Jamna Devi Gehlot vs State and Others

Gopal Krishan Vyas, J.—Heard learned counsel for the parties. Petitioner is widow of Late Ramchandra who was working on the post of Upper Division Clerk in the Public Works Department, Jodhpur. The petitioner being wife of Late Ramchandra claiming retiral benefits and family pension.

As per facts of the case, the husband of petitioner Late Shri Ramchandra was appointed as Class IV employee (Chowkidar) and later on promoted to the post of L.D.C vide order dt. 12.10.1957 and to the post of U.D.C vide order dt. 22.10.1970.

The husband of petitioner Late Ramchandra was placed under suspension vide order dt. 06.12.1979 due to contemplation of departmental inquiry against him for misconduct of embezzlement of Government money. But later on he was reinstated vide order dt. 23.06.1984 and joined his duties on 04.07.1984.

After reinstatement, the husband of petitioner was transferred from P.W.D. West Division, Osian vide order dt. 30.09.1984 to Sojat City on the vacant post of Junior Accountant but did not join the duties and applied for leave due to heart disease of his wife.

Number of applications were filed for extension of leave from time to time till attaining the age of superannuation by Late Ramchandra but no order was passed by the department till attaining the age of superannuation w.e.f 31.07.1993.

Learned counsel for the petitioner submits that charge-sheet under Rule 16 of Rajasthan Civil Services (CCA) Rules, was issued against the petitioner''s husband on 17.12.1984 after reinstatement in which an allegation was levelled that you are involved in a case of embezzlement of Rs. 34,119.66 made by one Narpat Karan Rathore, the then Land Acquisition Officer, Jodhpur.

The departmental inquiry initiated against the petitioner''s husband was finally dropped vide order dt. 04.04.2008 after his death. The criminal case registered against the petitioner also came to an end because during pendency of the criminal case he died on 05.12.2005.

Learned counsel for the petitioner while inviting attention of this Court towards order dt. 04.04.2008 (Annex.7) submits that the departmental inquiry initiated against the petitioner vide chargesheet dt. 17.12.1984 was finally closed and suspension period commencing from 06.12.1979 to 22.06.1984 was regularised vide order dt. 04.04.2008. The petitioner being wife of Late Ramchandra repeatedly filed applications for granting family pension and other benefits. In pursuance of those applications, the case of petitioner''s husband for granting extra ordinary leave for 3224 days was referred by the Chief Engineer, P.W.D. Jodhpur vide communication dt. 01.03.2007 to the Secreatry, Public Works Department. Thereafter, a reminder was also sent on 24.04.2007 vide Annex.12 and communication dt. 16.05.2007 (Annex.13).

The Chief Engineer, P.W.D. Department, Jaipur sent a communicated on 24.07.08 and informed the petitioner that due to refusal of granting consent by the Finance department, the past services rendered by the employee has been forfeited, therefore, no pensionary benefit can be granted to her. Further it is observed that if any family pension is sanctioned, the said family pension may be stopped immediately.

Learned counsel for the petitioner submits that for willful absence from duty, the State Government can take action either under Rule 23 or under Rule 86 of Rajasthan Service Rules but admittedly, no action was taken against Late Ramchandra for willful absence from duty for the period w.e.f. 30.09.1984 till the date of superannuation dt. 31.07.1993 and abruptly after his death, the communication dt. 24.07.2007 (Annex.15) was communicated by Chief Engineer to Executive Engineer, P.W.D Division I, Jodhpur whereby the services of Late Ramchandra have been forfeited in view of Rule 86 of RSR, therefore, no benefit can be granted to the petitioner.

Learned counsel for petitioner submits that no reasons have been assigned by the respondents for not granting extra-ordinary leave for the aforesaid period. Further admittedly, the departmental inquiry conducted against the petitioner''s husband was closed while regularising the service period of petitioner''s husband in which he remained under suspension from 06.12.1979 to 22.06.1984, then, it cannot be said that the decision taken by the Government for forfeiting the services of petitioner''s husband is in accordance with provisions of R.S.R because no action for willful absence from duty was undertaken against Late Ramchandra, husband of petitioner and only on the basis of unreasonable order of the Government, respondents denied family pension to the petitioner which is not permissible in law. Therefore, it is prayed that this writ petition may be allowed and respondents may be directed to grant family pension and other benefits of Late Ramchandra, husband of the petitioner.

Learned counsel appearing on behalf of respondents vehemently argued that before death in the year 1979 Late Ramchandra was placed under suspension in contemplation of departmental inquiry under Rule 16 of the C.C.A. Rules against him and remained under suspension for near about five years and later on reinstated in service on 17.12.1984 and after joining when posting was given to him he did not join the duties and remained absent from duty till attaining the age of superannuation in the year 1993. The matter with regard to granting extraordinary leave for the period during which Late Ramchandra remaining absent, a decision was taken by the Government not to grant any leave and regularise the absence of Late Ramchandra, therefore, obviously, for the period of absence from duty, as per Rule 86(1) of RSR, the Chief Engineer felt necessary to pass an order dt. 24.07.2008 to forfeit past services of Late Ramchandra. The order impugned in this writ petition dt. 24.07.2008 does not suffer from any illegality because there is power left with the competent authority to take decision in accordance with Rule 86(1) of RSR, 1951 in case any employee remains willfully absent from duty for unlimited period.

