Central Administrative Tribunal - Delhi
Rani Singh vs Govt. Of Nctd on 7 April, 2022
1
OA No. 516/2021
Item No.2
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 516/2021
Reserved on : 29.03.2022
Pronounced on : 07.04.2022
Hon'ble Ms. Manjula Das, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Rani Singh, Age : 52 years
W/o Shri Jiwan Kumar Singh
S/o Late Shri Satendra Prasad Singh
R/o 89/4, Ground Floor,
Krishnakunj Apartments, Krishna Nagar,
Safdarjung Enclave, New Delhi - 110029
...Applicant
(By Advocate: Mr. R.V. Sinha with Mr. Amit Sinha)
Versus
1. Government of NCT of Delhi
Through : The Principal Secretary (Home)
Home Department
Delhi Secretariat, I.P. Estate
New Delhi - 110002
Email : [email protected]
2. The Commissioner of Police,
Delhi Police,
2nd Floor, Tower - I Police Headquarter,
Jai Singh Road, New Delhi - 110002
Email : [email protected].
3. The Pay & Accounts Officer,
Govt. of NCT of Delhi,
Office of the Deputy Controller of Accounts (Funds)
GPF Cell, 4th Level, A Wing, Vikas Bhawan - II
Civil Lines, Delhi -110054
...Respondents
(By Advocate: Mr. Amit Anand)
2
OA No. 516/2021
Item No.2
ORDER
Hon'ble Mr. Mohd. Jamshed, Member (A) The applicant's husband, Shri Jiwan Kumar Singh, had joined Delhi Police as Sub Inspector in 1989. He was assigned on security duties and said to have left his house in the evening of 08.06.2005. He was already on sanctioned leave for a month and was to join back on 12.06.2005. It is submitted that he did not return home and after making necessary enquiry, the applicant informed Delhi Police about it on 16.06.2005. The husband of the applicant was reportedly missing and has not come back till date. A Notice of Demand dated 02.10.2020 was sent to the respondents requesting grant of family pension and other retiral benefits to the applicant. In the Notice, it was also mentioned that in terms of Sections 107 and 108 of the Indian Evidence Act, 1872, if a person is not heard of for 7 years, there is a presumption of his death. In the Notice of Demand dated 02.10.2020, it was stated that Shri Jiwan Kumar Singh is a dead person in law and consequently the applicant is legally entitled for GPF and other pensionary benefits.
2. The respondents informed the applicant vide order dated 23.10.2020 that the applicant's husband was dismissed from service vide Office Order dated 23.12.2005 due to his involvement in criminal case registered vide FIR No.358/2005 dated 06.06.2005 under Section 363 (365) IPC P.S. Bhagalpur, Bihar. It was also 3 OA No. 516/2021 Item No.2 advised that in view of his dismissal, the applicant is not entitled for any pension/family pension/gratuity etc. and that she may submit the documents for a claim towards GPF and CGEGIS. On 28.01.2021, the respondents communicated the sanction of GPF in favour of the applicant, i.e., a sum of Rs.1,96,671/- with interest accrued on GPF amount till 11/2005. As the family pension and other retiral benefits were denied, the applicant being aggrieved by the decision of the respondents, filed the present O.A. seeking the following relief(s):
"(i) call for the relevant records of the respondents in the matter,
(ii) hold and declare that the husband of the Applicant Shri Jiwan Kumar Singh, Ex-S.I., PIS No.16890091 working under the respondent No.2 is dead in terms of section 107 & 108 of the Indian Evidence Act, 1872 with consequential relief under law.
(iii) Hold and declare that the order dated 23.12.2005, passed by the Respondent No.2 vide No.8026-8125/HAP-SEC(P-
1) is non est and nullity in the eyes of law and consequently quash the same.
(iv) Hold and declare the letter dated 23.10.2020 of the Respondents No.1 & 2 to the extent it denies the grant of family pension to the applicant as illegal, arbitrary and accordingly quash the same to that extent.
(v) Hold and declare that the applicant is entitled for family pension and arrears thereof including other retiral benefits i.e. Gratuity, Leave Encashment, CGEGIS, etc. w.e.f. 16.06.2005 with interest thereon the arrears @ 12% per annum till the realization with consequential relief directing the respondents to pay the same within time bound manner.
(vi) Hold and declare that nonpayment of interest on the GPF account of the husband of the applicant as per rate of interest applicable on GPF amount till date of payment and restricting the interests on GPF paid by the Respondent No.3 till 11/2005 is arbitrary and illegal and 4 OA No. 516/2021 Item No.2 consequently direct the respondent to release the difference of interest from 11/2005 till payment of the GPF amount.
