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Thread Started by #Hema sarathy

Sir/ madam, A Government employee had a punishment- stoppage of two years increment with cumulative effect. After stop the first increment he died, so we cannot stop the second increment. In this stage, we can calculate the balance punishment amount and recovered from the family before giving the pension or not. If not recovered from the family please give me the government order/ or any other judgement order.
Thank you,
3rd May 2017 From India, Chennai
Dear Hema,

What you have asked is a horrible! I am appalled at your query.

Punishment is executed till the death of the employee. Employee gets terminal benefits based on the last drawn pay. It appears that you have not understood why punishments are awarded to the employee. Punishments are given to correct the behaviour and monetary deductions are not done to recover some amount. Forfeiture of the wages is expected to give financial pinch to the employee and this pinch is expected to reform the behaviour of the defaulter.

Since you have not apprised yourself with the principles of justice, your focus is on recovery of the amount rather than punishment itself. Your query is akin to hanging dead body of a convict who is awarded capital punishment but dies while serving jail term (before his execution). Please note that India is a democratic sovereign republic and principles of natural justice are of paramount importance. Decisions are not guided by vindictiveness, malfeasance or whims of the ruler.

If the employee was awarded some penalty or fine and before recovery of the penalty, if the employee had died, it would have been proper to deduct the penalty amount from the terminal benefits. In this case, death does not diminish the liabilities. However, in your case, the annual increment of the employee was stopped for two years. After the death of the employee, he will not be on the rolls of the company, even then also how can you hold him liable to pay to your company? If your formula of continuation of punishment after death is applied then rather than dead employee, his kith or kin (nominees) will be punished. What type of jurisprudence will it be?

Your query shows that psychological trait call empathy is missing in you. This could be detrimental for your career growth or in personal life as well!

Thanks,

Dinesh Divekar
3rd May 2017 From India, Bangalore
Suppose, your organization if had rewarded this person in cash and kind both . Would you like to repeat after he is no more? Regds,
4th May 2017 From India, Delhi
Thank you sir,
Here I explaining the case, A tamilnadu government employee (Mr.x) joined in job on 14.12.1991as junior assistant and he got a promotion as assistant at 1997 onwards. And then he got a 17(b)chargers for patta transfer and then get a punishment - stoppage of two years increment with cumulative effect on 13.08.2014. His annual increment is every January.
we can stop the 01.01.2015 increment and Mr.x died on 24.05.2015, so we cannot stop the second increment(01.01.2016), in this stage we calculate the balance punishment amount i.e, 25.05.2015 to 31.12.2016 and recovery from their family or not.
If not recovery from the family please give me the government order or any other tamilnadu judgement copy for this. So that i can help those family.
Because of this clarification, they cannot send the pension proposal.
Thank you,
4th May 2017 From India, Chennai
Dear Hema,

I do not belong to the state of Tamil Nadu therefore, it will be difficult for me to provide any Government Order or case law to this effect. Nevertheless, after the death of the employee once the employee's disbursal of the salary itself is stopped then where is the question of the recovery of future dues. This is ridiculous.

As I have written in the post of citehr, the dead employee's terminal benefits will be calculated based on his last drawn salary.

I recommend wife or nominee of the dead employee to put up application to the senior authority of his office. If they remain intractable then he/she may approach Secretary, Ministry of Labour, Govt of Tamil Nadu.

Take the case of former Chief Minister of Tamil Nadu. In the Disproportionate Asset (DA) case, she was found guilty. However, before verdict of the court, she died. However, since she was died, court has not awarded any monetary punishment. Supreme Court came down heavily for amassing illegal wealth but court just stopped at that. I have given this example for you only and do not give example to government officials.

Thanks,

Dinesh Divekar
4th May 2017 From India, Bangalore
The question of Stoppage of Increment arises had Employee worked & Earned Salary.Since Employee deceased, the question of stoppage of increment does not arise.Your idea of recovering same from Family/Legal heirs is devoid of Logic & not tenable legally.Deceased Employee pension to be settled based on his Last Drawn Salary.is it a Hypothetical question or Specific question? i will suggest for the sake of argument only "please pay 1 year Salary to Deceased Employees Salary" & recover your proposed balance Punishment Amount, is it OK? Please release Pension without waiting.Please revert with your positive action for information of all concerned
4th May 2017 From India, New Delhi
Dear Hema,

The query raised by you has been attempted to be answered by senior members of citehr, but it appears that you are not satisfied, hence further clarification is being given by me as under:

2. According to your statement, penalty of stoppage of two annual increments with cumulative effect was imposed upon an employee on 13.08.2014. You could stop only one increment on 01.01.2015, and subsequently the employee died on 24.05.2015. Hence, the second increment could not be stopped.

