1 IN THE COURT OF SH. KAPIL KUMAR, CIVILJUDGE,WEST TIS HAZARI COURTS, DELHI Unique ID No. 02401C0825192005 SUIT NO: 130/2005 Date of Institution : 13.09.2005 Date of Reservation : 02.03.2013 Date of decision : 16.03.2013 Smt.[ENTITY] W/o Late Sh. Yadav Candy Thapliyal R/o Village Swanking Post OfficeKit , Patty Suasion, Distt Pauri Garwal Uttranchal Through Attorney Holder Smt. Anju Juyal W/o Sh. Mukesh Juyal R/o H. No. 674, Sector2 Sadik Nagar New Delhi Plaintiff versus 1. [ENTITY] Through Mr.Rakesh Mohan CEO, [ENTITY], Karol Bagh New Delhi5. [CASE NUMBER] 1 /22 2 2. Sh. [ENTITY] Assistant Commissioner [ENTITY] Jhandawalan, Karol Bagh New Delhi5. Defendants SUIT FOR DECLARATION AND MANDATORY INJUNCTION JUDGMENT
Case of plaintiff
1. Plaintiff states that she is the widow of Late Sh. [ENTITY] who was appointed as Khallsi on 31.01.1983 under the pay scale of 1963220EB 3232 by DDA. As per the office order no. 9 dated 16.02.1983 issued by the Project Engineer, Asian Games Division No. II, DDA Siri Fort Hauz Khas, New Delhi16, in pursuance to the office circular no. CE10(1)82/160 dated 11.01.1983, the muster roll staff had been converted in the work charged establishment in the scale shown against each and have been posted to the subdivision mentioned against their names.
2. It is further stated that as per the office order dated 27.02.1991, issued by the office of the Executive Engineer electric, L. Division no. 4 DDA, Rohini Office Complex the husband of the plaintiff brought on the regular work charged establishment of DDA w.e.f. 10.01.1991 and was also made entitled to the pensionary and other benefits which applicable to the regular employee of DDA subject to [ACT] alongwith benefits of [ACT]. Further states that the husband of the plaintiff worked in DDA in electric division till 07.09.1992 and was subsequently transferred to MCD office of the [ENTITY] at Jhandewalan, Karol Bagh, New Delhi55 in the year 1993 and immediately after joining the duty at [ENTITY] all of sudden sent missing and never reported since 30.07.1993 and could not be traced out.
3. Plaintiff further states that the fact regarding missing of husband of plaintiff was brought into the knowledge of defendants by the plaintiff on various occasions and request was made to the defendants to give an alternative employment to the plaintiff in place of her missing husband as she had no means to support herself and her minor son or in alternate release his dues of the salary and the pensionary benefits w.e.f. the date of death of husband. The plaintiff also stated that vide order dated 19.12.2001 passed by the Hon'ble Court of Sh. [ENTITY] Ld.Civil Judge, Utrakhand, the husband of the plaintiff was declared dead. Even then the defendants not only refused her job on the compassionate ground vide order dated 23.09.03 but also deprived her of all the dues and other benefits and privileges of her deceased husband Sh. [ENTITY].
4. By virtue of present suit the plaintiff has sought the relief that the defendants be directed to release of the outstanding salary and other dues accrued to the husband of plaintiff from 30.07.1993 alongwith interest @18% per annum. Further defendants be directed to release the pension and other pensionary benefits or in alternative to give her job on the compassionate ground and the departmental enquiry be set aside. Case of defendants
5. The defendants have contested the suit and have filed the written statement in which the defendants have taken the preliminary objection that the present suit filed by the plaintiff is not maintainable in view of the fact that the plaintiff has not approached to this Court with clean hands and suppressed the true and material facts which goes against her, as such the present suit is liable to be dismissed. The defendants further taken the preliminary objection that the plaintiff is not entitled to any relief as per the provisions of [ACT].
