# Smt. Rajeshwari Devi v. State of U.P. and others

- **Citation:** (2011) 1 ILRA 107
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-07
- **Case number:** Civil Misc. Writ Petition No. 28935 of 2007
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rajeshwari-devi-v-state-of-u-p-and-others-41794
- **Pages:** 5

## Headnote

1962-Rule-27-Dismissal-whether can be
passed against dead employee-held-'No'
disciplinary authority including enquiry
officer-shows height ignorance of the
Principle of Service Law-word used in
Section is employee and not the family
members-forfeiture of Gratuity pension
etc. beyond jurisdiction-court expressed
great displeasure-exemplary cost of Rs.
10,000/- imposed-with direction to pay
all amount within specified period, with
10% interest thereon.

Held: Para 7

The punishment provided in Rule 27,
therefore, can be imposed upon the
"servant" of Mahapalika and not on the
family members of the "servants" of
Mahapalika. As soon as an incumbent
who
was
an
employee
of
Nagar
Mahapalika dies, for the purpose Rule 27
of 1962 Rules, he ceases to be a "servant
of
Nagar
Mahapalika"
as
a
result
whereof no penalty under Rule 27 could
be 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. No such power has been conferred
upon any authority of Nagar Nigam,
Bareilly or else to pass any such order.
Moreover, punishments which have been
imposed, i.e. withholding of all retiral
benefits including provided fund and non
consideration
of
legal
heir
for
compassionate appointment are also not
provided as a punishment under Rule 27.
It is well settled that a punishment not
prescribed under the rules, as a result of
disciplinary
proceedings,
cannot
be
awarded even to the employee what to
say of others. The Court feel pity on the
officers of Nagar Nigam, Bareilly in
continuing
with
the
departmental
enquiry against a person who was
already died and this information of
death was well communicated to the
enquiry officer as well as disciplinary
authority. They proceeded with enquiry
and passed impugned orders against a
dead person. This is really height of
ignorance of principles of service laws
and shows total ignorance on the part of
the officers of Nagar Nigam in respect to
the disciplinary matters. This Court
expresses its displeasure with such state
of
affairs
and
such
a
level
of
unawareness
on
the
part
of
the
respondents who are responsible in
establishment matters. They have to be
condemned in strong words for their
total
lack
of
knowledge
of
such
administrative
matters
on
account
whereof legal heirs of poor deceased
employee have suffered.

## Text

1 All] Smt. Rajeshwari Devi V. State of U.P. and others
107
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.01.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 28935 of 2007

Smt. Rajeshwari Devi

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Anwar Mehndi Zaidi,
Sri A.C. Pandey

Counsel for the Respondent:
Sri Anil Tiwari,
C.S.C.

U.P. Nagar Mahapalika Sewa Niymawali
1962-Rule-27-Dismissal-whether can be
passed against dead employee-held-'No'
disciplinary authority including enquiry
officer-shows height ignorance of the
Principle of Service Law-word used in
Section is employee and not the family
members-forfeiture of Gratuity pension
etc. beyond jurisdiction-court expressed
great displeasure-exemplary cost of Rs.
10,000/- imposed-with direction to pay
all amount within specified period, with
10% interest thereon.

