1 S.B.CIVIL WRIT PETITION NO. 362/1999 Smt. Meena Jaiswal Vs. State of Rajasthan & Ors. Date of Order :: 03.03.2009 HON'BLE MR. JUSTICE GOVIND MATHUR Mr Vinay Kothari for Mr. M.S. Singhvi, for the petitioner/s. None present for the respondents. ... The petitioner's husband Sh. Ram Babu entered in service of Municipal Board, Sanganer as Assistant Sanitary Inspector on 28.8.1978 and was confirmed as such w.e.f. 28.8.1979. On being transferred vide order dated 11.3.1983 Sh. Ram Babu joined duties at Municipal Board, Chapar as Assistant Sanitary Inspector on 3.5.1983. From the post aforesaid he came to be removed from service under an order dated 25.4.1987 passed by the Executive Officer, Municipal Board, Chapar as a consequent to a disciplinary action. The challenge given to the order of removal dated 25.4.1987 by way of filing a petition for writ (SBCivil Writ Petition No.5733/94) came to be accepted by judgment dated 20.7.1995 with considerations and directions as follows: “Having heard the learned counsel and having perused the record, I am of the opinion that this petition deserves to be allowed. Sub-Rule 9 of Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 provides that after the submission of the inquiry report, the disciplinary authority shall consider the record of the inquiry and 2 record its findings on each charge. In this case, this rule has not been followed and the findings of the disciplinary authority are nowhere to be found. Even the order of termination of services does not show that any findings were independently reached by the disciplinary authority itself. The termination order only states that as the original petitioner had been found guilty in the inquiry report his services deserve to be terminated. This can hardly be said to be compliance with the rules. During the pendency of this petition, the petitioner has died on 13.8.92, his widow, therefore, is entitled to the benefits which would be available to her, treating him to have been continued in service subject to superannuation till that date. As regards salary for the period of suspension as well as the period of inquiry and this litigation, the respondents shall decide it after giving opportunity of hearing to the present petitioner, as the respondents contention has been that the original petitioner was working as Munshi in the Courts at Jaipur and was earning during this period. So far as other benefits available to dependant of a person dying while in service, they shall be made available to the present petitioner within a period of four months from today. The question of salary for the period up to the death of the original petitioner shall also be decided within a period of four months from today. There shall be no order as to costs.” (Emphasis given by me) 3 An appeal giving challenge to the judgment above also came to be rejected by a Division Bench of this Court on 24.9.1997. As per the directions given by this Court on 20.7.1994 the Executive Officer, Municipal Board, Chapar by a letter dated 29.12.1997 instructed the present petitioner, who is widow of late Sh. Ram Babu to produce adequate evidence to prove her entitlement to receive wages for the period her husband remained under suspension and also remained out of employment because of removal from service. In response to the letter aforesaid the petitioner through a letter dated 23.1.1998 informed the Executive Officer, Municipal Board, Chapar certain relevant facts and those are that, (i) Late Sh. Ram Babu committed suicide due to delay in getting justice, (ii) Sh. Ram Babu discharged minor clerical works for a period of about one or one and a half months in the office of his counsel due to absence of regular office clerk, (iii) Sh. Ram Babu did not charge any amount for the work done as his counsel was kind enough to represent him before the Court without any remuneration. The petitioner in the letter dated 23.1.1998 also stated that it is only the Almighty that is her witness. The Executive Officer, Municipal Board, Chapar rejected the petitioner's claim on the count that no affidavit in support of the facts referred in letter dated 23.1.1998 was given. Hence, this petition for 4 writ is preferred claiming the reliefs as under: “(i) by an appropriate writ, order or direction, the impugned order dtd. 27.8.98 may kindly be declared illegal and be quashed (ii) by an appropriate writ, order or direction, the respondents may be directed to make payment of arrears of salary due to the husband of the petitioner during the suspension period and the date of termination of the services of the husband of the petitioner till the his death with all consequential benefits; (iii) by an appropriate writ, order or direction, the respondents may be directed to pay pension to the petitioner from the date of death of her husband with all consequential benefits; (iv) by an appropriate writ, order or direction, the respondents may be directed to pay arrears of salary and family pension alongwith interest at the rate of @18% per annum and interest be ordered to be paid with effect from 20.11.1995 till the date of payment. The petitioner further prays that the liability of payment of the amount of interest be fastened on the Executive Officer, Municipal Board who is guilty of passing the illegal order in complete violation of the directions of this Hon'ble Court. (v) any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioner. (vi) exemplary costs of the writ petition may kindly be awarded to the petitioner.” As per counsel for the