# Raj Kishori Devi v. State of U.P. &Ors

- **Citation:** (2019) 1 ILRA 743
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-30
- **Case number:** Writ-A No. 47122 of 2016
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kishori-devi-v-state-of-u-p-ors-44470
- **Pages:** 7

## Headnote

A. The Constitution of India Article 226-
U.P. Government Servant (Discipline and
Appeal) Rules, 1999 and Article 351 A of
the
Civil
Services
Regulations
-
punishment provided under the Disciplinary
Rules cannot be imposed upon the family
members of the government servant since
an incumbent ceases to be a government
servant upon his death hence no penalty
under the rules could have been imposed
upon him.
The deceased/employee was placed under
suspension two days prior to his retirement
and thereafter the employee died during
pendency of the disciplinary proceedings - the
alleged loss caused to the government, which
was subject matter of departmental enquiry,
was directed to be recovered from the heirs of
the deceased employee from his post retiral
dues.

Held:- that By the impugned order, recovery was
sought to be made from the post retiral dues from
the legal heir for the misdemeanour and
misconduct of the delinquent employee, which
was not permissible in view of Rule 54-B of the
Fundamental Rules.

Writ Petition Allowed.

Case Law discussed/relied upon:-

## Text

1 All. Raj Kishori Devi Vs. State of U.P. & Ors.
743
vehicles is a reasonable and valid
classification. Accordingly, we do not
find that there is any arbitrariness or
discrimination in the period fixed for the
running of the aforesaid two categories of
vehicles.

8. The submission that the vehicles
of the petitioners are being solely used
under a contract for school purposes and
as such are not different from educational
institution
vehicles/buses
cannot
be
accepted for the simple reason that the
educational institutional bus has been
defined under Section 2 (11) of the Motor
Vehicles Act which means an omnibus,
which is owned by college, school or
other educational institutions and used
solely for the purpose of transporting
students or the staff of the educational
institution in connection with any of its
activities. The vehicles owned and used
by the petitioners are not the vehicles
owned by the college/school or any
educational institutions and, therefore,
mere hiring of said vehicles by the
educational institutions would not bring
them within the purview of educational
institutional buses as defined under the
Act.

9. In view of aforesaid facts and
circumstances, we are of the opinion that
the writ petition is devoid of merit and is
accordingly, dismissed.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2019

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Writ-A No. 47122 of 2016

Raj Kishori Devi ...Petitioner
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajesh Kumar Singh, Sri Aisharya
Kumar Singh

Counsel for the Respondents:
C.S.C.

A. The Constitution of India Article 226-
U.P. Government Servant (Discipline and
Appeal) Rules, 1999 and Article 351 A of
the
Civil
Services
Regulations
-
punishment provided under the Disciplinary
Rules cannot be imposed upon the family
members of the government servant since
an incumbent ceases to be a government
servant upon his death hence no penalty
under the rules could have been imposed
upon him.
The deceased/employee was placed under
suspension two days prior to his retirement
and thereafter the employee died during
pendency of the disciplinary proceedings - the
alleged loss caused to the government, which
was subject matter of departmental enquiry,
was directed to be recovered from the heirs of
the deceased employee from his post retiral
dues.

Held:- that By the impugned order, recovery was
sought to be made from the post retiral dues from
the legal heir for the misdemeanour and
misconduct of the delinquent employee, which
was not permissible in view of Rule 54-B of the
Fundamental Rules.

Writ Petition Allowed.

Case Law discussed/relied upon:-
1. Hirabai BhikAnr.ao Deshmukh v. State of
Maharashtra and others, (1985) ILLJ 469 Bom

2. Neeraj v. Air India Ltd.,2017 XAD (Delhi)
245

3. Rajeshwari Devi v. State of U.P. and others,
2011(2) ADJ 643 (E-3)

(Delivered by Hon'ble Suneet Kumar, J.)
744 INDIAN LAW REPORTS ALLAHABAD SERIES

1.
Civil
Misc.
Substitution
Application No. 382501 of 2016

1. Heard the learned counsel for the
parties.

2. The application to substitute the
legal heir is allowed.

Necessary substitution to be carried
out during course of the day.

