# State of U.P. & Ors v. Smt. Brajesh Kumari & Ors

- **Citation:** (2021) 8 ILRA 98
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-02
- **Case number:** Service Bench No. 15161 of 2019
- **Bench:** Rajan Roy, Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-ors-v-smt-brajesh-kumari-ors-47334
- **Pages:** 10

## Headnote

order of punishment has been passed,
then merely because appeal has been filed
and during its pendency the appellantemployee dies, the punishment order by
itself will not abate nor will it get nullified.
The legal heirs can pursue the appeal on
the basis of available records in a case of
dismissal,
removal
etc.
which
has
monetary consequences for them. (Para
16)

Shri Mukesh Pal Singh was visited with the
punishment of dismissal from service while he
was alive and had preferred an appeal against
it. He died during the pendency of that appeal.
The legal heirs of Shri Mukesh Pal are entitled to
pursue the appeal filed by him, but instead they
preferred the abovementioned claim petition for
the monetary reliefs and also for seeking
compassionate
appointment.
However,
the
appellate authority had rejected the appeal
subsequent to the death of late Mukesh Pal on
merits and not as having abated which is
erroneous in the eyes of law. The appellate
authority could not have passed the order on
merits in appeal against a dead person. The
Court opined that the appropriate course would
be to allow an opportunity to the legal heirs of
late Mukesh Pal to pursue the appeal as it was
not only a question of punishment, but
consequences which would flow from such
punishment, especially the monetary benefits to
which his legal heirs would be disentitled as a
consequences thereof. (Para 21)

Writ Petition Allowed. (E-8)

List of Cases cited:-
8 All. State of U.P. & Ors. Vs. Smt. Brajesh Kumari & Ors.
99

## Text

98 INDIAN LAW REPORTS ALLAHABAD SERIES
been initiated are altogether different from
two charges of which the departmental
enquiry has been conducted. Besides,
despite the second charge having been
proved partially the Disciplinary Authority
has exonerated the petitioner without
assigning any reason to that effect,
therefore, such exoneration order dated
20.02.2018 is not only unwarranted and
uncalled for but the same is violative of
Rule 9 (2) (3) of the Rules, 1999.

34. In view of what has been
considered above, I do not find any
infirmity or illegality in the order dated
02.06.2020
passed
by
the
Vigilance
Department initiating the open vigilance
enquiry against the petitioner, which is
contained as Annexure No.1 to the writ
petition. However, it is needless to say that
while conducting the open vigilance
enquiry the authority concerned shall
follow the due procedure of law. The
petitioner shall be afforded an opportunity
of hearing strictly in accordance with law
and no prejudice shall be caused to the
petitioner for the reason that he has
approached this Court assailing the order
dated 02.06.2020.

35. Accordingly, the writ petition is
devoid of merits, deserves to be dismissed,
and is hereby dismissed.

36. No order as to costs.
----------
(2021)08ILR A98
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.07.2021

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE RAVI NATH TILHARI, J.

Service Bench No. 15161 of 2019

State of U.P. & Ors. ...Petitioners
Versus
Smt. Brajesh Kumari & Ors. ...Respondents

Counsel for the Petitioners:
C.S.C.

Counsel for the Respondents:
Bir Bahadur Singh, Ratnesh Chandra

A. Practice & Procedure - Once a final
order of punishment has been passed,
then merely because appeal has been filed
and during its pendency the appellantemployee dies, the punishment order by
itself will not abate nor will it get nullified.
The legal heirs can pursue the appeal on
the basis of available records in a case of
dismissal,
removal
etc.
which
has
monetary consequences for them. (Para
16)

Shri Mukesh Pal Singh was visited with the
punishment of dismissal from service while he
was alive and had preferred an appeal against
it. He died during the pendency of that appeal.
The legal heirs of Shri Mukesh Pal are entitled to
pursue the appeal filed by him, but instead they
preferred the abovementioned claim petition for
the monetary reliefs and also for seeking
compassionate
appointment.
However,
the
appellate authority had rejected the appeal
subsequent to the death of late Mukesh Pal on
merits and not as having abated which is
erroneous in the eyes of law. The appellate
authority could not have passed the order on
merits in appeal against a dead person. The
Court opined that the appropriate course would
be to allow an opportunity to the legal heirs of
late Mukesh Pal to pursue the appeal as it was
not only a question of punishment, but
consequences which would flow from such
punishment, especially the monetary benefits to
which his legal heirs would be disentitled as a
consequences thereof. (Para 21)

