1 wp9694-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.9694/2010 Sindhubai Dharmraj Thakre ..Petitioner versus The State of Maharashtra and others. .. Respondents. ...... Shri V.D.Hon,Adv.for Petr. Shri V.G.Shelke,AGP for R-1 & 2 Shri N.B.Suryawanshi,Adv.for R.3. .... CORAM : A.A.SAYED,J. DATE : 09/12/2010. ORAL ORDER : 1] The orders dated 2/6/2010 and 31/8/2010 passed by the respondent no.2 Divisional Commissioner, Nashik Division, Nashik are subject matter of challenge in this Petition. 2] The employee (since deceased) of the respondent no.3 Zilla Parishad was dismissed from service on 25/4/2008 after holding necessary inquiry on the charges levelled against him. 3] The order of dismissal was challenged in Appeal before the Respondent no.2 by the said employee alongwith application for condonation of delay. It appears that in few days thereafter, the said employee expired on 10/3/2010 after illness. 4] By the impugned order dated 2/6/2010, the appeal of the 2 wp9694-10 employee, who had by then expired, came to be dismissed by the respondent no.2. It appears that the legal heirs were not aware of the Appeal and when they became aware of the Appeal and the order dated 2/6/2010, they made an application to set aside the said order dated 2/6/2010 and to come on record in the appeal. By the impugned order dated 31/8/10, the application of the heirs of the employee to set aside the order dated 2/6/2010 and to come on record in the appeal also came to be rejected as untenable. 5] The present petition has been filed by the widow of the employee who has challenged both the aforesaid orders viz. order dated 2/06/2010 and 31/8/2010 in this Petition. Learned counsel for the petitioner has taken me through the 2 impugned orders and submitted that an opportunity ought to have been given to the petitioner to pursue the appeal as there were sufficient grounds made out and the delay in filing the appeal ought to have been condoned, inasmuch as the employee at the relevant time was continuously ill and ultimately expired after filing of the appeal and before the impugned order dated 2/6/2010 came to be passed. He further submitted that the petitioner is entitled to the retiral/pensionary benefits of her deceased husband and therefore, it is necessary that the heirs of the deceased employee be brought on record in the appeal after his death and the matter be heard on merits. He submitted that the delay was neither deliberate nor intentional and the delay ought to have been condoned and the petitioner be given an opportunity to contest the Appeal. 6] The learned counsel for the respondents opposed the petition and supported the impugned orders. 7] Having heard the learned counsel for the parties, I am of the view that the impugned orders cannot be sustained. 3 wp9694-10 The impugned order dated 2/6/2010 was an exparte order and was passed after the employee had expired. The Respondent no.2 ought to have granted an opportunity to the heirs of the employee to come on record and contest the Appeal on merits and condoned the delay, in the peculiar facts and circumstances of the case which constituted sufficient cause and the Respondent no.2 ought not to have rejected the application of the petitioner. 8] In my view, a liberal approach was necessary in the peculiar facts of the case, more particularly when it was a question of retiral/pensionary benefits and an approach which had the effect of non-suiting the employee or his legal heirs ought to have been avoided. 9] In the premises, both the impugned orders are quashed and set aside. The respondent no.2 shall allow the petitioner to come on record as the heir of the deceased employee and the delay in filing the Appeal shall be deemed to have been condoned in the facts and circumstances of the case. The appeals shall be decided by the respondent no.2 on its own merits and in accordance with law after giving an opportunity to the petitioner to be heard, within a period of 6 months from communication of this order by the petitioner to the respondent no.2. All contentions are kept open. 10] Considering the fact that the appellant had died immediately after the filing of the appeal, this order is passed in the peculiar facts and circumstances of the case and in the interest of justice. (A.A.SAYED,J.) umg/wp9694-10