Patna High Court - Orders
The Union Of India & Ors vs Smt. Jira Devi on 16 July, 2014
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7761 of 2013
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1. The Union Of India, through General Manager, East Central
Railway, Hazipur, District - Vaishali ( Bihar )
2. The Divisional Railway Manager, East Central Railway, Danapur,
P.O. - Khagaul, District - Patna (Bihar )
3. The Senior Divisional Engineer (Co-ordination), East Central
Railway, Danapur, P.O. Khagaul, District - Patna ( Bihar )
4. The Senior Divisional Personnel Officer, East Central Railway,
Danapur, P.O. Khagaul, District - Patna ( Bihar )
5. The Senior Divisional Accounts Officer, East Central Railway,
Danapur, P.O. Khagaul, District - Patna ( Bihar )
6. The Divisional Engineer-III, East Central Railway, Danapur, P.O.
Khagaul, District - Patna ( Bihar )
.... .... Petitioners
Versus
Smt. Jira Devi, wife of Late Gauri Shankar, Gangman under
Section Engineer (Permanent Way), East Central Railway, Arrah
(Bihar)
.... .... Respondent
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Appearance :
For the Petitioners : Mr. Ashok Kumar Keshari, Advocate
For the Respondent : Mr. M.P. Dixit, Advocate
with
Mr. Sanjay Kumar Choubey, Advocate
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CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI
and
HONOURABLE MR. JUSTICE SAMARENDRA PRATAP
SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE I. A. ANSARI)
5 16-07-2014Gauri Shankar, husband of Smt. Jira Devi, (who is the sole respondent herein), disappeared, on 01.06.1997, when he was holding the post of Gangman under S.E. (P. Way), East Central Railway (E.C.R.).
Soon after her husband‟s disappearance, Smt. Jira Devi Patna High Court CWJC No.7761 of 2013 (5) dt.16-07-2014 2/11 claims to have offered to lodge a First Information Report (in short, "F.I.R.") with the police as regards her husband‟s disappearance, but the F.I.R. was not accepted and registered by the police and, having been made to run from pillar to post, she, eventually, sent, under registered post, her complaint, with regard to the disappearance of her husband, to the jurisdictional Chief Judicial Magistrate and, in this manner, an F.I.R. came to be registered on 10.09.2003.
Thereafter, the applicant-respondent herein applied for family pension to the respondent-authority concerned under Railway‟s Boards Circular bearing No. R. B. E. No. 63 of 1991 read with RBE 3 of 1994.As the respondent‟s request for grant of family pension was rejected, on 10.01.2005, on the ground that she had not lodged any F.I.R., the respondent filed an application, under Section 19 of the Central Administrative Tribunal Act, 1985 (hereinafter referred to as "the Act"), challenging therein the order, dated 10.01.2005, whereby her request for granting family pension had been turned down. This Original Application (in short, „O.A.‟) came to be registered as O. A. No. 211 of 2005.
By order, dated 24.02.2006, O.A. No. 211 of 2005 was disposed of by the learned Tribunal with a direction to the present Patna High Court CWJC No.7761 of 2013 (5) dt.16-07-2014 3/11 petitioners to determine the claims of family pension made by the respondent herein.
Railways, then, came to this Court, with an application, under Article 226 of the Constitution of India, putting to challenge the order, dated 24.02.2006, aforementioned. The writ application gave rise to C.W.J.C. No.1789 of 2007.
Having observed that there was no material point raised in the writ petition by the Railways against the order, dated 24.02.2006, aforementioned, a Division Bench of this Court dismissed on 16.04.2007 the writ petition bearing C.W.J.C.No. 1789 of 2007. Thereafter, family pension was granted by the present petitioners to the respondent with effect from 11.09.2004.
With the grievance that she ought to have been granted family pension with effect from 01.06.1997, i.e., the date of death (missing) of her husband and not with effect from 11.09.04, respondent herein filed an application seeking drawing of a proceeding for Contempt of Court, arising out of willful disobedience of the order, dated 24.02.2006, aforementioned. The application, so made, gave rise to CCPA No.77/2006, which was disposed of by the learned Tribunal, on 29.5.2009, with direction to the petitioners herein to pass a speaking order on the question of Patna High Court CWJC No.7761 of 2013 (5) dt.16-07-2014 4/11 family pension.
