , Public Health And Engineering Department, Govt. Of Rajasthan, Jaipur.

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The Executive Engineer , Public Health And Engineering Department, Division-Ii, Lalsagar, Jodhpur.

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The Assistant Engineer , Public Health And Engineering Department, Division-Ii, Lalsagar, Jodhpur.

¶9

----Respondents

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For Petitioner(s) : Ms.Shambhavi B.Mardia. For Respondent(s) : Mr.NK Mehta, AGC.

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Judgment

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16/08/2018

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The petitioner has preferred this writ petition with the

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following relief :-

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“It is, therefore, respectfully prayed that this petition for writ in the nature of mandamus may kindly be allowed and by any other appropriate writ, order or direction :

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The impugned order dated 06.09.2017 (Annex.4) passed by respondents whereby services of petitioner’s husband were terminated may kindly be quashed and all consequential benefits may be provided to the Petitioner.

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The respondents may be directed to grant appointment to the petitioner on compassionate ground in place of her husband on the post of Class IV.”

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The husband of the petitioner namely, late Shri Mangu

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Singh was appointed as Helper to Assistant Engineer on temporary

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(2 of 6) [CW-2743/2018]

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basis on 7.8.2000. Subsequent to the probation period, the services of the petitioner’s husband were regularised on the post of Helper. The petitioner’s husband due to medical ailment remained absent from duties and died in a car accident on 13.11.2017. The petitioner sought compassionate appointment by an application dated 13.12.2017 on the post of Class-IV under the provisions of Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 (for short ‘the Rules of 1996’). The respondents informed the petitioner regarding termination of the services of her husband on 6.9.2017 invoking Rule 86(1)(3) of the Rajasthan Service Rules, 1951. The termination order reads as follows :-

¶23

“lgk;d vfHk;Urk] tu Lok-vfHk-foHkkx] uxj mi[k.M ykylkxj f}rh; tks/kiqj ds v/khu inLFkkfir Jh ekaxq flag] in lgk;d ds fnukad 07-11-2014 ls yxkrkj fcuk fdlh lwpuk ds dk;Z LFky ls vuqifLFkr jgus ds QyLo:i lgk;d vfHk;Urk] uxj mi[k.M ykylkxj f}rh; tks/kiqj ds i= Øekad 1100&02 fnukad 19-032015 o i= Øekad 9&11 fnukad 06-04-2015 rFkk bl dk;kZy; ds i= Øekad 64&66 fnuakd 09-04-2015 ds }kjk deZpkjh dks vius dk;ZLFky ij mifLFkr gksus gsrq fy[kk x;kA blds lkFk gh lgk;d vfHk;Urk ds }kjk deZpkjh ds ?kj ds miyC/k iRrs ij Mkd }kjk i= Øekad 584&86 fnukad 20-07-2015] 637&39 fnukad 06-10-2015] 1083&84 fnukad 16-12-2015] 354&56 fnukad 15-02-2016] 7&8 fnukd 04-04-2016 ,oe~ i= Øekad 317&18 fnuakd 25-05-2016 rFkk vfUre Lej.k i= Øeakd 390&92 fnuakd 16-06-2017 }kjk deZpkjh dks vius dk;Z LFky ij mifLFkr gksdj vuqifLFkr jgus ds laca/k esa viuk Li"Vhdj.k izLrqr djus ds fy;s fy[kk x;k] ijUrq deZpkjh vius dk;ZLFky ij mifLFkr ugha gqvkA

¶24

deZpkjh ls le; le; ij i=kpkj fd;s tkus ds mijkUr Hkh dksbZ tokc izkIr ugha gksus ds QyLo:i bl laca/k esa bl dk;kZy; ds i= Øekad 4868 fnuakd 13-01-2017 ds }kjk lekpkj i= esa fnukad 21-01-2017 dks vafre uksfVl ds :i esa foKfIr izdkf”kr djok dj deZpkjh dks lwpuk ds izdkf”kr dh frfFk ds 15 fnu ds vUnj vUnj vius dk;ZLFky ij mifLFkr gksus o vuqifLFkfr dk Li"Vhdj.k izLrqr djus dk vafre volj iznku fd;k x;k] ijUrq deZpkjh vkt fnuakd rd vius dk;ZLFky ij mifLFkr ugha gqvk rFkk u gh deZpkjh }kjk fdlh izdkj dk i=kpkj

(3 of 6)

[CW-2743/2018]

fd;k x;kA

vr% deZpkjh ds yEcs le; ls LosPNk ls vuqifLFkr jgus ds dkj.k jktLFkku lsok fu;e ds fu;e 86¼1½] ¼3½ ds vUrxZr Jh ekaxq flag] in lgk;d dks rqjUr izHkko ls jkT; lsok ls fu’dkflr ¼fjewOM½ fd;k tkrk gSA**

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The petitioner immediately filed the writ petition challenging the said order dated 6.9.2017 and also seeking compassionate appointment as per the Rules of 1996.

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3.1 Counsel for the petitioner has made a limited submission that Rule 86(1)(3) of the Rajasthan Service Rules, 1951 required initiation of departmental proceedings by the respondents before making the termination. Rule 86(1)(3) of the Rajasthan Service Rules, 1951 reads as follows :-

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(3) Notwithstanding the provisions contained in subrules (1) and (2) above the disciplinary authority may initiate departmental proceedings under Rajasthan Civil Services (Classification, Control & Appeal) Rules against a Government servant who willfully remains absent from duty for a period exceeding one month and if the charge of willful absence from duty is proved against him, he may be removed from service. ”

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3.2 Counsel for the petitioner has relied upon the judgment

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of this Court in S.B. Civil Writ Petition No.1230/2008 (Achal Singh. vs. State of Rajasthan And Ors.) decided on 11.12.2017, which reads as follows :-

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“1. This writ petition under Article 226 of the Constitution of India has been preferred with the following prayers:

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“(1) Impugned order dated 4.5.2000 issued by the Executive Engineer PHED, Jodhpur and order dated 15.09.03 issued by AEN may kindly be quashed and set

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(4 of 6)

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[CW-2743/2018]

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aside, as if the orders were never passed against the petitioner, with all consequential benefits & reliefs.

