Bombay High Court
Smt. Chhaya Wd/O Madhukar Vandhare vs Union Of India, Through General ... on 11 February, 2020
Author: Vinay Joshi
Bench: A.S. Chandurkar, Vinay Joshi
Judgment wp3844.18
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
WRIT PETITION No. 3844/2018.
Smt. Chhaya wd/o Madhukar Vandhare,
Aged 55 years, Occupation Nil,
Resident of c/o. Shri Babanrao
Shashtrakar, Naik Road, Near Hanuman
Mandir, Mahal, Nagpur 440002. ... PETITIONER.
VERSUS
1. Union of India, through General
Manager, Central Railway,
Mumbai CSTM - 400001.
2. Divisional Railway Manager,
Central Railway, Nagpur Division,
Kingsway, Nagpur 440001. ... RESPONDENTS.
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Shri A.B. Bambal, Advocate for the Petitioner.
Shri N.P. Lambat, Advocate for Respondents.
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CORAM : A.S. CHANDURKAR
& VINAY JOSHI, JJ.
DATE : FEBRUARY 11, 2020.
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Rule. By consent of parties, rule is made returnable forthwith and writ petition is heard finally.
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Judgment wp3844.18 2
2. The petitioner, a lady has called in question the legality and correctness of the impugned order dated 10.11.2017 passed in Original Application No. 2141/2013, by the Central Administrative Tribunal, Mumbai, Circuit Bench, Nagpur (CAT), along with an order passed in Review Petition No. 211/0001/2018 in aforesaid Original Application, on 18.01.2018. Consequently, the petitioner has urged for grant of family pension on account of services rendered by her missing husband Madhukar Vandhare.
2. Petitioner's husband Madhukar was working as Khalasi, a Group "D" employee under Chief Permanent Way Inspector (South) Ajni, at Nagpur Division of Central Railway. In the month of May, 1993, Madhukar left his house to attend his duties, but, never returned back. After search, petitioner lady lodged missing report with the police on 20.04.1997, as well as a missing news was broadcast on All India Radio. Since there was no trace of Madhukar, petitioner moved a representation dated 13.08.2012 to respondent no.2 Divisional Railway Manager for grant of family pension treating that Madhukar met with civil death. In response, vide letter dated 22.03.2013, respondent no.2 asked for certain compliances, but, ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 19:44:55 ::: Judgment wp3844.18 3 ultimately had rejected petitioner's representation vide its impugned communication dated 15.07.2013. Petitioner's representation was not considered on the premise that she failed to establish that Madhukar was a railway employee, as well as she was wife of a missing person namely Madhukar. Moreover, it is contended that Madhukar remained absent from duty for long period. The department has conducted ex-parte enquiry against him, as he remained absent. It is expressed that Madhukar might have been removed from service, and therefore, petitioner was not entitled for grant of pensionary benefits. It is also stated that though Madhukar went missing on 03.09.1993, however for a long period of four years missing report was not lodged.
3. Being aggrieved by the said decision, the petitioner lady had approached the Central Administrative Tribunal vide Original Application No.2141/2013, unequivocally praying to quash and set aside the impugned order dated 15.07.2013 about rejection of family pension and grant thereof. The Tribunal has examined the material and held that the petitioner is not entitled for pension. Though there was delay in preferring the Original Application, the Tribunal ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 19:44:55 ::: Judgment wp3844.18 4 has considered the reasons for delay and was pleased to condone the same, however, on merits the Original Application came to be rejected.
4. CAT held that the department was not having service record of Madhukar, therefore, it is not clear whether Madhukar was removed or dismissed from service. The documents tendered by petitioner were found to be insufficient to establish her status as widow of Madhukar. In the light of such finding, the Tribunal held that denial of family pension cannot be construed as illegal or arbitrary order, and merely in absence of conclusive proof regarding status of marriage of petitioner with Madhukar, has rejected the claim.
5. We have heard the learned counsel appearing for the parties on the limited controversy regarding entitlement of petitioner to family pension. Undisputedly, Madhukar went missing in the month of May, 1993. Though the impugned communication indicates that there is no certificate to show that Madhukar was a railway employee, however, the incident of holding exparte departmental enquiry against Madhukar for his unauthorized ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 19:44:55 ::: Judgment wp3844.18 5 absence would clearly indicate that he was a railway employee. The learned Counsel appearing for respondent Railways would urge that the missing report dated 20.04.1997, is sent through post which is an unnatural conduct, hence, it cannot be relied. The said contention can be repealed for more than one reason. There is no set rules as to how the missing report has to be lodged. Notably, the petitioner was an illiterate lady, therefore, the mode and manner of communication does not matters much. The petitioner has produced a postal communication along with receipt of its acknowledgment besides that petitioner has produced a letter dated 03.05.1997, issued by the Police calling her to police station to supply details in connection with her missing report. Moreover, the petitioner has produced a letter dated 19.05.1997, by which she had supplied necessary information to All India Radio about missing person. In the light of such documents, lodging of missing report dated 20.04.1997 cannot be doubted.
6. The petitioner made a representation dated 13.08.2012 to the department for grant of family pension on account of services of her husband Madhukar. However, said representation was rejected ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 19:44:55 ::: Judgment wp3844.18 6 vide the impugned communication dated 15.07.2013 for the reasons mentioned above. The Central Administrative Tribunal has also rejected contention of the petitioner on the count that the petitioner has failed to establish her status as legally wedded wife of the employee Madhukar. It is observed that in absence of cogent and conclusive proof regarding status of petitioner as a wife of deceased employee, she is not entitled to grant of family pension.
