Central Administrative Tribunal - Jabalpur
Smt Ramkali Kushwah vs M/O Railways on 8 November, 2024
1 OA No.202/435/2019
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
(Circuit Sitting : Gwalior)
Original Application No.202/435/2019
Jabalpur, this Friday, the 08th day of November, 2024
HON'BLE MR. JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE MRS. MALLIKA ARYA, ADMINISTRATIVE MEMBER
Smt. Ramkali Kushwah, W/o Shri Motiram, Occupation - Housewife, R/o
Samadhiya Colony, Harkot Seer, Lashkar, Gwalior, M.P. - 474001 -
Mobile No.7898021470 -Applicant
(By Advocate - Shri Nirmal Sharma)
Versus
1. Union of India through Secretary, Ministry of Railway Rail Bhawan,
New Delhi - 110001.
2. Divisional Railway Manager, North Central Railway, Jhansi U.P. -
284135.
3. Senior Section Engineer (PW/ML), North Central Railway, Gwalior M.P.
- 474001 -Respondents
(By Advocate - Shri Yogesh Parashar)
(Date of reserving order : 21.10.2024)
ORDER
By Mallika Arya, AM.-
The applicant is aggrieved by denial of family pension to her.
Page 1 of 9ANUPAM Digitally signed by ANUPAM MISHRA DN: C=IN, O=CENTRAL ADMINISTRATIVE TRIBUNAL, OU=STENO 'D', PostalCode=482001, L=Jabalpur, S=Madhya Pradesh, STREET=ON SHANTI CHOWK, Phone= ab5abc11a398aa3a91b502541934384891745416bef6646cdc7aab5af9aeedb5, SERIALNUMBER= c713f452142645d937ddae5fae13754db170fa40ef20d49d3a241af5c2c9ee20, E=mishraanupam817@ gmail.com, CN=ANUPAM MISHRA Reason: I am the author of this document MISHRA Location:
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2. The case of the applicant, in brief, is that her husband was working with the respondent-Railways on the post of Gangman. However, he went missing w.e.f.14.08.2013 and is not traceable as on date. The applicant lodged a missing complaint (Annexure A-3) in the concerned Police Station and despite repeated communication, nothing could be heard from the police authorities. The applicant also intimated this fact to the Department.
But despite being well aware that the employee is missing, the respondents have sent a letter dated 06.11.2014 (Annexure A-2) to the applicant informing that her husband has been terminated from service. The applicant relies on an Office Memorandum dated 24.06.2013 (Page 21 of the Paper Book) issued by the Department of Pension & Pensioner's Welfare, which provides that 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 to the Head of Office of the organisation where the employee/pensioner had last served, six months after lodging of Police report.
3. In their reply, the respondents have stated that when the applicant was posted on the post of Gangman, he remained unauthorizedly absent from his Page 2 of 9 ANUPAM Digitally signed by ANUPAM MISHRA DN: C=IN, O=CENTRAL ADMINISTRATIVE TRIBUNAL, OU=STENO 'D', PostalCode=482001, L=Jabalpur, S=Madhya Pradesh, STREET=ON SHANTI CHOWK, Phone= ab5abc11a398aa3a91b502541934384891745416bef6646cdc7aab5af9aeedb5, SERIALNUMBER= c713f452142645d937ddae5fae13754db170fa40ef20d49d3a241af5c2c9ee20, E=mishraanupam817@ gmail.com, CN=ANUPAM MISHRA Reason: I am the author of this document MISHRA Location:
Date: 2024.11.11 10:43:30+05'30' Foxit PDF Reader Version: 2024.3.0 3 OA No.202/435/2019 duty from 26.11.2010 to 26.04.2011, i.e. 152 days without giving any intimation to this immediate superior. Hence, a major penalty charge sheet was issued to the husband of the applicant on 28.04.2011 (Annexure CR-2).
During the course of disciplinary proceeding, the delinquent employee was asked to attend the departmental proceeding by the Inquiry Officer vide letter dated 14.07.2014. But the husband of the applicant did not turn up.
Therefore, next date of hearing was fixed as 24.07.2014 and thereafter on 05.08.2014. Since the applicant did not turn up despite repeated reminders, the Inquiry Officer conducted ex parte enquiry against the applicant and submitted his report on 28.08.2014 (Annexure CR-6). Considering the enquiry report of the Inquiry Officer, the Disciplinary Authority removed the husband of the applicant from service w.e.f.15.10.2014 (Annexure CR-
8). Since the husband of the applicant has been removed from service, the applicant is not entitled for family pension or any other relief.