In the facts narrated above, the respondent took decision to forfeit entire services of Late Ramchandra who remained absent from duty w.e.f 30.09.84 to the date of his superannuation. Therefore, no relief claimed by the petitioner can be granted in this writ petition.

After hearing learned counsel for the parties, I have perused Rule 23 & 86 of the RSR which reads as under:-

Rule 23. Condition of Government servant''s ceasing to be in Government employment.- (1) (a) A Government servant shall not be granted leave of any kind for a period exceeding 5 years continuously.

(b) In case where a Government servant does not resume duty after remaining on leave for a continuous period of 5 years, he shall, unless the Governor in view of exceptional circumstances of the case, otherwise determines, be removed from service following the procedure laid down in the Rajasthan Civil Services (Classification, Control & Appeal), Rules.

(2) Where a Government servant remains absent from duty after expiry of sanctioned leave or remains absent from duty without leave or before leave applied for has been sanctioned by the competent authority, the matter will be dealt with in accordance with provisions contained in Rule 86 of Rajasthan Service Rules.

Rules 86. Absence after expiry of leave: (1) A Government servant who is absent from duty without leave or before leave applied for has been sanctioned by the competent authority shall be treated to have remained wilfully absent from duty; and such absence shall amount to interruption in service unless, on satisfactory reasons being furnished, the absence is regularised by grant of leave due or is commuted into extraordinary leave by the authority competent to sanction leave.

(2) (a) A Government servant who remains absent from duty after the expiry of the sanctioned leave or after communication of refusal of extension of leave is not entitled to any pay and allowances for the period of such absence and the period of such absence shall be commuted into extra-ordinary leave unless on satisfactory reasons being furnished, the period of absence is regularised by grant of leave due by the authority to grant leave.

(b) Wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action.

(3) Notwithstanding the provisions contained in sub-rules (1) and (2) above the disciplinary authority may initiate departmental proceeding under Rajasthan Civil Services (Classification, Control & Appeal), Rules against a Government servant who wilfully remains absent from duty for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service.

(4) Unless the State Government, in view of the special circumstances of the case, determines otherwise a State Government employee who remains absent from duty for a continuous period exceeding five years other than on foreign service, whether with or without leave, shall be deemed to have resigned from service.

Provided that a reasonable opportunity to explain the reasons for such absence shall be given to the employee before the provisions of the sub-rule are invoked.

Admittedly, the petitioner''s husband was initially appointed as Class IV employee and during his service period, he was promoted to the post of L.D.C and U.D.C. and due to contemplation of departmental inquiry, he was placed under suspension in the year 1979 but reinstated in the year 1984 and later on he was charge-sheeted under rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal), Rules but admittedly the said departmental inquiry initiated against the petitioner was not finalised till attaining the age of superannuation and his death. Therefore, the respondent department took final decision on 04.04.2008 after death of petitioner''s husband not to proceed further in the departmental inquiry and regularised the service period commencing from 06.12.1979 to 22.06.1984 during which Late Ramchandra was under suspension, meaning thereby no order was made against Late Ramchandra to impose penalty, more so decided not to proceed further against Ramchandra because he died.

It is also admitted position that for willful absence from duty, admittedly, no action was taken by the respondent department against Late Shri Ramchandra either before attaining age of retirement or till his death. Petitioner being legal heir insisted for family pension and retiral benefits, respondent issued an order for forfeiting the services of Late Ramchandra that too on 24.07.1984 after his death without holding any enquiry as per Rules.

In my opinion, there is complete in-action and apathy on the part of respondents because an employee remained willfully absent from 30.09.1984 till attaining the age of superannuation in the year 1993, inspite of that, no disciplinary action was taken by the respondents under Rajasthan Civil Services (Classification, Control & Appeal), Rules. Further even in the departmental inquiry initiated against the petitioner''s husband Shri Ramchandra in the year 1984 it was dropped after his death. Therefore, obviously after the death of Late Ramchandra, the denial of retiral benefits to legal heirs of Late Ramchandra for the services rendered by him in the department is not justified for the simple reason that no action was taken for willful absence from duty, so also in the departmental inquiry initiated against him, no final order was passed and ultimately, enquiry was dropped. In this view of matter, the order dt. 24.07.2008 (Annex.15) is not sustainable in law because no order can be passed under Rule 86(1) of the R.S.R for forfeiting the past services of Late Shri Ramchandra. The competent authority can exercise its power under Rule 86(1) of R.S.R. for regularising the period of absence or not.

In view of above discussion, this writ petition is allowed. The order dt. 24.07.2008 is hereby quashed. Respondents are directed to grant retiral benefits of Late Shri Ramchandra for the period commencing from the date of appointment to the date from which he remained absent from duty i.e. 30.09.1984. It is made it clear that service period from 03.09.1984 to 31.07.1993 i.e. the date of superannuation shall not be counted for the purpose of reckoning qualifying service but all other retiral benefits of Late Ramchandra may be calculated w.e.f. 31.07.1993 and arrears of pension w.e.f. 01.08.1993 till his date of death shall also be paid to the petitioner wife of Late Ramchandra and thereafter, family pension may be granted to the petitioner being wife of Late Ramchandra, employee of P.W. Department, Jodhpur in accordance with Rules. The whole exercise may be completed within a period of six months.