Can We Recover a Deceased Employee's Unfulfilled Punishment from Their Family?

Dear Sir/Madam,

A government employee received a punishment of stoppage of two years' increment with cumulative effect. After the first increment was stopped, he passed away, so we are unable to halt the second increment. At this juncture, can we calculate the remaining punishment amount and recover it from the family before disbursing the pension? If the amount cannot be recuperated from the family, kindly provide me with the relevant government order or any other judicial directive.

Thank you.

Dear Hema,

What you have asked is concerning. I am surprised by your query.

Understanding Punishments and Terminal Benefits

Punishment is executed until the death of the employee. An employee receives 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 behavior, and monetary deductions are not done to recover some amount. Forfeiture of wages is expected to give a financial pinch to the employee, and this pinch is expected to reform the behavior of the defaulter.

Principles of Justice

Since you have not apprised yourself of the principles of justice, your focus is on the recovery of the amount rather than punishment itself. Your query is akin to hanging the dead body of a convict who is awarded capital punishment but dies while serving a 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.

Liabilities After Death

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, 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 the dead employee, his kith or kin (nominees) will be punished. What type of jurisprudence will it be?

Empathy in Professional Life

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

Thanks,

Dinesh Divekar

Thank you, sir, Here, I am explaining the case. A Tamil Nadu government employee (Mr. X) joined the job on 14.12.1991 as a junior assistant and received a promotion to assistant in 1997. He then faced 17(b) charges for patta transfer and was subsequently punished with a stoppage of two years' increment with cumulative effect on 13.08.2014. His annual increment is due every January.

We were able to stop the 01.01.2015 increment, but unfortunately, Mr. X passed away on 24.05.2015. As a result, we cannot stop the second increment (01.01.2016). At this point, we need to calculate the remaining punishment amount from 25.05.2015 to 31.12.2016 and determine if it should be recovered from his family or not.

If the recovery cannot be made from the family, please provide me with a government order or any other Tamil Nadu judgment copy related to this matter. This information will allow me to assist the family effectively and also ensure that the pension proposal is not delayed.

Thank you,

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 on citehr, the deceased employee's terminal benefits will be calculated based on his last drawn salary.

I recommend the wife or nominee of the deceased employee to submit an application to the senior authority in his office. If they remain uncooperative, he/she may approach the Secretary, Ministry of Labour, Govt of Tamil Nadu.

Take the case of the former Chief Minister of Tamil Nadu. In the Disproportionate Asset (DA) case, she was found guilty. However, before the court's verdict, she passed away. Nonetheless, since she has passed away, the court has not imposed any monetary punishment. The Supreme Court strongly condemned the amassing of illegal wealth, but the court stopped short of further action. [I have provided this example for your reference only and do not recommend using it with government officials.]

Thanks,

Dinesh Divekar

Stoppage of Increment and Pension Settlement

The question of stoppage of increment arises if the employee had worked and earned a salary. Since the employee is deceased, the question of stoppage of increment does not arise. Your idea of recovering the same from the family/legal heirs is devoid of logic and not legally tenable. The deceased employee's pension should be settled based on his last drawn salary.

Hypothetical or Specific Question?

Is this a hypothetical question or a specific question? I will suggest, for the sake of argument only, "please pay 1 year's salary to the deceased employee's salary" and recover the proposed balance as a punishment amount - is that okay? Please release the pension without waiting. Please revert with your positive action for the information of all concerned.

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:

Penalty and Increment Details

According to your statement, a 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.

Recovery of Punishment Amount

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 judgment order to this effect.

Government Rules and Regulations

Regarding your query, it may be noted that the 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. Decisions on this subject, i.e., abatement of disciplinary proceedings, are available in Swamy's FR-SR compilation, as well as specified in the Vigilance Manual of CVC. Since the disciplinary proceedings stand abated on the date of death, therefore the second increment cannot be stopped.

Further, be informed that recovery of the equivalent amount of stoppage of one annual increment cannot be made either from the pension or from the family of the deceased because the stoppage of an 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.

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

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

For any further opinion/query, you may contact at [Email Removed For Privacy Reasons]

Mobile no. [Phone Number Removed For Privacy-Reasons]

Regards,

C.M. Lal

Hi Hema,

Which post do you hold? Is it your senior who is insisting on 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, and 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)

Thank you so much, sir. Former TN CM Ms. Jayalalitha died before the judgment; it is okay. But in this case, the employee died after half execution of punishment. So, until now, I am confused.

As per Government Order 113, dated 02.08.2006, we should recover the monetary benefit value before the employee receives the pension (they do not mention either VRS, retirement, or family pension).

The date of death leads to the abatement of disciplinary proceedings in the fundamental rule, but I didn't find that. So, I am asking if you have any government order or the FR rules, please provide me with them.

Thanks, sir.

