Vaishno Devi vs Union Territory Of Jammu & Kashmir & Ors.

Sh. Diwakar Singh, Judicial Member

This is an Original Application filed by the applicant under Section-19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-

The applicant is seeking quashing of Order No.142 of 2022 dated 12.12.2022 issued by respondent No.2 whereby the claim of the applicant for release of pensionary and retiral benefits of her deceased husband Late Shri Balak Raj has been rejected. Consequential directions have also been sought for release of gratuity, General Provident Fund (GPF), leave salary, insurance claim and other consequential benefits.

The case projected by the applicant is that her husband Late Shri Balak Raj was appointed as Forest Guard in the Forest Department on 25.03.1970 and served the department for about thirty-three years.

It is pleaded that during the later part of his service career he developed serious psychiatric illness and remained under continuous medical treatment. Because of his illness, he could not attend duties and remained absent from service.

According to the applicant, despite the department being aware of his mental illness, no proper departmental enquiry as contemplated under Rules 30 to 33 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 was conducted and an ex parte order of dismissal came to be passed on 24.05.2003.

It is further pleaded that the deceased employee challenged the dismissal before the Hon'ble High Court by filing SWP No.836/2009. The writ petition, however, came to be dismissed on 23.10.2017 on the ground of delay and laches without examining the legality of the dismissal on merits.

The applicant submits that after the death of her husband she approached this Tribunal in OA No.61/410/2020 seeking release of retiral benefits. The said OA was disposed of directing the respondents to treat the OA as representation and pass a reasoned order.

Pursuant thereto, respondent No.2 passed Order No.142 of 2022 dated 12.12.2022 rejecting the claim by holding that in view of Articles 170 and 200 of the Jammu and Kashmir Civil Service Regulations, an employee dismissed from service is not entitled to pensionary benefits. Aggrieved thereof, the present Original Application has been filed.

The respondents have stated that the applicant’s husband remained unauthorizedly absent from duty with effect from 29.09.2002 and despite repeated notices requiring him to resume duty, he neither joined service nor produced any medical certificate explaining his absence. It is further submitted that since the employee had exhausted all kinds of leave and continued to remain absent, his services were terminated under Article 128 of the Jammu and Kashmir Civil Service Regulations vide Forest Order No.03 of 2003 dated 24.05.2003 and the dismissal order attained finality after the Hon'ble High Court dismissed SWP No.836/2009.

The respondents further contend that Article 200 of the Civil Service Regulations clearly provides that removal from service entails forfeiture of past service and Article 170 further provides that no pension is admissible to an employee removed from service except compassionate allowance in exceptional cases. Accordingly, it is argued that the applicant has no legal right to claim pension, gratuity or any other retiral benefits.

It is also pleaded that the present Original Application suffers from delay as the speaking order dated 12.12.2022 has been challenged only in the year 2025.

Heard learned counsel appearing for the parties at length and perused the record produced.

At the outset, it requires to be noticed that the order dismissing Late Shri Balak Raj from service was passed on 24.05.2003. The deceased employee himself questioned the said order before the Hon'ble High Court by filing SWP No.836/2009. The writ petition came to be dismissed on 23.10.2017. Although the dismissal was on the ground of delay and laches, the consequence remains that the dismissal order was never interfered with by any Court. Thereafter neither any LPA nor any other proceedings were initiated for setting aside the dismissal order. The dismissal order has, therefore, attained finality.

The present proceedings arise only from the rejection of the widow's claim for retiral benefits. This Tribunal is not sitting in appeal over the dismissal order passed in the year 2003. The legality or correctness of the dismissal cannot now be re-examined in collateral proceedings instituted by the widow after the death of the employee. Even though elaborate submissions have been advanced regarding violation of principles of natural justice and the mental illness of the deceased employee, those questions cannot be reopened after the dismissal order has attained finality.

Consequently, this Tribunal proceeds on the premise that the dismissal order continues to remain valid and binding.

Before adverting to the rival submissions, it would be appropriate to notice that the present Original Application is directed against the speaking order dated 12.12.2022 whereby the respondents have rejected the claim of the applicant for release of pensionary and retiral benefits arising out of the service rendered by her deceased husband. The applicant has also prayed for release of gratuity, General Provident Fund, leave salary, insurance claim and other consequential benefits.

The applicant has reiterated the stand taken in the Original Application and contended that gratuity and GPF constitute valuable property protected under Article 300-A of the Constitution of India and cannot be forfeited merely because the employee stood dismissed from service. Reliance has been placed upon certain judgments of the Hon'ble Supreme Court dealing with payment of gratuity under the Payment of Gratuity Act.