6. On merits the defendants admitted that Sh.[ENTITY] was missing since 30.07.1993 and vide order dated 19.12.2001 passed by Hon'ble Civil Judge, [ENTITY], he was presumed dead. The defendants stated that the request of the plaintiff was rejected by the Screening Committee of the defendants and the same communicated to the workman through leading newspaper, as the whereabouts of the husband of the plaintiff was not known. Further states that plaintiff has no cause of action against the defendants and prayed for the dismissal of present suit.
7. Replication filed on behalf of the plaintiff in which she denied all the contentions of the defendants as taken by them in their written statement and submitted that report of Screening Committee was not communicated to the plaintiff through publication. Further stated that her husband was declared dead by Hon'ble Court of [ENTITY], therefore, enquiry conducted by the defendants against the husband of plaintiff is liable to be set aside and further submitted that the Screening Committee has not considered the factual position and passed the adverse order. In rest of the replication she reiterated her stand as taken by her in the plaint.
8. Vide order dated 20.9.2006, following issues were framed by the Ld. Predecessor of this court :
1) Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP
2) Relief.
9. To prove her case plaintiff examined herself as PW1. In her testimony following documents were exhibited :
" Order dated 16.2.1983 was exhibited as Ex.PW 1/A, order dated 27.2.91 as Ex. PW 1/ B, order dated 07.9.1992 as Ex. PW 1/ C, Order no. 28 (1) 9192 as Ex. PW 1/D, office order no. ED6 as Ex. PW 1/E, record of DDA Electrical Division No. 6 as Ex. PW 1/F, letter no. 6/9/98/507 dated 08.10.1998 as Ex. PW 1/G, letter dated 29.7.1999 as Ex. PW 1/H, order dated 19.12.2001 as Ex. PW 1/I, letter dated 23.9.2003 as Ex. PW 1/J."
10. On the other hand Sh. [ENTITY], Asst. Commissioner ( G) [ENTITY], PhaseI, Karol Bagh was examined as DW1. In his testimony following documents were exhibited :
"Order dated 27.4.1993 as Ex. DW 1/1, copy of letters dated 16.6.1993, 14.7.1993, 03.8.1998 and 08.9.1993 as Ex. DW 1/2 to Ex. DW 1/5, Memorandum of statement of articles of charge as Ex. DW 1/6, Photocopy of the envelope in which the letter dated 21.7.1994 was sent as Ex. DW 1/7, charge sheet as Ex.
DW 1/8, letter dated 24.5.1995 as Ex. DW 1/9, publication in the newspaper dated 23.6.1995 as Ex. DW 1/10, copy of letter in which Order no. 88 dated 02.8.1995 was sent to plaintiff as Ex. DW 1/11, copy of newspaper as Ex. DW 1/12, order dated 19.12.2003 as Ex. DW 1/13, order of screening committee dated 23.9.2003 as Ex. DW 1/14."
11. I have heard Ld. Counsel for parties and carefully perused the record.
12. My issuewise findings are as under :
Whether the plaintiff is entitled to relief of mandatory injunction as prayed for? OPP Relief.
As only one substantial issue was framed by the Ld. Predecessor of this court I shall first deal with the objections of the Ld. Counsel for defendants followed by the findings on merits upon the present issue.
13. Ld. Counsel for the defendants stated that this court has no jurisdiction to try the present suit as the suit pertains to the applicability of [ACT]. The same was opposed by the Ld. Counsel for plaintiff and states that as the proper procedure as per [ACT] were not followed by the defendant company in terminating the services of late husband of plaintiff, this court has jurisdiction to try the present suit being a civil court.
