THE HON’BLE SMT JUSTICE T.MEENA KUMARI AND THE HON’BLE SRI JUSTICE P V SANJAY KUMAR W.A.No. 688 OF 2008 JUDGMENT: (Per T.Meena Kumari, J) 1. This writ appeal is directed against the order of a learned single Judge of this Court passed in WP No. 35679 of 1997, dated 14.6.2007 questioning the removal order passed against the 1st respondent (died during pendency of writ petition) as such his son was brought on record as legal representative of the deceased as per the court order dated 25-4-2000 in WPMP No. 2643/2000 and also the removal order as confirmed by the 2nd respondent. 2. The case of the writ petitioner as he then was that he worked unblemishly for 30 years and he applied for leave from 7-10-1978 to 16-10-1978 which was sanctioned and thereafter he applied for another six months leave has not attended the duty. In the said W.P he has questioned the removal order passed by the appellants/department. The grounds that were urged in support of the writ petition goes to show that the removal order was not served on him and he has also sought to question the competency of disciplinary authority to frame the charges, that the charges were proved basing on no evidence, that the earlier show cause notice issued by the authorities was quashed by this Court. It also reveals that he has filed a writ petition No. 6017 of 1994 challenging the action of the official respondents in not sanctioning the pension after his deemed superannuation. In the above writ petition it was stated that a copy of the removal order was served on him, against which he preferred appeal and as the appellate authority also did not set aside the order he filed the writ petition impugned. It is the case of the department that as show cause notice was issued to him and the same was sent to his known address, but as there was no response , the department framed charges and as the charges were proved, removal order was passed against him on 21-9- 1981. The said removal order was questioned by the individual before the learned single Judge. 3. Learned single Judge after hearing both the parties has modified the order dated 21-9-1981 as that of a compulsory retirement with effect from 21-9-1981 and also directed that all the benefits accrued to the writ petitioner in view of the compulsory retirement and pay them to the second petitioner or other nominees of the deceased first petitioner, as per law. 4. Aggrieved against the above order, the department has preferred the present writ appeal. 5. Learned counsel for the appellants department has submitted that the 1st respondent herein, while in service applied leave from 7- 10-1978 to 17-10-1978, to see his ailing daughter at Bombay and on expiry of that leave, without reporting to duty, he made an application dt. 16.10.1978 for grant of leave for 6 months to go on pilgrimage which was recorded in the orders passed by the disciplinary authority on 30-6-1997 i.e., Director General/RPF. The show cause notice and also the intimation about the conducting of enquiry was sent to the known address of the writ petitioner but the covers were returned undelivered as he left the place. As the communications were un- served and returned back saying that he left the place, final orders were passed on 21-9-1981 after conducting enquiry. 6. Learned counsel for the respondents herein has submitted that the 1st respondent was suspended on 30-1-1978 and the show cause notice issued was quashed by this Court in a writ petition filed by one Ch. Enoch in W.P.No.5240 of 1978 dated 22.01.1979 and the Writ Appeal No. 186 of 1980 was also dismissed. Learned counsel wants to draw support from the order passed in W.P. No. 5240 of 1978 quashing the show cause notice and contends that since the said show cause notice was common notice and as the same was quashed the present respondent also deemed to be under continued service and the order of removal cannot be sustained under law. 7. For which, learned counsel for the department has submitted that since the respondent No.1/writ petitioner was not is not a party to the said proceedings, he is not entitled to claim any such relief and cannot place reliance on the above orders. Further, he did not submit his explanation when the leave was refused and that he could have joined the duty with in reasonable period but he did not do so. It is not a case where 1st respondent was not aware of the proceedings as he himself filed W.P.No.6017/1994 questioning the action of the official respondents in not sanctioning the pension. 8. It is submitted by the learned counsel for the department that it is not a case where respondent was not aware of the fact and the respondent has not tried to explain his unauthorized absence for the above period from 17-10-1978 till the removal order was passed on 21-9-1981. 9. Heard the counsel on either side and perused the material available on record. It has to be observed that there is no material placed either before this court or before the learned single Judge that the respondent was not aware of the fact that he was removed from the services as he himself filed W.P.No. 6017/1994 seeking sanction of pension and that itself goes to show that he had knowledge of the orders passed by the authorities. Further, the fact remains that he has approached this court in 1994 i.e., after a period of 16 years from the last date of sanction of the leave i.e., 16-10-1978, which itself goes to show that respondent has slept over about his rights for a period of 16 years, and in pursuance of the order passed by the learned single Judge therein, he preferred statutory appeal before the appellate authority (2nd appellant herein) and having not satisfied with the orders of the appellate authority, he filed the impugned writ petition where under the learned single judge modified the order of dismissal to that of compulsory retirement by extending all the benefits accrued to the writ petitioner and directed to pay the same to his legal representatives since he was no more by then. 10. At this stage, though the learned counsel for the respondents has argued that as the department has not taken the plea of delay before the learned single Judge they have no right what-so-ever to raise the same objection before this court, yet the record itself goes to show that right from 17-10-1978 respondent No.1 himself applied for grant of leave for 6 months on the ground of going to pilgrimage and that even the order of the appellate authority reveals that the correspondence made to the individual were un-served reporting that he left the place. Further, the respondent has also failed to explain the long delay in availing his legal remedies and his conduct in fining the writ petition in 1994 and seeking pensionery benefits clearly goes to show that he was aware of the proceedings and he did not report to the duty. There is no material available to show that even after the show cause notice was quashed, the writ petitioner has attended the duty. In the absence of any material available before this court and that after refusal of sanction of leave his conduct in filing the writ petition seeking pensionery benefits and in the light of the observations made by the appellate authority that the postal covers which were sent to the known address of the individual were returned un-served goes to show that he has filed writ petition at a belated stage. Therefore, we are not satisfied with the contention that the authorities again raised a plea of delay at this stage of the appeal as the facts goes to show that there is abnormal delay of 16 years in approaching the court and hence we are of the opinion that the order of the learned single judge is liable to be set aside and is set aside accordingly. 11. For the above reasons, this writ appeal is allowed. 12. At this stage the counsel for the respondent submitted that the department may be directed to pay eligible gratuity to the deceased petitioner. Therefore, we make it clear that the second respondent herein is entitled to make an application to the authorities concerned for payment of the amounts to which the deceased is eligible and on such application is being made, the department shall consider the same as per law. ----------------------------------- ---- JUSTICE T MEENAKUMARI ------------------------------------- JUSTICE SANJAY KUMAR Kvrk 20-102009 THE HON’BLE SMT JUSTICE T.MEENA KUMARI AND THE HON’BLE SRI JUSTICE P V SANJAY KUMAR W.A.No. 688 OF 2008 20 October 2009