Writ Petition Allowed. (E-8)

List of Cases cited:-
8 All. State of U.P. & Ors. Vs. Smt. Brajesh Kumari & Ors.
99
1. Bachhatar Singh Vs St. of Punj. & ors. AIR
1963 SC 395 (distinguished)

2. Smt. Rajeshwari Devi Vs St. of U.P. Writ
Petition No. 28935 of 2007 (distinguished)

3. Prema Marandi Vs St. of Jharkh. Writ Petition
No. 5987 of 2008 (distinguished)

4. BasudeoTiwary Vs Sido Kanhu University &
ors. 1998 (8) SCC 194 (distinguished)

5. State of Bihar Vs Shanti Kumari L.P.A. No.
247 of 2015

6. Sri Lakhi Ram Manjhi Vs Management of
Sangramgarh Colliery & ors. (1994) 1 SCC 292
(followed)

7. Gwalior Rayons, Manvoor Vs Labour Court
(1978) 2 LLJ 188 (Ker.)

8. Bank of Baroda Vs Workmen (1979) 2 LLJ 57
(Guj.)

9. Sudha Srivastava (Smt.) Vs Comptroller &
Auditor General of India (1996) 1 SCC 63

(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Ravi Nath Tilhari, J.)

1. Heard Sri Manjeev Shukla, learned
Counsel for the petitioner and Shri Ratnesh
Chandra, learned counsel appearing for the
contesting opposite parties.

2. U.P. Public Services Tribunal at
Lucknow (hereinafter referred as "the
Tribunal") has, by means of the impugned
judgement dated 30.11.2018 passed in
claim petition no. 1775 of 2018 allowed the
claim petition of the private opposite
parties herein on the ground that late
Mukesh Pal Singh who was serving the
State of UP as Lekhpal was visited with the
punishment of dismissal from service vide
order dated 20.1.2008 and had preferred an
appeal against the said judgement on
17.3.2008, but, unfortunately, as he died on
6.7.2012, therefore, the entire proceedings
including the one which led to his
punishment vide order dated 20.1.2008 as
also the appellate order passed after his
death on 15.4.2017 stood abated and that
his
legal
representatives,
i.e.
private
opposite parties herein were entitled to all
the retiral dues, i.e., death-cum- retirement
gratuity, family pension, GPF, GIS, leave
encashment etc. as also compassionate
appointment.

3. The submission of Shri Manjeev
Shukla, learned Addl. C.S.C. for the State of
U.P., is that while doing so it has relied upon
three decisions rendered by Hon'ble the
Supreme Court of India which in fact do not
deal with this issue. In the case of Bachhatar
Singh vs State of Punjab & ors. others (AIR
1963 SC 395) no such proposition of law that
the punishment order would abate if the
employee dies during pendency of appeal
against it, has been laid down Secondly, it has
relied upon a division bench judgement of
this court rendered in writ petition no. 28935
of 2007, Smt. Rajeshwari Devi vs State of
UP, which, according to him, is also not a
judgement on the issue as to whether the
punishment order itself would abate if the
employee dies subsequently, instead, it deals
with such abatement during pendency of
enquiry, i.e., prior to any determination of
punishment in respect thereof. Thirdly, he
says that the learned Tribunal has relied upon
a judgement of the Jharkhand High Court
rendered in writ petition no. 5987 of 2008,
Prema Marandi versus State of Jharkhand,
which again, according to him, is not in terms
of basic principles of service jurisprudence,
therefore, reliance on it is misconceived.

