Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 484 (RAJ)

Patasi Devi v. Union Of India

2018-02-08

K.S. JHAVERI, VIJAY KUMAR VYAS

body2018
JUDGMENT 1. By way of this petition, the petitioner has assailed the judgment and order of the Central Administrative Tribunal whereby tribunal has declined to grant family pension. 2. Counsel for the petitioner has contended that the petitionerwidow filed an application in the year 2007 before the CAT at the age of 72 years alleging that her husband was appointed on the post of Gangman right from 31.1.1958. The contention of the petitioner is that her husband performed service in the department upto 29.1.1979 for about 21 years and there was no complaint or inquiry pending against him. 3. Now it has come on record that after 1979 because of his absence, he has been removed from the service on 24.4.1980 which order was never served to the petitioner. It was further on 3.7.1997, it was informed to the petitioner that she is not entitled for any family pension/exgratia pension. The petitioner alleged that she submitted representations to the respondents and vide letter dt. 9.4.1986 issued from the office of Permanent Way Inspector, NWR, Sikar, the petitioner was asked to furnish an affidavit about missing of her husband since 7 years but the respondents gave no response except assuring that proceedings are running with the higher authorities. She contended that all through out she has made claims which were not considered and therefore, she has approached the CAT in the year 2007 which was decided on 27.10.2009. 4. Counsel for the petitioner has relied upon the decision of Rajasthan High Court in Smt. Shakuntala Kanwar vs. Union of India & ors, 2002 4 WLC 316 wherein it has been held as under:- 9. Reading of this above mentioned Government decision makes it clear that when an employee disappears, leaving his family, family can be paid the amount of salary due, leave encashment due amount of G.P.F. and other benefits like retirement of death-cum-gratuity and family pension. 10. Another memorandum is also issued by D. P. and P. W. on 25-1-1991 which has again clarified the above mentioned instructions. The above Government Decision is also clarified by memorandum issued on 18-2- 1993 and all the three memorandums have been reproduced in the writ petition. After reading of all these instructions, it is clear that if an employee disappears leaving his family then his family can be paid amount of salary, leave encashment and retirement benefits like family pension etc. The above Government Decision is also clarified by memorandum issued on 18-2- 1993 and all the three memorandums have been reproduced in the writ petition. After reading of all these instructions, it is clear that if an employee disappears leaving his family then his family can be paid amount of salary, leave encashment and retirement benefits like family pension etc. It is also directed in the memorandum 1986 that above benefits may be sanctioned by the Administrative Ministry/Department after observing following formalities: (i) The family must lodge a report with the concerned Police Station and obtain a report that the employee has not been traced after all efforts had been made by the police. (ii) An Indemnity Bond should be taken from the nominee/dependants of the employee that all payments will be adjusted against the payments due to the employee in case he appears on the scene and make any claim. 11. By reading this relevant clause 3 of the memorandum, it is clear that a report should be lodged with the concerned Police Station about missing of the personnel and this fact should also come or record that employee has not been traced despite all efforts having been made by the police. In the present matter, both conditions are satisfied. Report has been lodged in police by Commandant 27th Battalion BSF himself about missing of Sayar Singh and this fact is also established that Sayar Sigh has not been traced despite all efforts having been made by the police, so we are of the considered view that the case is fully covered by the Government Decision O.M. No. 1/17/86-P & PW dated 29th August, 1986 and the petitioner appellant is entitled for all benefits which are available to the family of Sayar Singh according to above Government Decision. In the writ petition filed by the appellant-petitioner it has been stated that her husband had been wrongly dismissed from service from 9-6-83, she has also mentioned that no such copy of order regarding dismissal of service of petitioner's husband was received by the petitioner and entire action of respondents is mere cover up of the their mistake. On the other hand, learned counsel for the respondents has also not placed on record copy of any such order of dismissal. On the other hand, learned counsel for the respondents has also not placed on record copy of any such order of dismissal. The circumstances of this case and facts established by the petitioner clearly shows that it is not a case of desertion by constable Sayar Singh but it is a case of missing of a personnel and therefore if any such order has been passed about dismissal of Sayar Singh that is absolutely bad in the eye of law. We are also of the view that it is a case of missing of Sayar Singh and therefore case of the petitioner should be treated as her husband Sayar Singh is missing and his whereabouts are not known since 1983 and under these circumstances provisions given in above mentioned memorandum are fully applicable in present matter. We are also of the view that if any dismissal order has been passed by concerned Commandant or any Official, such order is absolutely illegal and deserves to be set aside which we hereby do. We are also of the view that this appeal should be accepted and judgment of the learned single Judge should be set aside and the writ petition should also be accepted. 