Central Administrative Tribunal - Lucknow
Smt Kabutra Devi vs Union Of India on 19 February, 2024
CAT,Lucknow Bench OA No. 208/2011 Smt. Kabutra Devi Vs. U.O.I. &Ors
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No. 208 of 2011
Order dated this 19th day of February, 2024
Hon'ble Mr. Justice Anil Kumar Ojha-Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Smt. Kabutra Devi, aged about 44 years, wife of Sri Mani Ram,
Resident of village Bilarwa, Post Office Khanjurar, District-Bahraich
.....Applicant
By Advocate: Shri Rama Kant Dixit
Versus
1. Union of India, through its Chairman/Secretary,
Ministry of Railway, Board New Delhi.
2. Mandal Rail Prabandhak (Engineer),
Lucknow.
3. Assistant Mandal Engineer,
Bahraich.
.....Respondents
By Advocate: Shri Mithilesh Kumar
ORDER (ORAL)
Per Hon'ble Mr.Pankaj Kumar, Member-Administrative This is a unique case of a missing employee in which the applicant, the wife of the missing employee,has sought the following reliefs:
"(i) The Hon'ble Tribunal may kindly be pleased to direct the opposite parties to consider the case of petitioner for payment of family pension and also to pay the G.P.F., Gratuity etc. amount which is admissible under law as the husband of the petitioner viz Mani Ram who was working as Gangman under the opposite parties has been missed on 2.10.2003 and till date he has not turned up in-
spite of several efforts made by the petitioner/ applicant. Page 1 of 5 CAT,Lucknow Bench OA No. 208/2011 Smt. Kabutra Devi Vs. U.O.I. &Ors
(ii) The Hon'ble Tribunal may kindly be pleased to set aside the impugned order dated 29.6.2009 passed by the opposite party No. 2 as contained in Annexure no. 1 to the application by which the services of the applicant's husband viz. Mani Ram has been removed."
2. The facts of the case are that Mani Ram, the husband of the applicant, was engaged as casual labour in 1977 by the respondents and he was appointed to the post of Gangman on regular basis on 30.10.1984. While living in his official accommodation, Mani Ram left his house and did not return. He was removed from service on 28.06.2009. The applicant has preferred this OA for grant of pension benefits, GPF and gratuity payable to the missing employee.
3. It is the contention of the applicant that her husband, Mani Ram, left home on 02.10.2003 with a known person and did not turn up again. The applicant reported the matter to the local police station vide application dated 07.10.2003. When no case was registered, the applicant wrote to Superintendent of Police on 18.10.2003, to Deputy Inspector General of Police on 21.10.2003 and to the National Human Rights Commission on 21.10.2003. She also informed the respondents, only to be served with a notice to vacate the official accommodation. She was informed about removal of her husband from service by the respondents. Her applications made to the respondents for payment of dues admissible was of no avail. Aggrieved, the applicant has approached this Tribunal.
4. The respondents state that the applicant's husband, Mani Ram, was in the habit of absenting himself from duty, and was careless and irresponsible. He was on leave from 27.09.2003 to 30.09.2003 and thereafter he was unauthorizedly absent from duty from 01.10.2003 till 28.06.2009, the date of his removal from service. Several notices sent to his permanent home address were unheeded. No first information report (FIR) was lodged with the police and no Page 2 of 5 CAT,Lucknow Bench OA No. 208/2011 Smt. Kabutra Devi Vs. U.O.I. &Ors final report was produced by the applicant. No notice was sent to the District Magistrate of Bahraich under section 80 of the Code of Civil Procedure for declaring the death of the applicant's husband. It is stated by the respondents that if a person is missing for a long period, the applicant/dependent has the duty to pursue the case for declaring the death of that person from civil court after the expiry of 7 years and produce the death certificate with relevant papers for granting pensionary benefits.
5. We have heard both the parties.
6.1 The case presents a strange situation where a person is reported to be missing for over two decades now, yet the employer respondents have done nothing except removing the missing employee from service and are waiting for the hapless applicant to submit necessary documents for payment of dues admissible to the family.