2. Order on Memo of Petition.

3. Heard the learned counsel for the
parties.

4. Petitioner is the wife of the
deceased/government employee, namely,
Baidya Nath Pandey, a Junior Clerk with
the U.P. Food and Civil Supplies
Department.
He
was
subsequently
regularized on the post of Marketing
Inspector by the Regional Food Controller
Varanasi,
Region
Varanasi.
Service
conditions of the deceased/employee is
governed by the U.P. Foods and Civil
Supplies (Marketing Branch) Subordinate
Service Rules, 1980. U.P. Government
Servant (Discipline and Appeal) Rules,
1999 and Civil Services Regulation
govern the departmental enquiry against
the
government
servant.
The
deceased/employee retired on attaining
the age of superannuation on 31 January
2000, however, two days prior to
retirement,
he
was
placed
under
suspension vide order dated 29 January
2000, by the fourth respondent-Regional
Food
Controller
Allahabad,
Region
Allahabad. The employee died on 15
February 2001 during pendency of the
disciplinary proceeding initiated in terms
of Article 351A of the Civil Service
Regulations. During pendency of the writ
petition, petitioner died on 8 November
2016, thereafter, the legal heir (son) was
substituted.

5. The short question involved in the
instant writ petition is as to whether the
alleged loss caused to the government
which was subject matter of departmental
enquiry can be recovered from the heirs
of the deceased employee from the post
retiral dues.

6. The facts, inter se, parties are not
in dispute. It is admitted by the
respondent that the deceased/employee
was a government servant and came to be
placed under suspension pending enquiry
two days prior of his retirement on the
allegation of causing loss of Rs.4,60,243/-
to the government. It is admitted that as
per the provisions of Article 351A, an
enquiry in respect of a retired government
employee
is
deemed
to
have
commenced/instituted if the officer is
placed under suspension from an earlier
date prior to his retirement. The charge
sheet levelling four charges was issued to
the deceased/employee after retirement.
He did not respond and before he could
submit his reply, he died, consequently,
by the orders of the third respondentCommissioner, Foods and Civil Supplies,
Lucknow, enquiry was dropped.

7. Petitioner by the instant writ
petition seeks the following reliefs:

(i) Issue a writ order or direction in
the
nature
certiorari
quashing
the
impugned order dated 17.6.2016 in
respect of deduction of amount to trhe
tune of Rs. 1,50,939.00 from pension, Rs.
1,36,068.00
from
gratuity
and
Rs.
1,19,236.00
from
the
commutation
amount. Total amount comes to the tune
of
Rs.
4,06,243.00
from
the
post
retirement benefit of the late husband of
1 All. Raj Kishori Devi Vs. State of U.P. & Ors.
745
petitioner,
on
account
of
proposal/recommendation made by the
Regional Food Controller Allahabad
Region
Allahabad
on
18.12.2015
(Annexure no 9 to the writ petition).

(ii) Issue a writ order or direction in
the nature of mandamus directing the
respondents to release the amount of Rs.
4,06,243.00 which was illegally deducted
by the pension, Gratuity and commutation
of the post retirement benefit of late
husband of petitioner vide letter dated
17.6.2016 along with 12% interest thereof
as well as interest @ 12% on the late
payment of paying the Family pension
vide order dated 13.7.2016 for the period
December 2000 to May 2016 a sum of Rs.
8,44,988/ forthwith.

8. It is not disputed by the
respondents that before the enquiry could
be concluded the employee died. The
departmental enquiry did not proceed
beyond the issue of the charge-sheet. This
factual position is reflected from the
averments of the respondents made in the
counter affidavit.

9. Paragraphs-4, 7 & 8 of the
counter affidavit is extracted:

4. That the contents of paragraph 3
of the writ petition are not admitted and
in reply thereto, it is most respectfully
submitted
that
the
amount
of
Rs.
4,06,243/- deducted from post retiral dues
of husband of the petitioner, namely, Late
V.N. Pandey, is perfectly just and in
accordance with law. It is submitted that
during service tenure of husband of the
petitioner
under
departmental
proceedings, government dues of Rs.
4,04,863 against the husband of the
petitioner, has been informed by the
Regional Food Controller, Allahabad.
Similarly government dues of Rs. 1380/-
as against the husband of the petitioner
were also informed by the Regional Food
Controller, Varanasi. Therefore, total
government dues of Rs. 4,06,243/- against
the petitioner as has been informed by the
authorities
concerned,
was
rightly
deducted from the post retiral dues of
husband of the petitioner pursuant to the
order dated 22.1.2015 passed by the Food
Commissioner, which is perfectly just and
legal and is in the interest of public
money.

