Karnataka High Court
Sri M H Umadevi W/O G Veeralinge Gowda vs The State Of Karnataka Rep By Its ... on 8 August, 2011
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 8" DAY OF AUGUST 01D 0) BEFORE «~~ THE HON' BLE MR. JUSTICE ANAND BYRAKEDDY™. WRIT PETITION No, 13679 OF 2000(/S:R) BETWEEN: Sri M.H.Umadevi, . W/o.Sri.G. Veerali inge Geo wa, . Aged about AQ years, Residing at No.647> Nanjangud Road. : f. Narasipur. . ee a Mysore. District. NS | PETITIONER (By Shri. NE Subr aM anya Bh at, "Advocate for M/s. Subbarao and C ompany) "AND: "The State of Karnataka : Re pre sented by its Secretary, Department of Education, M.S. Building, Bangalore -- 560 001. io The Director of Collegiate Education ~ PLS Board Buniding, Palace Road, Bangalore. Laat The Grama Vidyodaya Sangha, T.Narasipur, Represented by its General Secretary, Mysore District - S71 124. The Principal, Vidyodaya Arts, Science and Commerce College, T.Narasipur, a Mysore --S7L 124.00 : . RESPONDENTS sa (By Shri. Raghavend ra G. Gay: utriy "High Court Government Pleader, for Respondeni Nos. Land 2 Sbri.G.B.Many untath: SAC dvocete; for Respondent Nos.3 and 4) This Wein Pelition i filed -tnder Article 226 of the Constitution of Incia praying to quash the proceedings, dated 15.2.2003. vide Anbexure-E,. and orders of Dismissal dated 19.6.2003 'vide Annexure-F. and the order by which Family Pension has Been: declined by an order dated 12,.6.2005 vide _ Annesure-CC, as the same are violative of Articles 14, 16 and 3] of the C one 'titution of the Constitution and etc. eek Ewe etition is coming on for Hearing this day, the an court made the iollowing: Ce La ORDER
Heard the learned counsel for the petitioner -and™tlie learned counsel for the respondents.
2. The brief facts leading up to-this petition "are as~ follows:-
The petitioner ts the wife of one G. Veeta linge Gowda ~~ who was working as a Leciurer in Coainionse in Vidyodakya Arts, Science ang Comme vce College. Tt transpires that on 28.9.2001, the peti ition ers. hush yah 'ds who left as usual for his work, did ot ret "home theredtter and his whereabouts remain unknown ey "ene a) y this-date. The petitioner had taken all steps to mate he "hb usb and. On 11.10.2001 the petitioner had "iodged a First, Information Report with the Jurisdictional . Pol ice. in the meanwhile, the College had issued a notice to the petitioner's sash pand alleging that he was unauthorisedly absent ~ fron u work. Since the petitioner's husband was not available, the notice was returned as unserved. Yet another notice dated G ao 29.10.2001 was issued, a copy of which was also furnished to the petitioner. The petitioner was in a quandry as to. the further course of action. On 6.11.2001, notice wals repeated.
Needless to say that none of these notices. issued said fo have . been served on the petitioner's husband for his whereabouts"
were not known at all.
3
3. It further transpires that" by a c ommunicati on, dated 22.12.2001. the Tolan Director of Colle egia ate Education had & issued a dp ection, te the. Principal of the College, who was called upon 40° issue Y advertisements in two leading Dailies demanding 'that the' setitioner husband report for duty. The petitioner remained "unaware of the same and it is only in "yetrospect! ct that, she has learnt of the procedure adopted m "holding "that the petitioners husband was unauthorisedly absent and having been discharged frorn service. Therefore, the ". petitioner after belatedly having learnt of this publication had semen made a representation dated 4.2.2002, requesting that a x husband's case be considered sympathetically as it was to the knowledge of the management that his whereabouts were.net known and it could not have proceeded on the basis that. "he~ had deliberately remained absent from work. 'Theres ao petidoner made repeated repres entations. to the competent authorities for a reconsideration ain ortlaes, pass: ed 'enclosing an endorsement issued by the Cxcle Inspector of Police, _ effect that the petitioner's husba | ind' Sy shes sah. outs were not known. Howéver i ranspires that oy "the basis of the instructions of the Joint Director of Public Instructions, the 7 Princip val ot the © coma allege had .called for various documents in order to consider the petitioner's case for vrant of pension. _ Though the petitioner had made an attempt to furnish the i dea x cume ents, three documents could be secured in support of her case 'that het dhusband's whereabouts were not known and f{herel ore. her case could be consilered as a special circumstance. The respondents imsisted on the production of _ the Death Certificate and Survivorship Certificate. The Zz fer, the.
6 petitioner has managed to obtain a Survivorship Certificate on the basis that her husband was dead. Inspite « cat-.the respondents having processed the application on the. footing» consideration of her husband's death, ultimately, respondent -- no.3 concluded that the petitioner would not be-entitled to any relief since, admittedly; the petitioner's husband was dismissed from service on account of "unauthorised absence which was established at an inquiry. ft is-this which is sought to be questioned inthe present petition:
4. The learned counsel for the petitioner would submit that the petitioner's husband's whereabouts are not known even to. this day... In cases such as the present case, where Government efiployees are concerned, the Karnataka Civil Services:Rujes provide for consideration of family pension in the legal representatives of such Government einployee after the expiry of one year from the date on which s LAN TU rere eremmeenipes the whereabouts of the Government employee are not known.
