Allahabad High Court
Smt. Paudhari Devi vs Union Of India And 3 Others on 3 August, 2022
Bench: Pritinker Diwaker, Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD A. F. R. Court No. - 29 Case :- WRIT - A No. - 1247 of 2020 Petitioner :- Smt. Paudhari Devi Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Subhasis Halder Counsel for Respondent :- Vikash Chandra Tripathi,Devendra Tripathi,Vivek Kumar Rai Hon'ble Pritinker Diwaker,J.
Hon'ble Ashutosh Srivastava,J.
1. The instant writ petition has been filed questioning the judgment and order dated 22.10.2019 as also the order dated 31.7.2019 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application No. 870 of 2011. A prayer to quash the order dated 3.6.2005 passed by the Divisional Electrical Engineer (DEE), Operation, Tundla, Allahabad Division and order dated 2.4.2011 passed by the Divisional Railway Manager, North Central Railway, Allahabad has also been prayed for.
2. Apart from above prayers, the petitioner has sought a direction to the respondent No. 2 for grant of post retiral benefits to the petitioner such as family pension, LIC, gratuity, leave encashment etc., as also compassionate appointment of her son in a Group D post.
3. By the order dated 31.7.2019, the Original Application No. 870 of 2011 was dismissed by the Tribunal being of the view that the relief sought by the applicant cannot be granted.
4. By the order dated 22.10.2019, the review application seeking review of the order dated 31.7.2019, dismissing the original application, was also dismissed.
5. It is the case of the petitioner that her husband Chandrama Ram working on the post of Assistant Electrical Driver at Railway Station, Tundla under the respondents-Department was found missing from the place of his duty on 18.2.2003 and has been untraceable since then. The petitioner filed a report dated 11.10.2005 in the Police Station Tundla reporting her husband to be missing, whereupon, an FIR was registered in the police station. Since, the petitioner was finding it difficult to sustain herself as also her four children who were entirely dependent upon the husband of the petitioner, she preferred an application dated 17.1.2006 before the competent authority to provide appointment on compassionate ground. The petitioner was informed by the competent authority of the respondents that her case for compassionate appointment as well as for grant of post retiral benefits would be considered after getting final police report. The police vide letter dated 10.4.2008 informed the petitioner that no information has been received about the whereabouts of the husband of the petitioner and that the investigations were going on.
6. Subsequently, the case of the petitioner was rejected vide impugned order dated 2.4.2011 on the ground that she is not entitled to compassionate appointment as services of her husband had already been terminated on 3.6.2005. The order dated 2.4.2011 proceeded on the assumption that the husband of the petitioner absented himself without notice and had remained unauthorizedly absent from his post since 18.3.2003. Ultimately, vide order dated 3.6.2005, the husband of the petitioner was removed from service. The original application was resisted by the respondent on the ground that the husband of the petitioner had been absconding since 18.3.2003 and on 3.6.2005 his services were dispensed with on account of being unauthorizedly absent. It was also stated that the husband of the petitioner was served notice dated 18.5.2004 requiring him to join his duty and charge-sheet was served on 22.5.2004 which was never replied.
7. The Tribunal proceeded to dismiss the original application on the ground that the order dated 3.6.2005 for dismissal from service of Chandrama Ram had not been challenged and so long as the order of dismissal from service was existing, no relief for compassionate appointment could be granted. The Tribunal proceeded on the presumption that the respondents could not be directed to do something which is an impossibility. The Tribunal, accordingly, dismissed the original application by order dated 31.7.2019.