petitioner the respondents are neither releasing family pension to the petitioner nor they have given wages for the period Sh. Ram Babu faced suspension and thereafter remained out of employment because of illegal removal from service. It is asserted by learned counsel for the petitioner that in view of the judgment dated 20.7.1995 given by this Court in SBCivil Writ Petition No.5733/1994 Sh. 5 Ram Babu was required to be treated in service till his death, and therefore, no just reason was available with the respondents to deny pension and all other terminal benefits to the present petitioner. Sh. Vinay Kothari appearing on behalf of the petitioner also questioned denial made by the Executive Officer for payment of wages for the period Sh. Ram Babu remained under suspension and remained out of employment as a consequent of removal from service which was subsequently declared illegal by this Court. It is emphasized that the petitioner in most specific and unambiguous terms stated that her husband did not earn anything out of service rendered in office of an Advocate. In reply to the writ petition sole stand of the respondents is that no affidavit stating about gainful employment of her husband was given by the petitioner, therefore, the denial for payment of wages was rightly made. A presumption regarding earning out of working in office of an Advocate was also drawn by the respondents to deny wages for the period in question. Nothing is said in reply relating to entitlement of the petitioner for family pension being widow of late Sh. Ram Babu. Heard counsel for the petitioner and perused entire record of the case. 6 The petitioner's husband Sh. Ram Babu was removed from service as a consequent to disciplinary action under an order dated 25.4.1987. The order aforesaid was declared bad by this Court vide judgment dated 20.7.1995. In the case aforesaid this Court specifically declared the petitioner entitled for benefits which would have been available to her by treating Sh. Ram Babu in service till the date of his death i.e. 13.8.1992. In view of the finding aforesaid, husband of the petitioner, Sh. Ram Babu is required to be treated in service of the respondents from 20.8.1978 to 13.8.1992. He is also required to be treated as a person died while in service, and therefore, the petitioner is certainly entitled for all pensionary and other terminal benefits being widow of a government servant died while in service. The non-payment of family pension and other terminal benefits to the petitioner is apparently bad. The respondents denied wages accrued to Sh. Ram Babu for the period he remained under suspension and also remained out of employment due to illegal removal from service only on the count that no affidavit was submitted by the petitioner in support of the facts averred in the letter dated 23.1.1998. The approach of the respondents on its face appears not only cryptic but perverse too. The petitioner in quite unambiguous terms stated in the letter dated 23.1.1998 that her husband was not in employment after removal from service though he discharged certain clerical works for a period of about one or one and a 7 half month in office of his counsel due to absence of regular office clerk. She also stated that no payment against the work done was received by her husband looking to the fact that the counsel in whose office he discharged little duties was representing him before the court of law without charging remuneration. I do not find any reason to disbelieve such specific statement given by the petitioner. It is pertinent to note here that onus to prove about gainful employment and other earning of late Sh. Ram Babu was on the respondents and it could have not been shifted to the petitioner. Be that as it may, whatever petitioner stated in the letter dated 23.1.1998 was sufficient to believe that her husband was not in any gainful employment, specifically looking to the fact that nothing contrary is proved by the respondents. The petitioner, therefore, is certainly entitled to receive wages for the period in question. No just and valid and reason is available with the respondents to deny wages for the period aforesaid and also to retain all pensionary and other terminal benefits of the petitioner. For the reasons stated above this petition for writ deserves acceptance, and therefore, the same is allowed. The decision of the respondents to deny wages to the petitioner for the period her husband remained under suspension and faced removal from service is declared 8 illegal. The petitioner is declared entitled to get payment of arrears of salary due to her husband for the period he remained under suspension and up till the date of his death including the period in which he faced termination from service due to removal under order dated 25.4.1987. The petitioner is also declared entitled to receive family pension as per Rules being widow of late Sh. Ram Babu who died while in service of the respondents. The arrears accruing as a consequent to the directions above are required to be paid to the petitioner within a period of four months from today with interest @ 8.5% per annum. The Registry is directed to send certified copy of this order to the Director, Local Bodies, Government of Rajasthan, Jaipur, the Executive Officer, Municipal Board, Chapar, Distt. Churu and the Director, Department of Pension and Welfare, Government of Rajasthan, Jaipur forthwith in view of the fact that none appeared to represent them before this Court. (GOVIND MATHUR), J. Jgoyal '