4. The applicant has also filed rejoinder wherein she states that her husband went missing in the year 2013 while the departmental proceedings were concluded in the year 2014, i.e. after the applicant's husband went missing.
Page 3 of 9ANUPAM Digitally signed by ANUPAM MISHRA DN: C=IN, O=CENTRAL ADMINISTRATIVE TRIBUNAL, OU=STENO 'D', PostalCode=482001, L=Jabalpur, S=Madhya Pradesh, STREET=ON SHANTI CHOWK, Phone= ab5abc11a398aa3a91b502541934384891745416bef6646cdc7aab5af9aeedb5, SERIALNUMBER= c713f452142645d937ddae5fae13754db170fa40ef20d49d3a241af5c2c9ee20, E=mishraanupam817@ gmail.com, CN=ANUPAM MISHRA Reason: I am the author of this document MISHRA Location:
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5. Heard the learned counsel for the parties and perused the pleadings and the documents available on record.
6. In para 4.4. of their reply, the respondents have conceeded the fact regarding the missing status of applicant's husband. They have admitted that the son of the applicant submitted an application to PWI Gwalior, which was received on 09.08.2013. Therefore, the question of applicant's husband participating in the disciplinary proceedings does not arise once it was within the knowledge of the respondents that the employee went missing. Now, the sole question for consideration before this Tribunal is as to whether the action taken by the respondents against the missing delinquent employee and denying the applicant her legitimate right to receive the family pension along with other dues.
7. In order to appreciate this issue, it is necessary to understand the scheme of sections 107 and 108 of the Indian Evidence Act, 1872. Sections 107 and 108 read as follows:
"Section 107: - Burden of proving death of person known to have been alive within thirty years.- When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
Section 108:- Burden of proving that person is alive who has not been heard of for seven years.- (provided that when) the question is whether a man is Page 4 of 9 ANUPAM Digitally signed by ANUPAM MISHRA DN: C=IN, O=CENTRAL ADMINISTRATIVE TRIBUNAL, OU=STENO 'D', PostalCode=482001, L=Jabalpur, S=Madhya Pradesh, STREET=ON SHANTI CHOWK, Phone= ab5abc11a398aa3a91b502541934384891745416bef6646cdc7aab5af9aeedb5, SERIALNUMBER= c713f452142645d937ddae5fae13754db170fa40ef20d49d3a241af5c2c9ee20, E=mishraanupam817@ gmail.com, CN=ANUPAM MISHRA Reason: I am the author of this document MISHRA Location:
Date: 2024.11.11 10:43:30+05'30' Foxit PDF Reader Version: 2024.3.0 5 OA No.202/435/2019 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 been alive, the burden of proving that he is alive is (shifted to) the person who affirms it.
8. Though the provisions of sections 107 and 108 are very clear as to the rising of presumption, these sections do not throw any light upon the date on which a person can be presumed to be dead. In other words, the doubt or dilemma that arises in cases of this nature is as to the date of death of the person in respect of whom the presumption is raised. The moment it is established that a person has not been heard of for 7 years, the presumption of death arises. But the presumption under the Act is confined only to the factum of death and not to the actual date of death.
9. Admittedly, there are instructions in the form of Rule 51 of the CCS (Pension) Rules, 1972 and since they are statutory rules, they are binding upon the respondents. The Rule 51 of the said rules reads as under:
"51. Entitlements of family of a missing Government servant or pensioner or family pensioner.-
(1)(a) In the case of a Government servant who goes missing, family pension shall be payable to a member or members of the family at a rate specified in sub-rule (2) of rule 50, and in the manner and subject to the eligibility conditions as applicable in the case of death of a Government servant during service.
(b) The family pension under clause (a) shall be payable from the date following the date up to which leave was sanctioned to the Government servant before he went missing or from the date up to which pay and allowances have been paid to the Government servant or from the date on which a report has been lodged with Page 5 of 9 ANUPAM Digitally signed by ANUPAM MISHRA DN: C=IN, O=CENTRAL ADMINISTRATIVE TRIBUNAL, OU=STENO 'D', PostalCode=482001, L=Jabalpur, S=Madhya Pradesh, STREET=ON SHANTI CHOWK, Phone= ab5abc11a398aa3a91b502541934384891745416bef6646cdc7aab5af9aeedb5, SERIALNUMBER= c713f452142645d937ddae5fae13754db170fa40ef20d49d3a241af5c2c9ee20, E=mishraanupam817@ gmail.com, CN=ANUPAM MISHRA Reason: I am the author of this document MISHRA Location:
Date: 2024.11.11 10:43:30+05'30' Foxit PDF Reader Version: 2024.3.0 6 OA No.202/435/2019 the concerned Police Station in the form of First Information Report or a Daily Diary Entry or a General Diary Entry, whichever is the latest. (2)(a) In the case of a pensioner who goes missing, family pension shall be payable to an eligible member or members of the family at a rate specified in sub-
rule (2) of rule 50, and in the manner and subject to the eligibility conditions as applicable in the case of death of a pensioner.
