Janat Begum & Anr @APPELLANT@Hash Asgar Hassan Samoon & Anr

Case of the petitioner Nos. 1 & 2, as outlined in the instant contempt petition is that they respectively are wife and Khanna-Nisheen daughter of the deceased namely Lassa Malla alias Gh. Rasool, who was working in the Sericulture Department initially as daily wager but later his services regularized as Helper w.e.f. 01.04.1994. Being illiterate, his age was assessed as 38 years as on 03.07.1995 and the certificate issued in this regard by Health Officer, Baramulla. His date of birth was recorded as 03.07.1967 in the service book. It is pleaded that on a complaint a case FIR No.36/1996 was registered against the deceased in allegation that he had managed a fraudulent date of birth certificate, accordingly was disbanded from the services and his pay was stopped from August, 1999. A challan was filed before the court of Additional District & Sessions Judge, Anticorruption, Srinagar, however, during the trial of the case he i.e., Lassa Malla expired. It is further pleaded that the respondents were under legal obligation to sanction and release all the pensionary benefits including service benefits in favour of the petitioners, being the legal heirs of the deceased Lassa Malla.

The petitioners approached the Court through the medium of the SWP No. 1805/2009 praying therein the following reliefs:-

"I. By a writ of mandamus, commanding the respondents to release all the retiral benefits including the arrears of pay, leave salary, gratuity and other monetary benefits in favour of the petitioners along-with 10% interest.

II. By a writ of mandamus, commanding the respondents to issue the order of engagement on compassionate grounds in favour of the petitioner No.2 under SRO 43 of 1994.

III. By a writ of mandamus, commanding the respondents to pay Rs.1.00 lac as damages for the mental agony of the petitioners."

Learned writ court, while considering all the aspects of the case has observed that „admittedly during the life time of the deceased employee, no departmental enquiry was ever initiated against him and even no termination order is available on the record, which is sufficient to show that Shri Ghulam Rasool Malla, the deceased employee, continued in service till he passed away on 02.07.2009. Since no enquiry was conducted to ascertain the actual DOB of the deceased employee to establish the misconduct, if any committed by him, he would be deemed to have remained in active service till his death on the basis of DOB recorded in his service records. The criminal case pending against him, having abated, would not affect the rights of the petitioners to receive all the service benefits of the deceased employee to which they would be found entitled to in accordance with the rules by treating late Shri Lassa Malla, alias Ghulam Rasool (deceased employee), to have died in harness. The termination order has neither been communicated nor served on the deceased employee but even if it would have been issued, it would be rendered inconsequential because an order takes effect only when it is communicated or served. In this case termination order is not even available on the official records. In this factual background, it can be safely concluded that the deceased employee was never terminated from services, therefore, claim of the petitioners for grant of service benefits in the facts and the circumstances of this case, has to be considered by the respondents.‟

With the above referred observations, learned writ court disposed of the writ petition vide order dated 18th July 2012 with the following direction:-

"...In the aforementioned backdrop, writ petition is disposed of along-with CMPs and the respondents are directed to consider claim of the petitioners for grant of service benefits including salary and retiral benefits in accordance with the rules and the respondents would also consider claim of one of the petitioners for being appointed on compassionate grounds in accordance with the mandate contained in Rules notified vide SRO 43 of 1994. The respondents to take a decision in the matter, preferably, within twelve weeks to be reckoned from the date copy of this order is served on them.

Disposed of along with CMPs."

The grievance of the petitioners is that the order supra has not been complied with, hence the instant contempt petition.

Contempt petition has come up before the Court for consideration number of times. Statement of facts has also been filed by the respondents, wherein it is contended that after receiving the judgment dated 18.07.2012 passed in SWP No.1805/2009, the department collected the relevant record from the concerned quarters and after thorough examination, the case of the petitioners was considered and a speaking order dated 17.07.2013 was issued by the department, copy of which is annexed with the statement of facts, the relevant portion of which is quoted hereunder:-

"....Whereas VOK after receiving the complaint lodged FIR against Dr.Mohammed Ismail and Sh.Lassa Malla and subsequently Commissioner of VOK vide his No.CV-FIR-36/98(K)-4819 dated 25.08.1999 intimated that on completion of investigation in the case it has been found that Date of Birth Certificate of Sh.Lassa Malla issued by said Doctor is incorrect and informed that as per the Medical Board, the age of the said person was determined to be 62 years as on 24.10.1998 meaning that in the year 1994, Sh.Lassa Mallas has already attained the age of 58 years and accordingly incumbent should have been retired on 31.10.1994 and recommended that the service of said person is required to be terminated as he is not genuinely continuing in the service in the department of Sericulture.

Whereas Sh.Lassa Malla husband of Jannat Begum who was found to be overstayed in Govt. Service after investigation and report conveyed by Commissioner of VOK, J&K State vide message dated 23.08.1999 was not assigned any job and his service was discontinued and also his pay was stopped from August, 1999.

Whereas taking into consideration the age ascertained by VOK, the deceased Lassa Malla has rendered only 7 months of regular service besides daily wage period of 12 year and 3 months.

Whereas the overstayed period of 5 years and 8 months rendered by deceased illegally cannot be taken into consideration as the same has been rendered by deceased on fraudulent certificate and due to grave misconduct.

Whereas the Govt. Servant who rendered qualifying service of 20 years is entitled to pension which is not the case with the deceased Lassa Malla as he has rendered regular service of only 7 months and if 50% of daily wage service is taken into consideration even then he is not entitled to any pension.