14. Reference to the Judgment titled as [PRECEDENT] is necessary, wherein it was held that :
" It is an erroneous view that civil court does not have jurisdiction to adjudicate on an order passed by disciplinary authority, and that only writ petition can be filed after exhausting departmental remedies. Provisions of the [ACT] do not ousted the jurisdiction of civil courts. It is a different matter to insist that departmental remedies should be exhausted before a person approaches the civil court bu it was not proper for the Single Judge of the High Court to hold after five years, while hearing second appeal, that civil court had no jurisdiction. The case should have been decided on merits. The appellant could not be nonsuited on the ground that he had failed to take recourse to proceedings under the [ACT] against the order of dismissal. "
15. In view of this judgment the plea that this court has no jurisdiction to try the present matter being pertains to [ACT] could not be sustained. Accordingly, this court has jurisdiction to try the present matter.
16. Ld. Counsel for plaintiff submitted that the defendants refused the job to plaintiff on compassionate ground and also deprived her of all the dues and other benefits and privileges of her late husband Sh. [ENTITY] which was in violation to all the rules and without going into the merits of the case. The case of the plaintiff is that the order of removal from service of her late husband passed in August, 1995 was passed in haste and in violation of rules of natural justice. Further the departmental enquiry conducted is liable to be set aside as it was without any knowledge and information to the plaintiff particularly when the person against whom it had been initiated had been declared dead. In reply to these allegations the defendant company simply denied these allegations and stated that the request of plaintiff was rejected on the basis of report of Screening Committee and the same was communicated to the plaintiff through the leading newspaper.
17. By virtue of pleadings the defendants have not denied the allegations of plaintiff that the rules of Principles of Natural Justice were not followed in case of departmental enquiry which was initiated against her husband.
18. There is no specific denial on the part of defendants to the allegation of plaintiff that the departmental enquiry was done in haste and rules of principle of natural justice was not followed. This allegation was made by the plaintiff in para no. 10 of the plaint. In reply to the present paragaraph defendants stated that para no. 10 is wrong and denied and further stated that the request of plaintiff was rejected on the basis of report of Screening Committee which was communicated to the plaintiff through leading newspaper. Here it is pertinent to mention that there is no role of Screening Committee at the stage of departmental enquiry the role of Screening Committee came at the stage of consideration regarding job of plaintiff on compassionate ground. Accordingly the reply of the defendants by way of written statement qua the present allegation of the plaintiff is misconceived. Furthermore the defendants again and again stated in its written statement that the communication to the workman was done by way of leading newspaper but to utter surprise the name of that newspaper is not mentioned in the written statement. In absence of the particulars of the newspaper in which the alleged communication was done by the defendant company, it could not be ascertained whether that newspaper has vide circulation in the area where the late husband of the plaintiff last resided or not.
19. Further there is no mention in the Written Statement of the fact whether the charge sheet/missing report/any communication was done by way of registered courier/post/UPC to the plaintiff. The defendants sought to improve its case at the time of Defence Evidence by mentioning that the workman was informed about the misconduct, articles of charges by way of registered post. It is well settled law that evidence beyond pleadings cannot be considered. Hence the improvement of the case of defendants at the stage of Defendant Evidence is of no consequence. ( Ref. : [PRECEDENT]; [PRECEDENT]).
20. Further in this regard reference to well established judgment of Hon'ble Supreme Court titled as [PRECEDENT] is essential. In this case Hon'ble Supreme Court held that where the disciplinary proceedings are to be initiated by issuing a charge sheet, its actual service is essential as the person to whom the charge sheet is issued is required to submit his reply and thereafter to participate in disciplinary proceedings. In the same manner when the show cause notice is issued, the employee is called upon to submit his reply. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of ' communication', cannot be invoked and 'actual service' must be proved and established. In this case Hon'ble Supreme Court further held that when the charge sheet sent by registered post received back undelivered with the postal endorsement ' not found' , this single attempt was not sufficient and further effort should be made to effect the service that may be service through office peon. Publication in the newspaper which do not have wide circulation or sufficiently popular is not a proper service.