By order, dated 26.11.2009, the Divisional Railway Manager (P), Danapur, made a speaking order.
Coupled with the above, the respondent herein had moved another application, under Section 19 of the Act, for setting aside her husband‟s removal from service and seeking direction for payment of the benefits arising out of the death of her husband. The application, so made, gave rise to O.A. No.297 of 2004, which has been disposed of, on 29.05.2009, by the learned Tribunal observing, in its order, that the only grievance, expressed by the respondent herein, was that the family pension had been made available to her with effect from 11.09.2004 only and not with effect from 01.06.1997, (i.e., the date on which her husband was found missing) and a direction was, therefore, given to the petitioners herein to pass a speaking order, whereupon a speaking order has been passed, wherein it has been indicated that in terms of the Railway Board‟s instructions, contained in CPO Sl. No.57/91, the date of disappearance of an employee/pensioner will be reckoned from the date of First Information Report lodged with the police and upon expiry of a period of one year thereafter that the benefits of family pension and gratuity are to be sanctioned Patna High Court CWJC No.7761 of 2013 (5) dt.16-07-2014 5/11 meaning thereby that family pension and gratuity would be made available to the family of an employee, who has disappeared, upon completion of a period of one year from the date, when First Information Report, with regard to the disappearance of the employee, either serving or retired, was lodged.
In the present case, as the complaint, with regard to disappearance of the respondent‟s husband, was made by the respondent herein, on 10.09.2003, in the Court of the Chief Judicial Magistrate, the date of acknowledgment, so given, i.e., 10.09.2003, was treated, as the date of lodging of the First Information Report or the date of reporting of the disappearance of the petitioner‟s husband and pension was, therefore, granted with effect from 11.09.2004.
The learned Tribunal has observed that in terms of the Railway Servants Pension Rules, family pension becomes available to the widow of a missing employee after one year from the date, when the employee goes missing, and, in the case at hand, when the employee had gone missing on 01.06.1997, the mere fact that no F.I.R. was lodged immediately after the employee went missing ought not to have been gone into for verifying the claim for family pension. The learned Tribunal, Patna High Court CWJC No.7761 of 2013 (5) dt.16-07-2014 6/11 therefore, directed the present petitioners to pay family pension, with effect from 01.06.1998, to the respondent herein (i.e., one year after the date on which her husband went missing) making it clear that irrespective of the date of lodging of the First Information Report., family pension be made available to the respondent herein with effect from 01.06.1998, i.e. after year of the disappearance of her husband, within a period of three months from the date of communication of the order, aforementioned, along with the arrears.
Aggrieved by the conclusions, so reached by the learned Tribunal, and the directions so given by it, this writ application, under Article 226 of the Constitution of India, has been made by the Railways.
We have heard Mr. Ashok Kumar Keshari, learned counsel for the petitioners, and Mr. M.P. Dixit, learned counsel appearing for the respondent.
Before proceeding further, what needs to be noted is that two issues, broadly speaking, fall for determination in this writ petition, namely, (i) whether family pension shall be made available to the wife of a missing Railway employee after one year from the date, when the employee was found missing, or one year Patna High Court CWJC No.7761 of 2013 (5) dt.16-07-2014 7/11 after the date on which the F.I.R., as regards disappearance of the employee, was lodged and the second issue is (ii) if, in the facts and circumstances of the present case, the direction, given by the learned Tribunal to pay pension with effect from 01.06.1998 (i.e., one year after the date on which the husband of the respondent went missing) is legally valid?
We notice that the Railways Circular, bearing R.B.E. No.3/94 read thus:
"GOVERNMENT OF INDIA (BHARAT SARKAR) MINISTRY OF RAILWAYS/RAIL MANTRALAYA (RAILWAY BOARD) RBE No. 3/1994 No. F(E)III/86/PN 1/17 dated 21/01/1994 Subject :- Grant of settlement dues to eligible family members of Railway employees who have suddenly disappeared and whose whereabouts are not known.
