JANAT BEGUM Vs. ASGAR HASSAN SAMOON

JUDGEMENT

(1.) Case of the petitioner Nos. 1 and 2, as outlined in the instant contempt petition is that they respectively are wife and Khanna-Nisheen daughter of the deceased namely Lassa Malla alias Gh. Rasool, who was working in the Sericulture Department initially as daily wager but later his services regularized as Helper w.e.f. 1/4/1994. Being illiterate, his age was assessed as 38 years as on 3/7/1995 and the certificate issued in this regard by Health Officer, Baramulla. His date of birth was recorded as 3/7/1967 in the service book. It is pleaded that on a complaint a case FIR No.36/1996 was registered against the deceased in P/S VOK on the allegation that he had managed a fraudulent date of birth certificate, accordingly was disbanded from the services and his pay was stopped from August, 1999. A challan was filed before the court of Additional District & Sessions Judge, Anticorruption, Srinagar, however, during the trial of the case he i.e., Lassa Malla expired. It is further pleaded that the respondents were under legal obligation to sanction and release all the pensionary benefits including service benefits in favour of the petitioners, being the legal heirs of the deceased Lassa Malla.

(2.) The petitioners approached the Court through the medium of the SWP No. 1805/2009 praying therein the following reliefs:-

(3.) Learned writ court, while considering all the aspects of the case has observed that ,,admittedly during the life time of the deceased employee, no departmental enquiry was ever initiated against him and even no termination order is available on the record, which is sufficient to show that Shri Ghulam Rasool Malla, the deceased employee, continued in service till he passed away on 2/7/2009. Since no enquiry was conducted to ascertain the actual DOB of the deceased employee to establish the misconduct, if any committed by him, he would be deemed to have remained in active service till his death on the basis of DOB recorded in his service records. The criminal case pending against him, having abated, would not affect the rights of the petitioners to receive all the service benefits of the deceased employee to which they would be found entitled to in accordance with the rules by treating late Shri Lassa Malla, alias Ghulam Rasool (deceased employee), to have died in harness. The termination order has neither been communicated nor served on the deceased employee but even if it would have been issued, it would be rendered inconsequential because an order takes effect only when it is communicated or served. In this case termination order is not even available on the official records. In this factual background, it can be safely concluded that the deceased employee was never terminated from services, therefore, claim of the petitioners for grant of service benefits in the facts and the circumstances of this case, has to be considered by the respondents.