Examination of Pension Rules and Constitutional Validity

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, as per the SC judgment in CIVIL APPEAL NO. 6770 OF 2013 (Arising out of Special Leave Petition (Civil) No. 1427 of 2009), may be relevant. The full text could not be attached due to its volume.

"13. In State of West Bengal Vs. Haresh C. Banerjee and Ors. (2006) 7 SCC 651, this Court recognized that even after the repeal of Article 19(1)(f) and Article 31 (1) of the Constitution via the Constitution (Forty-Fourth Amendment) Act, 1978 w.e.f. 20th June 1979, the right to property was no longer a fundamental right, it was still a Constitutional right, as provided in Article 300A of the Constitution. The right to receive a pension was treated as a right to property. Otherwise, the 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. The fact remains that there is an imprimatur to the legal principle that the right to receive a pension is recognized as a right in 'property'.

14. Article 300A 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 300A of the Constitution. It follows that the attempt of the appellant to take away a part of the pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced.

15. It hardly needs to be emphasized that the executive instructions do not have statutory character and, therefore, cannot be termed as 'law' within the meaning of the aforesaid Article 300A. On the basis of such a circular, which does not have the force of law, the appellant cannot withhold even a part of the 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.

This judgment provides some guidance on how a pension cannot be withheld (or recovered) except as per law, not by the administrative orders issued by the state/central government, as the pensionary benefits are considered as 'right to property' guaranteed under the Constitution of India under Article 300A. It may be possible if the employer files a suit to recover the residual sum and if the appropriate court passes a judgment in favor of the recovery, which is unlikely.

I may be wrong or right, just for argument's sake, here the punishment is 'to recover from the employee's emoluments' (and definitely not from the 'Family Pension' to the kith and 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 example, 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 the jail term? The query is more or less like the same as what I described.

And Mr. NKS is correct in citing Ms. JJ's abatement due to her death, escaping the certain to be 4-year 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, sometimes capital punishments like death and life terms two times or more are ruled for heinous crimes like multiple murders and so on (more in the 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.

Understanding Government Orders and Recovery of Dues

For a correct understanding of the order you are referring to, it may be either attached with your query, or you may email me Order No. 113 dated 2.08.2006. It is only after reading the said order that I will provide further guidance. A copy of the rule will also be provided to you.

Rest assured, the government can't recover any amount after the death of an employee. Only government dues can be recovered from terminal benefits such as gratuity or leave encashment. The amount of an increment, on account of withholding of increment, does not fall under the category of government dues.

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

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

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

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

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 the Legal Section of your department.

Kindly attach a copy of Order No. 113 dated 2.08.2006 with your next query or email me at [Email Removed For Privacy Reasons].

Regards,
C.M. Lal Srivastava
Professional Expert - Service Matters
[Phone Number Removed For Privacy-Reasons]
[Email Removed For Privacy Reasons]

Employee Increment and Pension Calculation

A Tamil Nadu government employee, Mr. X, joined the job as a junior assistant on 14.12.1991 and was promoted to assistant in 1997. He received a 17(b) charge related to patta transfer and was punished with a stoppage of two years' increment with cumulative effect on 13.08.2014. His annual increment was scheduled every January.

The punishment involved the stoppage of the increment due on 01.01.2015. However, the employee passed away on 24.05.2015, and the next increment was due on 01.01.2016. Since the employee is no longer available, there is no question of stopping the increment, nor can it be recovered.

We need to understand the details of his punishment order concerning the mistake during the patta transfer. The Tamil Nadu Government should calculate the pension for his next of kin based on the salary paid to the employee in May 2015 and release all emoluments to the deceased person's next of kin.

Regards,
R.R. Inamdar
ADVOCATE

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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

In addition to the clarifications given by the experienced members above, I 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 be cut in two increments (of salary) but not to recover the amount of increments from the family pension of the deceased employee or from his settlement dues. You should be aware of the differences between various types of punishments and their implications.

iii) Once an employee dies, all disciplinary cases against him abate, and consequently, the instant punishment against him does as well. You can find the relevant rule position in the TN service disciplinary rules. Therefore, the method you have proposed to comply with the punishment order is not correct.

Dear Hema, I think there is a basic misunderstanding. The punishment is to stop 2 increments of salary. This will result in a monetary loss to the employee not for 2 years but during his service, till retirement.

Are you allowed to take the increment and collect back the amount? It cannot be. The punishment is just the stoppage of an increase in his salary and not any bulk amount to be recovered. The employee has lost a monetary benefit (increment) until he is in service (till his death), and the punishment automatically ceases with no question of any recovery. I hope you now understand the matter in the right spirit and recommend the F&F settlement to the family at the earliest.

Regards, Mohan Sankaranarayanan Chief Consultant Sri Sastha Consultancy.