21. In the case in hand, the defendants not mentioned about the steps taken by it for the service of charge sheet/ notice to the Late husband of the plaintiff/plaintiff by way of RC/UPC. Further the name of the newspaper is also not mentioned. No further steps that may be service be effected through office peon were taken in the present case ( ref. : [PRECEDENT] (supra) ) Accordingly it is clear that no service has been effected upon the late husband of the plaintiff/plaintiff of any departmental enquiry ,charge sheet etc. In the absence of proper notice, the departmental enquiry was done against the Principle of Natural Justice and could not be sustained.
22. The another contention of Ld. Counsel for plaintiff is that the departmental enquiry was initiated against the dead person as the husband of plaintiff was declared dead by the court of Sh. [ENTITY], ld. Civil Judge, Pauri Garhwal, Uttrakhand , U.P vide order dated 19.11.2011.
To deal with present contention reference to the judgment of Hon'ble Supreme Court titled as [PRECEDENT] is necessary. In that case the Hon'ble Apex Court observed as :
"Neither [SECTION] of the [ACT] nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years absence and being unheard of having elapsed before that time. The presumption stands unrebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death."
23. Perusal of above mentioned judgment reveals that [SECTION] of [ACT] is related to the presumption of factum of death of individual only. There is no presumption as to the time of death of person. At what point of time the person was expired is not a matter of presumption but of evidence and the onus to prove that the death had taken place at any given point of time since the disappearance or within the period of seven years lies on the person whose claim are at stake. In the case in hand no evidence has been led by the plaintiff as to the day/time of the death of the husband of the plaintiff. Hence the husband of plaintiff could not be presumed dead when the departmental enquiry was initiated against him but as above mentioned the departmental enquiry is liable to be set aside on the ground of violation of principles of natural justice.
24. By virtue of present suit the plaintiff has claimed job on compassionate grounds in alternative to the relief of pensionary benefits. Scheme for compassionate appointment 1998 is on record. Clause 11 of the scheme deals with job on compassionate grounds in cases of ' missing Government servant' as per which the request to grant the benefit for compassionate appointment can be considered only after lapse of 2 years from the date from which the Government servant has been missing but a FIR to this effect has been lodged, the missing person is not traceable and the competent authority feels that the case is genuine.
25. Before weighing the merits of the claim of the plaintiff as to the job on compassionate grounds reference to following authorities is necessary to have a clear view about the nature and object of policy of appointment on compassionate grounds.
In the case of [ENTITY] vs. State of Haryana, (1994) 4 SCC 138 it was observed by Hon'ble Apex Court that : "The compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the Rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."
In the case of [ENTITY] vs. State @pageSC2536 of Bihar, (1996) 1 SCC 301, it was observed that : "The very object of appointment of a dependent of the deceased employees who dieinharness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family."
In [PRECEDENT], it is observed by the court : "As pointed out by this Court, the object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment and that mere death of an employee does not entitle his family to compassionate appointment."
In the case of [PRECEDENT], the court stated that : "The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over."
This court has observed in [PRECEDENT] : "The object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the breadearner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision for grant of compassionate employment, which is in the nature of an exception to the general provisions, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee. In [ENTITY] v. State of Haryana this Court has taken note of the object underlying the Rules providing for appointment on compassionate grounds and has held that the Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family."
In the case of [PRECEDENT], the court has stated that : "This Court has held in a number of cases that compassionate appointment is intended to enable the family of the deceased employee to tide over sudden crisis resulting due to death of the breadearner who had left the family in penury and without any means of livelihood."
In the case of [PRECEDENT], it was observed by the court that : "It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis."
In the case of [PRECEDENT], it was stated that : "It has been indicated in the decision of [ENTITY] that compassionate appointment cannot be granted after a long lapse of reasonable period and the very purpose of compassionate appointment, as an exception to the general rule of open recruitment, is intended to meet the immediate financial problem being suffered by the members of the family of the deceased employee. In the other decision of this Court in [ENTITY] case, it has been also indicated that the very object of appointment of dependent of deceased employee who died in harness is to relieve immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such consideration cannot be kept binding for years."