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(2) Any other writ, order or direction which Your Lordship may deem just and proper in the facts and circumstances of the case may also kindly be issued in favour of the petitioner.

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(3) The cost of this writ petition may kindly be awarded in favour of the petitioner.”

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The petitioner joined the services as Class IV employee in pursuance of the order dated 29.10.1978 issued by the Executive Engineer, PHED Circle, Jodhpur. Thereafter, the petitioner was appointed as Helper (Regular) under City Water Distribution Scheme, Jodhpur vide order dated 24.09.1979. The services of the petitioner were terminated vide order dated 04.05.2000 issued by the Executive Engineer, PHED, Jodhpur invoking Rule 86(3) of the Rajasthan Service Rules, 1951. The reason assigned for such termination was willful long absence of the petitioner from duty.

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At the outset, learned counsel for the petitioner states that Rule 86(3) of the Rules of 1951 is not applicable, as the respondents had failed to initiate the departmental proceedings under the Rajasthan Civil Services (Classification, Control & Appeal) Rules against the petitioner, and unless that was done, removal from service on account of willful absence, was not possible.

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Learned counsel for the petitioner further pointed out that absence for more than five years, at most, could have warranted invocation of sub-rule (4) of Rule 86 of the Rules of 1951. But in this case, admittedly, the absence was not of five complete years.

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Learned counsel for the respondents stated that there was willful long absence, and thus, the order dated 04.05.2000 was perfectly legal, as virtually the petitioner had abandoned his services.

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However, in the reply of the respondents, in para 5, it has been admitted by the respondents that the termination was under Rule 86(3) of the Rules of 1951 and the period of willful absence of the petitioner, as per the press note of the respondents, was from 16.07.1998 to the date of removal from service. However, it is not disputed by the respondents that the regular departmental proceedings was not held against the petitioner.

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After hearing learned counsel for the parties as well as perusing the record of the case, this Court is of the opinion that the Rule 86(3) of the Rules of 1951 envisages that the respondents can initiate the regular departmental proceedings under the CCA Rules against the government servant, who willfully remained absent from duty for the period exceeding one month, and thereafter, if such

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(5 of 6)

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[CW-2743/2018]

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absence is proved, then he can be removed from service.

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Rule 86(3) of the Rules of 1951 is quoted below for ready reference:

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“ Rule 86. Absence after expiry of leave:-

(1) . . . . .

(2) . . . . .

The statutory requirement of holding the departmental proceedings cannot be done away with, simply because the petitioner remained absent from duty for a long period of time. In fact, it is the carelessness and negligence on the part of the respondents that a person was willfully absent for more than one month, for which they should have initiated regular departmental proceedings and if the absence was found to be willful and without justifiable reason, the respondents ought to have passed the order of removal from service, in accordance with Rule 86(3) of the Rules of 1951.

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The failure on the part of the respondents is directly beneficial to the petitioner, as in the regime of the rule of law, no authority can be permitted to deviate from the statutory requirements calling for prejudicial action against the employee, even when the employee may admittedly be at fault.

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In light of the aforesaid discussion, the present writ petition is allowed to the extent that the impugned order dated 04.05.2000 passed by the Executive Engineer, PHED, Jodhpur and order dated 15.09.2003 passed by the Assistant Engineer are quashed and set aside, and the respondents are directed to take the petitioner back in service. However, it is made clear that the petitioner shall not be entitled to any back wages for the period, for which the petitioner has not discharged the services. It is further made clear that the respondents shall pay to the petitioner all notional benefits, except for the back wages. Needless to say, the respondents shall be free to hold the departmental proceedings against the petitioner and follow the procedure laid down in Rule 86(3) of the Rules of 1951, if the respondents require to remove the petitioner from service.”

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Counsel for the respondents is not in a position to refute that the departmental proceedings were not conducted and

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(6 of 6)

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[CW-2743/2018]

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barely the order reproduced hereinabove was passed on account of unauthorised absence on 6.9.2017.

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After hearing the counsel for the parties and after perusing the material on record as well as precedent law, the statutory requirement of holding departmental proceedings cannot be done away with, simply because the petitioner remained absent from duty for a long period of time. In fact, it is the carelessness and negligence on the part of the respondents that a person was willfully absent for long time and they have not initiated the enquiry strictly in accordance with law. The cryptic order passed by the respondents cannot be sustained in eye of law. Thus, failure on the part of the respondents is directly beneficial to the petitioner, as in the regime of the rule of law, no authority can be permitted to deviate from the statutory requirements calling for prejudicial action against the employee, even when the employee may admittedly be at fault.

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In light of the above, this writ petition is allowed. The impugned order dated 6.9.2017 is quashed and set aside. The consequential benefits arising out of quashing of the termination order shall be given to the petitioner. Consequently, the respondents are directed to consider the case of the petitioner for compassionate appointment within a period of four months from today.

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(DR.PUSHPENDRA SINGH BHATI)J.

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S.Phophaliya/-

Smt. Santosh Kanwar v. State and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Santosh Kanwar v. State and Ors.

Case brief

What is this about?

What did the court decide?

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