CWP No.15476 of 2009.doc - 1 – HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.15476 of 2009 (O&M) Date of Decision: 20.09.2011 **** Asha Rani . . . . Petitioner VS. State of Punjab & Anr. . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE SURYA KANT **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. GS Kaura, Advocate for the petitioner Ms. Sudeepti Sharma, DAG Punjab ***** SURYA KANT, J. (ORAL) (1). The petitioner seeks a direction for the release of ‘family pension’, Gratuity and other terminal benefits in lieu of the service rendered by her husband (Ramanjit Singh) as a Clerk who is statedly missing since 27.3.1997. The petitioner relies upon DDR No.14 dated 11.05.1997 recorded at Police Station Morinda, District Ropar (Annexure P2) wherein it is alleged that her husband went to Ropar on 27th March, 1997 to attend duty but did not return home and was thereafter untraceable despite all out efforts made by the family. The DDR also CWP No.15476 of 2009.doc - 2 – indicates that the missing employee was under treatment due to some ailment. (2). The respondents have filed their reply/affidavit explaining that the missing employee was charge-sheeted on 28.3.1995 with the following allegations:- “While Shri Ramanjeet Singh Clerk was on dispatch duty to receive and dispatch the letter in the office of GM Roadways Jagraon. Then on 07.01.1992 his almirah was checked by Shri Ram Chand Bhardwaj Supdt., as per the directions of the General Manager. After checking, it was found that 47 letters which were received from various departments were not delivered to the concerned clerks after dairy. Due to this no reply could be sent to the concerned departments. After that his duty was assigned to the seat of ECM. The office of Divisional Manager, Transport Department, Punjab, Chandigarh, sought the information regarding the disposed of senior scale/proficiency of the ministerial staff vide their letter No.E/A6/5615 dated 21.04.1992 but he failed to reply the letter till 30.04.1992. He used to come always late in the office and is habitual for not taking interest in the office work. Due to this Ramanjeet Singh Clerk violated the CWP No.15476 of 2009.doc - 3 – discipline in the office and he disobeyed the government rules and is negligent in duty and by doing so he himself made liable for action under Punjab Civil Service (Punishment and Appeal) Rule 1970 and is liable for punishment under Punjab Conduct Rules.” (Emphasis applied) (3). It is averred that the reply given by the missing employee was found unsatisfactory and a regular enquiry was held in which the charges stood proved. Thereafter a show cause notice dated nil was given to the employee but no reply was received. A public notice was also got issued pursuant to the letter dated 30.04.1998 (Annexure R5) and finally services of Ramanjit Singh Clerk were terminated vide order dated 16.9.1998 (Annexure R6). (4). The operative part of the order terminating the employee’s service reads as follows:- “Due to charges framed in the charge sheet dated: 28.3.1995 were duly proved against Sh. Ramanjeet Singh Clerk, Punjab Roadways, Jagraon. The show cause notice for removal from service was sent to the General Manager, Punjab Roadways, Roop Nagar for service and in response to that letter General CWP No.15476 of 2009.doc - 4 – Manager, Punjab Roadways, Roop Nagar informed that the employee is absent from duty since 31.3.97 and also disappeared from home also. Thereafter the show cause notice was sent to the Daily English Tribune for publication and it was cleared that there is a proposal to terminate the services of the employee and if the employee intends to say something in this regard then he may sent in writing within a period of 15 days to this office. If he failed to send his reply within the stipulated period then it will be presumed that he does not want to say anything in this regard and further action will be taken against him but in spite of publication of notice (dated: 10th May, 1998) no information has been received in this office. The employee was being absent from duty since 31.3.1997 and on the basis of no work no pay formula he was treated absent from duty. So to retain such an employee in service will not be in the service interest. So his services are terminated with immediate effect.” (Emphasis applied) (5). The petitioner has also disclosed the material fact regarding initiation or pendency of disciplinary action against her missing husband before he disappeared in March 1997. CWP No.15476 of 2009.doc - 5 – (6). The respondents themselves have acknowledged in the impugned termination order that the employee was absent from duty since 31.3.1997 and was not available at home also. It is not their case that the employee is deliberately hiding or has run away to escape the penal consequences of disciplinary action. (7). It can also be not overlooked that the allegations against the employee are of trivial nature and none of them constitutes gross misconduct, embezzlement, misappropriation, insubordination or absent from duty for a long period. Even if the missing employee were there to contest the charges, it appears that no major penalty like termination of services could be imposed on him. There can indeed be no doubt that punishment of termination of services for such like charges is highly disproportionate. Consequently, the order dated 16.09.1998 (Annexure R6) is hereby quashed. (8). The next issue that arises for consideration is the petitioner’s entitlement to certain reliefs on the premise that her husband is missing since 27.03.1997. The Government Policy dated 27.03.1991 (Annexure P3) governs such like eventualities and its para 2, reads as follows:- “Above pensionary benefits can be accepted according to below written conditions:- CWP No.15476 of 2009.doc - 6 – (A) The report regarding missing should be given by the family members of concerned employee in the concerned area of police station and also this report be received from the police that the employee did not found despite of efforts. (B) The Indemnity Bond should be taken from the dependent’s/nominated members of the family of employee that if in case employee may found or in any case he claimed his dues then all the given amounts of pensionary benefits shall be adjusted.” (9). Para No.4 of the policy reads as follows:- “ The family of concerned employee can apply after one year of the missing to the Head of the Department/office vide specific pro-forma for permission of family pension and gratuity. In case of non-paying the gratuity by the department to applicant within three months after receiving the application, department/office shall paid the interest and also action shall be taken against the employee/officer liable for the non-payment of gratuity.” (Emphasis applied) CWP No.15476 of 2009.doc - 7 – (10). It may thus be seen that subject to verification of the contents of the DDR (Annexure P2) and/or any other fact- finding enquiry on the untraceability of the employee (petitioner’s husband) and also subject to furnishing of indemnity bond by the petitioner in terms of the above- stated Policy, she (the petitioner) is entitled to ‘family pension’ after expiry of the period of one year from the date of missing i.e. 27.03.1998 onwards. (11). Ordered accordingly. (12). The petitioner and/or the children of the missing employee shall also be entitled to other service/terminal benefits including Gratuity, GPF, Leave Encashment etc. The arrears of ‘family pension’ and other service benefits shall be released within a period of three months from the date of receipt of a certified copy of this order. (13). Dasti . 20.09.2011 Vishal shonkar (S u r y a K a n t) Judge