High Court · 2012

C.T.RAVIKUMAR, J.----------------------------W.P.(C)No.8940 of 2006----------------------------Dated 1st December, 2012JUDGMENTThe second petitioner is the widow of the first petitioner. Infact, she got impleaded herself as the additional petitioner as per orderdated 26.2.2009 in I.A.No.2600 of 2009 in the captioned writ petitionconsequent to the death of her husband Sri.John Wicklif. The factsrelevant for the purpose of disposal of this writ petition are as follows:-Sri.John Wicklif commenced his service under the CentralIndustrial Security Force on 6.12.1990 and while so, on 20.9.2004 hewas asked to appear before a Medical Board. The authorities wereconstrained to pass such an order in view of his frequent requests forexemption from hard duties and also requests for avoiding him fromregimental duties. He had also expressed unwillingness to undergo in-service course/promotion course citing ill health. As per Ext.P1, theduly constituted Medical Board after examination of John Wicklif, thedeceased employee, found that he was completely and permanentlyincapacitated for the further service of any kind in the Department.Thereupon, he approached this Court by filing W.P.(C)No.32293 of 2004challenging the said proceedings. In fact, prior to that he was servedwith Ext.P2 dated 19.10.2004 whereby it was ordered that he should WP(C).No.8940/20062retire from service on medical ground on expiry of the period of onemonth from the date of communication. Feeling aggrieved by Ext.P2 hepreferred Ext.P3 appeal before the first respondent. W.P.(C)No.32293 of2004 was filed after preferring Ext.P3 and as per Ext.P4 judgment Ext.P3appeal was directed to be disposed of. Later, the said appeal wasrejected as per Ext.P5 order dated 29.11.2004 and then, challengingboth Exts.P2 and P5 W.P.(C)No.36168 of 2004 was filed by the deceasedemployee. Meanwhile, attributing foul play and deliberate attempt forinvalidating him from service he filed a complaint before the Director ofHealth Services and requested for constituting a Review Medical Board. Itis obvious that even as per Ext.P2 he was offered with an opportunity toappear before a Review Medical Board. Subsequently, he was asked toappear before the Review Medical Board and on his appearance he wasexamined on 18.11.2004 and 4.2.2005. Thereafter Ext.P6 letter dated14.2.2005 was issued by the Director of Health Services to theCommandant. As per Ext.P6, Sri.John Wicklif was found fit for joiningduty and a medical examination report in that regard was also attachedtherewith. Before this Court, the respondents expressed willingness toassign duty to him based on Ext.P6 and accordingly, the said writ petitionwas closed. Consequently, Sri.John Wicklif rejoined duty. Immediately WP(C).No.8940/20063after his rejoining duty Ext.P8 notice was issued to him whereby it wasproposed to regularise the period from 19.10.2004 to 21.4.2005 as leavein terms of Rule 20 of CCS Rules, 1972 and CCS (Medical Examination)Rules, 1957. Aggrieved by the said proposal made as per Ext.P8,Sri.John Wicklif preferred Ext.P9 objection and P10 reminder. Sincethere was no response to Exts.P9 and P10 he filed Ext.P11 appealagainst Ext.P8. Subsequently, he was informed as per Ext.P12 that hisrequest for reckoning the aforesaid period as on duty was rejected by theDirector General viz., the first respondent. However, the copy of thesaid order passed by the first respondent was not served on him. It ischallenging the rejection of his request as informed vide Ext.P12 andseeking further consequential reliefs that this writ petition has been filed.After the filing of this writ petition Sri.John Wicklif breathed his last andconsequently the second petitioner got herself impleaded in this writpetition to pursue with this writ petition.2. The contention of the petitioner is that the respondentshad not given any reason whatsoever for rejecting the request and thereis absolutely no reason for treating the period as not on duty as Sri.JohnWicklif was virtually prevented from discharging his duties during the WP(C).No.8940/20064period from 19.10.2004 to 21.4.2005. When once it is clear that therewas no reason for invalidating Sri.John Wicklif there is absolutely nojustification for denying the full pay and allowances for the above period.3. A counter affidavit and an additional counter affidavit havebeen filed by the respondents. Though counter affidavit and additionalcounter affidavit