6.2 During the hearing, the learned counsel for the applicant has drawn our attention to the office memorandum dated 24-25.06.2013 issued by the Department of Pension & Pensioners' Welfare, Government of India dealing with grant of family pension and gratuity to the eligible member of the family of an employee/pensioner/family pensioner reported missing, relevant parts of which are extracted below:
"2. A reference has been received in this Department to clarify whether in a situation where SHO states that FIR is not required to be lodged in the case of person gone missing, the eligible member of the family can be granted family pension. The matter has been examined in consultation with the Ministry of Home Affairs. Section 154 (1) of the Criminal Procedure Code mandates filing of an FIR by the Police authorities on a report received of the commission of a cognizable offence. A missing person per se does not point to commission of a cognizable offence. In view of this, cognizance of a person's disappearance can be taken by the Head of Office on the basis of an authenticated Daily Diary (DD)/ Page 3 of 5 CAT,Lucknow Bench OA No. 208/2011 Smt. Kabutra Devi Vs. U.O.I. &Ors General Diary Entry (GDE), filed by the Police authorities concerned, as per the practice prevalent in that State/UT.
3. It has now been decided to issue consolidated instructions in supersession of previous instructions regarding grant of family pension to the eligible members of family of the employee/pensioner/family pensioner reported missing and whose whereabouts are not known. It includes those kidnapped by insurgents/terrorists but does not include those who disappear after committing frauds/crime etc.
4. In the case of a missing employee/pensioner/family pensioner, the family can apply for the grant of family pension, amount of salary due, leave encashment due and the amount of GPF and gratuity (whatever has not already been received) to the Head of Office of the organization where the employee/pensioner had last served, six months after lodging of the Police report. The family pension and/or retirement gratuity may be sanctioned by the Administrative Ministry/Department after observing the following formalities:-
(i) The family must lodge a report with the concerned Police Station and obtain a report from the Police, that the employee/pensioner/family pensioner has not been traced despite all efforts made by them. The report may be a First Information Report or any other report such as a Daily Diary/General Diary Entry.
(ii) An Indemnity Bond should be taken from the nominee/dependents of the employee/pensioner/family pensioner that all payments will be adjusted against the payments due to the employee/pensioner/family pensioner in case she/he appears on the scene and makes any claim.
5. In the case of a missing employee, the family pension, at the ordinary or enhanced rate, as applicable, will accrue from the expiry of leave or the date up to which pay and allowances have been paid or the date of the police report, whichever is later. In the case of a missing pensioner/family pensioner, it will accrue from the date of the police report or from the date immediately succeeding the date till which the pension/family pension had been paid, whichever is later.
6. The retirement gratuity will be paid to the family within three months of the date of application. In case of any delay, the interest shall be paid at the applicable rates and responsibility for delay shall be fixed. The difference between death gratuity and retirement gratuity shall be payable after the death of the employee is conclusively established or on the expiry of the period of seven years from the date of the police report.
7. Before sanctioning the payment of gratuity, the Head of Office will assess all Government dues outstanding against the employee/pensioner and effect their recovery in accordance with Rule 71 of the CCS (Pension) Rules, 1972 and other instructions in force for effecting such recoveries.
8. The amount of salary due, leave encashment due and the amount of GPF will be paid to the family in the first instance as per the nomination made by the employee/pensioner on filing of a police report and submission of an indemnity bond as indicated above.
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CAT,Lucknow Bench OA No. 208/2011 Smt. Kabutra Devi Vs. U.O.I. &Ors
9. The benefits to be sanctioned to the family/nominee of the missing employee/pensioner will be based on and regulated by the emoluments drawn by him/her and the rules/orders applicable to him/her as on the last date he/she was on duty including authorized periods of leave..."
(emphasis supplied) 6.3 In view of the position above, in our opinion, the ends of justice will be served if the punishment of removal imposed on the missing employee, Mani Ram, is quashed and set aside and the respondents take effective steps for payment of dues admissible, including family pension, gratuity and provident fund to the applicant in a time bound manner in terms of the O.M. dated 24- 25.06.2013.The conduct of the respondents in allowing this matter to linger on has not been worthy of a model employer. It is expected that the respondents will now take steps for expeditious resolution of the matter.
7.1 In view of the facts and circumstances above, we quash and set aside the punishment of removal from service imposed by the respondents upon Mani Ram, the husband of the applicant. The respondents are directed to make payment of family pension and all other admissible dues to the applicant in terms of O.M. dated 24- 25.06.2013 with interest on delayed payment as per the bank rate within a period of three months from the date of receipt of a certified copy of this order.
7.2 Pending MAs, if any, are also disposed of.
7.3 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
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