Central Administrative Tribunal - Jabalpur
Umesh Singh Thakur Sheru vs M/O Railways on 24 June, 2025
1 OA 200/94/2018
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/94/2018
Jabalpur, this Tuesday, the 24th day of June, 2025
HON'BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE SMT. MALLIKA ARYA, ADMINISTRATIVE MEMBER
Umesh Singh Thakur (Sheru), S/o Late Vinod Singh Thakur, Age 18
years (approx.), R/o Sihora Old Bus Stand, Adupura, Sihora, Distt.
Jabalpur (M.P.).
-Applicant
(By Advocate - Shri H.R. Naidu)
Versus
1. Union of India through Ministry of Railways, Room No.256-A,
Rail Bhawan, Raisina Road, New Delhi - 110001.
2. General Manager, G.M. Office, General Administration, West
Central Railway, 3rd Floor, Annex Building, Opp. Indira Mkt.,
Jabalpur 482001.
3. Disciplinary Officer, Senior Section Eng. K.B. Central Railway
Admin. (Tech.) Deptt. Jabalpur (M.P.) 482001.
4. Assistant Works Manager (Tech.), West Central Railway, Jabalpur
Division, Jabalpur (M.P.) 482001.
- Respondents
(By Advocate -Shri P.K. Chaurasia)
(Date of reserving the order:- 15.05.2025)
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2 OA 200/94/2018
ORDER
By Akhil Kumar Srivastava, JM;
The applicant is challenging the order dated 05.11.2007 (Annexure A-1) whereby mother of the applicant has been removed from service.
2. The applicant is the son of Late Smt. Laxmi Thakur, who was appointed on compensatory ground after death of her husband. Mother of the applicant was unauthorizedly absent from duty during 14.04.2006 to 12.06.2006. She was issued with a major penalty chargesheet on 30.11.2006. Since the applicant's mother did not turn up for participating in the departmental enquiry, an ex parte enquiry was conducted and the Inquiry Officer submitted the enquiry report on 25.09.2007 concluding that the charges are proved against her. Thereafter, the Disciplinary Authority imposed the major penalty of removal from service upon the mother of the applicant vide order dated 30.11.2006.
2.1 The applicant has contended that her mother was mentally challenged in 2006 and was sent to Gwalior Mental Hospital for treatment. The documents in this regard have been filed at Annexure A-2 and A-3 with the Original Application. At the time when the impugned punishment order dated 05.11.2007 (Annexure Page 2 of 10 ANUPAM2025.07.01 10:59:24 MISHRA +05'30' 3 OA 200/94/2018 A-1) was passed, the applicant and her sister were minor. The applicant and her sister were sent to Orphan's Home and Child Recreation Centre as nobody was there to take care of them. The applicant's mother, after a long treatment and due to illness died on 14.11.2006. The applicant states that the impugned order dated 05.11.2007 is bad in law as the same has been passed behind the back of her mother in contravention to the principles of natural justice.
3. In their reply, the respondents have stated that looing to the unauthorized absence of the applicant's mother, she was issued with a major penalty chargesheet (SF-5). It has been stated by the respondents that the chargesheet was received by the applicant on 04.12.2006 but the mother of the applicant did not participate in the enquiry proceedings. Later on, an information was received that the mother of the applicant is absconding from her house from 02.06.2007 and an FIR was also lodged in this regard. As the enquiry was pending for considerable long time, again a notice dated 13.07.2007 was issued by the Inquiry Officer to appear in the enquiry proceeding which was sent at the address of the delinquent employee and also pasted on notice board of the Office. But the Page 3 of 10 ANUPAM2025.07.01 10:59:24 MISHRA +05'30' 4 OA 200/94/2018 same was returned undelivered with comment that addressee is not residing at given address. Hence, an ex-part enquiry was initiated against the mother of the applicant. During the course of the departmental enquiry, the Inquiry Officer had considered the available documents and examined the witness properly and submitted his enquiry report on 25.09.2007 to the Disciplinary Authority. The Disciplinary Authority after taking all due procedure and considering all documents on record issued speaking order dated 05.11.2007, wherein considered the charged employee guilty for the charge levelled against her and imposed punishment of removal from service with immediate effect. I was also concluded by the Disciplinary Authority that the mother of the applicant is not eligible for compassionate allowance under Rule 65 of Pension Rules. The respondents have further stated that they have provided all opportunity with sufficient time to the delinquent employee to put her objections before the competent authority.
4. We have heard the learned counsel for the parties and perused the pleadings and the documents available on record. Page 4 of 10
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5. The issue to be addressed in this Original Application as to whether the enquiry conducted against an absconding person leading to punishment is justified or not?
6. 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 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.
7. 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 Page 5 of 10 ANUPAM2025.07.01 10:59:24 MISHRA +05'30' 6 OA 200/94/2018 of death and not to the actual date of death. In the present case, the mother of the applicant was not heard since 2007 and ultimately died in the year 2017 due to her mental health conditions.
8. 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 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.Page 6 of 10
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(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 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 Page 7 of 10 ANUPAM2025.07.01 10:59:24 MISHRA +05'30'
8 OA 200/94/2018 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. (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."
9. 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 Page 8 of 10 ANUPAM2025.07.01 10:59:24 MISHRA +05'30' 9 OA 200/94/2018 specific provision under the Railway Rules. We have also come across Para 4 of the Office Memorandum dated 24.06.2013, which 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 in dispute as the respondents themselves concede the fact regarding missing of applicant's mother since 2007. Therefore, the said Office Memorandum would be applicable in case of the applicant to claim family pension and other retiral dues of her mother. We hold that the decision to remove the applicant's mother ex parte when the fact that she was missing was in the knowledge of the respondents is legally unsustainable. Therefore, we are of considered view that the applicant is entitled for all death-cum-retiral benefits of her mother including family pension. He is also entitled to be considered for appointment on compassionate ground.
10. In the result, we quash and set aside the impugned punishment order dated 05.11.2007 (Annexure A-7). We direct the respondents Page 9 of 10 ANUPAM2025.07.01 10:59:24 MISHRA +05'30' 10 OA 200/94/2018 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. We further direct the respondents to consider the applicant for appointment on compassionate ground.
11. Accordingly, this Original Application stands allowed. No order as to costs.
(Mallika Arya) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
am
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