Ashwani Kumar vs State Of Punjab & Ors on 28 August, 2017

CWP No.19238 of 2017 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.

CWP No.19238 of 2017
Date of Decision: 28.08.2017

Ashwani Kumar ….Petitioner

Versus

State of Punjab and others ….Respondents

BEFORE :- HON’BLE MRS. JUSTICE DAYA CHAUDHARY

Present:- Ms. Monika Sharma, Advocate
for the petitioner.

*****

DAYA CHAUDHARY, J.

Prayer in the present petition is for quashing of impugned order

dated 09.02.2016 (Annexure P-11), whereby, the services of the petitioner

have been terminated. A further prayer has also been made for issuance of a

direction to the respondents to consider the case of the petitioner for

appointment on compassionate ground.

Briefly, the facts of the case, as made out in the present

petition, are that the father of the petitioner was working as Safai Sewak

with respondent No.3 i.e Rajindra Hospital, Patiala. He expired on

26.08.2005 during his service, whereafter, the petitioner applied for

appointment on compassionate ground. After completing all the formalities,

the petitioner was appointed on compassionate ground vide appointment

letter dated 27.02.2006. Thereafter, in the month of May, 2006, the

appointment of the petitioner was challenged by some un-known person by

filing a complaint, wherein it was alleged that the mother of the petitioner

has filed a false affidavit stating therein that she was unemployed, whereas,

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she was working as safai sewak in Municipal Corporation, Patiala.

However, on the basis of said complaint, a show cause notice was issued to

the petitioner on 11.05.2006. Reply to the show cause notice was filed by

the petitioner, which was not found to be satisfactory, whereafter, an inquiry

was conducted by the inquiry committee. The report was submitted wherein

the allegations levelled against the petitioner were proved to be correct,

relying upon which order of termination dated 28.02.2007 was passed. The

petitioner filed a civil suit in District Court, Patiala challenging the order of

termination dated 28.02.2007. The order of termination was set aside by the

Civil Court by observing that no opportunity of hearing was given to the

petitioner before passing the order of termination and was pleased to grant

respondents an opportunity to proceed afresh against the present petitioner

and thereafter to take action in accordance with law. The claim of the

petitioner was reconsidered and thereafter, vide order dated 09.02.2016, it

was observed that the petitioner obtained job on compassionate ground by

producing wrong facts/documents, which amounted to misconduct and the

order of dispensing the petitioner from service on 28.02.2007 was found

appropriate in all respects.

Said order dated 09.02.2016, whereby, the services of the

petitioner have been terminated, is subject matter of challenge in the present

petition.

Learned counsel for the petitioner submits that the mother of

the petitioner was illiterate and it was wrongly mentioned in the affidavit

that she was not employed. The mistake was inadvertent and it was never

the intention to conceal anything from the respondent-department. Learned

counsel also submits that the mother of the petitioner was getting meager

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salary and the petitioner, being dependent upon income of his father, was

rightly appointed on compassionate ground.

Heard the arguments of learned counsel for the petitioner and

have also perused the impugned order dated 09.02.2016 as well as other

documents on the file.

Facts relating to death of father of the petitioner and

appointment of the petitioner after the death of his father are not disputed.

The services of the petitioner were terminated on the ground

that a wrong and false affidavit was filed by the petitioner stating therein

that his mother was un-employed, whereas, she was working as safai sewak

in Municipal Corporation, Patiala. Said fact came to the notice of the

respondent-authorities from the complaint made by some stranger and

inquiry was conducted, wherein, the allegations were found to be proved.

On the basis of report submitted by the inquiry committee, the order of

termination dated 28.02.2007 was passed. Said order was challenged by the

petitioner in a civil suit and thereafter, the suit was decreed with a direction

to the respondents to give an opportunity of hearing before taking action.

Thereafter, the petitioner was given opportunity by issuing show cause

notice dated 09.12.2015 and reply thereof was also filed by the petitioner.

