K.Devaki v. The Superintendent, Central Prison, Salem-7

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 09.06.2009CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.26714 of 2006K.Devaki ..PetitionerVs.The Superintendent,Central Prison,Salem-7. ..Respondent This writ petition has been preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records relating to theimpugned order of the respondents in Po.1/5851/96, dated 27.11.1996and to quash the same insofar as it restricts the terminal benefitspayable to the applicant only to General Provident Fund and SpecialProvident Fund and to direct the respondent to allow pension andother terminal benefits to the applicant. For Petitioner: Mr.P.MohanrajFor Respondent: Mr.P.Gurunathan, GAORDERHeard both sides. 2.The petitioner has filed O.A.No.2903 of 1997, seeking tochallenge the order dated 27.11.1996 passed by the respondent, bywhich the petitioner's husband was declared to be a deserter and hisname was struck off from the Rolls. On notice from the Tribunal, therespondent has filed a reply affidavit, dated 11.06.1997. Further, ondirection from this court, the original records relating to this casewas also circulated.3.In view of the abolition of the Tribunal, the matter stoodtransferred to this court and was renumbered as W.P.No.26714 of 2006. 4.The petitioner's husband was working as Warden Grade-II at theCentral Prison, Salem with effect from 20.09.1977. He workedcontinuously from that date till 3.7.89. It was claimed that he https://hcservices.ecourts.gov.in/hcservices/ suffered some mental illness and was attending to dutyintermittently. In that way, he worked till 20.03.1995.5.It was claimed by the respondent that the petitioner's husbandstopped from attending to his duty from 23.03.1995. They also claimedthat a telegram was received sent in his name on 26.04.1995requesting permission to extend his leave. Since the petitioner'shusband had absented from duty without any leave application, he wasconsidered as a deserter in terms of Rule 128 (2) of the Tamil NaduPrison Manual Volume-II and therefore, it was declared that he was adeserter from duty with effect from 23.3.1995. A letter was sent tothe petitioner to that effect. 6.In paragraphs 3 and 4 of the reply affidavit, it was averred asfollows:"3. ... As such the applicant's husband was treatedas deserter as per rules with effect from 23.03.95 videthis Office Proceedings No.11762/G1/95, dated 01.07.95.This order was sent to the individual's address byregistered post, which was returned to this office withthe remarks of Postal authorities that "whereabouts notknown". As per rule 128(3) of the Tamil Nadu Prison ManualVolume-II, an application for reinstatement from anOfficer whose name has been struck off as a deserter shallnot be entertain unless it reaches the Superintendent oran Officer of equal rank under whom the subordinateofficer was serving within two months from the date ofcommencement of the absence without leave and that at theend of two months, if no application for reinstatement isreceived and if the whereabouts of the deserter are notknown, the Officer dealing with the case shall record inwriting the fact that it is not reasonably practicable togive the deserter an opportunity of showing cause againsthis dismissal and confirm the dismissal.4. ... Further the applicant herself sent a letterdated nil received in this Officer on 04.04.96, in whichshe stated that mentally affected her husband went placeto place and they were searching her husband for the pastone year and that the whereabouts were not known. She hasalso stated that finally information received on 27.03.96that her husband's dead body was found in a village nearHosur. This is a clear proof that the petitioner herselfaccepts that the whereabouts of her husband was not knowntill his death. As the applicant's husband was desertedfrom service the applicant is not entitled to receivepension and other terminal benefits." https://hcservices.ecourts.gov.in/hcservices/

7.Since reliance is placed upon Rule 128 of the Tamil Nadu PrisonManual (Volume II) for striking off the name of the petitioner'shusband from the Roll, it is necessary to reproduce the said Rule,which reads as follows:"128.Not to be absent without permission.- (1)No subordinate officer shall be absent during thehours fixed for his attendance without the permission ofthe Superintendent or Additional Superintendent or Jailor.Any subordinate officer disabled from the performance ofduty by illness shall give or send immediate notice to theJailor, who shall make such arrangements as may benecessary for the performance of the duty of the disabledofficer. (2)Absence without leave for 21 days completes theoffence of desertion, after which the officer's name shallinvariably be struck off from the date of absence.