1. Faisal Zaman Khan, J:- Through this petition order dated 30.05.2014 passed by respondent No.2 (Impugned order) has been assailed, by virtue of which petitioner has been deprived of service benefits of her deceased husband.
2. 2.Succinctly, the facts of the case are that the husband of the petitioner (Israr Ahmad Khan) while working as Senior Commercial Assistant (Parcel), Railway Station, Lahore was issued a show cause notice under the Removal from Service (Special Powers) Ordinance, 2000 (Ordinance) on 01.02.2002; vide order dated 21.08.2002 major penalty of dismissal from service was imposed upon him w.e.f. 06.08.2002. Subsequent thereto, petitioner moved an application before respondent No.2 for grant of service benefits of her husband on the ground that her husband expired on 20.08.2002, whereas, the penalty was foisted on him on 21.08.2002 i.e. one day after his death, therefore, the said order was not sustainable and she cannot be deprived of the service benefits of her deceased husband. Since, the application of the petitioner was kept pending, she filed W.P.No.10406/2014, in which on 17.04.2014 a direction was issued to respondent No.2 to decide the same, whereupon impugned order was passed through which claim of the petitioner was declined, hence, this petition.
3. 3.Learned counsel for the petitioner submits that since the order of imposition of major penalty was passed against the husband of the petitioner that too after his death, therefore, disciplinary proceedings initiated against him stood abated and in the attending circumstances, petitioner is entitled to service benefits of her husband.
4. 4.Conversely, learned counsel for respondents submits that since the deceased was involved in embezzlement, whereupon, disciplinary proceedings were initiated against him and he was awarded major penalty that too retrospectively (from 06.08.2002), therefore, petitioner is not entitled to receive any benefits. Further submits that if the petitioner has any grievance, she can approach the civil court of competent jurisdiction for the redressal of the same.
5. 5.Arguments heard. Record perused.
6. 6.The all-important question which requires determination by this Court is whether with the death of an employee/civil servant, prior to culmination of disciplinary proceedings, the said proceedings stood abated or else penalty could be imposed on him posthumously.
7. 7.While discussing an identical proposition Jharkhand High Court in case titled Jayanti Devi v. State of Behar and Ors. reported as (2001 (49) BLJR 2179) has held as follows: "8 It is well settled that a departmental proceeding can be initiated against the government servant for the purpose of imposing penalty if misconduct is established. The imposition of penalty like dismissal or removal has nexus to the contract of service. The proceeding therefore automatically lapse or terminated by reason of death of delinquent employee unless otherwise it is continued in accordance with rules.
8. A Division Bench of the Bombay High Court in the case of Hirabai Deshmukh and Anr. v. State of Maharashtra reported as (1986 Lab IC 248) has held as follows: "The provisions with regard to dismissal, removal and suspension of the civil servant do not permit holding of any further enquiry into the conduct of such a civil servant after his death. Such proceedings are intended to impose departmental penalty and would abate by reason of the death of civil servant. The purpose of proceedings is to impose penalty, if misconduct is established against the civil servant. That can only be achieved if the civil servant continues to be in service. Upon broader view the proceedings are quasi-criminal in the sense it can result in fault finding and further imposition of penalty. The character of such proceedings has to be treated as quasi-judicial for this purpose. In the light of the character of proceedings and the nature of penalty like dismissal or removal, or any other penalties, minor or major, it has nexus to the contract of service.
9. Therefore, if the person who has undertaken that contract is not available, it should follow that no proceedings can continue. Thus when the proceedings are quite personal in relation to such a contract of service, the same should terminate upon death of the delinquent. By reason of death, such proceedings would terminate and abate. We think that such a result is also inferable from the provisions of Rule 152-B of the Bombay Civil Services Rules."
10. In the case of M. Mayakal v. District Forest Officer, Mudurai division, Mudurai (Madras) reported as (2010(2)
11. SLR 275:2009 LIC 802), Madras High Court has held as follows: "22. Going by the sequence of events and having regard to the fact that there is an omission on the part of the respondent in considering the further representation of the deceased Government servant, the possibility of an order being written by the disciplinary authority on coming to know the death of the husband of the petitioner on 31st May, 1995 and retaining the same in the file cannot be ruled out. Therefore, the impugned order of removal cannot be said to have come into force, without due and proper communication to the Government servant.
12. Therefore, the disciplinary proceedings initiated against the petitioner's husband cannot be said to have reached its finality and consequently, it would stand abated consequent to the death of the Government servant."
