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2019 DIGILAW 1248 (MAD)

Samaruth Begum v. Director General of Police

2019-04-24

K.K.SASIDHARAN, P.D.AUDIKESAVALU

body2019
JUDGMENT : P.D. Audikesavalu, J. 1. The intra-Court appeal arises out of the order dated 08.11.2017 in W.P. No. 28455 of 2017 passed by the Learned Judge of this Court. 2. According to the Appellant, the whereabouts of her husband, viz., Sheikh Umar, who was working as Head Constable in Sozhatharam Police Station in Cuddalore District, remains untraceable from 28.11.2009 onwards. The Appellant had lodged a complaint in Crime No. 553 of 2011 in that regard and this Court by order dated 07.08.2015 in Crl. O.P. No. 19917 of 2015 passed the following order:- “3. It is seen that the Petitioner's husband went missing in the year 2009, in respect of which, a complaint was lodged before the Respondent Police on 21.11.2011. The Respondent Police have registered a man missing case in Crime No.553 of 2011, which is kept open, since the police have not obtained any clue about the whereabouts of the missing person. As regards the claim of the Petitioner for the service benefits of the missing person, it has to be worked out only before the Civil Forum. With the above observation, this Criminal Original Petition is closed.” Thereafter, the Appellant was shown photographs of unclaimed dead bodies maintained by the Government of Puducherry to identify if any of the same related to her husband, but the father of her husband had reservations that the photographs shown did not resemble the husband of the Appellant. Hence, it was concluded by the Police Authorities that no further investigation is required in the case, which was then closed by report dated 28.01.2017 sent by the Investigation Officer to the Judicial Magistrate, Kattumannarkudi. In the meanwhile, the Police Authorities, who were also the employer of the husband of the Appellant, had initiated proceedings treating him as a deserter for not reporting for duty from 28.11.2009 onwards. The Third Respondent, viz., Superintendent of Police, Cuddalore District by proceedings S.O. No. 65/2017 dated 07.07.2017 finally imposed a punishment of removal from service on the said Sheikh Umar on the ground that he had deserted the force for more than 21 days with effect from 28.11.2009 onwards. The Appellant questioned the said order of removal of service of the husband of the Appellant in W.P. No. 28455 of 2017 and had sought for consequential direction to disburse his terminal benefits to her relying on G.O. Ms. No. 478, Finance Pension Department dated 04.06.1987. The Appellant questioned the said order of removal of service of the husband of the Appellant in W.P. No. 28455 of 2017 and had sought for consequential direction to disburse his terminal benefits to her relying on G.O. Ms. No. 478, Finance Pension Department dated 04.06.1987. The Learned Judge, who heard the Writ Petition, by order dated 08.11.2017 dismissed the Writ Petition, which is challenged by the Appellant in this appeal. 3. We have heard Mr. P. Ganesan, Learned Counsel appearing for the Appellant, Mrs. A. Sri Jayanthi, Learned Special Government Pleader appearing on behalf of the First to Fourth Respondents and Mr. V. Vijayashankar, Learned Counsel appearing for the Fifth Respondent and perused the materials placed on record, apart from the pleadings of the parties. 4. The Learned Counsel for the Appellant strenuously urged that the Respondents had grossly erred in removing the husband of the Appellant from service without having due regard to the fact that his whereabouts have not been traceable from 28.11.2009 onwards and he would have attained the age of superannuation on 31.01.2014, if he was alive and in such circumstances, issuance of the order S.O. No. 65/2017 dated 07.07.2017 by the Third Respondent, which was unwarranted, could not be sustained. It has been brought to the notice of this Court that the Government of Tamil Nadu in G.O. Ms. It has been brought to the notice of this Court that the Government of Tamil Nadu in G.O. Ms. No. 478, Finance Pension Department dated 04.06.1987 had issued directions for disbursement of terminal benefits to Government Servants who could not be traced after all efforts made by the Police and necessary statutory provisions have been made in that regard by inserting Rule 49-A in the Tamil Nadu Pension Rules, 1978, with effect from 04.06.1987, which reads as follows:- “Benefits to the family of a disappearing Government Servants:- When a Government Servant disappears leaving his family, the family of such Government servant shall be entitled immediately for the payment of dues of salary, leave encashment, General Provident Fund and Special Family Pension-cum-Gratuity and after lapse of a period of [two years] of such disappearance, for the payment of dues of Death-cum-Retirement Gratuity and Family Pension in accordance with the nomination made by such Government Servant, subject to the following conditions, namely:- (i) a complaint must have been lodged with the police station concerned and a report obtained that the Government Servant has not been traced despite all efforts made by the police; and (ii) an Indemnity Bond must have been executed by the nominee or dependents of the such Government Servant to the effect that all payments shall be adjusted against the payment due to the such Government Servant in case he appears later and makes any claim.” The Learned Counsel further contended that the aforesaid statutory benefits ought to have been extended to the Appellant by the concerned authorities on their own accord and the passing of the order S.O. No. 65/2017 dated 07.07.2017 by the Third Respondent has the effect of depriving those benefits that she is legitimately entitled and hence, the same has to be necessarily set aside. It is also pointed out that the power to relax the conditions for grant of family pension, if the operation of any of those rules under the Tamil Nadu Pension Rules, 1978, causes undue hardship could also be exercised by the concerned authority under Rule 82 of those Rules, which reads as follows:- “Power to relax:- Where any Department of the Government is satisfied that the operation of any of these rules causes undue hardship in any particular case, the Department may by order for reasons to be recorded in writing, dispense with or relax the requirement of that rule to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. Provided that no such order shall be made except with the concurrence of the Finance Department.” The Learned Counsel for the Appellant has produced copies of the representations dated 24.04.2019 made by the Appellant to the concerned Respondents in this regard and has sought that directions may be issued to the Respondents to dispose the same within a reasonable time that may be fixed by this Court. 5. We find that there is considerable force in the aforesaid submissions made by the Learned Counsel for the Appellant. In Krushnakant B. Parmar -vs- Union of India [ (2012) 3 SCC 178 ], it has been held by the Hon'ble Supreme Court of India that in a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, and in the absence of such finding, the absence will not amount to misconduct. Following that binding ruling which squarely applies to the facts of the case on hand, we have no hesitation to quash the order S.O. No. 65/2017 dated 07.07.2017 passed by the Third Respondent and to direct the concerned Respondents to consider the representations dated 24.04.2019 made by the Appellant for disbursement of arrears of salary and other monetary dues, if any, and terminal benefits of the husband of the Appellant, and for relaxation of the relevant rules for grant of family pension, if necessary, taking into account the undue hardship suffered by the Appellant on account of the untraceability of her husband, and after affording full opportunity of personal hearing, pass reasoned orders on merits and in accordance with law in the exercise of powers under Rules 49-A and 82 of the Tamil Nadu Pension Rules, 1978, and communicate the decision taken to the Appellant and all other authorities, as required, by 16.08.2019. In order to expedite the matter, we also permit the Appellant to submit another copy of the representations along with a copy of this order enclosing materials in support of her claim to the concerned Respondents by 15.06.2019. 6. In fine, the Writ Appeal succeeds and the order dated 08.11.2017 in W.P. No. 28455 of 2017 is set aside and the Writ Petition is disposed of on the aforesaid terms. Consequently, the connected Miscellaneous Petition is closed. No costs.