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2018 DIGILAW 1729 (GAU)

Padmawati Boro v. Union of India

2018-12-11

SANJAY KUMAR MEDHI

body2018
ORDER : Sanjay Kumar Medhi, J. 1. Two unfortunate women claiming to be the widows of Late Prasanna Boro is before this Court by way of this writ petition. 2. The grievance raised in the writ petition is that the authorities in the CRPF have not been released death-cum-retirement gratuity (DCRG), leave encashment and family pension with regard to the services rendered by their husband Prasanna Boro. 3. The case of the petitioners is that disciplinary proceeding was initiated against their husband who had gone missing and remains untraced for more than seven years. The said disciplinary proceeding was conducted ex parte and culminated in an order of dismissal from service. The aforesaid order is acting as an impediment for grant of post retirement benefits which otherwise the petitioner would have been entitled to. 4. I have heard Mr. M. Sarania, learned counsel appearing for the petitioners as well as Mr. D.C. Bora, learned CGC. 5. The facts of the case may be put in a nutshell in following manner. The husband of the petitioners was appointed as a Constable Driver in the CRPF vide an order dated 01.12.1990 and was initially posted at Rani Camp, Karnrup. After serving the organisation for a long at different places, at the relevant date i.e. on 11.05.2018, he was coming along with troop from Raipur to Guwahati. On reaching Guwahati on 15.05.2008 it was detected that the husband was missing. On such detection, the Commanding Officer lodged an F.I.R. dated 15.05.2008, at GRPS, Guwahati and, accordingly, a case was registered. Thereafter, a number of communications were made regarding the whereabouts and in spite of best efforts the same could not be known. The petitioners had also lodged an F.I.R. on their own at Dhamdhama Police Station, Nalbari on 05.06.2008. The further case of the petitioners is that in spite of paper publications and notices, the husband could not be traced out. 6. Notwithstanding the above, the authorities in the CRPF initiated a disciplinary proceeding, on the ground, that the husband of the petitioners had deserted the organisation the said disciplinary proceeding was preceded by an Office order dated 31.12.2008, after a Court enquiry wherein he was declared a deserter w.e.f 15.05.2008. 7. 6. Notwithstanding the above, the authorities in the CRPF initiated a disciplinary proceeding, on the ground, that the husband of the petitioners had deserted the organisation the said disciplinary proceeding was preceded by an Office order dated 31.12.2008, after a Court enquiry wherein he was declared a deserter w.e.f 15.05.2008. 7. Since the whereabouts of the husbands of the petitioners was not known, the disciplinary action initiated against him was proceeded ex-parte and vide order dated 7.9.2009, the penalty of dismissal from the Force was inflicted upon the husband of the petitioners. 8. Mr. Sarania, learned counsel for the petitioners draws the attention of this Court to the order of penalty where the consequence of such penalty has been stated. However, there is no mention that post retirement benefits would not be entitled to either by the husband or his legal representatives. However, it is submitted that because of this order, no post retirement benefits in form of DCRG, pension etc., have been paid to the petitioners. 9. Mr. Sarania, learned counsel for the petitioners has submitted that since the husband of the petitioners is admittedly not traceable for a period of more than seven years from the date of lodging the FIR on 15.05.2008, by the Commanding Officer till the filing of the writ petition, the petitioners are to the benefits of the presumption under Section 108 of the Evidence Act. 10. Section 108 of the Evidence Act is quoted herein below; Mr. Sarania, learned counsel for the petitioner basing his contention on the aforesaid provision submits that in view of the application of the said provision of law, the husband of the petitioners could not have been declared as a deserted and consequently, the proceeding could not have been initiated against a person who was presumed to be dead. In any case, Mr. Sarania, learned counsel submits that the authorities had proceeded in a wholly insensible manner inflicting major penalty upon the person who was presumably to that in support of his submission, Mr. Sarania relies upon a reported case in 2015(2) GLT 1005 of this Court (Indrani Das Vs. Union of India). In the aforesaid case, a similar issue had arisen wherein the petitioner was the wife of a personnel of the Assam Rifles who had gone missing. However, the husband was declared deserter and consequently dismissed from service. Sarania relies upon a reported case in 2015(2) GLT 1005 of this Court (Indrani Das Vs. Union of India). In the aforesaid case, a similar issue had arisen wherein the petitioner was the wife of a personnel of the Assam Rifles who had gone missing. However, the husband was declared deserter and consequently dismissed from service. This Court by applying the provisions of Section 108 of the Evidence Act held that person could not be said to have deserted or dismissed and, accordingly, the pension was directed to be paid to the petitioner in that case from the date when her husband had gone missing. In the instant case, to a pointed query by this Court Mr. Sarania, learned counsel submits that as per customary law, the second marriage is permissible and, thereafter, both the wives are entitled to claim the pension which would be mutually divided amongst themselves. 