(b) The family pension under clause (a) shall be payable from the date following the date up to which pension has been paid to the pensioner who went missing or from the date on which a report was lodged with the concerned Police Station in the form of First Information Report or a Daily Diary Entry or a General Diary Entry, whichever is later.
(3)(a) In the case of a family pensioner who goes missing, family pension shall be payable to a member of the family who is eligible to receive the family pension after the death of the family pensioner, at a rate specified in subrule (2) of rule 50, and in the manner and subject to the eligibility conditions as applicable on death of a family pensioner.
(b) The family pension under clause (a) shall be payable from the date following the date up to which family pension has been paid to the family pensioner before he went missing or from the date on which a report was lodged with the concerned Police Station in the form of First Information Report or a Daily Diary Entry or a General Diary Entry, whichever is later.
(4) In the case of a Government servant who goes missing or a retired Government servant who goes missing without receiving the retirement gratuity admissible under sub-rule (1) of Rule 45, the amount of retirement gratuity shall be payable to a member or members of the family in the manner and subject to the conditions applicable in the case of a Government servant who dies after retirement without receiving the retirement gratuity. (5)(a) Claims for payment of family pension and gratuity shall be submitted to the Head of Office by the member or members of the family eligible for family pension and nominees or members of family eligible to receive the amount of gratuity, after a report has been lodged with the concerned Police Station in the form of a First Information Report or a Daily Diary Entry or a General Diary Entry.
(b) The claims shall be accompanied by an Indemnity Bond in Format 8 along with a copy each of the report lodged with the concerned Police Station and the report obtained from the police to the effect that the Government servant or pensioner or family pensioner could not be traced so far despite all efforts made in that regard.
(6) In the case of a Government servant referred to in clause (a) of sub-rule (1), the pay for family pension and emoluments for retirement gratuity shall be determined in accordance with Explanation-1 below sub-rule (2) of rule 50 and Page 6 of 9 ANUPAM Digitally signed by ANUPAM MISHRA DN: C=IN, O=CENTRAL ADMINISTRATIVE TRIBUNAL, OU=STENO 'D', PostalCode=482001, L=Jabalpur, S=Madhya Pradesh, STREET=ON SHANTI CHOWK, Phone= ab5abc11a398aa3a91b502541934384891745416bef6646cdc7aab5af9aeedb5, SERIALNUMBER= c713f452142645d937ddae5fae13754db170fa40ef20d49d3a241af5c2c9ee20, E=mishraanupam817@ gmail.com, CN=ANUPAM MISHRA Reason: I am the author of this document MISHRA Location:
Date: 2024.11.11 10:43:30+05'30' Foxit PDF Reader Version: 2024.3.0 7 OA No.202/435/2019 sub-rule (6) of rule 45, respectively, based on the pay and emoluments on the last date on which he was on duty before he went missing or, if he was on leave, the date on which leave sanctioned to him expired.
(7) In the case of a retired Government servant referred to in sub-rule (4) the emoluments for the purpose of retirement gratuity shall be reckoned in accordance with sub-rule (6) of rule 45.
(8)(a) The payment of family pension (including the arrears of family pension for the period from the date specified in sub-rule (1) or sub-rule (2) or sub-rule (3), as the case may be, up to the date of commencement of payment of family pension) and the amount of gratuity shall not be made before the expiry of a period of six months from the date of lodging of report with the concerned Police Station:
Provided further that if the payment of gratuity is delayed and the delay is attributable to administrative lapses or reasons, interest shall be payable for the period of delay beyond a period of six months from the date of submission of claim and responsibility shall be fixed for such delayed payment of gratuity, in accordance with rule 65.
(b) In the case of a Government servant referred to in clause (a) of sub-rule (1), death gratuity shall become payable after the death of the Government servant is conclusively established or on expiry of a period of seven years from the date of lodging of the report with the police, whichever is earlier.
(c) The difference between the amount of death gratuity and retirement gratuity shall be paid to the person or persons eligible for payment of death gratuity in accordance with these rules, not later than three months from the date of submission of claim for difference between the amount of death gratuity and retirement gratuity.
(d) If the payment of difference between the amount of death gratuity and retirement gratuity is delayed and the delay is attributable to administrative lapses or reasons, interest shall be payable for the period of delay beyond a period of six months from the date of submission of claim for difference between the amount of death gratuity and retirement gratuity.
