Tirath Dutt v. Financial Commissioner & Principal Secretary & Ors.

Mr. Pardeep Solath, Advocate for respondent No.2. Rakesh Kumar Garg, J.(Oral) Petitioner-Tirath Dutt (since deceased) while serving the respondent-Bank was incapacitated due to his illness and in spite of the opinion of the medical Board, the respondents failed to pass an order under Section 47 of The persons with Disabilities (Equal Opportunities, Protection of Rights and Availability Participation) Act, 1995. Neither the petitioner was paid the salary w.e.f 26.9.2008 ( the date when he was declared incapacitated by the PGI, Rohtak) nor he was adjusted against any other post suitable in his circumstances. The petitioner filed the instant writ petition seeking a mandamus directing the respondents to release his complete salary w.e.f. June, 2008 and other benefits. It may be further noticed that during the pendency of this writ petition, petitioner-Tirath Dutt died on 4.12.2011 and thereafter, the present writ petition is being pursued by his LRs. CWP No.14138 of 2011 2 Upon notice, separate replies have been filed on behalf of respondents No.1 and 2. In the reply filed on behalf of respondent No.2, the following averments have been made: “That the present writ petition has become infructuous as the relief claimed in the writ petition is already granted to the legal heirs of the petitioner (Sh. Tirath Dutt). The petitioner has filed the present writ petition with a prayer of writ in a nature of mandamus for issuance of directions to follow the provisions of “The Persons with Disabilities (Equal Opportunities, Protection of Rights and Availability Participation) Act, 1995 and consequently for releasing the complete salary since 17.08.2008. The petitioner Sh. Tirath Dutt was declared unfit for further service as Secretary Grade 'B' in the office of answering respondent by the Special Medical Board, PGIMS, Rohtak vide report dated 26.09.2008. the petitioner did not attend his duties thereafter of his own and submitted an application dated

27.11.2008 for giving an appointment to his son on his behalf. As per the Rule 15 of the Haryana State Central Cooperative Banks Staff Service (Common Cadre) Rules, 1975, when any employee becomes incapacitated the answering CWP No.14138 of 2011 3 respondent can retire him after taking opinion of the Medical Officer to this effect. The relevant Rule 15 (iii & iv) is reproduced as under:- (iii) Nothing contained in clause (i) or (ii) supra shall affect the right of the Board to require an employee to retire on his being incapacitated for further continuance in service due to illness or otherwise. Provided that, before acting under this clause, the Board shall obtain opinion from the Medical Officer to this effect and give a reasonable opportunity to the employee to explain his case. (iv) An employee can get retirement on medical grounds after the completion of at least 15 years of service. For this purpose the medical certificate shall be issued by a Medical Officer/Senior Medical Officer of a Civil Hospital. There is no provision of ex-gratia appointment in event of an employee become incapacitated. The request of the petitioner was considered by the Board of Directors in its meeting dated 13.01.2010 vide resolution No.16 and advice was sought by the answering respondent from the Registrar Cooperative Societies, Panchkula (Respondent No.3) in this regard vide letter bearing memo No.Estt.15099 dated 05.02.2010. Upon receiving no response from the respondent No.3, reminder bearing memo No.Estt./3015 dated 05.06.2010, memo No.Estt./9565 dated

28.10.2010 and memo No.Estt./14646 dated 10.02.2011 were sent to the respondent No.3 by the answering respondent. The respondent No.3 further sought CWP No.14138 of 2011 4 advice from the respondent No.1 vide letter No.7/15/06/C-3/1238 dated 13.04.2010, reminder No.7/15/06/C-3/937 dated 14.03.2011 and No.7/15/06/C-3/1623 dated 30.05.2011. Finally, the respondent No.1 vide letter bearing memo No.1354-C-7-2011/14369 dated 19.10.2011 advised the respondent No.2 to consider the case under Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Availability Participation) Act,

1995. The respondent No.3 vide letter bearing memo No.7/15/2006 (Misc.)/C-3/11589 dated 22.11.2011 advised the answering respondent to consider the case, in view of the letter dated 19.10.2011 issued by the respondent No.1. In this manner, the answering respondent left no stone unturned to decide the case of the petitioner Sh. Tirath Dutt expeditiously. There is no provision of ex-gratia appointment under Section 47 of The Persons with Disabilities (Equal Opportunities, Protection of Rights and Availability Participation) Act, 1995, except to retire the petitioner honorably. That unfortunately, the petitioner expired on

04.12.2011 during the pendency of the present writ petition. The Board of Directors of the answering respondent vide resolution No.5 dated

17.12.2011 resolved that the complete salary and CWP No.14138 of 2011 5 other benefits be released to the legal heirs of the petitioner for the period from 17.09.2008 to

04.12.2011. The total salary for the said period i.e. Rs.6,42,221/- was sanctioned on 06.02.2012. The total benefits released to the petitioner are as under:- i). Salary from 17.09.2008 to 04.12.2011 = Rs.6,46,221 ii). Gratuity from Bank = Rs.1,01,672 iii). Ex-Gratia from Bank = Rs. 25,000 iv). Previous service 1.1.79 to 14.11.2K Gratuity Rs.176231+L/encash Rs.71560) = Rs.2,47,791 TOTAL = Rs.10,20,684 That the answering respondent always dealt the applications of petitioner immediately with full care and caution. The petitioner never attended the office after 17.09.2008 and no payment for the period 17.09.2008 to 04.12.2011 is pending as on today. The case of the petitioner for Financial Assistance on compensate grounds under the latest policy of Haryana Govt. to the dependent of deceased employee is already approved by the Board of Directors vide resolution No.22 dated

13.03.2012. However, as all the legal heirs of the deceased employee Sh. Tirath Dutt are above aged 25 years and complete salary under Sec. 47 of The Persons with Disabilities (Equal CWP No.14138 of 2011 6 Opportunities, Protection of Rights and Availability Participation) Act, 1995 is already granted to the legal heirs of the deceased, therefore, a clarification is sought by the answering respondent in this regard. Letter bearing memo No.Estt./10 dated 03.04.2012, reminders no.890 dated 02.05.2012 and 3962 dated 16.07.2012 are already written by the answering respondent to the respondent No.3. However, the response is still awaited from Respondent No.3. The answering respondent has full sympathy with the legal heirs of the deceased employee Sh. Tirath Dutt, however, there is no intentional or deliberate delay on the part of the answering respondent No.2.” In view of the aforesaid averments made before this Court, counsel appearing on behalf of the petitioner could not dispute the fact that relief as claimed in the writ petition has been given to the LRs. However, counsel for the petitioner has argued that amount of that salary of the petitioner has been released after a considerable delay without any fault on his part and therefore, the petitioners are entitled to interest on the same. However, a perusal of the writ petition would show that there is no such prayer made in the writ petition. After considering the facts and circumstances of the case, this petition is ordered to be dismissed having become infructuous with the observations that the LRs of the petitioner are at liberty to represent the CWP No.14138 of 2011 7 respondents within one month from today for payment of interest for the alleged delay in release of the salary of Tirath Dutt-petitioner (since deceased). If any such representation is filed, the same shall be decided by the respondents within two months thereafter in accordance with law. October 04, 2012 (RAKESH KUMAR GARG) JUDGE