The respondent considered the reply and inquiry report and passed order

dated 09.02.2016 by observing that the mother of the petitioner was serving

in Municipal Corporation, Patiala, whereas, an affidavit was filed that she

was unemployed. In the affidavit, it was mentioned that all family members

are unemployed and an undertaking was also given that in case, any of the

facts were found to be wrong, then his services be terminated. The facts and

affidavit were found to be false and by holding that the petitioner has

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obtained job by mentioning wrong facts/documents and by considering the

inquiry report, after giving adequate opportunity of hearing, the impugned

order of termination of service was passed.

Under similar circumstances, petitioner-Daljit Kaur was

appointed on compassionate ground by mentioning that none of her family

member was employed. Subsequently, it was found that wrong averment

was made. The writ petition filed by petitioner-Daljit Kaur was dismissed

by relying upon clause (4) of circular dated 20.01.1987 and para No.21(ii)

and (iii) of Life Insurance Corporations Instruction of 1979 and 1993.

Relevant portion of judgment of this Court in case Daljit Kaur vs Life

Insurance Corporation of India 1995(6) SLR 115 is reproduced as under :-

“A perusal of the above quoted provisions clearly
show that the general rules governing recruitment of
Class II and Class IV Staff can be relaxed for giving
appointment on compassionate grounds only where a
member of the family of the deceased is not gainfully
employed.

Letter, dated 20.1.1987 cleared the doubt, if any, was
there in para No.22(iii) of the Instructions. Use of
expression “relaxation shall be admissible only where
none of the members of the family is gainfully
employed” is clearly indicative of the intentions of the
authorities which issued the instructions, namely, that
appointment on compassionate grounds should be given
only where other member of the family of the deceased is
not gainfully employed. These instructions have been
framed with the object of providing source of
sustenance/livelihood to the family of the deceased
employee of the Corporation where no one else in the
family is gainfully employed. In other words, if some one
is gainfully employed, another member of the family of

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the deceased cannot get benefit of these instructions. If
the rule making authority had intended that one member
of the family of the deceased should get appointment on
compassionate grounds without any restriction, there
was little occasion for it to have incorporated the
conditions stated above. In our considered opinion,
where one member of the family of the deceased
employee of the Corporation is gainfully employed,
another member of his family cannot seek employment
on compassionate grounds.

5. Argument of the learned counsel for the petitioner
that Maninder Singh, son of Shri Suninder Singh
Khurana is living separately and, therefore, he cannot
be treated as a dependent of late Shri Suninder Singh
nor the family can be treated as dependent on him does
not cut any ice. Plain and unambiguous language used
in the instructions of 1979 and 1993 do not use the word
“dependent”. Absence of this words goes to show that
even if a member of a family is not discharging his
moral obligation, though he is gainfully employed, the
Corporation is not under obligation to give employment
to another member of the family.

For the reasons aforesaid, we do not find any merit in
the writ petition, which we hereby dismiss. No costs.
Petition dismissed.”

In another judgment of Allahabad High Court in case

Smt. Sunita Singh Kushwaha vs State of U.P and 3 others 2016(10) ADJ

402, petitioner-Sunita Singh was married daughter of deceased. She cooked

up the story to obtain government employment. No documents indicating

dependency of the petitioner and her children upon the deceased employee

was filed. The petition filed by said Sunita Singh was dismissed on the

ground that the writ petition was based on false and misleading averments

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and suppression of important facts. In said case, the mother of the petitioner

died on 31.10.2014 and thereafter, a divorce petition was filed by her

husband on 28.11.2014. Nothing was brought on record about the status of

the aforesaid alleged divorce petition. It was mentioned that the petitioner

along with her son and daughter was living with the deceased employee and

were fully dependent upon her mother. No document indicating dependency

of the petitioner and her children on the deceased employee was filed. Even

no document of address proof was filed with the writ petition. By finding

the facts to be false, the writ petition was dismissed on the ground that the

petitioner had cooked up the entire story so as to obtain illegally the

Government employment on compassionate ground without actually being

dependent upon the deceased government employee. The writ petition was

based on false and misleading averments and suppression of important facts

and was ultimately dismissed.