Held: Para 7

The punishment provided in Rule 27,
therefore, can be imposed upon the
"servant" of Mahapalika and not on the
family members of the "servants" of
Mahapalika. As soon as an incumbent
who
was
an
employee
of
Nagar
Mahapalika dies, for the purpose Rule 27
of 1962 Rules, he ceases to be a "servant
of
Nagar
Mahapalika"
as
a
result
whereof no penalty under Rule 27 could
be 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. No such power has been conferred
upon any authority of Nagar Nigam,
Bareilly or else to pass any such order.
Moreover, punishments which have been
imposed, i.e. withholding of all retiral
benefits including provided fund and non
consideration
of
legal
heir
for
compassionate appointment are also not
provided as a punishment under Rule 27.
It is well settled that a punishment not
prescribed under the rules, as a result of
disciplinary
proceedings,
cannot
be
awarded even to the employee what to
say of others. The Court feel pity on the
officers of Nagar Nigam, Bareilly in
continuing
with
the
departmental
enquiry against a person who was
already died and this information of
death was well communicated to the
enquiry officer as well as disciplinary
authority. They proceeded with enquiry
and passed impugned orders against a
dead person. This is really height of
ignorance of principles of service laws
and shows total ignorance on the part of
the officers of Nagar Nigam in respect to
the disciplinary matters. This Court
expresses its displeasure with such state
of
affairs
and
such
a
level
of
unawareness
on
the
part
of
the
respondents who are responsible in
establishment matters. They have to be
condemned in strong words for their
total
lack
of
knowledge
of
such
administrative
matters
on
account
whereof legal heirs of poor deceased
employee have suffered.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. This is really a strange kind of case.
One Sri Ghasi Ram working as Mali in
Nagar Nigam Bareilly, was placed under
suspension on 21.7.2005 and a charge sheet
was issued to him from the office of Nagar
Nigam on 26.7.2005. The delinquent
employee
Ghasi
Ram
died
on
31.7.2005/1.8.2005 and this information
was received in the office of Nagar Nigam
on 2.8.2005. Despite, the enquiry officer
108 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
submitted report on 5.10.2005 stating that
he gave opportunity to the delinquent
employee which he did not avail and,
thereafter, held all the charges proved
against the dead employee.

2. The disciplinary authority, having
noticed the fact that Ghasi Ram has died
while in suspension, agreed with the
enquiry report holding that the charges
stand proved and the deceased employee
was guilty of the misconduct. He also held
that had he been alive, a major penalty
would have been awarded but after his
death, penalty of dismissal is not possible,
hence as a measure of penalty, all the retiral
dues including provident fund etc. shall not
be paid to his legal heirs and they shall also
not be considered for compassionate
appointment.

3. A representation was made by the
petitioner; the widow of the deceased
employee, that no enquiry proceeding could
have continued after death of the deceased
employee concerned, hence, continuance of
proceedings
and
impugned
order
of
punishment are illegal. Further that there is
no provision authorizing the punishing
authority to withhold as penalty, the retiral
benefits including the provident fund of the
deceased employee, which is a right of the
legal heirs after death of the employee
concerned. Thirdly, she also represented
that right of compassionate appointment
also cannot be denied since it is not
prescribed as one of the punishment under
the Rules. She also pointed out that in fact
till the death of the employee concerned,
even the alleged charge sheet was not
served upon him. She, therefore, requested
not only for payment of all dues, after the
death of the employee concerned, but also
to provide compassionate appointment to
one of the member of family. This
representation has been rejected by order
dated 26.3.2007 (Annexure 9 to the writ
petition) by Nagar Ayukt, Nagar Nigam,
Bareilly.

4. Learned counsel for the petitioner
submitted that there is no provision
authorizing the respondent- Nagar Nigam to
continue with the departmental enquiry after
death of the employee concerned. In respect
to the Government servants, it is provided
that on the death of the Government
servant, the disciplinary proceeding, if
pending, shall stand abated. He submits that
the same would apply to the case of
petitioner's husband also. It is contended
that punishments which have been imposed
upon the heirs of deceased employee are not
provided
in
the
rules.
Moreover,
punishments are not imposed on the
deceased employee, but in fact have fallen
on the legal heirs of deceased employee
which is not permissible in law since the
respondent-Nagar Nigam had no authority
to deprive any benefit accruing to legal heirs
of a deceased employee, by means of an
order of punishment which would fall upon
the legal heirs. Lastly, it is contended that
the enquiry officer says that the notice of
oral hearing was issued to the delinquent
employee by pasting notice at his residence
though it is also mentioned in the enquiry
report that even before that, the employee
concerned had died, meaning thereby the
entire proceedings are nothing but a farce
and a nullity in the eyes of law.

