REGULAR SECOND APPEAL NO.2604 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: APRIL 28, 2010 Kamla Devi and others .....Appellants VERSUS Haryana State and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. B. R. Mahajan, Advocate, for the appellants. Mr. Sunil Nehra, Sr.DAG, Haryana, for the respondents. **** RANJIT SINGH, J. Can an employee, who has retired and has died during the pendency of his suit, be awarded a punishment of reduction to minimum in the pay scale is a question of substance requiring consideration in this case. Hawa Singh was working as a Driver in the Haryana Roadways on 22.10.1995. He was detailed for duty on Bus No.HR- 31-3713. This Bus met with an accident with a tractor-trolley. One Tara Chand died in this accident. The plaintiff would claim that he REGULAR SECOND APPEAL NO.2604 OF 2009 :{ 2 }: being Driver was not negligent at all, yet the relatives of deceased Tara Chand got a false case registered against him under Sections 279, 304-A IPC on 22.10.1995. A claim petition was also filed which led to an award of Rs.2,83,500/- in favour of the L.Rs. of deceased Tara Chand. Besides, the late employee was charge sheeted by the Department and enquiry was initiated against him. After conclusion of the enquiry, the impugned order reducing the appellant in the minimum pay scale of Driver was passed on 29.11.2002, which the appellants would term to be illegal and without authority. The deceased employee would also assail this order by pleading that he was not negligent at all. Still, he was proceeded against for a criminal charge as well as the departmental proceedings. Though the accident had taken place in October, 1995, but show cause notice was issued to the plaintiff only on 24.6.1999 and the enquiry was initiated after almost four years of the accident. The appellant would also point out that while responding to the claim petition, the Department had clearly pleaded that the deceased employee was not negligent in driving the vehicle. Another significant fact which may need notice is that the plaintiff was acquitted by the criminal court for the alleged offences against him under Sections 279 and 304-A IPC. As per the appellants, he was not given proper opportunity to defend himself during the course of enquiry and that no list of witnesses proposed to be examined was supplied to him. It was alleged that even the copy of the enquiry report was not supplied to him. The late employee had accordingly challenged the punishment by filing a civil suit. Though the suit was dismissed as REGULAR SECOND APPEAL NO.2604 OF 2009 :{ 3 }: withdrawn on 2.12.2002 but with a permission to file fresh suit for the same cause of action. The respondents appeared and filed a written statement. The stand is that the late employee was responsible for this accident, which took place on 22.10.1995 and led to an award against the Department. It is further stated that charge sheet under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules was served to the late employee on 24.6.1999 to which he did not file any reply. The Enquiry Officer was accordingly detailed to conduct the enquiry and the impugned order was passed on the basis of findings given by the Enquiry Officer. Following issues were framed on the basis of pleadings:- “1. Whether the order dated 29.11.2002 passed by defendant No.3 is illegal, null and void, against the law and facts ineffective and liable to be set aside? OPP 2. If issue No.1 is proved, whether the defendant should be restrained from effecting upon the order dated 29.11.2002? OPP 3. Whether the plaintiff has no cause of action against the defendant? OPD 4. Whether the suit of the plaintiff is not maintainable in the present form? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether no representation has been filed by the plaintiff to the higher authority? OPD 7. Relief. REGULAR SECOND APPEAL NO.2604 OF 2009 :{ 4 }: The Trial Court dismissed the suit by deciding issues No.1 and 2 against the plaintiff. He accordingly filed the appeal which was also dismissed. Though it was not so urged before the courts below, but counsel for the appellants submits that substantial question of law would arise in this case to see if the punishment of reducing the late employee to the minimum scale could be passed after his superannuation that too in the background that he had died during the pendency of the suit and now the present appeal is being pursued by his wife being his L.R., she would now be entitled to family pension alone. It could not be disputed before me that the impugned order dated 29.11.2002 has been passed after two years of the retirement of the late employee. This order in fact would have retrospective effect and lead to the grant of minimum pay scale to the late appellant w.e.f. 30.11.2000. The counsel for the appellants would plead that this order would be totally without jurisdiction as the plaintiff had retired from service on 30.11.2000. Counsel for the appellants would make reference to Rule 2.2 (b) of the Punjab Civil Services Rules, Volume 2, Chapter II to urge that after retirement the punishment of only cut or reduction in pension could be imposed and the punishment as has been awarded to the late employee would be totally without authority of law. The provisions of Rule 2.2 (b) reads as under:- “2.2(a) Recoveries from pensions.- xxx xx xxx (b) The Government further reserve to themselves the REGULAR SECOND APPEAL NO.2604 OF 2009 :{ 5 }: right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if, in a departmental or judicial preceding, the pensioner is found guilty of grave mis-conduct or negligence during the period of his service, including service rendered upon re-employment after retirement: Provided that- (1)Such departmental proceedings, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; (2) Such departmental proceedings, if not instituted while the officer was in service whether before his retirement or during his re-employment- (i) shall not be instituted save with the sanction of the Government; (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service REGULAR SECOND APPEAL NO.2604 OF 2009 :{ 6 }: could be made in relation to the officer during his service. (3) No such judicial proceedings, if not instituted while the officer was in service, whether before this retirement or during his re-employment shall be instituted in respect of a cause of action which arose or an event which took place more than four years before such institution; and The Public Service Commission should be consulted before final orders are passed.” The perusal of the above rule would clearly show that though the respondent department was justified in continuing with the enquiry proceedings having initiated the same when the late employee was in service but the only punishment which could be passed against him after his retirement would be cut or reduction in pension as given in Rule 2.2 (b) of the Punjab Civil Services Rules. The counsel is also justified in saying that the punishment as warded is neither permissible in law nor can be allowed to stand as no punishment with retrospective effect can be so imposed. The record would show that the appellant had expired on 26.11.2008 during the pendency of the suit. The substantial question of law in regard to the jurisdiction and power of the punishing authority to impose the punishment would, thus, arise in this case. Mr.Nehra could not counter the submissions made by the counsel for the appellants in any effective manner. Once the plaintiff is no more, his wife now would be entitled to family pension which has also to be considered on the basis of last pay drawn by her late REGULAR SECOND APPEAL NO.2604 OF 2009 :{ 7 }: husband. Even if some cut is imposed in the pension by way of punishment that will now be immaterial as family pension is to be calculated on the pay last drawn and not on the basis of any pension that may have been granted to the late employee. The impugned punishment, thus, is without the authority of law and cannot be sustained. The Regular Second Appeal is allowed. The judgments under appeal are set-aside. Decree-sheet be prepared by the Registry of this Court. There shall be no order as to costs. April 28, 2010 ( RANJIT SINGH ) ramesh JUDGE