(3)An application for reinstatement from an officerwhose name has been struck off as a deserter shall not beentertained unless it reaches the Superintendent or anofficer of equal rank under whom the subordinate officerwas serving within two months of the date of thecommencement of the absence without leave. TheSuperintendent or the corresponding officer of equal rank,as the case may be, shall not reinstate a deserter (a)until the deserter has attended in person which he shoulddo, nor later than the date prescribed by the officerdealing with the case and has given his explanation forhis absence without leave; and (b) unless theSuperintendent or an officer of equal rank, as the casemay be, is satisfied, after such enquiry as may benecessary, that the case deserves reconsideration. At theend of two months, if no application for reinstatement isreceived and if the whereabouts of the deserter are notknown, the officer dealing with the case shall record inwriting the fact that it is not reasonably practicable togive the deserter an opportunity of showing cause againsthis dismissal and then confirm the dismissal. In othercases a charge shall be framed and the procedureprescribed for oral enquiries complied with, beforeconfirming the dismissal or reinstating the deserter withor without punishment."8.Though the Prisons Act enables the authorities to frame rulesand orders in terms of the Act, whether Rule 128 can replace thestatutory rules framed under Article 309 of the Constitution and https://hcservices.ecourts.gov.in/hcservices/ whether it can dispense with the reasonable opportunity beforeremoval as guaranteed under Article 311(2) of the Constitution is thequestion which has to be answered in the present case. The SupremeCourt in more than one case has held that even in case of longabsence, it is incumbent upon the authorities to comply with themandatory provisions of Article 311 (2) before dispensing of theservice of a Government servant. 9.In this context, it is necessary to refer to the judgment ofthe Supreme Court in State of Assam v. Akshaya Kumar Deb reported in(1975) 4 SCC 339. It will be useful to extract the followingpassages found in paragraphs 17 to 22 of the said judgment:"17. Even if it is assumed that termination underF.R. 18 does not cause forfeiture of benefits alreadyearned such as pension, etc., then also that will not, byitself, take it out of the category of ‘removal’ asenvisaged by Article 311(2). The respondent was apermanent government servant. He had a right to hissubstantive rank. According to the test laid down by thisCourt in Parshotam Lal Dhingra4, the mere termination ofservice, without more, of such an employee wouldconstitute his “removal” or “dismissal” from service,attracting Article 311(2). From the constitutionalstandpoint, therefore, the impugned termination of servicewill not cease to be “removal” from service merely becauseit is described or declared in the phraseology of F.R. 18as a “cessation” of service. The constitutional protectionguaranteed by Article 311(2) cannot be taken away “in thismanner by a side wind”. 18. The above view is fortified by the ratio of thisCourt’s decision in Jai Shanker v. State of Rajasthan. Theappellant therein was Head Warder in the permanent serviceof Rajasthan State. On April 14, 1950, he proceeded on twomonths’ leave. He later asked for extensions of the leaveon medical grounds. He was due to join on August 13, 1950,his request beyond that date was refused. Thereafter hemade further applications for leave, the last of themsupported by a medical certificate. To his last and someof the earlier applications he received no reply, but onNovember 8, 1950, he received a communication from theDeputy Inspector General of Prisons that he was dischargedfrom service from August 13, 1950. Departmental remedieshaving failed, he filed a suit challenging his removalfrom service. The trial court dismissed his suit. Thefirst appellate court accepted his appeal. In secondappeal by the State, the High Court restored the trialcourt’s order. The employee came to this Court in appeal https://hcservices.ecourts.gov.in/hcservices/ by special leave. The State relied on Regulation 13 of theJodhpur Service Regulations which provided: “An individual who absents himself without permissionor who remains absent without permission for one month orlonger after the end of his leave should be considered tohave sacrificed his appointment and may only be reinstatedwith the sanction of the competent authority. Note: The submission of an application for extensionof leave already granted does not entitle an individual toabsent himself without permission.” 19. It was contended by the State that thisregulation operated automatically and no question ofremoval from service could arise because the servant mustbe considered to have sacrificed his appointment. It wasmaintained that under the regulation, the employee couldonly be reinstated with the sanction of the competentauthority.20. As before us in the instant case, the questionthat fell there for consideration was, whether theregulation was sufficient to enable the Government toremove a person from service without giving him anopportunity of showing cause against that punishment, ifany. Answering this question in the negative, the Court,speaking through Hidayatullah, J. (as he then was)illumined the position thus: “The regulation, no doubt, speaks of reinstatement if(the employee) is to be discharged or removed