3. Your question is whether at this stage, you can calculate the balance punishment amount and recover it from the family before giving the pension or not. If not recoverable from the family, you have asked for the government order/ or any other judgement order, to this effect.

4. Regarding your query it may be noted that Government cannot implement the penalty order beyond the date of death, because the disciplinary proceedings stand abated on the date of death of the employee. this is the Fundamental Rule. Decision on this subject i.e. abatement of disciplinary proceedings are available in Swamy's FR-SR compilation, as well as specified in Vigilance Manual of CVC. Since, the disciplinary proceedings stand abated on the date of death, therefore second increment cannot be stopped.

5. Further be informed that recovery of equivalent amount of stoppage of one annual increment can not be made from either from the pension or from the family of the deceased, because stoppage of increment does not come under the category of government dues. Only the government dues can be recovered from the terminal benefits i.e. gratuity or leave encashment.

6. Please note that penalty order did not impose punishment of recovery of any financial loss caused to government. Therefore, this case does not fall under the category of recovery of government dues

7. In case you are still not satisfied, please refer your case file to Legal Section of your department for advice.

for any further opinion/query you may contact at

Mobile no. 09818680671

Regards

C.M. Lal
4th May 2017 From India, New Delhi
Recently, the Supreme Court of India decided in the case against former CM of TN Ms Jayalalitha as Accused No.1. At the time of judgement, since the former CM passed away due to illness, even the recover of 100 Crores has been stopped despite Govt of Karnataka appealing against it. Please do take interest in reading newspapers and get general knowledge from the newspapers. This is good enough precedence to sort out your case.
Best wishes
5th May 2017 From India
Hema,
which post do you hold? Is it your senior who is insisting for recovery or is it you? Your language has so many mistakes, therefore I was forced to ask.
Your query has already been answered nicely here. With death, all personal penalties come to an end- ethically, morally, financially, legally.
Damages done to the company are also not recovered with formal competent orders of the authority.
So just got curious, whose idea is it to recover?
Neela Prasad, Chief Manager( HR)
5th May 2017 From India, Delhi
Thank you so much sir,
Former TN CM Ms Jayalalitha died before the judgement it is ok,
But in this case the employee died after half execution of punishment. so that till now i get confused
as per the Government order 113, dated 02.08.2006, we should recovered the monetary benefit value before the employee get the pension (they do not mention either VRS ,retirement or family pension)
date of death the abatement of disciplinary proceedings in fundamental rule but i didn't get that, So that i am asking any government order or the FR rules you have please give me
Thanks sir,
5th May 2017 From India, Chennai
Dear Hema,
May be I am junior than you in the field of HR but then also would like to suggest you that rather asking for any proof to solve your query you should read the Principle of natural justice.
Regards,
Tejas.
5th May 2017 From India, Delhi
I think the matter should be examined under the provisions of the TN Govt.Pension Rules read with the Constitutional validity. The link is here.

http://cms.tn.gov.in/sites/default/f...Tn.pension.pdf.

Whereas the right to pension vide SC judgment .. CIVIL APPEAL NO. 6770 OF 2013 (Arising out of Special Leave Petition (Civil) No. 1427 of 2009 may be relevant. Full text Could not be attached due to its volume.

xxxxx

" 13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even when, after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution vide Constitution (Forty Fourth Amendment) Act, 1978 w.e.f. 20th June, 1979, the right to property

14

Page 15

C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009

was no longer remained a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. Right to receive pension was treated as right to property. Otherwise, challenge in that case was to the vires of Rule 10(1) of the West Bengal Services (Death-cum-Retirement Benefit) Rules, 1971 which conferred the right upon the Governor to withhold or withdraw a pension or any part thereof under certain circumstances and the said challenge was repelled by this Court. Fact remains that there is an imprimatur to the legal principle that the right to receive pension is recognized as a right in “property”.

14. Article 300 A of the Constitution of India reads as under:

“300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law.”

Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.

15

Page 16

C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009

15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as “law” within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. As we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.

16. We, accordingly, find that there is no merit in the instant appeals as the impugned order of the High Court is without blemish. Accordingly, these appeals are dismissed with costs quantified at Rs. 10,000/- each.