12. Consequently, we allow this special appeal filed by the petitioner appellant Shakuntala and set aside the judgment dated 10-7-1995 passed by the learned single Judge. The husband of the appellant Smt. Shakuntala is missing since 1983. He could not be traced despite all efforts having been made by the Police and her case is fully covered by the Government Decision O. M. No. 1/17/86-P & PW, dated the 29th August, 1986, D. P. & P. W. On 25-1-1991 and Memorandum of the Government of India, Ministry of Personnel PG & Pension dated 18- 2-1993, therefore respondents Nos. 1 to 4 are directed to consider the case of appellant Smt. Shakuntala. in accordance with the Government Decision O. M. No. 1/17/86-P & PW, dated the 29th August, 1986 and grant all the benefits which are available to petitioner according to the above mentioned Government Order with all consequential benefits, Costs made easy. 5. However, counsel for the respondent has contended that the view taken by the tribunal is just and proper inasmuch as the order of 1980 was never challenged even after communication of the letter dt. 5. However, counsel for the respondent has contended that the view taken by the tribunal is just and proper inasmuch as the order of 1980 was never challenged even after communication of the letter dt. 3.7.1997 and he approached before the CAT after 10 years in the year 2007. He also contended that since the record is not available with the department, therefore, the view taken by the tribunal is just and proper. 6. He has relied upon the decision of Supreme Court in C. Jacob vs. Director of Geology and Mining and anr , (2009) AIR(Supreme Court) 264 wherein it has been held as under:- 10. We are constrained to refer to the several facets of the issue only to emphasize the need for circumspection and care in issuing directions for 'consideration'. If the representation is on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing 'consideration' of such claims. 11. The present case is a typical example of 'representation and relief'. The petitioner keeps quiet for 18 years after the termination. A stage is reached when no record is available regarding his previous service. In the representations which he makes in 2000, he claims that he should be taken back to service. But on rejection of the said representation by order dated 9.4.2002, he filed a writ petition claiming service benefits, by referring the said order of rejection as the cause of action. As noticed above, the learned Single Judge examined the claim, as if it was a live claim made in time, finds fault with the respondents for not producing material to show that termination was preceded by due enquiry and declares the termination as illegal. But as the appellant has already reached the age of superannuation, the learned Single Judge grants the relief of pension with effect from 18.7.1982, by deeming that he was retired from service on that day. We fail to understand how the learned Single Judge could declare a termination in 1982 as illegal in a writ petition filed in 2005. But as the appellant has already reached the age of superannuation, the learned Single Judge grants the relief of pension with effect from 18.7.1982, by deeming that he was retired from service on that day. We fail to understand how the learned Single Judge could declare a termination in 1982 as illegal in a writ petition filed in 2005. We fail to understand how the learned Single Judge could find fault with the department of Mines and Geology, for failing to prove that a termination made in 1982, was preceded by an enquiry in a proceedings initiated after 22 years, when the department in which appellant had worked had been wound up as long back as 1983 itself and the new department had no records of his service. The appellant neither produced the order of termination, nor disclosed whether the termination was by way of dismissal, removal, compulsory retirement or whether it was a case of voluntary retirement or resignation or abandonment. He significantly and conveniently, produced only the first sheet of a show cause notice dated 8.7.1982 and failed to produce the second or subsequent sheets of the said show cause notice in spite being called upon to produce the same. There was absolutely no material to show that the termination was not preceded by an enquiry. When a person approaches a court after two decades after termination, the burden would be on him to prove what he alleges. The learned Single Judge dealt with the matter as if he the appellant had approached the court immediately after the termination. All this happened, because of grant of an innocuous prayer to 'consider' a representation relating to a stale issue. 7. We have heard counsel for the parties. 8. Taking into consideration the policy of the Central Government to help the widow, we are of the opinion that admittedly, in this case, the husband of the petitioner put service of 21 years. In that view of the matter, without entertaining technicalities, sympathetical consideration is required to be made in favour of the petitioner whose husband has rendered services of 21 years. Therefore, she is entitled for minimum of the basic pay pension which will be paid from the date of application. 9. In that view of the matter, without entertaining technicalities, sympathetical consideration is required to be made in favour of the petitioner whose husband has rendered services of 21 years. Therefore, she is entitled for minimum of the basic pay pension which will be paid from the date of application. 9. We direct the respondents to pay pension from 1.1.2008 till today of the minimum basic pay on the post of Gangman and will also pay the revised pension from time to time and all arrears within a period of four months from today. 10. The petition stands allowed to the aforesaid extent. 11. If payment is not paid within four months, the petitioner will be entitled for the interest @ 9 per cent from 1.1.2008 and interest of such delayed payment will be recovered from the pay of the officer who made such delay. 12. Needless to observe that Central Government is claiming to help widow, who is legally entitled for the pension, therefore, the Central Government ought to have paid pension to her right from 1979 but she has been deprived of her legitimate right which we cannot accept and restrain ourselves from doing substantial justice, therefore, this order is passed.