Penalty was the stoppage of 2 annual increments, one of which you had already implemented when he was alive. The second stoppage cannot be enforced as the employee no longer exists for the second year's stoppage. Therefore, you cannot deduct an annual increment from a deceased person. Additionally, you do not give an annual increment to a deceased person who is not in service at the time of giving or taking.

Dear Miss Hema, As per your information, the employee in question died on 24/05/2015. You have taken almost 2 years to decide about the payment of pension to the deceased's family by deducting notional 2 increments for about 19 months. This clearly reflects the ground realities in a government organization. We all have given our opinions based on our knowledge, culture, etc.

Serious question

I have a serious question for you: Can family members of the deceased employee recover from your salary a 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 the deceased employee's family, whereas you have never thought about the family members' hardship consequent to the loss of earning. You have to be sensitive, not just an obedient government employee.

Sir,

Here, I am attaching the government order no. 113.

Thank you.

Sorry sir, I am not a government employee. Even though I want to not recover money from that family, I would like to know the government's orders regarding non-recovery.

Sir, I would like to inquire about the possibility of recovering from increment arrears or engagement of leave. If the money is recovered, what steps should I take?

Sir, I want to know about the possibility of recovering increment arrears or encashing leave. If they are recovered, what should I do?

Dear Hema,

I appreciate your efforts to help your near and 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.

Dear Hema Sarathi,

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

Definition of 'Person' in TNCS (D&A) Rules

The definition of 'Person' as given in Rule-2 of TNCS (D&A) Rules is: "A person holding a civil post under the state." This leads to the conclusion that the rules apply to a "person holding a civil post under the state," and therefore, these rules cannot be applied to the members of his family after his death. It is because a "person" ceases to hold a civil post the moment he dies.

Specific Text of Order No.113

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, it is clear that Para No.2 stipulates 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 the death of a government servant. Hence, please do not feel restrained to process the case of the deceased employee for the release of pensionary benefits.

Rule IX of AiS (D&A) Rules, 1969

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 proceedings 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.

Suggestion for Pursuing the Case

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

Recovery After Death

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

Regards

[Email Removed For Privacy Reasons]

[Phone Number Removed For Privacy-Reasons]

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 a different question. The recovery you wish to make is not a recovery of State revenue, which can be recovered from the estate of the deceased.

You can recommend closing the matter as the delinquent employee is deceased; hence, further punishment cannot be executed.

Thank you for providing the reference Department letter No. 11018/1/1999-AIS(III) dated 14.5.1999. However, in this case, it is a final order of punishment - stoppage of a 2-year increment with cumulative effect.

Dear Hema, I have gone through several of your posts and noticed that you are disclosing the facts in installments. In your last post, you raised a query about what to do in case recovery has been made from a beneficiary family member of the deceased government servant. As I have previously mentioned, government dues can be recovered from gratuity or leave encashment, but not from pension. The amount withheld from an increment does not fall under the category of government dues. Therefore, in these circumstances, the family must appeal to the Head of the Office/Department/Administrative Authority who ordered the recovery equal to the amount of the withheld increment for the unexecuted period of penalty.

I would like to reiterate and clarify that Order No. 113 of 2006 and subsequent amendments to TNCS (D&A) Rules state that "in cases where the penalty of withholding of increment cannot be fully implemented due to any contingency arising after the penalty is imposed, the equivalent monetary value of the increments that cannot be implemented should be recovered from the individual." The term "any contingency" refers to situations that arise during the individual's service while holding a civil post under the state. The order does not cover events of death and subsequent recovery. The preamble to the Gazette Notification also explicitly states that recovery should be made for circumstances arising during the period of service, excluding death.

It should be noted that when the penalty of stoppage of increment is imposed, the Government does not pay the increment to the Government servant. There is no provision to credit the amount of the stopped increment that was not paid to the Government servant to the Government Treasury. Therefore, even if the individual were alive, the Government would not have paid or credited the amount. Hence, recovering this amount from the deceased's family is illogical, absurd, and contrary to the established law that disciplinary proceedings, including punishments, cease upon an employee's death.

Based on the above, the family can approach the relevant Administrative Authority to claim a refund of the recovered amount. If assistance is needed in drafting a representation, feel free to reach out to me at [Email Removed For Privacy Reasons] or contact me at [Phone Number Removed For Privacy-Reasons]. I am confident that the family will succeed in their efforts to claim a refund.

When posting a thread, kindly specify whose opinion you are seeking. This will provide clarity for all members of citehr.

With regards,

C.M. Lal Srivastava Consulting Professional

On the death of a charged government servant, will any disciplinary action, award, or punishment be imposed by the disciplinary authority?

If the chargesheeted employee dies during a 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 has not had a full opportunity to defend himself as per the rules of natural justice.

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 cannot survive the contingency of his death during its operation.

Apart from that, 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, there is 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.