Bimaljit Kaur vs Punjab State Electricity Board, Patiala and others

L.N. Mittal, J.

C.M. No. 9903-C of 2012:

Allowed as prayed for.

C. M. No. 9904-C of 2012 :

Application is allowed and Annexures A-1 to A-4 are taken on record, subject to all just exceptions.

Main Appeal :

Plaintiff Bimaljit Kaur, having been non-suited by both the courts below, has filed this second appeal. Darshan Singh - husband of the plaintiff-appellant was in service of defendant-respondent No. 1 Punjab State Electricity Board (in short - the Board). He was charge-sheeted for major penalty for remaining absent from duty in spite of having been asked to join duty. In regular inquiry, charge was found proved against him for long absence from duty. Consequently, after complying with formalities, order dated 21.01.1999 was passed by the punishing Authority. The plaintiff in the suit challenged the said order alleging that termination of services of plaintiff''s husband vide order dated 21.01.1999 w.e.f. 08.10.1996 is illegal and unconstitutional etc., and therefore, the petitioner is entitled to pensionary benefits i.e. family pension because the plaintiff''s husband has since died on 11.06.2002. The plaintiff also sought appointment to service on compassionate grounds.

The defendants contested the claim of the plaintiff and pleaded that plaintiffs husband was removed from service because he remained absent for long period from duty. Charge-sheet was served on him and regular inquiry was also held. The charges were found proved. Averment regarding death of husband of plaintiff was denied for want of knowledge. Plaintiff''s husband had gone abroad and remained absent from duly.

Learned Civil Judge (Junior Division), Patiala, vide judgment and decree dated 01.02.2008, dismissed the plaintiffs suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Patiala, vide judgment and decree dated 25.10.2010. Feeling aggrieved, plaintiff has filed this second appeal.

I have heard learned counsel for the appellant and perused the case file.

Counsel for the appellant emphatically contended that since services of plaintiff''s husband were terminated vide impugned order dated 21.01.1999 and he was not removed or dismissed from service, the plaintiff is entitled to family pension. It was contended that on termination of service, right of pension or family pension is not forfeited because the said right is forfeited on removal or dismissal from service. Reliance in support of these contentions has been placed on judgment of Patna High Court in the case of Raghunandan Mishra v. The State of Bihar and others, 1985 (2) SLR 145 and also on judgment of Hon''ble Supreme Court namely Dr. Dattatraya Mahadev Nadkarni v. The Municipal Corporation of Greater Bombay, 1992 (1) U. J. (S.C.) 769.

I have carefully considered the aforesaid contentions.

There is no quarrel with the proposition that right to pension or family pension is forfeited only on removal or dismissal from service and not on simple termination of service. However, the question to be determined in this appeal is whether services of plaintiff''s husband were terminated or he was removed from service vide order dated 21.01.1999. Counsel for the appellant laid emphasis on the words used in the order i.e. ''karamchaari diyan sewawan would amount to termination of service and not removal or dismissal of service, as held in the case of Raghunandan Mishra (supra).

The contention, on first blush, appears to be very forceful and meritorious, but on proper scrutiny of order dated 21.01.1999, the contention cannot be accepted. The aforesaid words used in the termination order, as heavily relied on by counsel for the appellant, are not to be read in isolation, the order has to be read as a whole. The orders says that the employee is liable to punishment under Rule 5 (8) of the Punjab State Electricity Board Employees (Punishment and Appeal) Regulations, 1971 (in short - the Regulations) and accordingly, his services are terminated. Perusal of Regulation 5 (8) of the Regulations reveals that it provides for removal from service and not termination of service. Thus, the order, which has been passed under Regulation 5 (8) of the Regulations, would mean that plaintiff''s husband was removed from service and it was not simple termination of service. In this view, I am supported by judgment of Hon''ble Supreme Court in the case of Dr. Dattatraya Mahadev Nadkarni (supra). In that case, the order passed u/s 83 (2) (a) of the Bombay Municipal Corporation Act, 1888 was regarding removal from service of the employee, but the said provision did not provide for punishment of removal and rather provided for punishment of dismissal. Consequently, the Hon''ble Supreme Court held that although in the order, removal from service was ordered, but in fact, it was order of dismissal from service as per the aforesaid provision. On the same analogy, in the instant case, impugned order dated 21.01.1999 passed under Regulation 5 (8) of the Regulations is order of removal of plaintiff''s husband from service, as provided in the said Regulation and is not a simple order of termination of service of plaintiff''s husband. In fact, the Regulations do not provide for any punishment by termination of service. The appropriate punishment could be imposed only in accordance with Regulations. Consequently, no punishment of termination of service could in fact be imposed under the Regulations. On the contrary, the impugned order specifically states about punishment under Regulation 5 (8) of the Regulations, which speaks of punishment of removal from service. It is thus apparent that irrespective of the loose words used in the impugned order, practically for all intents and purposes, the impugned order is order of removal from service under Regulation 5 (8) of the Regulations, as specifically mentioned in the order and it is not simple order of termination of service.

Since plaintiff''s husband was removed from service, the plaintiff is not entitled to family pension. The plaintiff has also not placed on record Death Certificate of her husband to prove that her husband has since died. Thus, death of plaintiff''s husband is also not proved. For this reason, the plaintiff has no locus standi to file the suit or to claim family pension. For the reasons aforesaid, there is no merit in this second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is accordingly dismissed in limine.