……………………….J. [K.S. Radhakrishnan]

………………………….J. [A.K. Sikri]

New Delhi August 14, 2013......

This judgment gives some lead as to how a pension cannot be withheld (or recovered) except as per law, not by the administrative orders issued by the state/central govt. as the pensionary benefits are considered as 'right to property' guaranteed under the Constitution of India under Article 300 A. May be if the employer file a suit to recover the residual sum and if the appropriate court pass a judgment in favour of the recovery, it may be possible which is unlikely.

I may be wrong or right, just for arguement sake, here the punishment is 'to recover from the employee's emoluments' (and definitely not from the 'Family Pension' to the kith & kin of the deceased. The question raised here is whether the recovery left over could be continued from the Family Pension of the family/nominee of the now deceased employee or not.

This question, I like to draw parallel to another type of punishment. Let us see for e.g. an employee was sentenced to undergo imprisonment for his conviction due to his involvement in a crime during his service. Unfortunately the convicted employee dies in prison before completing the full term of imprisonment. Now, could the wife/or legal heir be asked to undergo the balance of jail term ? The query is more less like the same what I described.

And Mr.NKS is correct in citing Ms.JJ's abatement due to her death, escaping the certain to be 4 yr jail term. I was in fact reminded of the very same JJ's case when I started reading Ms.Hema's first post.

Also consider, some times capital punishments like death and life terms two times or more are ruled for heinous crimes like multiple murders and so on (more in USA). Does this mean the convicted should be hanged twice, is there any first death and second death ? Hema's reference is similar to this if not the same. The debate may be continued..
6th May 2017 From India, Bangalore
Dear Hema,

I feel that for correct understanding of the Order you are referring to, may be either attached with your query or you may mail me order no.113 dated 2.08.2006. It is only after reading the said order, I will give further guidance. Copy of the rule will also be provided to you.

2. But rest assured, Government can't recover any amount after death of an employee. Only government dues can be recovered from terminal benefits of gratuity or leave encashment. Amount of increment, on account of withholding of increment, does not come under the category of Government dues.

3. It may also be mentioned that an increment is earned by an employee based on certain conditions of service like completion of one year service without break etc. Hence, it does not come under the category of 'monetary benefit value.'

4. The punishment order did not impose any penalty to recover any amount of monetary loss caused to the government. therefore on this account also, recover of second stopped increment cannot be made.

5. Please note that an increment is given during the active service of an employee, When the employee is dead, you can neither grant increment nor withhold it, or make recovery.

6.No recovery can be made from pension. There is Hon'ble Supreme Court Judgment on this that no recovery can be made from pension. You can search the order of Hon'ble SC on the internet.

7. If you are not satisfied, do not withhold the file of the deceased employee. Put up a note for legal advice and move the file immediately by referring it to Legal Section of your department.

8. Kindly attach copy of Order No.113 dt. 2.08.2006 with your next query or mail me at

Regards

C.M. Lal Srivastava

Professional Expert - Service Matters

09818680671


6th May 2017 From India, New Delhi
Ms. Hema

As per your quote.:

A tamilnadu government employee (Mr.x) joined in job on 14.12.1991as junior assistant and he got a promotion as assistant at 1997 onwards. And then he got a 17(b) chargers for patta transfer and then get a punishment - stoppage of two years increment with cumulative effect on 13.08.2014. His annual increment is every January.

The word is stoppage of Increment. Which was due on 01.01.2015…they could stop that..

But employee died on 24.05.2015…next increment was due on 01.01.2016…naturally No employee is available so there is no question of stopping increment..

Even they cannot recover the increment..

We need to know the his punishment order as the nature of mistake he might have done during Patta transfer..

Tamilnadu Government has to calculate the pension to his next of kin as per the salary paid to an employee May 2015 month…calculate and try to release all emoluments to next of kin of the deceased person..

