Prabhavati vs The Secretary Finance Department (Administration) and Others

A.S. Bopanna, J.—Petitioner is before this Court assailing the order dated 15.03.2011 whereby, the benefit has been denied to the petitioner which is claimed by the petitioner to be available to her late husband.

The husband of the petitioner and two other employees had been proceeded against by the respondents in respect of certain irregularities committed by them during the course of their services. Insofar as petitioner''s husband and one other employee - Sri Gururaj Kulkarni consideration was made before this Court. Insofar as the third employee namely Sri M. Vajihuddin, respondents themselves had made consideration only to the extent of imposing penalty of recovering the amount from the said employee. However, husband of the petitioner and said Sri Gururaj Kulkarni were dismissed from the services in addition to the order to recover the amount at 1/3rd amounting to Rs. 2,02,500/-.

The husband of the petitioner and the said Gururaj Kulkarni had therefore approached the Karnataka Administrative Tribunal (for short, ''the KAT'') assailing the dismissal orders. The applications filed in Applications Nos. 3999/2004 and 40001/2004 were dismissed by the order dated 28.08.2008. Therefore, they were before this Court in the writ petitions filed by them, wherein the petition relating to husband of the petitioner was in W.P. No. 40518/2008. Since the husband of the petitioner died during the pendency of the petition, petitioner was brought on record as the legal representative. The Hon''ble Division Bench of this Court while disposing of the petition on 15.09.2010, on having noticed that the allegation was similar in respect of the petitioner, Sri Gururaj Kulkarni and the other employee namely Sri M. Vajihuddin was of the opinion that the order of dismissal passed against the husband of the petitioner and Sri Gururaj Kulkarni would not be justified and what is permissible is only recovery of the amount from them as had been made in the case of M. Vajihuddin. It is in that view, this Court by the order dated 15.09.2010 had set aside the order of dismissal and ordered that the amount be recovered. Since at that point, the husband of the petitioner died, it was clarified by this Court that since the reinstatement would not be possible due to the death of the husband of petitioner, the petitioner would be entitled to the retirement benefits and out of such amount, an amount of Rs. 2,02,500/- is to be recovered. It is the implementation of the said order which has raised the present dispute.

By the order impugned dated 15.03.2011, though said Sri Gururaj Kulkarni was granted the benefit of reinstatement, insofar as the case of the husband of petitioner, the respondents have referred to Rule 99(1)(b) and 99(5) of the Karnataka Civil Service Rules and have held that the period from the date of dismissal, the case of the husband of petitioner cannot be considered for the purpose of granting any benefits. Claiming to be aggrieved by the said order, the petitioner is before this Court.

Heard the learned counsel for the petitioner and the learned Additional Government Advocate and perused the petition papers.

The learned Additional Government Advocate with reference to the said Rule would no doubt seek to sustain the order passed. It is contended that when the husband of the petitioner had died and had not rendered any services from the date of dismissal, the rule referred in the order would apply and in that view the benefit is not payable.

The learned counsel for the petitioner would however while countering the said argument would contend that the manner in which the case of the husband of petitioner is to be regulated is only based on the order dated 15.09.2010 passed by this Court. The rule referred to would not apply to the fact and circumstances of the present case since the appellate authority was not passing any orders regulating the order passed by the disciplinary authority and taking different view in that regard. It is therefore contended that the impugned order is not justified.

In that light, I am of the opinion that since at the first instance, husband of the petitioner was before this Court and in the said petition namely, W.P. No. 40518/2008, this Court by the order dated 15.09.2010 had set aside the order of dismissal, based on the observation made during the course of the said order, the said observation would have to be kept in view and the rights of the parties would have to be regulated. A perusal of the order would disclose that this Court at that point was conscious of the fact that even if the order of dismissal of the husband of petitioner is set aside, reinstatement as such would not be possible and it is in that view, this Court has specifically indicated that she would be entitled for the retirement benefits and out of such retirement benefits, the amount recoverable is to be recovered.

When this Court has employed the words ''retiremental benefits'', it would on the face of it indicate what was intended by this Court is that on dismissal order being set aside, period from the date of dismissal order would have to be taken into consideration as continuous service till the date on which service had come to an end though without backwages in monetary terms. In a normal circumstance, the same would have come to an end on attaining the age of superannuation and retiring from service. In the instant case, the husband of petitioner unfortunately died prior to attaining the age of superannuation and in such circumstance, in any event, length of service would have to be considered from the date he joined services till the date he died and the employment had ceased.

If that be the position, the reason indicated in the impugned order to deny the benefits from the date of dismissal despite this Court setting aside the order of dismissal would not be justified. Therefore, the decision contained in (ii) of the order dated 15.03.2011 relating to the husband of the petitioner cannot be sustained. The same is accordingly quashed. A direction is issued to the respondents to treat the length of service of the husband of petitioner from the date of joining service till the date of his death and calculate the retiremental benefits taking into consideration the entire length of service and thereafter, pay the balance amount to the petitioner after deducting a sum of Rs. 2,02,500/-. The said process shall be completed by the respondents as expeditiously as possible but not later than two months from the date on which a copy of this order is furnished to the respondents.

The petition is accordingly disposed of.