13. In the case of Manoj Kumar v. Central Coal Field Limited Ranchi etc. Jharkhand High Court at Ranchi in W.P.
(S) 2991 of 2014 has held as follows: "11. In view of the aforesaid legal position, I have no hesitation in holding that after the death of the petitioner's father on 16.08.2013, the departmental proceeding initiated against him has automatically terminated and/or abated, in that circumstance, any subsequent action of the Inquiry Officer or Disciplinary Officer in the said proceeding is illegal and non-est in the eye of law. I further hold that since on the date of the death of the petitioner's father no punishment awarded against him, therefore, it would be deemed that he died in harness.
14. Consequently, his dependents including the petitioner are entitled to get all the benefit available under Rule of the company and the company is liable to give such benefit to the petitioner, including the appointment as per Clause 9.3 of the National Coal Wage Agreement (N.C.W.A.).
15. 8.From the aforenoted it is clear and obvious that disciplinary proceedings can only be initiated against an employee for his nonperformance or ill-performance of his duties, as a corollary to which if he is found guilty, he is burdened with the penalties which are provided in the respective statue/s under which he has been proceeded with. From the above it is also manifest that penalty can only be imposed on an employee who is alive and in service of an organization/department.
16. 9.It has repeatedly been held by the Honourable Supreme Court of Pakistan as well as the other Honourable High Courts that disciplinary proceedings initiated against an employee abate with his retirement. For reference reliance can be placed on Chief Secretary, Government of Punjab and others v. Ch. Iftikhar Ahmad (2013 SCMR 392), Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others (2010 SCMR 1554), Roshan Dani and 11 others v. WAPDA through Chairman and 3 others {2015 PLC (CS)
17. 263}, Rashida Qadir v. Government of the Punjab through Chief Secretary, Civil Secretariat, Lahore and 4 others {2005 PLC (CS) 538}, Syed Abdus Salam Kazmi v. Managing Director, WASA, Multan and another {2005 PLC (CS) 244}, Noor Ahmad Shah v. Government of N.W.F.P. through Secretary Education and 5 others {2003 PLC (CS) 1400} and Muhammad Anwar Bajwa, Executive Director, Agricultural Development Bank of Pakistan, 1-Faisal Avenue, Zero Point, Islamabad v. Chairman, Agricultural Development Bank of Pakistan, Faisal Avenue, Zero Point, Islamabad {2001 PLC (CS) 336}. An exception to the aforenoted rule has been created in section 21 of the Punjab Employees Efficiency, Discipline and Accountability Act 2006, wherein, it has been specified/clarified that disciplinary proceedings initiated against an employee under the Act will continue inspite of the retirement of the employee, however, it has to be completed within a period of 2 years of his retirement.
18. 10.A resume of the above judgments would bring me to the conclusion that an employee, who stood superannuated or who has expired during the pendency of disciplinary proceedings, the proceedings will abate with the said happening.
19. 11.Keeping the aforenoted in view, it is manifest that husband of the petitioner during the pendency of the inquiry proceedings expired on 20.08.2002 whereafter on 21.08.2002 (after his demise) an order was passed by the respondents in the said proceedings imposing major penalty of dismissal from service making it applicable retrospectively (made applicable from 06.08.2002). It is but for obvious that with his death he no more remained to be the employee of the respondents against whom disciplinary proceedings could continue or penalty could be imposed.
20. 12.In the attending circumstances, this Court is of the view that with the demise of the husband of the petitioner, disciplinary proceedings initiated against him stood abated and the respondent department was divested of the jurisdiction from imposing any penalty on its deceased employee. It is also clear from the tenor of order of imposition of penalty that respondents were conscious of the fact that disciplinary proceedings have abated and they could not impose the penalty, however, they deliberately made the said order/penalty applicable from a retrospective date (06.08.2002) for which no explanation has been given. They lost sight of the fact that once the employee against whom disciplinary proceedings were initiated had expired and with his demise he no more remains to be in service, therefore, against whom they will implement the penalty so awarded? Moreover, there is nothing on the record to show that the said order was ever communicated, which further fortifies the view that with death proceedings stood abated.
21. 13.As regard the maintainability of present petition, since facts are admitted by the parties and payment of pensionary benefits to the legal heirs of the deceased employee is involved, therefore, in view of judgment of the Honourable Apex Court reported as Chief Secretary, Government of Punjab and others v. Ch. Iftikhar Ahmad (2013 SCMR 392), this petition is maintainable.
22. 14.The upshot of the above discussion is that this petition is accepted. Since, the order dated 21.08.2002 passed by the respondent department by virtue of which major penalty of dismissal from service was awarded to the husband of the petitioner was coram non judice and without jurisdiction, therefore, the impugned order cannot sustain, hence, the same is set-aside. Respondents are directed to pay all service benefits of the husband of the petitioner to the petitioner within a period of one month of the receipt of certified copy of this judgment.