were filed in this writ petition the respondents have notchosen to produce the copy of the order alleged to have been passed bythe first respondent rejecting the request of the petitioner made onreceipt of Ext.P8. Ext.P12 would reveal that the claim of the deceasedemployee for regularization of the period as mentioned above wasrejected by the first respondent as finding the same as meritless. Ascanning of Ext.P12 letter would reveal that it carries no reason at alland in the failure of producing the order, if any, it can only be held thatthe decision as revealed from Ext.P12 is not supported by any reasonwhatsoever. Though it would appear from Ext.P12 that a separate orderrejecting the request of Sri.John Wicklif to treat the period in question ason duty for all purposes was passed it is not produced by therespondents either along with counter affidavit or with the additionalcounter affidavit. Hence, for all practical purposes Ext.P12 has to be WP(C).No.8940/20065construed as the order carrying the said decision rejecting his aforesaidrequest. The core contention of the petitioner is that Ext.P12 is a non-speaking order. In order to say that an order is a speaking one it mustreflect the reason for arriving at a conclusion contained in the order. Inthat view of the matter, I do not find any reason to disagree with thecontention of the petitioner that Ext.P12 is a non-speaking order. Asnoticed hereinbefore, though the recital in Ext.P12 would reveal that it isonly a communication informing about the order passed by the firstrespondent, no such order passed by the first respondent was producedbefore this Court. The petitioner was also not served with a copy of suchan order at any point of time. True that, the respondents are attemptingto justify the order in Ext.P12 by assigning reasons in their counteraffidavit. I do not think that this Court should consider those reasonsassigned in the counter affidavit. It is a well settled position that a non-speaking order cannot be converted as a speaking order by assigningreasons through an affidavit filed to support the conclusions in an order.What is required under law is that such orders having civil consequencesmust be a speaking order. In such circumstances, I am not inclined toaccept the reasoning stated in the counter affidavit filed by therespondents to hold that Ext.P12 is a speaking order. Admittedly, the WP(C).No.8940/20066first respondent is the authority competent to consider the claim withrespect to the regularization of the period mentioned hereinbefore.Evidently, Sri.John Wicklif during his lifetime had made Exts.P9, P10 andthen P11 appeal raising objections against the proposal in Ext.P8 and forthe purpose of getting the said period reckoned for all purposes.Indisputably, after the death of Sri.John Wicklif the second petitioner isentitled to get all the benefits due to him including the benefits due if therequest for reckoning the said period of absence as duty is ultimatelyallowed. Once it is found that Ext.P12 is not a speaking order it cannotbe sustained. Accordingly, Ext.P12 is set aside. Since Sri.John Wicklif,the concerned employee is no more, liberty is granted to the secondpetitioner to approach the first respondent, the competent authority,with the claim to reckon the period from 19.10.2004 to 21.04.2005 forall purposes including for pension. The second petitioner is granted amonth's time from the date of receipt of copy of this judgment to makesuch a representation before the first respondent. In case the secondpetitioner makes such representation before the first respondent withinthe above stipulated time, the first respondent shall reconsider the issueregarding the regularization of the period in question as on duty and alsoconsider the entitlement of the second petitioner for pension after WP(C).No.8940/20067reckoning that period as well and also for the other benefits flowing froma favourable decision. Such a decision shall be taken by the firstrespondent expeditiously, at any rate, within a period of three monthsfrom the date of receipt of the representation from the second petitioner.It is made clear that even in case of failure on the part of the secondpetitioner to file such a representation despite the expiry of thestipulated time fresh decision shall be taken on the matter afterconsidering the contentions in Exts.P9, P10 and P11.The writ petition is disposed of accordingly. Sd/- C.T.RAVIKUMAR JudgeTKS