8. A review application under Rule 17 of the Central Administrative Tribunal (Procedure) Rules, 1987 was filed seeking review of the order dated 31.7.2019 passed in Original Application No. 870 of 2011 on the ground that:-
the claim of the applicant was rejected vide order dated 2.4.2011 indicating therein that she was not entitled for any relief as service of her husband had already been terminated on 3.6.2005 although no such ground was taken either in the counter affidavit filed or at any stage while making correspondence about considering the case of the applicant and asking to submit final report of the Police.
the husband of the applicant was found missing from his place of duty w.e.f. 18.2.2003. There was no information about the whereabouts of the husband even despite making herculean efforts to trace out the whereabouts of the applicant and he remained untraced. In such circumstances, the authority were required to proceed accordingly.
the respondents/Railways did not provide any information about the whereabouts of the husband of the applicant.
in service jurisprudence printed format to show cause notice, charge-sheet is not permissible and should not be entertained.
as per circulars, no charge-sheet could be issued to dead person and it is surprising, how a dead person could be served with a show cause or a charge-sheet or for that matter an order of dismissal.
9. The review application was dismissed holding that a review cannot be an appeal in-disguise and under the grab of review the matter could not be re-agitated. In a review, it is not open to re-appreciate the evidence/materials and such a different conclusion even if that was possible. The scope of review is very limited.
10. Learned counsel for the petitioner submits that the Tribunal manifestly erred in rejecting the claim of the petitioner both for compassionate appointment and for grant of retiral benefits proceeding on the assumption that the services of the husband of the petitioner had been terminated on account of absconding since 18.3.2003 and not replying to show cause notice and charge-sheet dated 18.5.2004 and 22.5.2004, respectively. The case of the husband of the petitioner was not one of absconding, but one of missing person and in the wake of the own circular of the respondents No. 720-E/XXXV/Pension dated 12.91 and 30.9.1986, the petitioner was entitled to at least the pensionary benefits.
11. We have heard learned counsel for the petitioner and perused the record, particularly, the circulars referred to above, which are being reproduced hereunder:-
"No. 720-E/XXXV/Pension Dated: 12.91 Subject: Cancellation of penalty of removal from service imposed on charge of unauthorized absence where it later transpires that the case is one of genuine missing and grant of consequent benefits to the missing person's family.
A copy of Railway Board's letter No. E (D&A) 91 RG 6.41 dated 22.8.91 is sent herewith for directions and necessary action. Railway Board's letter No. F(E) III/86/PNI/17 dated 19.9.86 mentioned in this letter has already been issued and sent to you vide (P) Br. P.S. No. 9064.
Copy of letter No. E (D&A) 91 RG 6.41 dated 22.8.91 Sub:- Cancellation of penalty of removal from service imposed on charge of unauthorized absence where it later transpires that the case is one of 'Genuine missing' and grant of consequent benefits to the missing person's family.
---------
Some cases have come to notice where Railway servants who were missing and whose whereabouts were not known to their family were removed from service for unauthorized absence. It has been represented by the NFIR in PNM Meeting with Railways Board that initiation of disciplinary action in such cases where even the police after all out efforts have not been able to trace the employee is not justified since they are to be presumed as dead under Section 108 of the Indian Evidence Act. The NFIR also represented that in such cases, the disciplinary action punishment should be annulled and the families be granted family pension and their request for compassionate appointment to wards etc., to which they would have been entitled but for the disciplinary action be also considered.
2. The Board have considered the matter and it is clarified that in case of the type mentioned above where it is established that the railway employee was really missing and not unauthorizedly absent the disciplinary action should be treated as initiated on valid premises and the on going disciplinary proceedings in such cases may be made by the disciplinary authority, in the case of punishment orders already issued, the annulment may be made by the appellate/revisionary authority, as the case may be. For this purpose, it is not necessary to follow any 'Revision' or 'Review' procedure since the charges/punishment are obviously based on valid premises. After the dropping of the disciplinary action and annulment of the punishment of removal, as the case may be, the relevant benefits like grant of leave encashment, salary dues, retirement benefits, etc., may be extended as outlined in Board's letter No. F (E) III/86/PNI/17 dated 19.9.1986.
