SANJEEV PRAKASH SHARMA,J. - (1.) The petitioner filed an application before this court which was registered as a letter petition, wherein she prayed that her husband Constable Bhanwar Lal, belt No. 261, was compulsorily retired by the Department on 30.06.1981 as he had become mentally upset and was declared mad while in service. It is submitted that he was appointed on 2nd February, 1970. It has also been submitted that in the order dated 30.06.1981, it was mentioned that the petitioner's husband would be paid pension and gratuity as per rules but no pension or gratuity was paid to her husband. It has further been submitted that she has five daughters and one son and there is no other means of livelihood. Notice of the letter petition was sent to the Department who submitted their reply and pointed out that the Constable Bhanwar Lal S/o Ramdeen was appointed on 22nd March, 1971 and as he remained absent from duty for different periods. Proceedings were initiated against him under Rule 16 of the C.C.A. Rules and was compulsorily retired vide order dated 30.06.1981 on the basis of power confered under Rule 19 of CCA Rules of 1958.
(2.) It has been further stated that the petitioner's husband has remained in service for a total period of 10 years, 3 months and 9 days and out of the same 446 days have been treated as extraordinary leave and therefore the total service was treated as 9 years, 17 days only. As the service was less than ten years, pension could not be paid to him. A gratuity amount of only Rs. 1,242/- as well as service gratuity of amount of Rs. 2,484/- was paid on 28.8.2004.
(3.) Amicus Curiae, Sh. Hanuman Choudhary was appointed who has submitted that the petitioner's husband was wrongfully denied his pension and retirement benefits. It has been stated that the petitioner's husband who went under disability of mental instableness during the course of service could not have been served with order of compulsorily retirement. The action was clearly illegal as it was very well-known to the respondents that the petitioner's husband is not of stable mind and therefore, there was no occasion for him to attend duties. Consequently, the absence cannot be said to be a misconduct and the entire proceedings undertaken were bad in law as he could not contest the Departmental proceedings and no notice was given to his wife before taking action under Rule 19 of the CCA Rules, which is clearly illegal and unjustified. He has also taken this court to the provisions contained under persons with disabilities (Equal Opportunities, Protection of Rights and Full Partition, Act, 1995) which provides that a person who has suffered disability cannot be removed or dismissed from service.;