Regards

R.R.Inamdar

ADVOCATE

Mobile No.09408004617

A to Z Solutions

(Expertise Consultancy- IR,HR, Training & Development,Govt.Liaison Work & Property)

SF-03, Charbhuja Complex, Beside H.P.Petrol Station, Water Tank Road,

Karelibaug, Vadodara-390018
6th May 2017 From India, Mumbai
In addition to the clarifications given by the experienced members above, I just would like to add the following three points.
i) Punishment was imposed on the employee (deceased), but not on the family;
ii) Punishment was to cut in two increments (of salary), but not to recover the amount of increments from family pension of deceased employee or from his settlement dues. You should have known the difference between various types of punishments and their import;
iii) Once an employee dies, all disciplinary cases against him abates, consequently the instant punishment against him also. You can search for relevant rule position in TN service disciplinary rules.
Hence, the method you have proposed to take to comply with the punishment order is not correct.
6th May 2017 From India, Madras
Dear Hema,
I think it is a basic misunderstanding. The punishment is to stop 2 increment of Salary. This will result in monetary loss to the employee not for 2 years but during his service, till retirement.
Are you allowed the increment and collecting back the amount? Can not be. The punishment is just stoppage of increase in his Salary and not any bulk amount to be recovered. The employee had lost monetary benefit (increment) till he is in service (till his death) and the punishment automatically ceases and no question of any recovery. I hope, now you understand the matter in right sprit and recommend for the F&F settlement to the family at earliest.
Mohan Sankaranarayanan.
Chief Consultant.
Sri Sastha Consultancy.
7th May 2017 From India, Vijayawada
Penalty was stoppage of 2 annual increments, one you had already implemented when he was alive. Second stoppage you cant enforce as the employee no longer exists for the second year's stoppage, so you cant deduct annual increment from a dead person and you also dont give annual increment to a dead person who is not in service at the time of giving or taking.
7th May 2017 From India, Thane
Dear Miss Hema,
As per your information Employee in question died on 24/05/2015.You have taken almost 2 years to decide about payment of Pension to Deceased Family by deducting Notional 2 Increments for about 19 Months.This clearly reflects the ground realities in Government Organization.We all have given our Opinion based on our knowledge, Culture etc
I have a Serious question for you?
Can Family Members of Deceased Employee recover from your Salary certain Portion for not clearing the pension from the past 2 years.please revert with your remarks.Further, please update all of us about the outcome
You have been very vigorous in recovering Money from deceased Employee family where as you have never thought about Family members hardship consequent to loss of earning. you have to be sensitive not just obedient Govt Employee
7th May 2017 From India, New Delhi
Sir, Here I attaching the government order no.113 Thank you
7th May 2017 From India, Chennai

Attached Files
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File Type: pdf go_par_113_06_pg558.pdf (15.8 KB, 33 views)

Sorry sir I am not a government employee, even i want to not recovered money from that family so that I want to know the government orders for not recovered
1.Sir I want to know that the possibility of recovery from increment arrears or engagement of leave, if they recovered what should I do?
7th May 2017 From India, Chennai
Sir I want to know that the possibility of recovery from increment arrears or encashment of leave, if they recovered what should I do?
7th May 2017 From India, Chennai
Dear Hema,
I appreciate your efforts to help your near & dear ones. There is nothing to suggest in the TN rules that the balance of punishment shall be recovered from the pension payable to the nominees. However there is a possibility of recovering the same from the leave encashment but there can't be increment arrears.
8th May 2017 From India, Bangalore
Dear Hema Sarathi,

Thank you for uploading the Order No.113 dated 02.08.2006 which was notified with reference to rules of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. A reading of this order very clearly gives the conclusion that a punishment can be imposed/implemented on a person during the period he holds a civil post under the State Govt.

2. The definition of ‘Person’ as given in Rule-2 of TNCS (D&A) Rules is that – “A person holding a civil post under the state.” This gives the conclusion that the Rules apply to a “person holding a civil post under the state”, and therefore these rules can not be applied to the members of his family after his death. It is because a “person” ceases to hold civil post the moment he dies.

3. I would again refer to the specific text of the above order No.113 dated 02.08.2006. In the last sentence of Para No.3 it is mentioned that “The Government have, therefore, decided to extend the above provision of recovery of monetary equivalent to the type of cases mentioned above only.” What are those cases? If you refer to the text of the order, then it is clear that Para No.2 stipulates that cases where the punishment of withholding of increment cannot be implemented fully consequent on the promotion of the person to higher posts. It is clear that this Order No.113 does not intend to cover the contingency of death of a government servant. Hence, please do not feel restrained to process the case of the deceased employee for release of pensionary benenfits.