7. That the contents of paragraph 11
of the writ petition are baseless hence
denied and in reply thereto it is submitted
that after the retirement of the husband of
the petitioner, due to pendency of
departmental
proceedings,
he
was
granted provisional pension under the
order of Regional Food Controller,
Allahabad
dated
7.12.2000.
It
is
submitted
that
due
to
certain
irregularities committed by the husband
of
the
petitioner,
a
departmental
proceeding was instituted against him
which remained pending due to noncooperative attitude of husband of the
petitioner as in his case, an Enquiry
Officer was appointed by the Food
Commissioner who proceeded with the
enquiry and issued charge sheet against
the petitioner which was duly received by
husband of the petitioner Shri Pandey on
28.7.2000 but the same was not replied by
him only with a view to linger onthe
matter.

8. That the contents of paragraphs
12 to 15 of the writ petition are not
admitted and in reply thereto, it is most
respectfully submitted that due to some
serious
irregularities
committee
by
husband
of
the
petitioner
viz.
disobedience of the orders of the
authorities concerned, mis-appropriation
746 INDIAN LAW REPORTS ALLAHABAD SERIES
of
huge
quantity
of
government
foodgrains etc., he was placed under
suspension by means of an order dated
29.1.2000 passed by the Regional Food
Controller,
Allahabad
during
the
contemplation of departmental enquiry
and said order of suspension was also
communicated to the Food Commissioner.
The Food Commissioner by his order
dated 4.7.2000 appointed Regional Food
Controller, Kanpur Region as Enquiry
Officer. The husband of the petitioner was
not cooperating in the said enquiry rather
he has filed a writ petition No. 20406 of
2000 in this Hon'ble Court in which an
order was passed on 2.5.2000 for taking
appropriate
decision
on
the
representation
of
the
petitioner,
in
compliance
of
which
the
Food
Commissioner scrutinized the matter in
detail and passed the order dated
7.2.2007
deciding
the
claim
and
representation of petitioner's husband
dated 15.10.2000 by which Shri Pandey
was directed to file reply of the charge
sheet within 15 days and the Enquiry
Officer was also directed to complete the
enquiry and send the enquiry report to the
office of Food Commissioner within next
15 days, in pursuance of which, the
Regional
Food
Controller,
Kanpur
Region, by his letter dated 16.3.2002 has
informed that Shri B.N. Pandey, the
husband of the petitioner already died on
15.2.2001 and he has not replied the
approved charge sheet issued against
him. Thereafter, it appears that due to
non-payment post retiral dues of late
Pandey, the petitioner, the wife of
deceased employee filed writ petition No.
43664 of 2007 in this Hon'ble Court in
which an order was passed on 13.9.2007
directing therein to complete enquiry
within time, in pursuance of which, the
Regional Food Controller, Allahabad
Region, Allahabad by his letter dated
31.10.2007 followed by another reminder
letter dated 23.5.2014, made a request to
the
Enquiry
Officer/Regional
Food
Controller, Kanpur Region, Kanpur to
complete the enquiry anearly date and
send the enquiry report, in response to
which the Regional Food Controller,
Kanpur Region by his letter dated
3.6.2014 has informed that the husband of
the petitioner Shri pandey already died on
15.2.2001 and the charge sheet related to
present matter in dispute, was duly served
upon which but the same was not replied
by him, therefore, now no action was
required to be taken at his level. It is
submitted that on the basis of aforesaid
report of Regional Food Controller,
Kanpur
Region,
the
department
proceeding instituted against the husband
of the petitioner, was dropped under the
order passed by the Food Commissioner
by which it was also directed that if any
financial loss has been caused by the
husband of the petitioner, the said amount
be adjusted from his post retiral dues, in
pursuance of which government loss of
Rs. 4,06,243/- caused by Shri Pandey, has
been informed by the Regional Food
Controller, Allahabad/Varanasi Region,
which has been adjusted/deducted from
the post retiral dues of Shri Pandey and
rest of amount related to post retiral dues
has been paid to the petitioner being wife
of late Pandey.

