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2004 DIGILAW 884 (PAT)

Lalmati Devi v. State Of Bihar

2004-08-31

RADHA MOHAN PRASAD

body2004
Judgment 1. In this writ petition, prayer on behalf of the petitioner is for issuance of writ in the nature of mandamus commanding the respondents to provide her family pension and other benefits with interest after revoking the order of desertion/dismissal passed against her husband, who was appointed as GNR in Army Service in the year 1984 and became traceless after he proceeded for eight days leave with effect from 6th September to 13th September, 1993. 2. It appears that several correspondences were made and F.I.R. was also lodged by the Captain O/L Battery Commander 578/126 A.P.O. 56 in Noida Police Station of Gaziabad district. It is stated that they had lodged a report before the Senior Superintendent of Police, Narcotic Cell, Gumsuda, New Kotwali, Dariyaganj, New Delhi, which was numbered as 170/ 05/94MPS dated 18th February, 1994. The petitioner kept on approaching the authorities concerned for tracing out her husband and also for release of the payment to support her family. However, the CGO Assistant Record Officer for Commanding Officer of Vayu Raksha Topkhana Abhilekh, Air Defence Artillery Records, Nasik Road, Camp, vide Annexure 10, wrote to the petitioner that her husband has been dismissed from service after three years and the family/next of kin of the deserter is not entitled for any pensionary benefits. Thereafter the petitioner approached the higher authorities for payment of dues and appointment of her heir but finding no positive response except the one contained in Annexure 14 filed the present writ petition. 3. By Annexure 14 Major officiating 2IC for CO 126 Lt Ad Regiment (Comp) C/o 56 APO, while reiterating that as per the existing order family/next of kin of dismissed personnel are not entitled for any pensionary benefits/compassionate appointment for the service to the children, stated that certain financial dues like AFPP Fund and Army Group Insurance maturity benefits are payable to the dismissed personnel/next of kin and requested her to comply certain formalities for release of the same. 4. Despite service of notice on 11.5.2004 and grant of indulgence vide order dated 23.8.2004 indicating that in case no counter affidavit is filed, the matter shall be disposed of on the basis of materials available on record, no counter affidavit has been filed so far. 5. 4. Despite service of notice on 11.5.2004 and grant of indulgence vide order dated 23.8.2004 indicating that in case no counter affidavit is filed, the matter shall be disposed of on the basis of materials available on record, no counter affidavit has been filed so far. 5. Learned counsel for the petitioner contended that the response of the respondents Army officials is highly condem-nable as they instead of pursuing the matter with the police to find out the husband of the petitioner, who became traceless, have erroneously dismissed him by treating him as deserter when, in fact, the respondents authorities themselves lodged F.I.R. with Noida Police as well as with Senior Superintendent of Police, Narcotic Cell, Gumsuda New Kotwali, Dariyaganj, New Delhi about his missing. He contended that the petitioner has been arbitrarily denied of the due death-cum-retiral dues of her husband now for almost eleven long years for no fault of her. 6. Mrs. Abha Singh, learned Additional Standing Counsel appearing for the respondents has submitted that despite her best efforts counter affidavit could not be sworn and filed. However, on the instruction received by her, she submitted that if the concerned police authorities declared husband of the petitioner as missing and certificate in this regard is forwarded to this office, as per the format already forwarded vide office letter no. 307801/P/72/A dated 30th March, 1995, then this office can take up the matter to declare the husband of the petitioner as missing person and subsequently also take up the issue for release of financial benefits to his next of kin as applicable to a missing person. 7. I fail to appreciate the said stand of the respondents as it is not disputed that the respondent-authorities lodged F.I.R. with Noida Police as well as with the Senior Superintendent of Police, Narcotic Cell, Gumsuda New Kotwali, Dariyaganj, New Delhi. It was their duty and responsibility either to get the deceased traced out or obtained necessary certificate from the concerned Police Station about the missing of the deceased husband of the petitioner, but instead of complying with the same, they have dismissed the deceased by declaring him deserter without any material with them. It is really unfortunate that the respondent-officials have acted in such a callous manner which has kept the widow-petitioner deprived of the death-cum-pensionary dues now for almost 11 long years. 8. It is really unfortunate that the respondent-officials have acted in such a callous manner which has kept the widow-petitioner deprived of the death-cum-pensionary dues now for almost 11 long years. 8. Considering the facts and circumstances of the case, the writ application is allowed and the respondents are directed to ensure issuance of necessary sanction order/payment of death-cum-pensionary dues by recalling the order treating the husband of the petitioner as deserter and dismissing him from service and after complying with all the necessary formalities positively within two weeks, failing "which the concerned authority shall be liable to pay a cost of Rs. 10,000/- (ten thousand) from his own pocket to the petitioner. 9. As prayed, let a copy of this order be supplied to Mrs. Abha Singh, learned Additional Standing Counsel appearing for the Union of India for communication to the concerned authority for strict compliance of this order.