T.Bakialakshmi vs The Secretary to Government

The petitioner has filed the present Writ Petition for the relief stated above.

The short facts of the case are as follows:- The petitioner''s husband, by name, P.Thulasi joined in the State Fire and Rescue Department at Chennai under the control of the Superintendent, Office of the Divisional Fire Officer, Madras City, South Division, Madras, on 30.8.1973 through Office of the Employment Exchange. Her husband completed his probation on 29.8.1975 and the same had been satisfactorily declared by the authority vide their Proceedings in D.O.No.1348/5 dated 22.9.1975. Subsequently, he was transferred to Thindivanam under the Villupuram Division and he also worked at Cuddalore Division and served nearly for 22 years. While so, on 20.2.1996, he went to the office as usual. But, he did not turn up in the evening. She thought that he might have gone to attend some urgent fire call and she was on the belief that he would come back in the evening after the office hours. Since he never turned up, on the next day, she went to the office and enquired about him. At that time only, she came to know that he had applied for leave on that day. As he never attended the work on that day, she along with her relatives started searching for him around the area and some other places where he normally used to go but inspite of the same, they were unable to trace him. As he was suffering from psychological problem, they were on the bona fide belief that after some time, he would come home as usual since he used to do such thing even in the past and she was under the impression that he would come one day so that she had not given any police complaint. While so, after several years, she got some information from their relatives that they had seen him in Mumbai. Immediately, she rushed to Mumbai along with her relatives and brought back to her place in April, 2005 and given some treatment but he died on 22.10.2005. Her husband lastly worked at Thindivanam under the control of the Divisional Fire Officer, Villupuram. Thereafter, she approached and informed the authority that they found out husband in Mumbai and given some treatment but inspite of the same, he died on 22.10.2005. Subsequently, she has approached the authority on several occasions to give the benefits and family pension which her husband was entitled as per rules since he has put in nearly 22 years of service in the Fire and Rescue Department. But, on the other hand, the Director of Fire Service vide his Proceedings No.Na.Ka.3064/E3/2007 dated 1.3.2007 had passed an order stating that since her husband had been removed from service based on the punishment awarded to him, his legal heirs are not entitled to any service benefits. Hence, the present Writ Petition has been filed by the petitioner.

Assailing the impugned communication of the second respondent dated 1.3.2007, Mr.K.H.Ravikumar, learned counsel for the petitioner submitted that the communication of the second respondent is bereft of truth. The Tamil Nadu Fire Service Manual contemplates some procedure to be followed in respect of the person who has been deserted from service. But, in the case of the petitioner, no such procedure has been followed by the competent authority before passing the order of removal from service and it is against the principles of natural justice. For the first time, when the petitioner approached the authority seeking family pension on the death of her husband, they had given the incomplete service particulars stating that the petitioner''s husband had been removed from service for unauthorised absence. It is pertinent that no communication had been received from the respondents informing about the order of removal or dismissal from service of her husband. Even in the case of dismissal or removal from service, one is entitled for compassionate allowance and the family is entitled for benefits. Hence, according to the learned counsel for the petitioner, the petitioner is entitled for the compassionate allowance.

On the contrary, the second respondent has filed a counter affidavit denying the averments of the petitioner made in the affidavit filed in support of the petition. In the Counter Affidavit, it is stated that as per Proceedings of the Deputy Director, Central Region, Trichy in Rc No.2184/A/93 dated 30.5.1993 with the Divisional Officer, Cuddalore Endorsement Rc No.2184/A/93 dated 21.6.1993, the petitioner''s husband was transferred on pubic grounds to Tindivanam Fire and Rescue Services Station and on transfer, he joined duty on 12.7.1993 afternoon at Tindivanam fire and Rescue Service Statio. On 26.3.1984, the petitioner''s husband was dismissed from the service as deserted as per Order of the Divisional Officer, South Chennai, based on departmental charges in Ku.Pa.No.2/84. However, based on the recommendation of the Medical Board on 29.8.1996, he was reinstated into service by the Divisional Officer, South Chennai, Order Ko.Oo.No.468/1996 and Proceedings Rc.No.10595/Aa1/86, dated 18.8.1986. Thereafter, on 20.2.1996, the petitioner''s husband took one day casual leave and he did not report for duty next day, instead, he abstained himself from duty for a long period without any further intimation and not produced any medical certificates. Therefore, a charge memo was issued under Rule 17(b) of the Tamil Nadu divil Services (Discipline and Appeal) Rules in P.R.No.3/97 on 10.1.1997. Since the petitioner''s husband did not respondent to the charge memo in the departmental proceedings, the charges were held proved and he was removed from service by the Divisional Officer, Villupuram in Divisional Order No.305/1998 Proceedings K.Dis No.3705/B/1998, 19.9.1998. Hence, the legal heirs of the dismissed employee is not entitled for any retirement benefits.