4. The submission of learned counsel
for the petitioner is that once, after enquiry,
in which the delinquent employee has
100 INDIAN LAW REPORTS ALLAHABAD SERIES
participated, a final order of punishment is
passed, then, the punishment order would
not abate merely because the employee has
died. Of course if he had preferred an
appeal, but had died during its pendency,
then
the
appeal
should
have
been
proceeded on merits after hearing the legal
heirs, if any, and not otherwise, unless it
was to be dismissed as abated, but, this
does not mean, as has been held by the
learned Tribunal, that once the delinquent
employee dies, then the entire proceedings
including the punishment order stands
abated. He says that the Tribunal has taken
an erroneous view which has grave
consequences not only for the present case
as it would entitle the legal heirs to post
retiral benefits which would otherwise not
be available because of the dismissal of late
Mukesh Pal Singh, but, also for other
similar cases.

5. Shri Ratnesh Chandra, learned
counsel for the contesting opposite party
nos. 1 to 4 relied on the various decisions
which have been relied by the learned
Tribunal. He also referred to a decision of
Hon'ble the Supreme Court as referred in
the judgement of the Jharkhand High Court
in Prema Marandi's case (supra), i.e., in the
case of Basudeo Tiwary Vs. Sido Kanhu
University and ors. reported in 1998 (8)
SCC 194.

6. Having heard learned counsel for
the parties and perused the records we are
of the considered opinion that the Supreme
Court of India in Bachhatar Singh's case
(supra) did not deal directly with the issue
as to whether a punishment order and
appellate proceedings initiated thereafter
would stand automatically abated if the
delinquent employee dies during pendency
of appeal. It merely says that there are two
stages in a disciplinary proceedings and in
both of them a judicious decision is
required to be taken. We do not see how
this judgement helps the cause of private
opposite parties or for that matter how it
sustains the judgement impugned herein.

7. We have also perused the decision
of the Supreme Court of India in Basudev
Tiwari's case (supra). We find that even in
this case the question which has arisen
before us did not directly fall for
consideration before the Supreme Court of
India. It was a matter pertaining to
termination of service on the ground of the
appointment
itself
being
illegal
or
unauthorised and the Supreme Court of
India held that a notice was necessary
before taking any such action. The
termination of services of Basudev Tiwari
was held to be illegal only on this ground.
In Basudev Tiwari's case the Supreme
Court
of
India
after
quashing
the
termination of service of Sri Tiwari on the
ground of denial of opportunity of hearing
declined to issue further direction either as
to further inquiry or reinstatement as the
appellant Basudev Tiwari had expired
during pendency of the said proceedings. In
view of death of Sri Tiwari neither any
inquiry was possible nor could he be
reinstated. Consequent to his termination
being held as illegal he was treated as
having died in harness. We do not see as to
how this judgement, which has been
referred in the decision of the Jharkhand
High Court, would come to the rescue of
the private opposite parties herein.

8. Now the third judgement referred
and relied by the Tribunal has been
rendered by a Single Judge bench of this
court in the case of Smt. Rajeshwari Devi
(supra). We have considered it also. It was
a case where departmental inquiry was
pending and the delinquent employee died,
8 All. State of U.P. & Ors. Vs. Smt. Brajesh Kumari & Ors.
101
therefore,
obviously,
the
proceedings
abated as there was no determination or
final order in such proceeding having any
civil consequences. This decision also does
not apply to the facts of the present case.

9. As regards the Single Judge Bench
decision of the Jharkhad High Court in the
case of Prema Marandi we find that the
dismissal order had been passed therein by
the Secretary of the Department concerned,
therefore, no appeal could be filed against
such order, accordingly based on this and
also on the reasoning that husband of
Prema Marandi was denied an opportunity
to appeal against the punishment order, it
declared the termination of service as
invalid and held that the appellant's
husband would be deemed to have died in
harness. In this context reliance was placed
on Basudev Tiwari's case (supra). We have
already considered the decision of Hon'ble
the Supreme Court in Basudev Tiwari's
case and do not see as to how the said case
could be of help in this case.