10. In the backdrop of the averments, it
is urged by learned counsel for the petitioner
that recovery of the alleged loss of
government dues, which was subject matter of
the disciplinary enquiry, could not have been
recovered from the post retiral dues of the
deceased/employee
as
the
departmental
inquiry abated on the death of the employee. It
is not in dispute that the inquiry was not
1 All. Raj Kishori Devi Vs. State of U.P. & Ors.
747
concluded before his death. Petitioner is,
therefore, entitled to the sum recovered along
with interest thereon.

11. Once a person came to an end by
reason of death, the provisions for
Fundamental Rule 54-B Sub-Rule (2)
states
that
notwithstanding
anything
contained in Rule 53, where a government
servant under suspension dies before the
disciplinary proceedings are concluded,
the period between the date of suspension
and the date of death has to be treated as
duty for all purposes and the family of
such civil servant is required to be paid
full allowances for that period subject to
adjustment in respect of subsistence
allowance already paid. Fundamental
Rule 54-B of Sub-Rule (2) is extracted:

"Notwithstanding anything contained
in rule 53, where as Government servant
under
suspension
dies
before
the
disciplinary
or
court
proceedings
instituted against him are concluded, the
period between the date of suspension and
the date of death shall be treated as duty
for all purposes and his family shall be
paid the full pay and allowances for that
period to which he would have been
entitled had he not been suspended,
subject to adjustment in respect of
subsistence allowance already paid."

12. In similar facts, the Bombay High
Court in Hirabai BhikAnr.ao Deshmukh
v. State of Maharashtra and others1,
upon considering the rule applicable to
government servant in Maharashtra, which
is pari materia with Rule 54-B of the
Fundamental Rule, held as follows:

"The provisions with regard to
dismissal, removal and suspension of the
civil servant do not permit holding of any
further enquiry into the conduct of such a
civil servant after hid death. Such
proceedings are intended to impose
departmental penalty and would abate by
reason of the death of civil servant. The
purpose of proceedings is to impose
penalty, if misconduct is established against
the civil servant. That can only be achieved if
the civil servant continues to be in service.
Upon broader view the proceedings are
quasi-criminal in the sense it can result in
fault finding and further imposition of
penalty. The character of such proceedings
has to be treated as quasi-judicial for this
purpose. In the light of the character of the
proceedings and the nature of penalty like
dismissal or removal, or any other penalties,
minor or major, it has nexus to the contract
of service. Therefore, if the person who has
undertaken that contract is not available, it
should follow that no proceedings can
continue. Thus when the proceedings are
quite personal in relation to such a contact of
service, the same should terminate upon
death of the delinquent. By reason of death,
such proceedings would terminate and
abate. We think that such a result is also
inferable from the provisions of Rule 152-B
of the Bombay Civil Service Rules."

13. In a case where after issuance of
charge sheet to the delinquent employee,
enquiry officer upon enquiry submitted
the enquiry report holding the employee
guilty of the charges levelled against him
but unfortunately he expired before any
decision
could
be
taken
by
the
Disciplinary Authority on the enquiry
report. In other words, before the enquiry
report could be acted upon by the
Disciplinary Authority, the employee
expired. The Delhi High Court held that it
is
settled
law
that
disciplinary
proceedings culminate with the issuance
of final order by the Disciplinary
748 INDIAN LAW REPORTS ALLAHABAD SERIES
Authority. Since the authority could not
pass final order, the enquiry would stand
abated and the employer is precluded
from making any recovery from the retiral dues
of the deceased/employee.

(Ref: Neeraj v. Air India Ltd.2)

14. Learned Single Judge of this
Court in Rajeshwari Devi v. State of U.P.
and others3, in the similar facts, held as
follows:

"Holding of departmental enquiry
and
imposition
of
punishment
contemplates a pre-requisite condition
that the employee concerned, who is to be
proceeded against and is to be punished,
is continuing an employee, meaning
thereby is alive. As soon as a person dies,
he breaks all his connection with the
worldly affairs. It cannot be said that the
chain of employment would still continue
to enable employer to pass an order,
punitive in nature, against the dead
employee......
all
the
punishments
contemplated under the rules are such
which can be imposed on a person who is
still continuing to be an employee."

