Dilshada Begum and Others vs State and Others

Mansoor Ahmad Mir, J.—The writ petitioners have questioned the order No. 7267-68 dated 03.02.2007 passed by Executive Engineer,

Irrigation Division, Handwara-respondent No. 4 on the grounds taken in the writ petition.

Abdul Karim Khan who was a government employee came to be placed under suspension on 9th of June, 1989 vide order No. 1988-90. He

questioned the said suspension order by the medium of SWP No. 388/1995. It appears that main ground of attack in the said writ petition was

that the respondent-department had failed to conclude the enquiry despite lapse of six years till filing of the writ petition and 13 years till passing of

the judgment dated 4.3.2002 in the said writ petition. This Court vide judgment and order dated 4th of March, 2002 granted the writ petition. It is

apt to reproduce the operative part of the said judgment herein:

The case of the petitioner shall be concluded within a period of six months from day.

Enquiry should be conducted in accordance with law and petitioner should be given an opportunity of being heard.

In case, the case of the petitioner is not finalized within six months then it will be deemed that there is no departmental case against him and he will

be reinstated.

The command of this Court was to conclude enquiry within six months with effect from 4th of March, 2002 and the enquiry was to be

conducted in accordance with law and the petitioner was to be heard with a further command that if enquiry is not concluded within the time frame

it is to be deemed that no departmental case is pending against him and was to be reinstated.

It appears that respondents have not complied with the court directions and have not conducted enquiry not to speak of concluding it within the

time frame.

Petitioner was constrained to file contempt petition No. 169/2004. During the pendency of the contempt petition, respondent No. 4 made a

communication to Superintending Engineer, Hydraulic Circle Handwara on 14th of October, 2005, whereby it is averred that respondent

department has failed to conclude the enquiry within time frame and recommended that order of reinstatement be passed.

It appears that in the meantime, writ petitioner, Abdul Karim Khan had passed away and after his death the writ petitioner Nos. 2, 3 and 6

made a representation to Minister, Irrigation who directed the concerned Engineer to examine the case and make a report. Thereafter, it appears

that impugned communication came to be passed. It is profitable to reproduce last 2-paras of the impugned communication order here in:

It may be added consequent upon the embezzlement the Ex. Cashier was placed under suspension by the then Superintending Engineer vide order

No. 1688-90 dt 9.6.89 and the suspendee had approached the Hon'ble High Court Sgr. Under S.W.P No. 388/95. The Hon'ble High Court has

ordered decision vide No dt. 4.3.2002 that the department should conduct inquiry into the case within 6 months failing which it will be deemed that

there was no case against the official and he would be reinstated. But the deptt. However, did not conduct any inquiry till date.

Since the petitioner has passed away on 31.8.2005 and the outstanding amount of the embezzlement amount was intimated to the family of

deceased official who in reply have given in affidavit to the effect that the outstanding shall be recovered from his pensionary benefits of the

deceased official. Accordingly this office has processed the family pension case of the deceased which is herewith submitted for favour of perusal

and accord of necessary sanction to family pension on provisional basis in favour of the widow of deceased official. After considering the recovery

of outstanding amount from the pensionery benefit.

Admittedly, the direction contained in the judgment passed by this Court in SWP 388/95 has not been complied with. The respondent

department has not challenged the judgment and it has attained finality. Respondents have no authority to conduct any inquiry after timeframe fixed

by this Court and it is beyond their competence and power to hold any inquiry thereafter or to hold that some outstanding amount was due from

the deceased, that too without hearing the said deceased.

Keeping in view the rigour of the judgment the respondents are precluded from conducting any inquiry or making any deductions.

In the given circumstances of the case the writ petition is allowed and respondents are directed to release the pension and all retiremental

benefits in favour of the petitioners-legal heirs/representatives of the deceased without making any deductions within three (3) months from today

and report compliance, in default the amount is to be recoverably with 6% interest after the timeframe.