10. We may also point out that a
similar view taken by a Single Judge of the
Patna High Court, as has been taken by the
Tribunal, was disapproved by Division
Bench of the said Court in the case of State
of Bihar v. Shanti Kumari, L.P.A. No. 247
of 2015, decided on 23.02.2018. Relevant
extract of judgment in Shanti Kumari
(supra) is quoted below:

"Before we would proceed to
consider the issues raised by the deceased
Government employee in his appeal, we
would definitely examine the opinion of the
learned
Single
Judge
which
is
the
foundation for the present appeal and even
though there is no infirmity on the
principles followed by the learned Single
Judge
to
hold
the
appellate
order
unsustainable having been passed by the
Disciplinary
Authority
himself
while
discharging
appellate
functions,
his
opinion as to the abatement of the
disciplinary proceeding by virtue of death
of the delinquent is strictly not in tune with
the legal position nor is supported by the
judgment rendered in the case of Ashok
Kumar Singh (supra), on which he has
chosen to rely.

A death of the delinquent at the
stage of disciplinary proceeding and at the
stage of appellate proceeding is vastly
different. In fact if the death of a delinquent
occurs in the midst of the disciplinary
proceeding there can be no confusion that
the proceeding would abate instantly. But
the situation would be vastly different if the
death takes place after the proceeding has
concluded and the matter is resting with the
Disciplinary Authority for final orders or
after orders are passed or where the death
takes place at the appellate stage.

In our opinion while there would
be no contest with the legal position in case
where the death of a delinquent takes place
in the midst of the disciplinary proceeding
which
would
abate
the
disciplinary
proceeding, but if the death takes place
after the enquiry is concluded in the
disciplinary proceeding and the matter is
posted for orders or at the appellate stage,
then the situation is different and there
cannot be an abatement of disciplinary
proceedings which has already attained
finality. In such cases the right to sue
survives and the legal heirs who wish to
contest the finding of guilt in the
punishment
order
passed
by
the
Disciplinary Authority can pursue the
appeal if already filed by the deceased
delinquent or file appeal, in case he has
deceased after passing of the order of
penalty. In case while pursuing the
appellate remedy the legal heirs are able to
102 INDIAN LAW REPORTS ALLAHABAD SERIES
show that the matter would require
reconsideration at the original stage of the
disciplinary authority by remand, then the
proceedings can be held abated, otherwise
not."

11. We may in this context refer a
decision of Hon'ble the supreme Court of
India in the case of Sri Rameshwar Manjhi
(deceased) through his son Sri Lakhi Ram
Manjhi v. Management of Sangramgarh
Colliery & ors., (1994) 1 SCC 292,
wherein a question arose as to whether an
industrial
dispute
survives
when
the
workman
concerned
dies
during
its
pendency ? Can the proceedings before the
Tribunal/Labour Court be continued by the
legal heirs/representatives of the deceased
workman ? Hon'ble the Supreme Court had
the occasion to consider divergent views
expressed on these questions by various
High Courts. After such consideration it
held as under :

12. The maxim 'actio personalis
moritur cum persona' though part of
English Common Law has been subjected
to criticism even in England. It has been
dubbed as unjust maxim, obscure in its
origin, inaccurate in its expression and
uncertain in its application. It has often
caused grave injustice. This Court in a
different
context,
in
considering
the
survival of a claim for rendition of
accounts, after the death of the party
against whom the claim was made, in Girja
Nandini
Devi
v.
Bijendra
Narain
Choudhury (AIR 1967 SC 1124) observed
as under:

"The maxim 'actio personalis
moritur cum persona' a personal action
dies with the person has a limited
application. It operates in a limited class of
actions ex delicto such as actions for
damages for defamation, assault or other
personal injuries not causing the death of
the party, and in other actions where after
the death of the party the relief granted
could not be enjoyed or granting it would
be nugatory. An action for account is not
an action for damages ex delicto, and does
not fall within the enumerated classes. Nor
is it such that the relief claimed being
personal could not be enjoyed after death,
or granting it would be nugatory."