Attention is invited to this Ministry's letters of even number dated 19.9.1986 and 27.3.1991 [RBE 63/1991] on the above subject as per which the families of the employees/pensioners whose whereabouts are not known are paid in the first instance, the amount of salary due, leave encashment due and the amount of Provident Fund pertaining to his own subscription in the State Railway Provident Fund having regard to the nomination made by the employee and after the lapse of a period of one year other benefits like DCRG and family pension are also paid. The period of one year is reckoned with reference to the date on which FIR is lodged with the police about the disappearance of the concerned employee/ pensioner. At present the family pension is Patna High Court CWJC No.7761 of 2013 (5) dt.16-07-2014 8/11 sanctioned and paid to the eligible member of the family one year after date of registering the FIR with the police and no family pension is paid for the intervening period of one year from the date the FIR is lodged to the date the family pension can be sanctioned. It has now been decided that the family pension, which in pursuance of the earlier orders, will continue to be sanctioned and paid one year after the date of lodging the FIR, will accrue from the date of lodging the FIR or expiry of leave of the employee who has disappeared whichever is later. When the sanction for family pension is issued, the payment of pension from the date of accrual may be authorised. The usual procedure of obtaining the indemnity bond etc. as laid down in the letter dated 19.9.1986 will continue to be followed. While sanctioning payment of family pension, it will be ensured by the concerned authorities that family pension is not authorised for any period during which payment of pay & allowances in respect of the disappeared employee has been made.
This is in supersession of Board's earlier order of even number dated 21.01.1992 [RBE 8/1992] "
From a cautious reading of what has been reproduced above, it becomes abundantly clear that when a Railway employee is found missing, family pension to his wife will be made available and, for this purpose, it is the date of the F.I.R., lodged with the police, which would be taken into account and the benefits of family pension would be made available after one year of the date of report of disappearance.
Patna High Court CWJC No.7761 of 2013 (5) dt.16-07-20149/11
The learned Tribunal is, therefore, wholly incorrect in taking the view that the family pension becomes payable after one year of the date, when a Railway employee goes missing irrespective of the fact as to whether the F.I.R. was lodged or not. To this extent, the impugned order, dated 13.07.2012, passed by the learned Tribunal, is incorrect and, we hasten to reiterate, that family pension would become available to the wife of a missing Railway employee with effect from one year after the date of lodging of the F.I.R. as regards the disappearance of her husband.
Coming to the relief, which has been granted in the present case, what needs to be noted is that the petitioner‟s husband, admittedly, went missing on 01.06.1997. There is also no denial, as the written statement filed in the learned Tribunal indicates, of the fact that the respondent had tried to get the F.I.R. registered with regard to the disappearance of her husband, but having not succeeded, she made a complaint, in this regard, under registered post, to the jurisdictional Chief Judicial Magistrate on 03.02.2003. In the face of the fact that no denial of these assertions of the respondent herein took place in the proceedings before the learned Tribunal, it clearly follows that it was soon after the disappearance of the husband of the applicant-respondent herein Patna High Court CWJC No.7761 of 2013 (5) dt.16-07-2014 10/11 that attempted to lodge an F.I.R. was made by the respondent herein, but she did not succeed.
In the circumstances indicated above, it cannot be said that the F.I.R. was lodged belatedly. At the same time, the respondent herein would not be entitled to the grant of family pension with effect from 01.06.1998, i.e., one year after the date, when her husband went missing.
Taking into account the totality of the facts and circumstances of the present case, we take the view, and we hold, that a period of three months would be a reasonable period for reckoning the date, when the disappearance of the respondent‟s husband was reported to the police. Viewed thus, we conclude and hold that the disappearance of the respondent‟s husband was reported on 1.9.1997.
It logically follows from what has been held above that family pension and gratuity became payable to the present respondent one year after the date of lodging of the report of the disappearance of respondent‟s husband, i.e. on 01.09.1998. In other words, the family pension and gratuity, became payable, with effect from 01.09.1998, to the respondent herein.
Because of what has been discussed and pointed out Patna High Court CWJC No.7761 of 2013 (5) dt.16-07-2014 11/11 above, this writ petition partly succeeds. The impugned order, dated 13.07.2012, passed in O.A. No.225 of 2010, is hereby set aside and it is hereby directed that the family pension and gratuity, etc., shall be made available to the respondent herein with effect from 01.09.1998 treating 01.09.1997 as the date of lodging of the F.I.R.
With the modification, as indicated above, in the impugned order, dated 24.02.2006, passed by the learned Tribunal, this writ petition shall stand partly allowed.
No order as to costs.
(I. A. Ansari, J) (Samarendra Pratap Singh, J) PNM/ AFR U