The learned counsel would submit that insofar «as. the petiuoner's husband is concerned, he was a Lec turer, an can"
aided institution and therefore. insofar as. the Service > conditions of the employees of alg dec ed insti tut ior rs are concerned, ought to be considered on par with Gu sovernmeér a1 Pemploy ves and by the same token of reasoning, the petitioner "would be entitled to pension a is due to her with re réperice to the Rule which is s applicable yo Government employees. ae Hes we vould 'furthe F point "Suit that there are guidelines applicable to the Government employees in respect of payment of fat my pensiom i to-the ty ily of a Government Servant whose where abo: Tis are not known, issued in terms of Circular No.FD (Spi 72 pet 84 dated 25.5.1984. which contemplates the release of such pension and submits that the same being a "departure from the Rule of evidence, which provides that AW fen the question is whether a man is alive or dead and it is & proved that he has not been heard of for seven years by those who would naturally have heard of him if he had beer al ve. the burden of proving that he is alive shifts fo the person sho"
affirms it. To the effect that mt would be sufficient it the = whereabouts of a Government Servant. is 'not heard "oF fora . period of one year, in terms of the C "ircular, which bas been consistently applied to all reissing Government Servants. The petitioner is entitled to a similar benefit which has been unfairly denied to the petitioner even though the petitioner's husband remains to beumheard cf even to this day and hence would be presumed to be dead. [Hf itis 'sought to be contended otherwise, the burden 6f proof would be on the State and hence, he would _ seek for a declaration that the petitioner is entitled to claim ~ DeNsion.
"6 <The learned Government Pleader, on the other hand, "would vehemently oppose the petition. He would point oui that othe petitioner's husband was admittedly a Lecturer in an aided £5 4 9 institution and insofar as the retirement benefits are concerned, they were governed by the Triple Benefit Scheme. "Rules, (hereinafter referred to as 'the TBS Rules' for brevity} which do © not contemplate any such procedure where pension could. be » paid on the footing that the petitioner's husband's whereabouts were not known and therefore, he should be-deemed to be dead. On the other hand; the petitioner's husband having been admittedly dismissed from service atter 'a full-fledged inquiry. on the ground that he was guilty of miscotatuct of unauthorised absence and therefore, not. havmg taken any steps to question those preceedings inthe first-place. is precluded from raising any such cohfention at this remote point of time on the specious plea nat the Circular referred to cannot be pressed into service, as alveady staied, the Circular would not apply to persons other than Government Servants and pensioners and hence the ". "petitioner seeking to claim the benefit is not tenable. g
7. The learned counsel appearing for the management would also echo the same objection and would submit that, the - petitioner is not entitled to any relief as prayed for,
8. In the above facts and circumstances. the questions. -- whether the petitioner is entitled to the relief prayed for. Ins not seriously disputed that the petitioner's - hashand's whereabouts were not known® frown the, year 2001. The petitioner having takon all steps i trace the where: bouts of her husband, . Jas also- brought tot | the knowle dge of the management. "Notwithstanding the same, proceedings having been initiated on the 'eating the petitioner's husband had i ahseni ee A CEL See 2a ap PPL. 2 end diay pen eye eis WIELD 0 aru UERAL UNOFISE: ALY POPC dismissed from. service. Even though he had been dismissed from. service. the. petitioner was considered for grant of pension, as evident from the several annexures produced and therefore. it cannot be denied that the respondents were inclined fo sympathetically consider the case of the petitioner at a point 3 ae NE
-
of time. However, the second respondent, having ulumately taken a narrow view of the circumstances. has held that 'the. > petitioner's husband having been dismissed from se Vv fice, the question of considering grant of any reéhet im favour ef the petitioner wags not tenable. This is a view whieh proceeds on an strict application of the Rule. The added circumstance that 'the petitioner's husband's whereabouts remain uienown "even to this day would certainly . warrant ; consideration of the petitioner's case. ; in thet ght of the fact that with the enactment of the Karn welaka Education Act, 1983. it is unclear whether the TBS Ruied- continued to be in force. Even though the learned Government. Pleader would seek to point out that ie 'TES "Rules. would ¢ entinue to be in force and the fact that the "ules aid not. ccomtain any corresponding provision, which provides for. pavinent of pension m circumstances 4s above, ii anew of the Circular issued by the State Government which is made' app slicable to 485 pensioners, whose whereabouts were aoe known. does not justify in denying the san je benefit to the Z, "respot indents are directed petitioner as admittedly, the emoluments payable to the petitioner's husband were paid by the State Governme ate Therefore, notwithstanding the application of th 2 TBS Rules insofar as the petitioner's husband was "Goncerted. "ye:
unusual circumstance and the Rules arid Regulations not"
providing any relief insofar as the petitioner is concerned, 8 duty is cast on this court ta vonsider the application of the Circular insofar as the petitioner 1S concetind, Sine it is not in dispute that thet "e stiBnet's s hus sand he ad rendered 20 years of service and. woud event to pe pen | sion : as a matter of right and since the pension is, not an amount paid gratis, but it 1s some thing for which an enplovee would have worked and the 7 periti onel is.certainly enutled to claim the same as a matter of Theresore, the petition stands allowe (Tt is declared "that the petitioner is entitled for family pension and the to release the same computing the _sdme with effect from 289.2001, the date from which the Z petitioner's husband's whereabouts became unknown, with applicable rate of interest. In view of the petition having been kept pending over the years, the respondent shall expedite the. dependent on for her livelihood. .Theretore,. the respondent -- shall comply with this order, within eight weeks, i not earlier, from the date of receipt of a certified copy of the order Saar eae x Be