13. It is thus obvious that the
applicability of the maxim 'actio personalis
moritur cum persona' depends upon the
'relief claimed' and the facts of each case.
By and large the industrial disputes under
Section 2-A of the Act relate to the
termination of services of the concerned
workman. In the event of the death of the
workman
during
pendency
of
the
proceedings, the relief of reinstatement,
obviously, cannot be granted. But the final
determination of the issues involved in the
reference may be relevant for regulating the
conditions of service of the other workmen
in the industry. Primary object of the Act is
to bring industrial peace. The Tribunals
and Labour Courts under the Act are the
instruments
for
achieving
the
same
objective. It is, therefore, in conformity with
the scheme of the Act that the proceedings
in such cases should continue at the
instance of the legal heirs/representatives
of the deceased workman. Even otherwise
there may be a claim for back wages or for
monetary relief in any other form. The
death of the workman during pendency of
the proceedings cannot deprive the heirs or
the legal representatives of their right to
continue the proceedings and claim the
benefits as successors to the deceased
workman.

12. While opining as aforesaid
Hon'ble the Supreme Court quoted in
extenso the reasoning of the Kerala High
Court in the case of Gwalior Rayons,
8 All. State of U.P. & Ors. Vs. Smt. Brajesh Kumari & Ors.
103
Mavoor v. Labour Court, (1978) 2 LLJ
188 (Ker.), and of the Gujrat High Court in
the case of Bank of Baroda v. Workmen,
(1979) 2 LLJ 57 (Guj.) and it agreed and
also approved the said reasoning and
conclusions reached therein. We may also
refer to paragraphs 14 and 15 of the
decision of Hon'ble the Supreme Court in
Sri Rameshwar Manjhi (supra) wherein
aforesaid decisions of the Kerala High
Court and Gujrat High Court have been
quoted :

"14. In Gwalior Rayons, Mavoor
v. Labour Court3 Chandrasekhara Menon,
J. of the Kerala High Court sitting singly
dealt with the question with utmost clarity
and erudition. We quote hereunder, with
approval the reasoning of the learned
Judge:

"The scope of adjudication by a
Tribunal under the Industrial Disputes Act
is much wider than determination of legal
rights of the parties involved or redressing
the grievances of an aggrieved workman in
accordance with law. As Gajendragadkar,
J., points out in Cawnpore Tannery Ltd. v.
S. Guha, (1978) 2 LLJ 188 (Ker) the
adjudication by the Industrial Disputes Act
is only an alternative form of settlement of
industrial disputes on a fair and just basis.
The primary duty of the Industrial Tribunal
is to establish peace in the industry between
employer and workmen. Any unfair action
by the management even against an
individual worker might cast its shadow on
the general body of workers who might get
perturbed by such 8 AIR 1967 SC II 24,
1131 : (1967) 1 SCR 9 (1961) 2 LLJ 110,
112: AIR 1967 SC 667 action. A resolution
of the dispute might then become necessary
for industrial peace notwithstanding the
death of the workman concerned pending
proceeding. The personal relief to the
workman concerned to a certain extent
occupies a subsidiary place in the scheme
of things. Not that it is not important. It is
only a consequential result of the decision
primarily arrived at securing industrial
peace settling the apprehension of the
workmen without losing sight of the
interest of the industry. As Rajamannar,
C.J. stated in Sri Meenakshi Mills Ltd. v.
Labour Appellate Tribunal, (1953) 2 LLJ
326, the essential object of enacting the
Industrial Disputes Act is to provide
recourse to a given form of procedure for
the settlement of disputes in the interest of
maintenance of peaceful relations between
the parties without apparent conflicts such
as are likely to interrupt production and
entail other damages. In the circumstances
proceedings before the Labour Court or the
Industrial Tribunal under the Industrial
Disputes Act cannot be equated to a
personal action in torts in a Civil Court
which would come to an end with the death
of the aggrieved party to the dispute. In the
general set up of an industry, in the nature
of the relationship between the employer
and the employees, a dispute between an
employer and even an individual employee
generally affects the entire community of
workmen in the industry. They acquire an
interest in the dispute. It ceases to be an
individual
dispute
and
becomes
an
industrial dispute affecting the interest of
the entire body of workmen. Any decision
of the Labour Court will affect the interest
of the whole body of workmen and the
dispute, therefore, cannot die with the death
of the individual workman. Before Section
2-A of the Act was introduced the Courts
had said that an individual dispute should
be taken up by the workmen as such before
it can become an industrial dispute. Section
2-A makes an individual dispute though not
taken up by the collective body of workers,
an industrial dispute." The learned Judge
further observed: "Even in respect of
104 INDIAN LAW REPORTS ALLAHABAD SERIES
ordinary judicial proceedings can it be said
that the death of party to the proceedings
will terminate the action in all cases? Even
under the English Common Law before the
Law Reform (Miscellaneous Provisions)
Act, 1934 was passed to provide generally
for the survival of causes of action in tort,
death was considered as extinguishing
liability only in respect of cause of action
in tort. 'This was' Winfield says in his Law
of Tort, 'due in part to the historical
connection of the action of trespass, from
which much of our law of tort is derived,
with the criminal law and in part to the
reference often made to the maxim action
personals moritur cum persona which,
though traceable to the fifteenth century,
probably did no more originally than state
in Latin a long-established principle
concerning torts such as assault and battery,
of which it was neither the historical cause
nor the 10 (1953) 2 LLJ 326 rational
explanation. Actions in contract generally
escaped the rule, and so too did those in
which property had been appropriated by a
deceased person and added to his own
estate.' Therefore, I see no reason why the
Labour Court should cease to exercise
jurisdiction in considering the question
whether the termination of the services of
the two employees was justified or not
merely because they died during the course
of the proceedings. A decision on that is
certainly in the interest of the other
employees. And the benefits that would be
due to the deceased employees on the
finding of the Labour Court can be realised
on behalf of their estate by their legal heirs
under Section 33-C(2) of the Act."