Learned counsel appearing for the applicant vehemently argued that Late Shri Balak Raj had rendered more than three decades of service in the Forest Department and had remained absent from duty only on account of serious psychiatric illness. It was submitted that the department was fully aware of his medical condition and yet proceeded to dismiss him from service without holding a regular departmental enquiry as contemplated under the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956. It was further argued that even though the writ petition preferred by the deceased employee came to be dismissed by the Hon'ble High Court, the same was dismissed only on the ground of delay and laches and there was no adjudication on the legality of the dismissal order. According to the learned counsel, the applicant, being the widow of the deceased employee, cannot be deprived of the retiral benefits earned by her husband after rendering long years of service.

Learned counsel for the applicant further submitted that gratuity is in the nature of deferred wages and constitutes a valuable statutory right. Placing reliance upon the judgments of the Hon'ble Supreme Court in Union Bank of India v. C.G. Ajay Babu and Jaswant Singh Gill v. Bharat Coking Coal Limited, it was contended that gratuity cannot be forfeited except in circumstances specifically provided under the Payment of Gratuity Act, 1972 and, therefore, the respondents were not justified in rejecting the claim of the applicant. It was also argued that the General Provident Fund amount is the personal contribution of the employee and the same cannot be withheld under any circumstances.

Per contra, learned counsel appearing for the respondents submitted that the deceased employee remained unauthorizedly absent from duty with effect from 29.09.2002 despite repeated notices issued by the competent authority requiring him to resume his duties. According to the respondents, the employee neither joined duty nor produced any medical certificate before the competent authority and, therefore, his services came to be terminated in accordance with the provisions contained in Article 128 of the Jammu and Kashmir Civil Service Regulations. It was further argued that the dismissal order was questioned before the Hon'ble High Court after an unexplained delay of nearly six years and the writ petition was dismissed. Consequently, the dismissal order attained finality and all consequences flowing therefrom necessarily follow.

Learned counsel for the respondents further submitted that Article 200 of the Jammu and Kashmir Civil Service Regulations specifically provides that removal from public service for misconduct, insolvency or inefficiency entails forfeiture of past service. It was argued that once the services of the deceased employee stood terminated and the order attained finality, neither pension nor gratuity nor any other retiral benefits could be claimed as a matter of right. It was also submitted that the applicant has approached this Tribunal after considerable delay even against the speaking order dated 12.12.2022 and the Original Application deserves dismissal on that ground as well.

Having heard learned counsel for the parties and upon careful consideration of the material available on record, this Tribunal finds that certain facts are no longer open to dispute. It is admitted by both sides that Late Shri Balak Raj remained absent from duty and that his services were terminated by the competent authority vide Forest Order No.03 of 2003 dated 24.05.2003. It is equally undisputed that the said order was challenged before the Hon'ble High Court in SWP No.836/2009, which came to be dismissed vide judgment dated 23.10.2017. The dismissal order has thus remained undisturbed and has attained finality.

Although learned counsel for the applicant has made elaborate submissions regarding the medical condition of the deceased employee and the alleged non-compliance with the provisions of the CCA Rules while imposing the punishment, this Tribunal is of the considered view that such questions cannot now be reopened in the present proceedings. The validity of the dismissal order is not directly under challenge before this Tribunal. Rather, the challenge is confined to the rejection of the claim for retiral benefits. Once the dismissal order has attained finality, the Tribunal cannot indirectly examine its legality while adjudicating upon the consequential claim of the widow.

The submission that the writ petition was dismissed only on the ground of delay also does not advance the case of the applicant. Whether the dismissal was on merits or on account of delay, the fact remains that the order of dismissal was never set aside by any competent court. The legal consequence is that the order continues to operate and binds the parties. In the absence of any order declaring the dismissal to be illegal or void, the Tribunal is obliged to proceed on the basis that the dismissal order is valid and enforceable.

The claim of the applicant is primarily founded upon the assertion that since the deceased employee had rendered nearly thirty-three years of service, the respondents ought to have released all retiral dues notwithstanding his dismissal from service. This submission, attractive though it may appear on humanitarian considerations, cannot be accepted in view of the statutory provisions governing the service conditions of Government employees in the Union Territory of Jammu and Kashmir.

Article 200 of the Jammu and Kashmir Civil Service Regulations specifically provides that resignation from public service or removal therefrom for misconduct, insolvency or inefficiency entails forfeiture of past service. Article 170 further provides that pension may not be granted to an officer who is removed for misconduct, insolvency or inefficiency, though compassionate allowance may be granted by the Government in special circumstances subject to the conditions prescribed therein. These provisions clearly demonstrate that pension is not an automatic consequence where an employee ceases to be in service on account of dismissal or removal.

