The setting aside of an order of removal from service restores the relationship of master and servant, entitling legal heirs to retiral benefits and family pension as per the applicable railway rules.

Ajay Rastogi, J.-Petitioner No. 1 is widow of late Bhagwan Sahai and No. 2 is her son. Both have filed joint petition seeking pensionary benefits due on account of death of her husband Bhagwan Sahai, who was working as Rakshak in Railway Protection Force.

2. Bhagwan Sahai was appointed in Railway Protection Force ("RPF") some where in 1965 and died on 01.02.1979 while he was working as Rakshak in Office of Assistant Security Commissioner, RPF, Western Railway, Ajmer. One departmental inquiry was initiated against him, in which he was removed from service by disciplinary authority but in appeal preferred by him, appellate authority vide order dated 211.1978 (Annexure-5) ordered to reinstate him in service, and further directed to proceed in the inquiry from the stage from where it had gone faulty. However, Bhagwan Sahai could not report for duty in compliance of order of appellate authority and unfortunately, he died on 01.02.1979.

3. After death of Bhagwan Sahai, employee of Railway Protection Force, his widow & son made representations for grant of family pension and his other retiral dues but respondents rejected their claim on the ground that since deceased employee failed to report back on duty even in view of appellate order dated 211.1978 (Annexure-5), retiral benefits claimed for by them could not be extended and, therefore, pensionary benefits were not released in favour of petitioners. Hence this petition.

4. Shri Mukesh Agrawal, Counsel for petitioners submitted that once order of removal from service in regular inquiry was set aside on appeal preferred by employee delinquent, vide order dated 211.1978 by appellate authority, the employee ought to have been deemed to be in service pursuant to appellate order, which clearly stated that deceased employee has been taken back on duty-operative part of appellate order (Annexure 5) reads as under:-

"The appeal of the Rakshak is, therefore, entertained and removal orders passed by the ASOR are quashed and he has been taken back on duty. A denovo proceedings would be held against the Rakshak from where the proceedings have gone faulty."

and according to him, their relationship of master & servant were restored and stood continued till last and after his death, no further inquiry could be initiated and once the delinquent died while in service on 01.02.1979, his legal heirs are entitled to pensionary benefits which accrued on his death on the basis of services rendered by him, including family pension.

5. Respondents have filed reply to writ petition. Shri Virendra Lodha, Counsel for respondents submitted that since deceased employee failed to report on duty in compliance of appellate order dated 211.1978 (Annexure 5), order of his removal from service could not stand revoked and in such circumstances, his legal heirs are not entitled either for retiral benefits of deceased employee or for family pension etc. However, so far as amount dues towards provident fund are concerned, balance of Rs. 293/-was transferred to his account.

6. Having considered rival contentions of parties and perused material on record, I find the fact which remains undisputed that order of penalty inflicted upon Bhagwan Sahai of removal from service was set aside vide appellate order dated 211.1978 (Annexure 5) (Supra), whereby he was directed to be taken back on duty. Therefore, relationship of master & servant in case of present deceased employee was restored as a consequence of setting aside the order of his removal from service and thereby he remained an employee with no punishment in existence & operative on the day when he died on 01.02.1979 while in service. In my opinion, merely because deceased Bhagwan Sahai failed to report on duty, order of penalty of removal from service could yet be operative especially by virtue of appellate order being in operation. In fact, order of removal passed by disciplinary authority had merged into the appellate order and thereby it in no manner could be s