15. In Bank of Baroda v.
Workmen, (1979) 2 LLJ 57 (Guj.) a
Division Bench of the Gujarat High Court,
followed the reasoning of Chandrasekhara
Menon, J. in Gwalior Rayons case. B.J.
Divan, C.J. speaking for the Bench quoted
verbatim from Gwalior Rayons case and in
addition observed as under:

"It may be pointed out that under
Section 306 of the Indian Succession Act,
'All demands whatsoever and all rights to
prosecute or defend any action or special
proceeding existing in favour of or against
a person at the time of his decease, survive
to
and
against
his
executors
or
administrators; except causes of action for
defamation, assault, as defined in the
Indian Penal Code, or other personal
injuries not causing the death of the party;
and except also cases where, after the death
of the party, the relief sought could not be
enjoyed or granting it would be nugatory.'
In this context, it must be pointed out that,
so far as the granting of relief of
reinstatement is concerned, it would be
nugatory on the death of the workman
concerned pending the reference before the
Tribunal or the Labour Court, as the case
may be. However, reinstatement involves
the concept of back wages also and very
often the Tribunal has to pass orders
providing for the back wages from the date
of wrongful termination of the services till
the date of reinstatement. It is only under
the Industrial Disputes Act that in the field
of
industrial
relations,
the
Tribunal
concerned can direct reinstatement of the
workman, Under the ordinary civil law, it is
not open to a civil court to direct
reinstatement of a workman. The only thing
that a civil court can do is to provide for
damages for wrongful termination of
service or wrongful dismissal.

Again, the whole concept under
the Industrial Disputes Act of the Tribunal
ascertaining whether the termination of
services was proper, legal and just, is
unknown to the civil courts. So, in the case
of a deceased workman where the reference
is under Section 2A of the Industrial
Disputes
Act,
the
heirs
and
legal
8 All. State of U.P. & Ors. Vs. Smt. Brajesh Kumari & Ors.
105
representatives can agitate the question,
firstly, whether the termination of the
deceased workman was just, legal and
proper, and secondly, if it was wrongful and
invalid, then, what compensation in terms
of money could have been given to the
workman from a particular date fixed by
the Tribunal till the date of reinstatement
and if reinstatement cannot be granted
because of the death of the workman, till
the date of his death. It is therefore in this
context of Section 306 of the Succession
Act that the right to prosecute these special
proceedings before the Industrial Tribunal
survives to the administrators, executors,
heirs and legal representatives of the
deceased workman. It is only a cause of
action for personal injury or in the case of
defamation or assault or battery or
malicious prosecution which cannot be said
to survive after the death of person
concerned."