11. On the other hand, Mr. D.C. Bora, learned CGC appearing for the CRPF submits that under the aforesaid facts and circumstances, the employer had no other option but to take the recourse which was done in the instant case. The learned counsel submits that there are no procedural defects either in the Court of enquiry or in the disciplinary proceeding and, therefore, this Court in exercising of jurisdiction of under Article 226 of the Constitution of India would be loath to interfere. Drawing the attention of this Court to Rule 31 of the Central Reserve Police Force Rules, 1955 Mr. D.C. Bora, learned CGC submits that the procedure laid down in the said Rules have been duly complied with, and, therefore, there is a very little scope for interference when admittedly there was no infringement of any prescription of law. Mr. Bora, learned CGC submits that the organisation in question is a disciplined force where utmost integrity, punctuality and devotion are necessary. In the instant case, it appears that the husband of the petitioners had willfully deserted the Force warranting imposition the penalty of question. Mr. Bora finally submits that the decision making process does not suffer from any infirmity and, therefore, this Court may not embark upon the decision on merits. 12. The rival submissions have been duly considered. In the instant case, it appears that the husband of the petitioners had willfully deserted the Force warranting imposition the penalty of question. Mr. Bora finally submits that the decision making process does not suffer from any infirmity and, therefore, this Court may not embark upon the decision on merits. 12. The rival submissions have been duly considered. The admitted facts of the case is that the husband of the petitioners had gone missing on or about 15.05.2008 and the same was reported by the Commanding Officer himself by lodging the F.I.R. on 15.05.2008. In the police case registered, the investigating agency has submitted a final report which the petitioner had brought on records by filling an additional affidavit. The GRPF has in fact issued a certificate dated 05.09.2017, wherein it has been clearly stated that the investigation had culminated into a final report dated 25.05.2014, and till such date, the husband of the petitioners remain untraced. Though, in the Court of enquiry, it has been concluded that the husband of the petitioner is deserter, such desertion in the legal sense has to be 'animus deserendi' i.e. an act of willful desertion. In the instant case, it does not appear that the husband of the petitioner had deserted the force and on the other hand, the materials before this Court leads to the conclusion that from 15.05.2008, the husband of the petitioners had gone missing and could not be found till date. 13. Section 108 of the Evidence Act which has been quoted above is upon the burden of proving that the person is alive who has not been heard for seven years. It lays down that when such a question of arises for a person who has not been heard for seven years, the burden of proving that his is alive as upon the person who affirms it. In the instant case, the records do not reveal that the aforesaid obligation was discharged by the respondent authorities before proceeding with either the Court of enquiry of disciplinary proceeding against the husband of the petitioners. Though, the said proceeding has initiated before expiry of seven years this Court feels that it was wholly insensible on the part of the respondent authorities as employer to initiate a Disciplinary Proceeding against such a person instead of making an endeavour to find, if he was alive. Though, the said proceeding has initiated before expiry of seven years this Court feels that it was wholly insensible on the part of the respondent authorities as employer to initiate a Disciplinary Proceeding against such a person instead of making an endeavour to find, if he was alive. Taking recourse the disciplinary proceeding that too ex-parte is an easy way out to bring an end to the service career of a person which has serious and adverse effects on his dependents. 14. Though, this Court is in agreement with the proposition of law advanced by the learned counsel for the respondent that this Court in exercise of jurisdiction under Article 226 of the Constitution of India, in a given case may interference when the decision making process appears to be wholly unreasonable and arbitrarily. In the instant case, the decision to proceed against the husband of the petitioners even without ascertaining his whereabouts and keeping in view that the missing report was lodged by the Commanding Officer of the CRPF himself, appears to be devoid any logic and cannot withstand the test of reasonability. In fact, such decision appears to be grossly arbitrarily which is the anti-thesis of the right to equality enshrined under Article 14 of the Constitution of India. 15. Considering the facts and circumstances and the law laid down by this Court by taking into consideration Section 108 of the Indian Evidence Act, this Court is of the view that the impugned order of penalty of dismissal from service dated 07.09.2009, is not legal sustainable and consequently, the same is set aside and quashed. 16. As a result thereof, the respondent CRPF is directed to disburse the death-cum-retirement gratuity (DCRG), leave encashment, family pension and other benefits which would have normally accrued upon the dependents of the deceased employee. Such disbursement should be made within a period of 3(three) months from today. 17. At this stage, Mr. D.C. Bora, learned CGC submits that the name of only the first wife is recorded in the service book of the Late Prasanna Bora, and therefore, it may not be possible on the part of the authorities to make the payment to both the petitioners. 18. It is made clear that disbursement would be made to the recorded wife and it is up to the petitioners to mutually share the same between themselves. 19. 18. It is made clear that disbursement would be made to the recorded wife and it is up to the petitioners to mutually share the same between themselves. 19. The writ petition is accordingly disposed of.