Mr.S.Diwakar, learned Special Government Pleader appearing for the respondents, reiterating the averments made in the counter affidavit submitted that the petitioner is not entitled for the benefits sought for, as the husband of the petitioner was dismissed from service based on the disciplinary proceedings against him. It is submitted by him that the husband of the petitioner was dismissed from service after following the necessary procedures contemplated under the Tamil Nadu Fire Service Manual and therefore, there is no infirmity or illegality in the impugned order passed by the second respondent. Further, the petitioner had not challenged the termination order passed against the petitioner. Hence, without challenging the termination order, the Writ Petition seeking to quash the communication of the second respondent deserves to be dismissed.

Heard the learned counsel appearing for the parties and perused the materials available on record.

The petitioner''s husband was an employee of the respondents. The husband of the petitioner deserted his office, consequently, he was dismissed from the service after conducting disciplinary proceedings as stated in the Counter Affidavit filed by the second respondent. The petitioner''s plea is that no such order was served on the petitioner to challenge the dismissal order or termination order. Even assuming that such dismissal order was not served on the petitioner, the petitioner ought to have approached the Court immediately after the death of the husband of the petitioner. Nearly, after a period of 5 years, the petitioner has filed the present Writ Petition seeking to quash the communication of the second respondent stating that the husband of the petitioner was dismissed from service and therefore, she is not entitled for the benefits sought for. Perusal of the counter affidavit reveals that the husband of the petitioner was dismissed from service on the earlier occasion. However, on the recommendation of the Medical Board on 29.8.1996, he was reinstated into service by the Divisional Officer, South Chennai, Order Ko.Oo.No.468/1996 and Proceedings Rc.No.10595/Aa1/86, dated 18.8.1986. Thereafter, he was issued a charge memo under Rule 17(b) of the Tamil Nadu divil Services (Discipline and Appeal) Rules in P.R.No.3/97 on 10.1.1997 for unauthorised absence. Since the petitioner''s husband did not respondent to the charge memo in the departmental proceedings, the charges were held proved and he was removed from service by the Divisional Officer, Villupuram in Divisional Order No.305/1998 Proceedings K.Dis No.3705/B/1998, 19.9.1998. Therefore, the petitioner was removed from service after following the procedures contemplated under the provisions of law.

In judgment rendered by this Court in K.Devaki vs. The Superintendent, Central Prison, Salem relied on by the learned counsel for the petitioner is not applicable to the factual matrix of the present case. In the said case, no steps were taken in the case of petitioner''s husband before his removal and hence, the relief sought therein was granted. In the present case, the petitioner was issued with a charge memo for unauthorised absence and enquiry was conducted and thereafter, termination order was passed against the husband of the petitioner. Therefore, the dictum of the said decision is not applicable to the present case.

In the Judgment rendered by the Hon''ble Supreme Court in Mahinder Dutt Sharma vs. Union of India and others reported in (2014) 11 Supreme Court Cases 684, it has been held as follows:- "18. None of the authorities on the administrative side, not even the Tribunal or the High Court, applied the above parameters to determine the claim of the appellant for compassionate allowance. We are of the view that the consideration of the appellant''s claim was clearly misdirected. All the authorities merely examined the legitimacy of the order of dismissal. And also, whether the delay by the appellant, in filing the appeal against the punishment order dated 17.5.1996 was legitimate. The basis, as well as the manner of consideration, for a claim for compassionate allowance, has nothing to do with the above aspects. Accordingly, while accepting the instant appeal, we set aside the order dated 25.4.2005 (passed by the Deputy Commissioner of Police, IInd Battalion, Delhi Armed Police, Delhi), rejecting the prayer made by the appellant for grant of compassionate allowance. The order passed by the Tribunal dated 28.2.2006 and the order passed by the High Court dated 13.11.2006, are also accordingly hereby set aside. Having held as above, we direct the competent authority to reconsider the claim of the appellant, for the grant of compassionate allowance under Rule 41 of the Pension Rules, 1972, based on the parameters laid down hereinabove."

It is pertinent to state that the petitioner has not challenged the termination order of the husband of the petitioner in the present Writ Petition. Viewed from in any angle, the petitioner has not approached the Court within the reasonable time. Therefore, without challenging the termination order, the contention of the petitioner cannot be entertained and the same is liable to be dismissed.

Considering the above facts and circumstances, I am of the view that the petitioner is not entitled for the relief. The Writ Petition bereft of merits and the same is liable to be dismissed. Accordingly, the Writ Petition is dismissed. Connected Miscellaneous Petitions are closed. No costs.