13. Hon'ble the Supreme Court has
given two reasons for continuance of
proceedings after death of workmen, firstly,
is the nature of the industrial dispute in
reference to which the reference is made
which may be of relevance to similar
disputes as also the rights of other similarly
situated employees, secondly, it has also
held that even otherwise there may be a
claim for backwages or for monetary relief
in any other form. The death of the
workman
during
pendency
of
the
proceedings cannot deprive the heirs or the
legal representatives of their right to
continue the proceedings and claim the
benefits as successors to the deceased
workman.

14. The aforesaid decision in the case
of Sri Rameshwar Manjhi has been
followed by Hon'ble the Supreme Court in
a subsequent decision in the case of Sudha
Srivastava
(Smt.)
v.
Comptroller
&
Auditor General of India, (1996) 1 SCC
63, which was a case where widow of an
employee had filed a writ petition for
enforcement of decision taken regarding
her late husband's promotion and Hon'ble
the Supreme Court held that she had locus
to maintain the petition considering the
monetary aspect involved therein.

15. The application of the maxim
'Actio personalis moritur cum persona' has
been considered by the Supreme Court at
length in the case of Shri Rameshwar
Manjhi (supra), relevant extract of which
has
already
been
quoted
above.
Proceedings get abated on the death of the
initial initiator of the proceedings if the
right to sue does not survive in his legal
heirs/legal representatives especially in a
case based on personal claim as a personal
claim dies with the claimant. However, in
cases of dismissal and removal apart from
the severance of master and servant
relationship by way of punishment there is
a pecuniary aspect involved as in such
cases the delinquent employee becomes
disentitled to the post-retirement benefits. It
is for this reason that in such cases of
dismissal
or
removal,
legal
heirs/representatives of such delinquent
employee have been held entitled to
challenge such orders in the event the
delinquent dies, as there are monetary
consequences involved and it affects their
right to succeed to the estate of such
employee, the post-retirement or deathcum-retirement dues being part of such
estate which devolve upon the successor.

16. Reliance placed by the Tribunal
upon the decisions referred by it, in our
opinion, is misplaced and misconceived.
The Tribunal has not given any other
reasoning for arriving at the conclusion that
106 INDIAN LAW REPORTS ALLAHABAD SERIES
the
punishment
and
the
appellate
proceedings had abated. We do not find any
reason to sustain this conclusion. Once a
final order of punishhment has been passed,
then merely because appeal has been filed
and during its pendency the appellantemployee dies, the punishment order by
itself will not abate nor will it get nullified.
The legal heirs can pursue the appeal on the
basis of available records in a case of
dismissal, removal etc. which has monetary
consequences for them.

17. In view of the aforesaid the
private opposite parties herein were entitled
to pursue the appeal filed by late Mukesh
Pal Singh and as legal heirs they could
pursue such proceedings, therefore, the
conclusion of the Tribunal that the
punishment order had abated as the
delinquent employee had died during
pendency of the appeal, is contrary to the
aforesaid
legal
position
and
is
unsustainable.

18. In fact we find that the claim
petition before the Tribunal was filed by the
legal heirs/representatives of late Mukesh
Pal Singh wherein they had not challenged
the dismissal order, but had sought a
direction to the opposite parties for paying
them all the service benefits, i.e., death
gratuity, family pension, etc. on account of
death of the government servant after
ignoring
the
statutory
appeal
dated
17.3.2008 which was pending before the
appellate authority against the punishment
order dated 20.1.2008 as the delinquent
employee had died on 6.7.2012. They had
also sought compassionate appointment.

19. The legal heirs/representatives of
late Mukesh Pal Singh could have pursued
the appeal filed by him against his
dismissal, but they did not do so, yet, the
Tribunal proceeded to decide the matter in
the aforesaid terms which in our opinion
could not have been done.