In the case of [PRECEDENT], the court has held that : "The purpose of providing employment to a dependant of a Government servant dyingin harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. To alleviate the distress of the family, such appointments are permissible on compassionate grounds provided there are Rules providing for such appointment. The purpose is to provide immediate financial assistance to the family of a deceased Government servant. None of these considerations can operate when the application is made after a long period of time such as seventeen years in the present case."
In the case of [PRECEDENT], the court has observed that : "As the application for employment of her son on compassionate ground was made by the respondent after eight years of death of her husband, we are of the opinion that it was not to meet the immediate financial need of the family. The High Court did not consider the position of law and allowed the writ petition relying on an earlier decision of the High Court."
In the case of [PRECEDENT], the court has stated that : "It is to be seen that the appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement regarding appointments being made on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crises."
In the case of [PRECEDENT], the court has held that : "Normally, an employment in the Government or other public sectors should be open to all eligible candidates who can come forward to apply and compete with each other. It is in consonance with [SECTION] of the [ACT]. On the basis of competitive merits, an appointment should be made to public office. This general rule should not be departed from except where compelling circumstances demand, such as, death of the sole breadwinner and likelihood of the family suffering because of the setback. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no necessity to say "goodbye" to the normal rule of appointment and to show favour to one at the cost of the interests of several others ignoring the mandate of [SECTION] of the [ACT]."
In [PRECEDENT] it was held that :
" The principles indicated above would give a clear indication that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over."
26. By virtue of above mentioned precedents it is well established that the job on compassionate ground cannot be claimed as a matter of right as it is not a vested right. In the case under consideration vide Ex. DW 1/ 4 the request of the plaintiff for job on compassionate ground was declined by the Screening Committee on 23.9.2003. PW1 admitted in her crossexamination that she was asked to appear before the enquiry committee on 07.10.2002 vide notice dated 20.9.2002 Ex. PW 1/D 3 but she did not appear before the Screening Committee. In view of this it cannot be said that the plaintiff was not given due opportunity to present her case before the Screening Committee. In view of this, the decision of Screening Committee could not be said to be an haste order. No infirmity is found in the order of the Screening Committee. As such this court is not inclined to interfere in the decision of the Screening Committee in refusing the job to the plaintiff on compassionate ground.
27. But as above mentioned the departmental enquiry was not in conformity with the Principles of Natural Justice and is set aside( Ref.: Para
18). Hence the plaintiff is entitled to benefits of job of her late husband who was illegally terminated.
28. Plaintiff is claiming outstanding dues of salary from the date of missing of her husband i.e 30.7.1993. Here this court like to mention that as no evidence led on behalf of any party as to the death of husband of plaintiff on specific date and time, the husband of plaintiff would be presumed dead from 28.12.2001 i.e the day on which the husband of plaintiff was declared dead by the competent court.
29. In view of the above discussion the plaintiff is entitled to the benefits of the job of her husband. The defendants are hereby directed to release all the outstanding dues and salary, provident fund and other benefits, if any, accrued to the Late Husband of the plaintiff till 28.12.2001 i.e the date when husband of the plaintiff was declared dead. The plaintiff is further entitled to pension and other pensionary benefits, if any, with effect from 28.12.2001. The outstanding dues have to be paid to the plaintiff within two months of this order. It is further directed that half of the outstanding amount including pension till February, 2013 will be given in the form of fixed deposit in the name of plaintiff with maturity period of one year and the half outstanding dues is to be deposited with the bank account of plaintiff. The pension from March, 2013 is to be deposited in the bank account of plaintiff. Plaintiff is hereby directed to provide her bank account no. to the defendants by way of letter sent through registered post and UPC.
No order as to cost.
Decree Sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court ( [ENTITY] ) today on 16.3 .2013 Civil Judge01 ( West)/Delhi C.S No. :130/2005 16.3.2013 Present : None.
Vide separate Judgment of the even date, the suit of the plaintiff is decreed. No order as to cost.
Decree Sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
( [ENTITY] ) Civil Judge01 ( West)/Delhi 16.3.2013