15. It follows that punishment
provided under the Disciplinary Rules can
be imposed upon the government servant
and not on the family member of the
government servant. As soon as an
incumbent ceases to be a government
servant upon death, no penalty under the
rules could have been imposed upon him.
That being so, the question of passing an
order, which may have the effect of
punishing legal heirs of the deceased
employee would not arise. In the facts of
the instant case, disciplinary proceeding
was
initiated
against
the
employee
immediately before his retirement and
before the disciplinary enquiry could
conclude he died. The disciplinary enquiry,
thereafter, could not have been proceeded
under Section 351A of the Civil Service
Regulations, accordingly, the competent
authority dropped the enquiry. By the
impugned order, recovery was sought to be
made from the post retiral dues from the
legal heir for the misdemeanour and
misconduct of the delinquent employee,
which was not permissible in view of Rule
54-B of the Fundamental Rules.

16. Learned standing counsel, in
rebuttal, does not dispute the fact that the
enquiry was dropped as the employee
died and the enquiry could not be
concluded before death of the employee.
In the circumstances, no recovery could
have been made from the post retiral dues
without a finding being recorded against
the deceased/employee under the Rules
that he was responsible for having caused
loss to the government.

17. The order dated 17 June 2016
passed by the second respondent-Finance
Controller and Chief Accounts Officer,
Foods and Civil Supplies, Lucknow, is
unsustainable, accordingly, set aside and
quashed.

18. The recovered sum of the post
retiral dues shall be released to the petitioner
by the second respondent-Finance Controller
and Chief Accounts Officer, Foods and Civil
Supplies, Lucknow, within two months from
the date of filing of certified copy of this
order along with interest @ 7% per annum
on the sum from the date of recovery.

19. The writ petition stands allowed.

20. No Cost.
--------
1 All. Lakhan Singh Vs. State of U.P. & Ors.
749
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2019

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Writ-A No. 30661 of 2007

Lakhan Singh ...Petitioner
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Bhushan, Sri Adarsh Bhushan,
Miss Rashmi Tripathi, Sri Amit Srivastava

Counsel for the Respondents:
C.S.C., Sri P.C. Shukla

A. Constitution of India Article 226-
Article 311 of the Constitution - U.P.
Government
Servant
(Discipline
and
Appeal)
Rules,
1991-Termination-
directly without following the procedure
as provided under Rule 7 of the Rules
1991. No enquiry contemplated nor
charges framed - major penalty of
termination imposed straight away was
not permissible under the Rules.
The services of the petitioner came to be
terminated by the impugned order, without
conducting
any
inquiry
or
framing
any
charges, for the reason that the petitioner had
not
reported
at
the
place
of
posting/attachment at Mainpuri. (Para 7,13)

B. Provisions of rule 7 and 9 of the Rules,
for imposition of major penalty are
mandatory. Where the statute provides
to do a thing in a particular manner that
thing has to be done in that manner.
(Para 12)

C. Even if it is a question of automatic
termination
of
service
for
being
continuously absent over a period of five
years, Article 311 applies to such cases
where
the
authority
chooses
to
terminate the services of the employer.
Impugned order stands vitiated and
hence quashed, Petitioner entitled for his
post-retiral dues along with 7% interest.
(Para 18,19,20 and 21)

Case law relied upon/discussed: -
1. Smt. Parmi Maurya vs. State of U.P. and
others, (2014) 2 UPLBEC 1060

2. Union of India vs. K.V. Jankiraman, AIR
1991 SC 2010

3. Union of India V. Anil Kumar Sarkar 2013
(4) SCC161

4. State of Andhra Pradesh v. C.H. Gandhi,
2013 (5) SCC 111

5. Mathura Prasad v. Union of India and
others,(2007) 1 SCC (L&S) 292

6. Dr. Subhash Chandra Gupta v. State of U.P.
& ors, 2012(1) ESC 279 (ALL) (DB)

7. Jeewanlal (1929) Ltd, Calcutta v. Its
Workmen, AIR 1961 SC 1567

8. Jai Shankar Vs. State of Rajsthan, AIR SC
492

9. Deokinandan Prasad Vs. State of Bihar, AIR
1971 SC 1409

10. B.N. Tripathi Vs. State of U.P, AIR 1971
ALL 346 (E-3)

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Sri Anil Bhushan, Senior
Counsel assisted by Sri Amit Srivastava,
learned counsel for the petitioners and
learned Standing Counsel for the Staterespondents.

2. Petitioner came to be appointed
Stenographer in 1982. By the instant writ
petition, petitioner is assailing the order of
termination dated 14 May 2007, passed
by the fourth respondent, Executive
Engineer,
Minor
Irrigation
Division,
District Firozabad. It is noted in the