fromservice. The question of reinstatement can only beconsidered if it is first considered whether the personshould be removed or discharged from service. Whicheverway one looks at the matter the order of the Governmentinvolves a termination of the service when the incumbentis willing to serve. The regulation involves a punishmentfor overstaying one’s leave and the burden is thrown onthe incumbent to secure reinstatement by showing cause. Itis true that the Government may visit the punishment ofdischarge or removal from service on a person who hasabsented himself by overstaying his leave, but we do notthink that the Government can order a person to bedischarged from service without at least telling him thatthey propose to remove him and giving him an opportunityof showing cause why he should not be removed. If this isdone the incumbent will be entitled to move against thepunishment for, if his plea succeeds, he will not be https://hcservices.ecourts.gov.in/hcservices/ removed and no question of reinstatement will arise. Itmay be convenient to describe him as seeking reinstatementbut this is not tantamount to saying that because theperson will only be reinstated by an appropriateauthority, that the removal is automatic and outside theprotection of Article 311. A removal is removal and if itis punishment for overstaying one’s leave an opportunitymust be given to the person against whom such an order isproposed, no matter how the regulation describes it. Togive no opportunity is to go against Article 311 and thisis what has happened here.” 21. The above enunciation applies to the facts of thepresent case. Excepting the length of the period ofabsence, the basic features of Regulation 13 in JaiShanker case, were very similar to those of F.R. 18 nowunder consideration. The words “should be considered tohave sacrificed his appointment” in Regulation 13,substantially correspond to the words “servant ceases tobe in Government employ” in F.R. 18. Further, the importand effect of the phrase “may only be reinstated with thesanction of the competent authority” in the regulation, islargely the same as that of the opening clause “unless theProvincial Government, in view of the specialcircumstances of the case shall otherwise determine” inF.R. 18. The difference between the regulation and F.R. 18as to the length of absence from duty prescribed as acondition precedent for the attraction of the respectiveprovision, is a distinction without a difference inprinciple. The consequence of absence, though fordifferent periods, envisaged by both the provisions, isthe same viz. “sacrifice” or “cessation” of the absentee’sservice. The present case will thus be governed by theratio of Jai Shanker case. 22. Recently, in Deokinandan Prasad v. State ofBihar5 a Bench of five learned Judges of this Court heldthat an order of termination of service passed under Rule76 of the Bihar Service Code (which is identical in allrespects with F.R. 18 in the present case) on account ofthe servant’s continuous absence for five years withoutgiving an opportunity to the servant under Article 311(2)would be invalid."10.From the above rulings of the Supreme Court, it will be clearthat there is no escape for the respondents to dispense with anenquiry before ordering removal of service of a Government servant.In the present case, it is an admitted fact that the petitioner haddied on 28.03.1996 and he was not served personally even the so https://hcservices.ecourts.gov.in/hcservices/ called order of desertion. No charge memo was framed against him andno enquiry was also held against him in terms of Rule 17(b) of theTamil Nadu Civil Service (Disciplinary and Appeal) Rules, while thepetitioner's husband was alive. It was after his death, the wife wasmaking representation for getting pension and other terminalbenefits. 11.Even in cases where members of the police force were orderedto be removed for long absence, it was preceded by a regular enquiry.It was only when such an enquiry was held and punishment of removalfrom service was sought to be made, the Supreme Court had declined tointerfere with such punishment. 12.The Supreme Court in Mithilesh Singh v. Union of Indiareported in (2003) 3 SCC 309, dealt with the case of number of policeforce remaining absent. The facts involved in the said case was setout in paragraph 3 of the said judgment, which may be usefullyextracted below: "3. The appellant was appointed as constable in theRailway Protection Special Force on 16-4-1978.Disciplinary proceedings were initiated against him byissuing notice under Section 9(1) of the RailwayProtection Force Act, 1957 (in short “the Act”) read withRule 44 of the Railway Protection Force Rules, 1959 (inshort “the Rules”). Gravamen of charge against him wasthat he had left duties as well as Taran Taran Stationwithout permission. He was detailed with others forQuarter Guard-cum-Station Static Guard duty on 22-5-1987.At about 1125 hrs he asked the Guard Commander to keep hisarms and ammunition telling that he was proceeding home.The Guard Commander asked him not to go withoutpermission. But disobeying the orders, he left his duty aswell as