In another judgment of Calcutta High Court in case Vice

Chancellor, Jadavpur University and another vs Jolly Dey Bose and

others 2015(27) S.C.T. 161, the petitioner was also appointed on the basis

of false averments. In that case, the application was moved by married

daughter of deceased employee for compassionate appointment but the

same was not considered. Thereafter, she filed a writ petition, wherein, it

was mentioned that she was residing in her father’s house as one of his

dependent. She had also stated therein that she was in dire need of

compassionate appointment to tide over the sudden financial crises. A story

was made up by the claimant petitioner in that case that she was a deserted

wife and was financially dependent upon her deceased father. The writ

petition filed by the petitioner, in that case, was allowed by the Single

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Bench on the ground that the writ petitioner should not be deprived of an

appointment on compassionate ground. A direction was issued by learned

Single Judge to grant compassionate appointment to the writ petitioner after

proper verification of her status within a period of three months. Said order

passed by learned Single Bench was challenged before the Division Bench.

The Division Bench by relying upon the judgment of Hon’ble the Apex

Court as well as judgment of Division Bench in case Durgapur Project

Limited vs Kumari Purnima Bhui 2013(2) CHN 576 has held that when

the policy excludes the married daughter, it is not for the Court to substitute

the policy. It was found that a false story was concocted for securing

compassionate appointment and the writ petition was dismissed.

The Division Bench of Patna High Court in case Niranjan

Kumar vs State of Bihar and others 2009(121) FLR 705 has held that an

attempt was made to obtain favourable order from the writ Court by making

false statement and by producing forged document. It was held that such

person deserves to be prosecuted for his act and the appeal filed by the

appellant was dismissed with cost.

The judgment of Calcutta High Court in case Uttam Kumar

Biswas vs State of West Bengal 2003(1) SLR 586 is also relevant for

decision in the present case. The writ petition filed by the petitioner was

dismissed on the ground that the petitioner has got appointment either by

forging the documents or by misleading the appointing authority or by

influencing the persons for a post in which he had even minimum academic

qualification and that too when he was minor at the time of appointment.

It has been held in various judgments of Hon’ble the Apex

Court as well as of this Court that in case of misrepresentation, concealment

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of facts and when a fraud has been played with the respondent-department,

even no opportunity of hearing is required to be given.

Hon’ble the Apex Court in case Krishna Hare Gaur vs Vinod

Kumar Tyagi and others 2015(11) SCC 355 has cancelled the appointment

as respondent No.1 had obtained appointment on the basis of bogus

certificate. It was contended that no opportunity of hearing was given,

however, it was held that in such like cases, no opportunity is required to be

given.

The Division Bench of this Court in case Jiwan Dass Sethi vs

State of Punjab 1999(2) PLR 449 has held that the petitioner must

approach with clean hands and disclose all facts relating to the case. In case,

the conduct depicts anything misleading to the Court or deliberate

concealment of facts, the petition is liable to be dismissed with special

costs.

In the present case, the petitioner obtained the appointment on

compassionate ground by mentioning wrong facts in the affidavit that all his

family members are unemployed, whereas, his mother was working and has

mislead the authorities. Even an undertaking was given by the petitioner

himself that in case, the facts or any documents were found to be

wrong/incorrect, then his appointment be cancelled. The facts were found to

be false that all family members of the petitioner were unemployed,

whereas, his mother was working and thereafter, the impugned order of

termination of service was passed after giving adequate opportunity of

hearing.

In view of the above, there is no merit in the contentions raised

by learned counsel for the petitioner and the petition, being devoid of any

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merit, is hereby dismissed.

(DAYA CHAUDHARY)
28.08.2017 JUDGE
gurpreet

Whether speaking/reasoned Yes/No

Whether Reportable Yes/No

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