20. In the present case it is an
admitted position that Shri Mukesh Pal
Singh was visited with the punishment of
dismissal from service vide order dated
20.1.2008 while he was alive and he had
preferred an appeal against it. Thus, there
was
a
final
determination
in
the
disciplinary proceedings as to his work and
conduct and also as to what punishment
should be imposed upon him. No doubt he
was entitled to file an appeal and as
informed by learned counsel for the parties
he had preferred an appeal within the time
prescribed. He died during pendency of this
appeal. The legal heirs representatives of
late Mukesh Pal Singh were entitled to
pursue the appeal filed by him, but they did
not do so, instead, they preferred the
abovementioned claim petition for the
reliefs already referred above.

21. However, to the extent the
appellate authority has rejected the appeal
subsequent to the death of late Mukesh Pal
Singh, i.e., on 15.4.2017 on merits and not
as having abated, the appellate authority
has erred. The appellate authority could not
have passed an order on merits in appeal
against a dead person. In our opinion in
such a scenario where the employee files an
appeal under Rule 11 of the U.P.
Government Servant (Discipline & Appeal)
Rules 1999, but dies subsequently, his legal
heirs are entitled to pursue such appeal for
the reason given in this judgment and the
words 'Government Servant' referred in
Rule 11 would, in such a situation, include
his legal heirs/legal representatives. In our
opinion the appropriate course was to allow
an opportunity to the legal heirs of late
Mukesh Pal Singh to pursue the appeal as it
8 All. Pramod Kumar Vs. State of U.P. & Ors.
107
was not only a question of punishment, but
the consequences which would flow from
such punishment, especially the monetary
benefits to which late Mukesh Pal Singh
and after him his legal heirs would be
disentitled as a consequence thereof. In the
event they did not contest the appeal, it
could have dismissed it as having abated.

22. We, however, cannot sustain the
judgement of the Tribunal by which it has
held that the entire proceedings including
the punishment order should abate. We
accordingly set aside the decision of the
Tribunal dated 30 November 2018,
however, with the caveat that the appellate
order dated 15.4.2017 shall also stand set
aside. Consequently the appeal preferred by
late Mukesh Pal Singh stands revived. The
opposite party herein shall get themselves
substituted in such appeal in place of Late
Mukesh Pal Singh, and, if they so desire,
they may pursue the same. The appellate
authority shall hear them out and thereafter
shall decide the appeal on merits. Based on
this consequences will follow accordingly
as per law.

23. At this stage Shri Ratnesh
Chandra, learned counsel for the opposite
parties submits that his clients do not have
the punishment order nor the appellate
order and they had applied for the same
under the Right to Information Act, but,
they have not been provided the same. We
accordingly provide that the petitionerState shall provide the entire records of the
disciplinary proceedings pertaining to late
Mukesh Pal Singh to the opposite party
nos. 1 to 4 including the punishment order,
the appellate proceedings and the appellate
order passed therein. To further clarify this
aspect, the charge-sheet, reply if any
submitted by late Mukesh Pal Singh,
correspondence between him and the
enquiry officer or the disciplinary authority,
of any nature, all the evidence which may
have been referred in the chargesheet or
may have been led during enquiry or any
other document or correspondence which
may have taken place during the course of
enquiry, shall also be provided to the
opposite parties herein.

24. The claim petition bearing no.
1775 of 2013 stands disposed of in the
aforesaid terms.

25. With the above observations/
directions this writ petition is allowed in
the aforesaid terms.
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(2021)08ILR A107
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.08.2021

BEFORE

THE HON'BLE ABDUL MOIN , J.

Service Single No. 15271 of 2019

Pramod Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Umesh Chandra Pandey

Counsel for the Respondents:
C.S.C.

A. Service Law - Appointment - The
petitioner is agitating since the year 2000 for his
rights as Subject Specialist but since no reason
whatsoever has been provided by the Scrutiny
Committee in its report, even though it find the
case of the petitioner to be correct. It was for
the respondents to have called upon the
Scrutiny Committee to indicate the reasons, if
any, but then sitting over the recommendations
of the Scrutiny Committee which was formed in