5. Sri Anil Tiwari, learned counsel
appearing for the Nagar Nigam contended
that the employee having died after issuance
of the charge sheet, it will not affect
pendency of enquiry which is bound to
culminate in a final order which has been
passed in the case in hand by the competent
authority
and
it
does
not
warrant
1 All] Smt. Rajeshwari Devi V. State of U.P. and others
109
interference.
He
also
submitted
that
petitioner's husband was guilty of a serious
misconduct of selling Nigam's house
allotted to him and hence Nigam has no
option but to pass the impugned orders.

6. 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. Sri Anil
Tiwari, learned counsel appearing for
respondent-Nagar Nigam, on repeated
query did not controvert the fact that as
soon as an employee dies, his relationship
of employer and employee comes to an end.
This would automatically result in cessation
of proceedings including departmental
proceedings
pending
against
him.
Moreover, what penalty can be imposed on
an employee of Nagar Nigam is provided in
Rule 27 of U.P. Nagar Mahapalika Sewa
Niyamawali, 1962 (hereinafter referred to
as "1962 Rules") which reads as under:

"27. Punishment - Subject to the
provisions of section 110 of the Act the
following penalties may for good and
sufficient reasons and as hereinafter
provided be imposed upon the servants of
the Mahapalika by the authority which is
competent to make such appointments
under
section
107
of
the
Act,
notwithstanding that such an appointment
in any particular case may have been made
under section 577 (f) (2) of the Act, namely-

(I) fine in case of servants belonging to
the inferior service only: Provided that the
total amount of fine shall not ordinarily
exceed half month's pay of the servant
concerned and it shall be deducted from his
pay in instalments not exceeding one
quarter of his monthly salary;

(ii) censure;

(iii)
withholding
of
increments
including its stoppage at an efficiency bar;

(iv) recovery from pay of the whole or
part of any pecuniary loss caused to the
Mahapalika by negligence or breach of
orders;

(v) Suspension,

(vi) reduction to a lower post or timescale, or to lower stage in a time-scale,

(vii) removal from the service of the
Mahapalika which does not disqualify from
future employment,

(viii) dismissal from the service of the
Mahapalika which ordinarily disqualifies
from future employment.

Explanation-The discharge-

(a)
of
a
person
appointed
on
probation, during or at the end of the period
of probation; or

(b) of a person appointed otherwise
than under contract to hold a temporary
appointment on the expiration of the period
of the appointment or at any time in
110 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
accordance with the terms of appointment ;
or

(c) of a person engaged under contract
in accordance with the terms of his
contract; does not amount to removal or
dismissal within the meaning of this rule."

7. The punishment provided in Rule
27, therefore, can be imposed upon the
"servant" of Mahapalika and not on the
family members of the "servants" of
Mahapalika. As soon as an incumbent who
was an employee of Nagar Mahapalika dies,
for the purpose Rule 27 of 1962 Rules, he
ceases to be a "servant of Nagar
Mahapalika" as a result whereof no penalty
under Rule 27 could be 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. No such power
has been conferred upon any authority of
Nagar Nigam, Bareilly or else to pass any
such order. Moreover, punishments which
have been imposed, i.e. withholding of all
retiral benefits including provided fund and
non consideration of legal heir for
compassionate appointment are also not
provided as a punishment under Rule 27. It
is well settled that a punishment not
prescribed under the rules, as a result of
disciplinary proceedings, cannot be awarded
even to the employee what to say of others.
The Court feel pity on the officers of Nagar
Nigam, Bareilly in continuing with the
departmental enquiry against a person who
was already died and this information of
death was well communicated to the
enquiry officer as well as disciplinary
authority. They proceeded with enquiry and
passed impugned orders against a dead
person. This is really height of ignorance of
principles of service laws and shows total
ignorance on the part of the officers of
Nagar Nigam in respect to the disciplinary
matters. This Court expresses its displeasure
with such state of affairs and such a level of
unawareness on the part of the respondents
who are responsible in establishment
matters. They have to be condemned in
strong words for their total lack of
knowledge of such administrative matters
on account whereof legal heirs of poor
deceased employee have suffered.

