Vinay Kumar Chauhan vs State Of Uttarakhand And Others

Sharad Kumar Sharma, J

The petitioner, in the present writ petition has prayed for the following reliefs:-

i) Issue a writ, order or direction in the nature of mandamus commanding the respondents to consider the case of the petitioner for appointment on compassionate ground under dying-in-Harness Rules 1974 (amendment) Rules 2019.

ii) Issue a writ, order or direction in the nature of Mandamus commanding the respondents to pay the all terminal dues admissible to late Yograj Singh, father of the petitioner to his dependents.

iii) Issue any other writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstance of the case.

iv) Award the cost of petition to the petitioner."

Brief facts of the case are that the late father of the petitioner Mr. Yograj Singh, who was initially appointed as Assistant Teacher in Primary School, after being transferred to different places, when there were certain set of allegations about a wrongful appointment, having been granted to him on the basis of document, which is said to have been procured by the late father of the petitioner fraudulently, which was one of the foundation to grant his appointment on an enquiry being conducted the services of the late father of the petitioner were terminated on 02.06.2016.

The said order of termination was put to challenge by the late father of the petitioner in a writ petition, being Writ Petition (S/S) No. 811 of 2017, Yog Raj Singh Vs. State of Uttarakhand and others, and the writ petition was allowed by the coordinate Bench of this Court vide judgment dated 28.11.2017, as a consequence thereto, the termination order was set aside, holding that it happens to be a violation of the Rule 7 of the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003.

The matter was taken up before the Division Bench in Special Appeal, being Special Appeal No. 543 of 2017, State of Uttarakhand and others Vs. Krishan Pal Singh, and the Division Bench of this Court, vide its judgment dated 13.02.2019, had modified the judgment of the learned Single Judge to the extent, that the allowing of the writ petition, setting aside the termination order was quashed and the respondents were redirected to re-conduct an enquiry in accordance with Rule 7 of the Rules of 2003, and during the intervening period, late father of the petitioner was directed to be kept under suspension, as he was earlier suspended by an order dated 05.03.2016.

It was during this that after revival of the disciplinary proceedings as a consequence of the judgment of the Division Bench dated 13.02.2019 that the father of the petitioner met with the sad demise on 16.07.2020. Since there was a deprivation of retiral benefits and other service benefits including the benefit for consideration of being appointed on compassionate grounds, the petitioner filed an application before the respondent to consider his claim for the grant of compassionate appointment. But the same has not been considered and it has been contended by the learned counsel for the petitioner, that the foundation for non consideration was that the death of the father of the petitioner has chanced during the period when he was under suspension and hence the period of suspension cannot be taken into consideration for the purposes of extension of service benefits or for the purposes of considering the claim of the petitioner for grant of compassionate appointment.

It has been argued by the learned counsel for the petitioner that an identical issue came up for consideration before the Bombay High Court, and which was later on reiterated by the High Court of Jharkhand in a judgment rendered by the coordinate Bench in W.P.(S) No. 2991 of 2014, Manoj Kumar Vs. Central Coal Field Limited, Ranchi and others, particularly paragraph numbers 8, 9 & 10 of the said judgment, had dealt with the ratios based on the Bombay High Court's judgment, that if an employee is kept under suspension and during the period of suspension, he meets with the sad demise, there cannot be a deprivation of the service benefits and he would rather be treated to be in services for all purposes. Paragraphs 8, 9 and 10 of the said judgment are reproduced hereunder:-

"8. It has been held by a Division Bench of Bombay High Court in "Hirabai. Vs. State of Maharashtra, reported in 1986 Lab.I.C.-248 that if a civil servant under suspension died before conclusion of disciplinary proceedings then the proceeding would terminate and abate and the period between date of suspension and date of death will be treated as service for all purposes.

A similar view was taken by a Bench of this Court in Jayanti Devi Vs.State of Bihar and others, reported in (2001)2 J.C.R-165, wherein this court held that a departmental proceeding cannot continue against a dead employee.

In "Basudeo Tiwary Vs. Sido Kanhu University and others, reported in (1998) 8 SCC-194, the Hon'ble Supreme Court was dealing with an appeal filed by a terminated employee. During pendency of the said appeal before the Hon'ble Supreme Court, the terminated employee died and in his place his legal representatives were substituted. After considering the case, the Hon'ble Supreme Court has come to the conclusion that the order of termination of the original appellant was violative of principles of natural justice, therefore, cannot be sustained. After holding so, the Hon'ble Supreme Court at paragraph 14 has held as follows :

"The appellant has since demised during the pendency of these proceedings, no further direction either as to further inquiry or reinstatement can be given. We declare that the termination of the appellant by the respondent as per the notification referred to by us is invalid. Consequently, it would be deemed that the appellant had died in harness. Needless to say that the appellant would become entitled to the payment of arrears of salary from the date of termination of his services up to the date of his death on the basis of the last pay drawn by him. Let the respondent take action within a period of three months from today to work out the arrears due to the appellant from the date of his termination till his death and pay the same to his legal representatives."

In that view of the matter, without expressing any opinion on the merits of the matter, the competent authority, is directed to consider the claim of the petitioner for the grant of compassionate appointment in accordance with law, keeping in view the ratios laid down in the judgment rendered by the Jharkhand High Court on 20.01.2016. The decision on the same is expected to be taken by the competent authority within a period of two months from the date of production of the certified copy of this judgment.

Subject to above observations, the writ petition stands disposed of.