4. I would also invite your attention to Rule IX of AiS(D&A)Rules, 1969 [DOPT letter No. 11018/1/99-AIS(III) dated 14.5.1999] India Service (Discipline & Appeal) Rules, 1969, which stipulate that disciplinary proceeding should be closed immediately on the death of the alleged member of the Service. This supports the contention that punishment awarded as a result of disciplinary proceedings shall be closed with the death of the employee. Therefore, the question of recovery does not arise.

5. It is suggested that you may pursue your case giving all references and above reasons to concerned senior officer. Please

6. It is well settled that no recovery can be made after the death of the employee.

Regards



9818680671

New Delhi.
9th May 2017 From India, New Delhi
Ms Hema,
Dead persons neither can be punished nor given any increment falling due on the date post death. Recovery from pension is altogether is a different question. The recovery you wish to make is not a recover of State revenue which can be recovered from the estate of the dead.
You can recommend closure of the matter as the delinquent employee is dead hence balance punishment can not be executed.
9th May 2017 From India, Thane
Thanks for this reference Department letter No. 11018/1/1999-AIS(III) dated 14.5.1999 But in this case it is a final order of the punishment - stoppage of 2 yr increment with cumulative effect
9th May 2017 From India, Chennai
Dear Hema,

I have gone through your several posts, and I find that you are disclosing the facts in instalments. In your last post, you have raised a query about what you should do in case the recovery has been made from the beneficiary family member of the deceased government servant. As I already told you that government dues can be recovered either from gratuity or from leave encashment, but not from pension. I also told you that amount of withholding of increment does not come under the category of government dues. Therefore, in these circumstances, the family has to represent to Head of the Office/Department/Administrative Authority who has given orders/approval for recovery of amount equal to amount of withheld increment for the unexecuted period of penalty.

2. I wish to again assert and clarify that Order No. 113 of 2006 and subsequent amendment of TNCS (D&A) Rules mentions "that in cases where the penalty of withholding of increment cannot be given effect to fully for any contingency that arose after the penalty of withholding of increment is imposed, the monetary value equivalent to the amount of such increments that cannot be given effect to shall be recovered from the person." The words and expression "any contingency" means the contingency arising during the period of service when a "person" continues to hold a civil post under the state. The order does not prescribed the event of death and recovery thereof. The preamble to the Gazette Notification also makes it very clear recovery is to be made in the circumstances arising during the period of service. The contingency of death is not included in this order.

3. It may be reiterated that when penalty of stoppage of increment is imposed, the Government does not pay the amount of increment to the Govt. servant. It is to be noted here, that there is no system of crediting into Govt. Treasury the amount of stopped increment, not paid to the Govt. servant. Therefore, even if the person was alive, the Govt. would not have paid any amount to him, nor it would have credited that amount to Govt. Treasury. Hence, making recovery on this account, from the family of deceased, is absolutely absurd, illogical and against the well settled law that all disciplinary proceedings including imposition of punishment come to an end with the death of an employee.

4. In view of above the family may represent to the concerned Administrative Authority and claim refund of the amount of recovery made. In case of any assistance in drafting of a representation, you can seek my help/guidance at srivastavacmlal at the rate gmail dot com or contact me at 09818680671. I am fully confident that the family will succeed in their efforts of claiming refund.

5. When you post any thread, kindly indicate from whom you wish to have an opinion. This will be logical for all members of citehr.

With regards

C.M. Lal Srivastava

Consulting Professional
10th May 2017 From India, New Delhi
#Hema Sarathy,
Dear Hema,
I was waiting to know, how you solved this case. Is that file closed?
Please comment.
14th June 2018 From India, Jabalpur
on death of a charged government servant, whether any disciplinary action or award or punishment shall impose by the disciplinary authority ?
21st February 2019 From India, Balangir
If the chargesheeted employee dies during disciplinary enquiry, then the charges will not be proved against him, in that case punishment cannot be imposed since the process is not complete and he is not got full opportunity to defend himself as per the rules of natural justice.
22nd March 2019 From India, Pune
Dear friends,
The meaning of the Latin phrase " Actio Personalis Moritur Cum Persona " is " A personal action dies with the person ". Therefore, punishment awarded to an employee by means of stoppage of certain increments with cumulative effect can not survive the contingency of his death during its operation. That apart, the computation of terminal benefits, if any due to his legal heirs consequent on his death while in service has to be done simply based on his last emoluments with reference to the length of his past service only. Hence no possibility of recovery of increment dues of the unexpired part of the period of punishment from the terminal benefits of an employee after his death while in service.
15th May 2019 From India, Salem
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