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2017 DIGILAW 1473 (GAU)

Rekhamoni Deka v. State of Assam

2017-11-27

AJIT BORTHAKUR, UJJAL BHUYAN

body2017
JUDGMENT : UJJAL BHUYAN, J. 1. Heard Mr. S.C. Biswas, learned counsel for the petitioner. Also heard Mr. H.K. Hazarika, learned Government advocate, Assam for the State respondents and Ms. G. Mahillary, learned standing counsel, Bodoland Territorial Council/respondent No. 4. 2. This writ appeal is directed against the order dated 15.6.2015 passed by the learned Single Judge dismissing the writ petition, being WP(C) No. 3399/2015 filed by the appellant seeking a direction to the respondents to pay her family pension and other dues. 3. Appellant's husband Hiranya Kumar Das was an Assistant Teacher (Science) in the Yogi Satyananda Girls High School, District Baksa, BTAD, Assam and his service was provincialised w.e.f. 1.8.1995. Petitioner did not return home from school on 20.5.2014, which led to filing of FIR by the appellant before the Goreswar Police Station on 23.5.2014 leading to registration of Goreswar PS. Case No. 41/2014 under section 342 of the Indian Penal Code (IPC). 4. Alleging that the investigation was not properly and effectively carried out, petitioner has approached this court by filing WP(Crl.) No. 03/2015 in which notice was issued and investigation monitored. 5. Facing extreme hardship due to missing of the sole bread earner of the family, petitioner filed the related writ petition seeking the relief as indicated above. 6. Learned Single Judge observed that there was no clear finding on the investigation by the police or a decision in the habeas corpus petition with regard to the whereabouts of the husband. No certificate was also issued by the concerned Police Station certifying that husband could not be traced out. Therefore, learned Single Judge vide order dated 15.6.2015 dismissed the writ petition as being pre-mature and lacking in material facts. 7. Hence, this appeal. 8. We have heard the learned counsel for the parties and perused the materials on record. 9. Before proceeding further in this appeal, we would like to record that in a separate proceeding, WP(Crl.) No. 03/2015 has been disposed of by this Bench today in the following terms: “Thereafter, this court has monitored the investigation of the case following which the Investigating Officer has been submitting status report. Today, Mr. H.K. Hazarika, learned Government advocate, Assam has placed before the court the up-to-date status report of Baihata Chariali P.S. Case No. 154/2014 as on 3.11.2017. Today, Mr. H.K. Hazarika, learned Government advocate, Assam has placed before the court the up-to-date status report of Baihata Chariali P.S. Case No. 154/2014 as on 3.11.2017. As per report of Sri Sushil Saikia, S.I. of Police, who is the Officer in-Charge of Baihata Chariali Police Station, during investigation, the following information have been received. “1. The victim of the case Sri Hiranya Kr. Das was a debtor to many loans from many persons. 2. The victim was absent from school/work place from 2.5.2014 when his missing was reported on 23.5.2014. Md. Moinul Haque, the Head Master Moharipara Jogi Satyananda Girls High School in his statement revealed that Hiranya Kr. Das is absent from work since 2/5/14. The possibility of involvement of persons from whom the victim have borrowed money with Mohan Kalita, Nabin Narzary, Jatish Kalita, Amar Pandit and (ineligible) Kalita have been examined and analyzed. However, no evidence or clue of victim involvement in the instant case has been found so far. From the investigation so far, no evidence or clue have been found to establish abduction of the victim. Moreover the victim is under huge debt and the above facts lead to a reasonable suspicion towards him being concealing himself to get rid of his indebted money. All possible efforts are being made to trace out the victim but in vain. The investigation of the case is on.” In view of the status report, as extracted above, we feel that Investigating Officer should pursue the investigation by exploring all possible angles and clues. Thus, having perused the status report of the Investigating Officer, we feel that no useful purpose would be served by continuing with the writ proceeding. However, we give liberty to the petitioner or any family member of the family of Hiranya Kr. Das to approach the court in the event they have any grievance in this regard.” 10. Having noticed the above, we may refer to the provisions contained in rule 143A of the Assam Services (Pension) Rules, 1969 which was inserted in the parent Rules vide notification dated 29.3.2000 with retrospective effect from 29.8.1986. Rule 143A lays down the procedure for family pension in case of disappearance of a Government servant. Having noticed the above, we may refer to the provisions contained in rule 143A of the Assam Services (Pension) Rules, 1969 which was inserted in the parent Rules vide notification dated 29.3.2000 with retrospective effect from 29.8.1986. Rule 143A lays down the procedure for family pension in case of disappearance of a Government servant. As per sub-rule (1), when an employee disappears leaving his family, the family may be paid in the first instance the amount of salary due, leave encashment due and the amount of GPF having regard to the nomination made by the employee. As per sub-rule (2), after the elapse of a period of one year as provided under sub-rule (5), other benefits like death-cum-retirement gratuity/family pension may also be granted to the family subject to the fulfilment of conditions prescribed thereunder. Sub-rule (3) provides that above benefits may be sanctioned by the Head Offices after observing certain formalities, such as, lodging of FIR before the Police Station and obtaining of report that the employee has not been traced out after all efforts had been made; an Indemnity Bond shall be taken from the nominees/dependents of the employee that all payments shall be adjusted against the payment due to the employee in case he appears on the scene and makes any claim. 11. While releasing such dues, the Head of Office shall assess as to whether any Government dues are outstanding against the employee. 12. Sub-rule (5) says that the date of disappearance of the employee shall be reckoned from the date of issue of the report by the concerned Police Station stating that the employee has not been traced out after all efforts had been made; the period of 1 year after which the benefits of family pension and Death-cum-Retirement Gratuity are to be sanctioned shall also be reckoned from the date of issue of the report by the concerned Police Station. 13. Sub-rule (6) provides that the family should apply to the Head of Office of the Government servant for grant of family pension and Death-cum-Retirement Gratuity after 1 year from the date of disappearance of the Government servant. 14. 13. Sub-rule (6) provides that the family should apply to the Head of Office of the Government servant for grant of family pension and Death-cum-Retirement Gratuity after 1 year from the date of disappearance of the Government servant. 14. Thus, from a careful analysis of the scheme of rule 143A of the Assam Services (Pension) Rules, 1969, it would go to show that the family of the missing Government employee is entitled at the first instance to the amount of salary due, leave encashment due and the amount of GPF after 1 year from the date of receipt of report from the police; other benefits such as Death-cum-Retirement Gratuity, family pension, etc., may be provided to the family subject to obtaining of report from the concerned Police Station and submission of indemnity bond as above. 15. We have noticed that husband of the petitioner was reported missing from 20.5.2014 and this fact has been acknowledged by Baihata Chariali Police Station as per status report dated 3.11.2017. Therefore, we are of the considered opinion that the provisions of rule 143A of Assam Services (Pension) Rules, 1969 would be attracted in the case of the petitioner. 16. We accordingly set aside the order of the learned Single Judge dated 15.6.2015 and allow the writ petition, being WP(C) No. 3399/2015, by directing the respondents to pay the admissible dues to the petitioner in terms of rule 143A of the Assam Services (Pension) Rules, 1969 within a period of 3 months from the date of receipt of a certified copy of this order. Consequently, writ appeal is allowed.