3. In cases of the aforesaid type, the question of giving compassionate appointments to wards may also be considered after a period of 7 years / 3 years as provided in item (iii) of para 1 of Board's letter No. E (NG) iii/RCI/I dated 7.4.1983."
******* " Ø- la-9064 la[;k&720bZ@0@XXX (isa'ku)] fnukad 30.9.1986 fo"k;& ykirk jsyos deZpkfj;ksa ds lekiu ns; dk HkqxrkuA mijksDr fo"k; ij jsyos cksMZ ds i= la[;k ua0 ,Q (bZ) III/86@ih ,u&1@17 fnukad 19&9&86 dh izfrfyfi lwpuk ,oa vko';d dk;Zokgh gsrq izsf"kr dh tk jgh gSA Copy of Rly Bd's letter No.F(E)III/86/PN-1117 dated 19.9.1986.
Sub:- Grant of Settlement dues to eligible family members of railway employees who have suddenly disappeared and whose whereabouts are not known.
A number of cases are referred to this Department for grant of family pension to the eligible family members of the employees who have suddenly disappeared and whose whereabouts are not known. At present all such cases are considered on merits in this department. In this normal course unless a period of 7 years has elapsed since the date of disappearance of the employee, he cannot be deemed to be dead and the retirement/benefits cannot be paid to the family. This principal is based on Section 108 of the Indian Evidence Act which provides that when the question is whether the man is alive or dead and it is proved that he has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.
2. The matter has been under consideration of the Government for sometime as withholding of the benefits due to the family has been causing a great deal of hardship. The President is now pleased to decide that (I) When an employee disappears leaving his family, the family can be 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. (ii) After the elapse of a period of one year other benefits like CRG/Family pension in respect of pensionary staff and the Government Contribution/Special Contribution towards Provident Fund in respect of staff governed by SRPF (Contributory) Rules may also be granted to the family subject to the fulfillment of conditions prescribed in the succeeding paragraphs.
3. The above benefits may be sanctioned after observing the following formalities:-
(i) The family must lodge a report with the concerned Police Station & 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 nominated dependents of the employee that all payments will be adjusted against the payment due to the employee in case he appears on the scene and makes any claim.
4. The Head of Office will assess all Government dues outstanding against the Government servant and effect their recovery in accordance with extent rules/instructions in force for effecting recovery of Government dues.
5. The family can apply to the Head of the Office of the Government servant for grant of family pension and DCR Gratuity, Government contribution/SC to PF, as the case may be, after one year from the date of disappearance of the Government servant in accordance with the prescribed procedure. In case the disbursement of DCR Gratuity or SC to PF, as the case may be, is not effected within three months of the date of the application, the interest shall be paid at the rates applicable and responsibility for the delay fixed in accordance with extant orders."
12. In the wake of the above, we find that the case of the petitioner's husband was a case of genuine missing and as such, his services ought not to have been dispensed with, as has been done in the case at hand. The disciplinary action/punishment is liable to be annulled and is accordingly annulled. The orders dated 31.7.2019 and 22.10.2019 passed by the Central Administrative Tribunal dismissing the original application No. 870 of 2011 and the review application respectively are set aside. The order dated 3.6.2005 and order dated 2.4.2011 passed by the Divisional Electrical Engineer (DEE) Operation, Tundla, Allahabad Division are quashed. The respondent No. 2 is commanded to release the post retiral benefits in respect of the husband of the petitioner who is stated to have been working as Assistant Electrical Driver at Railway Station, Tundla, within 45 days from service of certified copy of this order.
13. We also find that the claim of the petitioner for grant of compassionate appointment for herself or her son was wrongly rejected. It shall be open for the respondent No. 2 to consider the claim of the petitioner for grant of compassionate appointment to any of her family members strictly in accordance with law.
14. The writ petition is allowed to the extent above.
Order Date :- 3.8.2022
Ravi Prakash
(Ashutosh Srivastava, J.) (Pritinker Diwaker, J.)