7. It is abundant clear that petitioner's husband Madhukar was serving with Railways, as it is evident from the action of Railways of issuance of charge sheet to Madhukar for unauthorized absence. It is a matter of record that the employer has lost the service record of Madhukar, meaning thereby there is no substance in the defence to say that Madhukar was either removed or dismissed from service. It is surprising to note that the railway establishment does not have original service book of its employee which is considered to be a document of great importance. Certainly, railway department cannot take benefit of its own wrong of missing or destroying the service book of its ex-employee. Though a feeble attempt is made by respondent to say that ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 19:44:55 ::: Judgment wp3844.18 7 Madhukar was either removed or dismissed from service, there is no material to establish said fact. Inasmuch as, the enquiry if any, conducted by the department behind the back of the employee, has no force in the eyes of law.
8. A very short question which falls for consideration is about petitioner's marital status with Madhukar. Record indicates that after dismissal of Original Application, petitioner has filed a review petition along with certain documents with a request to reconsider her prayer for grant of family pension. However, the Tribunal has rejected the review primely on the premise that the question called for consideration in review is out of the scope of review and accordingly it was rejected.
9. To establish her status, the petitioner has produced certain documents before the Central Administrative Tribunal in Original Application which finds reference in paragraph no.18 of the impugned order. It reveals that the petitioner has produced copy of marriage invitation card, petitioner's school leaving certificate, Aadhar card, ration card and some affidavit sworn before the Executive Magistrate. The Tribunal has not considered worth of ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 19:44:55 ::: Judgment wp3844.18 8 these documents, but, held that there is no conclusive proof of marriage of petitioner with deceased Madhukar.
10. Undisputedly, the petitioner has produced a certified copy of judgment and order dated 31.03.1990 passed by the Judicial Magistrate First Class in Criminal Case No.61/1988 to substantiate her stand. We find that this document is crucial one which has potential to decide the fate of the petition. This was a criminal miscellaneous application filed by petitioner Chhaya against her husband Madhukar way back in the year 1988 claiming maintenance in terms of Section 125 of the Code of Criminal Procedure. A bare perusal of the judgment indicates that Madhukar never disputed his matrimonial relationship with the petitioner in the said proceeding. On the other hand, Madhukar had contended that he is ready and willing to maintain the petitioner and for that purpose he had also filed Restitution Petition No.103/1989 under Section 9 of the Hindu Marriage Act. In view of such clear pleadings, we do not think and expect any more evidence from an illiterate lady.
11. Pertinent to not that Madhukar went missing in the year 1993, whilst the claim for family pension was raised in the year ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 19:44:55 ::: Judgment wp3844.18 9 2012. In the circumstances, the proceedings under Section 125 of Criminal Procedure Code which took much prior in the year 1988 assumes significance. It supports petitioner's claim to great extent about her marital status with Madhukar. Moreover, the photocopy of Aadhar card indicates petitioners status as wife of Madhukar and particularly it bears the address of Madhukar which was very much reflected in the enquiry notice sent by the department to Madhukar. In view of such clear documents it is not possible to accept the defence that the petitioner has no legal status as wife of Madhukar.
11. Railway Boards order dated 25.02.1986 (page 67 of the paper book), provides a procedure for grant of family pension. The only requirement is that the applicant shall satisfy the head office by producing one of the named documents ire. (i) Succession Certificate from a Court, or (ii) Affidavit sworn before a Magistrate, or (iii) Affidavit of the claimant on a plain paper supported by any two documents which may be acceptable to the Head of the Department/ Pension Sanctioning Authority. Thus, it could be seen that there was no requirement to produce marriage registration certificate or any other proof of marriage. The requirement of mere filing an affidavit ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 19:44:55 ::: Judgment wp3844.18 10 sworn before the Magistrate which would suffice the purpose. Rather said provision was made to alleviate the plight of the widow.
12. Contextually we have gone through the office memorandum dated 02.07.2010 (page 137 of the paper book), pertaining to grant of family pension to the dependent family members of government servant who are reported missing. Clause 3 provides that the family pension to the eligible family members of missing government employee may be sanctioned after period of six months from the date of registration of FIR with the police. Thus, there is no requirement either to wait for statutory period of 7 years or to obtain a declaration of civil death through the competent Court. We do not see any hurdle in considering petitioners claim for grant of family pension in the light of above discussion. The view taken by the Central Administrative Tribunal appears to be hyper technical and unacceptable one.
13. In the result, Writ Petition succeeds. The impugned order passed by the Central Administrative Tribunal in Original Application No. 2141/2013 along with orders passed in Review Petition No. 211/0001/2018, is hereby quashed and set aside. Consequently, we ::: Uploaded on - 17/02/2020 ::: Downloaded on - 22/03/2020 19:44:55 ::: Judgment wp3844.18 11 also set aside the impugned communication dated 15.07.2013. Respondent is directed to accord family pension to the petitioner on producing necessary affidavit sworn before the Magistrate as per memorandum dated 16.12.1985, if she is otherwise found eligible. Needless to say that her claim be considered in the capacity of wife of Madhukar, without asking for any proof of marriage.
14. Rule is made absolute in aforesaid terms with no order as to costs.
JUDGE JUDGE
Rgd.
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