Station Taran Taran without any permission. Thiswas considered to be an act of indiscipline andcarelessness in duty. His defence was that he was requiredto attend the wedding of his brother-in-law and,therefore, he had to leave the station in any case. It wasfurther stated by him that he asked the Inspector-in-charge that the Adjutant had assured him about grant ofleave, but the Inspector-in-charge refused to grant leave.Faced with this situation he had to leave with a view tokeep his family commitments. It was also stated by himthat he had handed over his arms and ammunition for safecustody. He returned after 25 days for which he had askedfor leave. The authorities on completion of thedisciplinary proceedings found that the charge wasproved and penalty of removal from service was awarded." https://hcservices.ecourts.gov.in/hcservices/

13.It was in this factual background, the Supreme Court upheldthe order of punishment given to a Government servant. 14.A similar question also arose for consideration by the SupremeCourt in Union of India v. Ghulam Mohd. Bhat, reported in (2005) 13SCC 228. The factual matrix of the said case is set out in para 2 ofthe said judgment, which is as follows:"2. The background facts need to be noted in brief: The respondent as a Constable in Central ReservePolice Force (in short “CRPF”) joined the duty at Srinagarafter being detailed for duty from Assam along with agroup of fresh trainees. He applied for leave on 18-1-1992which was sanctioned. He reported for duty long afterthe sanctioned leave period was over on 8-12-1992.Departmental proceedings were initiated for misconduct onaccount of overstay beyond sanctioned leave for 315 dayswithout prior permission or sanction from the competentauthority. On 21-6-1993 on the basis of the report of theinquiry officer, the competent authority passed order ofremoval from service. The same was challenged by therespondent by filing a writ petition in the Jammu andKashmir High Court. By the impugned order dated 5-8-1997 alearned Single Judge held that since the respondent wasproceeded against in terms of Section 10(m) of the Actread with Rule 27 of the Rules, the order of removal iswithout jurisdiction. It was observed that Section 10(m)only provided for minor punishment and did not provide forthe punishment of removal from service. Accordingly theorder of removal was quashed but, however, liberty wasgiven to proceed in accordance with the provisions of theAct and the Rules.15.After marshalling these facts, the Supreme Court declined togrant any relief to a Government servant concerned in the said case.The ratio laid down by the Supreme Court is found in para 9 of thesaid judgment, which is as follows:"9. This Court had occasion to deal with the cases ofoverstay by persons belonging to disciplined forces. InState of U.P. v. Ashok Kumar Singh2 the employee was apolice constable and it was held that an act ofindiscipline by such a person needs to be dealt withsternly. It is for the employee concerned to show how thatpenalty was disproportionate to the proved charges. Nomitigating circumstance has been placed by the appellantto show as to how the punishment could be characterised asdisproportionate and/or shocking. (See Mithilesh Singh v. https://hcservices.ecourts.gov.in/hcservices/ Union of India3.) It has been categorically held that in agiven case the order of dismissal from service cannot befaulted. In the instant case the period is more than 300days and that too without any justifiable reason. Thatbeing so the order of removal from service suffers from noinfirmity. The High Court was not justified in interferingwith the same. The order of the High Court is set aside.The appeal is allowed but under the circumstances thereshall be no order as to costs."16.These steps were not taken in the case of the petitioner'shusband before his removal. On the contrary, the respondent had restcontended himself by invoking Rule 128(2) of the Tamil Nadu PrisonManual without anything further being done in the case of thepetitioner's husband. It is a clear case of infraction of Article311(2) of the Constitution. 17.In the light of the factual matrix involved in the presentcase and the legal precedents set out above, the petitioner isentitled to succeed and the writ petition will stand allowed. Nocosts.18.The respondent is directed to treat the case of thepetitioner's husband (late S.K.Dinakaran, Warden Grade II No.142,Central Prison, Salem) as having continued in service till28.03.1996, the date on which he died and also consequently, directall the terminal benefits including pension, DCRG and other benefitsto be paid to the petitioner being the legal heir. However, for theperiod of interregnum between 23.3.1995 till 28.3.1996, no monetarybenefits will be payable to the petitioner as the petitioner'shusband never discharged his duty during the period. This exerciseshall be carried out by the respondent within a period of 12 weeksfrom the date of receipt of a copy of this order. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo The Superintendent, Central Prison, Salem-7. W.P.NO.26714 of 2006SSR (CO)GSK 11.06.2009.