In the present case, no material has been placed before this Tribunal to show that the Government has exercised its discretion under Article 170 for grant of compassionate allowance. The applicant has also not challenged any order refusing compassionate allowance nor sought any specific direction in that regard. Consequently, no adjudication is called for on the question of compassionate allowance under Article 170.

The judgments relied upon by the learned counsel for the applicant were rendered in the facts of those cases and on the statutory scheme applicable therein. In the present case, this Tribunal is not called upon to examine the validity of the dismissal order, which has attained finality. The entitlement of the deceased employee is governed by the provisions of the Jammu & Kashmir Civil Service Regulations read with the consequences flowing from the subsisting order of dismissal. Therefore, the said decisions do not advance the case of the applicant in the facts of the present matter.

Likewise, the claim for pension, leave salary, insurance claim and other retiral benefits also cannot be accepted. Such benefits are admissible in accordance with the relevant statutory provisions and cannot be directed to be released contrary to the governing rules. Sympathy for the applicant, who is admittedly the widow of the deceased employee, cannot override the statutory framework regulating service benefits.

However, the claim relating to the General Provident Fund stands on an altogether different footing. Unlike pension or gratuity, the General Provident Fund represents the accumulation of the employee's own subscriptions together with interest accrued thereon in accordance with the applicable rules. The amount lying to the credit of the employee in the Provident Fund account is his own property and does not partake the character of a bounty extended by the employer. Unless there exists a specific statutory provision authorising forfeiture of such amount, the same cannot be withheld merely because the employee stood dismissed from service.

The respondents, despite filing a detailed reply, have not disputed the legal position that the amount standing to the credit of the deceased employee in the General Provident Fund account, if any, represents his own contribution together with the interest admissible under the relevant rules. No provision of law has been brought to the notice of this Tribunal under which such accumulation stands forfeited merely because the employee was dismissed from service. The speaking order dated 12.12.2022 also proceeds on the premise that the applicant is not entitled to pensionary benefits on account of the dismissal of her husband but does not specifically deal with the claim relating to the General Provident Fund in the light of the statutory scheme governing the Provident Fund.

It is well settled that a distinction has to be maintained between pensionary benefits, which accrue upon retirement subject to fulfillment of the statutory conditions, and the amount lying to the credit of an employee in the General Provident Fund account, which essentially consists of the employee's own savings deducted from his salary during service together with the interest accrued thereon in accordance with the applicable rules. The latter cannot ordinarily be equated with pension or gratuity for the purpose of determining entitlement after dismissal from service.

The applicant, being the widow of the deceased employee, has approached this Tribunal seeking release of all retiral dues. While this Tribunal is unable to accede to her claim for pension, gratuity, leave salary and other consequential benefits for the reasons already recorded hereinabove, the claim relating to the General Provident Fund deserves to be considered independently in accordance with law. If any amount is found lying to the credit of the deceased employee in the General Provident Fund account, there is no justification for withholding the same from the person legally entitled to receive it.

Learned counsel for the respondents had also raised an objection regarding limitation by submitting that the present Original Application has been filed after about two years from the date of the speaking order dated 12.12.2022. Though the objection has some substance, this Tribunal is of the opinion that the present dispute pertains to the claim of the widow of a deceased Government employee for release of the amounts allegedly due to him. The claim, to the extent it relates to the deceased employee's own General Provident Fund accumulation, partakes the character of a continuing monetary claim. Therefore, in the peculiar facts and circumstances of the present case, and having regard to the nature of the limited relief being granted, the objection regarding limitation does not warrant dismissal of the Original Application in its entirety.

This Tribunal is conscious of the unfortunate circumstances projected by the applicant regarding the illness suffered by her late husband and the financial hardship stated to have been faced by her after his demise. However, judicial sympathy cannot be a substitute for statutory entitlement. Since the dismissal order has attained finality and has never been set aside by any competent Court, this Tribunal cannot issue directions contrary to the legal consequences flowing from that order.

Consequently, the impugned Order No.142 of 2022 dated 12.12.2022 cannot be sustained insofar as it results in denial of the amount, if any, lying to the credit of the deceased employee in his General Provident Fund account. However, the order does not call for interference regarding rejection of the claim for gratuity, pension, leave salary and other retiral benefits, the deceased employee having stood dismissed from service and the dismissal having attained finality.

Accordingly, the Original Application is partly allowed to the limited extent indicated hereinbelow:-

With the aforesaid observations and directions, the Original Application stands disposed of. There shall be no order as to costs.