(9) In addition to the family pension and retirement gratuity, the family of the Government servant shall also be entitled to receive arrears of pay and allowances or leave salary, if any, cash equivalent to leave salary and amount available in the General Provident Fund Account of the Government servant in accordance with the rules as applicable to a Government servant who dies during service.
(10) Nothing in this rule shall apply in the case of a Government servant or a pensioner or a family pensioner who disappears and against whom allegation of fraud or embezzlement or any other crime is under investigation or who has been charged or convicted for such crimes.Page 7 of 9
ANUPAM Digitally signed by ANUPAM MISHRA DN: C=IN, O=CENTRAL ADMINISTRATIVE TRIBUNAL, OU=STENO 'D', PostalCode=482001, L=Jabalpur, S=Madhya Pradesh, STREET=ON SHANTI CHOWK, Phone= ab5abc11a398aa3a91b502541934384891745416bef6646cdc7aab5af9aeedb5, SERIALNUMBER= c713f452142645d937ddae5fae13754db170fa40ef20d49d3a241af5c2c9ee20, E=mishraanupam817@ gmail.com, CN=ANUPAM MISHRA Reason: I am the author of this document MISHRA Location:
Date: 2024.11.11 10:43:30+05'30' Foxit PDF Reader Version: 2024.3.0 8 OA No.202/435/2019 (11) No payment under this rule shall be authorised to be paid to a person or persons other than a member or members of the family eligible to receive that payment."
10. The above Rule clinches the issue with respect to the claim of the applicant in case of a missing employee. Even if there are no instructions in the Railway Services Pension Rules as how to deal with in such cases, we are of the view that the provisions contained under CCS (Pension) Rules will be applicable in the absence of any specific provision under the Railway Rules. Apart from this, Para 4 of the Office Memorandum dated 24.06.2013 clearly states that 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 to the Head of Office of the organisation where the employee/pensioner had last served, six months after lodging of Police report. The fact regarding filing of FIR is not disputed. The said Office Memorandum clearly entitles the applicant to claim family pension and other retiral dues of her husband after a period of six months from the date of lodging of missing report before the Police. The respondents have contended that the Police has not filed closure report and they are still looking for the missing person. This plea of the respondents does not merit Page 8 of 9 ANUPAM Digitally signed by ANUPAM MISHRA DN: C=IN, O=CENTRAL ADMINISTRATIVE TRIBUNAL, OU=STENO 'D', PostalCode=482001, L=Jabalpur, S=Madhya Pradesh, STREET=ON SHANTI CHOWK, Phone= ab5abc11a398aa3a91b502541934384891745416bef6646cdc7aab5af9aeedb5, SERIALNUMBER= c713f452142645d937ddae5fae13754db170fa40ef20d49d3a241af5c2c9ee20, E=mishraanupam817@ gmail.com, CN=ANUPAM MISHRA Reason: I am the author of this document MISHRA Location:
Date: 2024.11.11 10:43:30+05'30' Foxit PDF Reader Version: 2024.3.0 9 OA No.202/435/2019 credence in the light of the above discussions. Therefore, we hold that the decision to terminate the applicant's husband ex parte when the fact that he was missing was in the knowledge of the respondents is legally unsustainable. It is relevant to note that husband of the applicant is still missing in Police records after seven years. Therefore, we are of considered view that the applicant is entitled for all death-cum-retiral benefits of her husband including family pension.
11. We direct the respondents to grant all the benefits applicable to the applicant in terms of Rule 51 of the CCS (Pension) Rules coupled with the Office Memorandum issued on 24.06.2012, within a period of sixty days (60 days) from the date of receipt of a copy of this order.
12. Accordingly, this Original Application is allowed. No order as to costs.
(Mallika Arya) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
am/-
Page 9 of 9
ANUPAM Digitally signed by ANUPAM MISHRA
DN: C=IN, O=CENTRAL ADMINISTRATIVE TRIBUNAL, OU=STENO 'D', PostalCode=482001, L=Jabalpur, S=Madhya Pradesh, STREET=ON SHANTI CHOWK, Phone= ab5abc11a398aa3a91b502541934384891745416bef6646cdc7aab5af9aeedb5, SERIALNUMBER= c713f452142645d937ddae5fae13754db170fa40ef20d49d3a241af5c2c9ee20, E=mishraanupam817@ gmail.com, CN=ANUPAM MISHRA Reason: I am the author of this document MISHRA Location:
Date: 2024.11.11 10:43:30+05'30' Foxit PDF Reader Version: 2024.3.0