8. This writ petition, therefore,
deserves to be allowed. Besides, in my
view, here is a fit case where an
exemplary cost ought to be imposed
against Nagar Nigam, Bareilly for such a
mindless illegal act on their part. Sri Anil
Tiwari,
learned
counsel
for
the
Corporation, however, very fairly said
that authorities may have committed a
serious error in passing orders despite
death of the employee concerned, but had
no mala fide on their part, therefore, this
Court may show its leniency in the matter
of imposing heavy cost.

9. Considering the facts and
circumstances as discussed above, the
writ petition is allowed. The impugned
orders dated 8.11.2005 (Annexure 5 to the
writ petition) and 26.3.2007 (Annexure 9
to the writ petition) are hereby quashed.
The respondents shall pay forthwith all
dues to the legal heirs of the deceased
employee Ghasi Ram as a result of his
death on 31.7.2005/1.8.2005 treating the
disciplinary
proceeding
against
him
having abated on that date. The amount
payable, as above, shall be determined
within one month from the date of
production of certified copy of this order
before the competent authority and shall
be paid within 15 days thereafter. The
respondent-Nagar Nigam shall also pay
interest on the aforesaid amount at the
1 All] Pawan Kumar V. Union of India and other
111
rate of 10% p.a. commencing from the
date of death of petitioner's husband till
actual payment.

10. If the petitioner or any other
legal
heir
apply
for compassionate
appointment in accordance with law, the
same may also be accordingly considered
as per the rules.

11. The petitioner shall also be
entitled to cost which is quantified to Rs.
10,000/- (Rupees ten thousand).
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2011

BEFORE
THE HON'BLE SATYA POOT MEHROTRA, J.
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc Writ Petition No. 37121 of 2001

Pawan Kumar

 ...Petitioner
Versus
Union of India and other ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Aditya Kumar Singh
Sri Adarsh Bhushan
Sri Vishnu Shanker Gupta

Counsel for the Respondents:
Sri S.N. Srivastava (S.S.C.)
C.S.C.

U.P. Reorganization Act 2000-Section
76-Petitioner working as sil conservation
officer-opted
and
always
remained
posted in Hill area-after existence of new
state of Uttarakhand-representated on
ground of heart trouble to remain in
state of U.P. The Committee took policy
decision to post those who were already
working in Hill District-which resulted
rejection-held-No
prejudice
causeddismissed.

Held: Para 18 & 19

The option of the petitioner to be posted
in State of U.P. was thus considered and
disposed of as aforesaid and no other
representation in this regard remained
pending. There is nothing on record to
indicate the developments after 2001
and
the
petitioner
who
admittedly
belong to the Hill Sub-cadre as per the
Uttar Pradesh Hill Sub-cadre Rules 1992
as such continued to remain posted in
the State of Uttrakhand even after the
devision of the erstwhile State of Uttar
Pradesh.

In view of the aforesaid facts and
circumstances,
as
the
petitioner
admittedly belong to the Hill-Sub-cadre
and had always remained posted in the
hilly region of the State of U.P. which
now constitutes the State of Uttrakhand,
no prejudice has been caused to him by
the final allocation of the State of
Uttrakhand.

Case law discussed:
2004 (1) UPLBEC 547:2004(55) ALR 28,2006
(9) SCC 458,2007(7) SCC 250, 2009 (8) ADJ
49.

(Delivered by Hon'ble S.P. Mehrotra, J.)

1. Petitioner was appointed as an
Agronomist/Soil Conservation Officer in
the year 1981 on selection by the U.P.
Public Service Commission, Allahabad
through the Combined State Services
Examination 1979. He was promoted and
posted as Project Officer (Agriculture)
Nainital w.e.f. 1.1.2000. During his service,
he opted for the Hill Sub-cadre constituted
for the agriculture department in pursuance
to the Government Order dated 23.3.1982.

2. In accordance with the U.P.
Reorganization
Act,
2000
(hereinafter