Whereas the deceased Lassa Malls is not also entitled to any gratuity as he has not rendered the requisite regular service of 5 years. However the overstayal period of 5 years and 8 months rendered illegally and dishonestly by deceased Lassa Malla has not been regularized by the Govt, and cannot be counted with qualifying service. Further, if any gratuity accrues to the deceased, same is liable to be recovered from the amount received by him for the overstayal period.

Whereas the petitioners cannot claim appointment on compassionate grounds as Sh.Lassa Malla was not in active service at the time of his death. Further compassionate appointment is the discretion of Govt. And can be given purely on humanitarian consideration and cannot be claimed as a matter of right. The petitioners cannot be considered for compassionate grounds as the service of deceased has not remained clean and satisfactory as the petitioner was found to commit guilty of grave misconduct.

It is therefore, conveyed to the petitioners that they cannot get any service benefits/retiral benefits as the same is not admissible to deceased Lassa Malla under rules. Further the claim of their appointment on compassionate grounds under SRO 43 of 1994 cannot be considered under the circumstances mention here above."

Mr. Dar, Sr.AAG has produced a copy of the communication bearing No.DSO/Acctt/2018-19/1560-63 dated 15.12.2018, addressed by the District Sericulture Officer, Baramulla, (which is taken on record), whereby the court of learned Principal District & Sessions Judge, Baramulla is being informed that an amount of Rs. 499125/-, on account of salary arrears, stands credited in the official account of District Sericulture Officer, Baramulla, and in this regard has requested that succession certificate in favour of the legal heirs of the deceased Gh. Rasool Malla, Helper, may be communicated to the office of District Sericulture Officer, Baramulla for disbursement of the said amount. It is contended by Mr.Dar, Sr.AAG that no disobedience of the judgment passed by the Court can be attributed to the respondents as whatever was required to be done in terms of the said judgment has been done by the respondents. Consideration regarding the compassionate appointment has also been made which, according to the merits of the case, entailed rejection.

It is, however, the submission of learned counsel for the petitioners that the respondents have observed in breach the directions of the Court passed in SWP No.1805/2009, as they are required to make payment of entire amount which was due in favour of the deceased namely Lassa Malla in the light of the order(supra) passed by this Court. Consideration, stated to have been made about the compassionate appointment is also farce, as the order of rejection has been passed in a mechanical manner.

Considered the rival arguments.

It has been noted hereinabove that on disposal of SWP No. 1805/2009 on 18.07.2012 filed by the petitioners herein, the respondents were to consider the case vis-a-vis service benefits of the deceased while not treating him to have been terminated from service until his death. The judgment so passed does not give any finding about the disputed question of fact i.e. actual date of birth of the deceased Lassa Malla. The writ court has repelled the contention raised on behalf of the respondents that the deceased had been terminated from service as nothing was found on record to substantiate the same. In terms of the final report submitted before the Court of learned Additional District & Sessions Judge, Anticorruption, Srinagar by the Vigilance Organization against the deceased Lassa Malla and Dr. Mohammad Ismail, who had issued the certificate of date of birth in favour of the deceased, wherein it has been noted as 03.07.1957. It is not evident, however, from the said final report or any other document on record as to when the preliminary enquiry, on the basis of which case was registered, was initiated and as to what had been the actual date of birth according to the VOK.

After submission of the statement of facts, the order passed by this Court on 24.03.2015, brings to fore that the respondents were not in a position to comply with the writ court order as the service record of the deceased was seized by the Vigilance Organisation, Kashmir. Accordingly respondent No.4 was directed to approach the Anticorruption court, Srinagar for temporary release of the service record of the deceased. There is no mention in the contempt petition or any document as to what is to be treated as date of birth of deceased for calculation of service benefits. May it be the date of birth, if any sounded by deceased at the time of accepting the job as daily wager or when the case had been processed by the department for his regularization, is not being delineated anywhere. For a period of almost ten years (as noted in the order of respondents dated 17.07.2013), deceased had not shown any dissatisfaction for not being paid remuneration, after the VOK took cognizance of the matter. Be it so, in terms of another order dated 18.05.2015 passed by this court, observation has been made that by rejecting the claim of the petitioner, the said authority has literally disobeyed the court order and directed the Registry to frame rule against the erring person and to remain personally present on the next date. In the meanwhile, respondent No.3 was directed to implement the court judgment and report compliance. Then, in terms of the order dated 12.06.2015, this Court had directed the learned Principal Sessions Judge, Baramulla to ensure temporary release of the service book of the deceased, seized in case FIR No. 36/1998, P/S VOK. Further, the respondents were directed to complete all the formalities and ensure that benefits which are required to be given to the petitioner No.2 are paid within six weeks.

There is nothing on record from which it can be inferred that the respondents have approached the court of learned Additional Sessions Judge, Baramulla, where the case is pending for release of service record so that further action in the matter is taken for implementation of the court directions.

It is deemed expedient in the ends of justice to direct the respondents to apprise this Court, by submission of an affidavit regarding the steps taken for procuring the service record of the deceased(Lassa Malla) from the court of learned Additional Sessions Judge, Baramulla, within five weeks from the receipt of copy of this order, failing which the salary of the concerned respondents shall not be released till compliance in this regard is filed. In the meanwhile, a copy of this order be sent to the trial court for submitting the attested copies of the final reports of the Vigilance Origination and other documents annexed to it including the service record, if any.

List again on 11.03.2019.