(vii) award cost of the proceedings in favour of the applicant and against the official respondents.
(viii) may also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice."
The relief sought is to hold and declare the husband of the applicant as dead in terms of Sections 107 and 108 under Indian Evidence Act, 1872, holding the impugned penalty order dated 23.12.2005 as non est and to quash the same. Relief sought is also for payment of family pension and other reitral benefits with 12% interest per annum.
3. It is the contention of the applicant that her husband has gone missing from 08.06.2005 and has not come back. As there is no information with regard to his whereabouts, in terms of Sections 107 and 108 of Indian Evidence Act, 1872, her husband, Shri Jiwan Kumar Singh, be declared as a dead person and, consequently, the applicant becomes legally entitled to receive retiral benefits, including family pension and GPF etc. It is also contended that the impugned dismissal order dated 23.12.2005 was never communicated to the husband of the applicant and was neither served personally to him and, therefore, the impugned order is non est and nullity in the eyes of law.
5OA No. 516/2021 Item No.2
4. The applicant has relied upon Sections 107 and 108 of Indian Evidence Act 1872, Govt. of India, Department of Pension & Pensioners' Welfare O.M. dated 29.08.1986 and judgments of the Hon'ble Apex Court, which are as under:
(i) State of Punjab vs. Amar Singh Harika, 1966 AIR (SC) 1313.
(ii) Dulu Devi vs. State of Assam & Ors., 2016 (1) SCC 622.
(iii) Union of India vs. Dinanath Shantaram Karekar, (1998) 7 SCC
569.
5. The applicant has also relied upon a catena of judgments in connection with dealing of case under Article 311 (2)(b), including the following judgments:
(i) Union of India vs. Tulsiram Patel, AIR 1985 SC 146,
(ii) Satyavir Singh & Ors. vs. Union of India & Ors, 1985 94) SCC 252
(iii) Union of India & Ors. vs. Polimetla Mary Sarojini & Anr., 2017 SCC Online Hyd 24;
(iv) Smt. T.K. Parukutty Amma vs. Garrison Engineer & Anr., 1987 (4) Administrative Tribunals Cases 248;
(v) Banarasi vs. Government of NCT of Delhi, 2008 (8) AD (Delhi) 193;
(vi) Govt. of NCT of Delhi vs. Manbhar Devi, 2015 SCC Online Del 12375;
(vii) Tripta Rani vs. Union of India & Anr., 2016 SCC Online Del 3692.6 OA No. 516/2021
Item No.2
6. Respondents have filed the counter affidavit opposing the O.A. It is submitted that the husband of the applicant, Shri Jiwan Kumar Singh, was posted as Sub-Inspector (Exe.) in Delhi Police since 1989. He was posted in Security Unit of Delhi Police and proceeded on sanctioned leave on 06.05.2015 for 33 days with 4 days permission and was supposed to join back on duty on 13.06.2005. However, he failed to join his duties and was marked absent. On 26.06.2005, a Criminal Case FIR No.358/2005 dated 06.06.2005 under Section 363 IPC in Police Station Bhagalpur, Bihar was registered against him, due to his involvement in a criminal case. He was accordingly placed under suspension w.e.f. 07.07.2005. A copy of the suspension order was served upon the applicant, who is the wife of SI Jiwan Kumar Singh, as he was not available at his given address in Delhi. In this connection, on 13.09.2005, a Sub-Inspector of Bihar Police, who was I.O. in the criminal case, visited the Security Unit of Delhi Police for ascertaining the identity/whereabouts of Shri Jiwan Kumar Singh, who was the prime accused in the said criminal case, having charges of abduction, having illicit relation and keeping in wrongful confinement etc. In the meanwhile, Jiwan Kumar Singh did not join his duties and an Absentee Notice dated 22.09.2005 addressed at his residential address in Delhi was issued by Delhi Police. The said Notice was served upon the applicant. A copy of the Absentee Notice was also sent to his native place at Dumka, Bihar by registered post. 7 OA No. 516/2021 Item No.2 Subsequently, on receiving a complaint from the father of one Ms. Preeti Meenakshi, who was reportedly abducted by the husband of the applicant, an enquiry was conducted by ACP Crime Branch of Delhi Police. The enquiry revealed that SI Jiwan Kumar Singh was having illicit relation with the said person, who was married and happens to be his real niece in relation. It was also confirmed in the enquiry that both, Shri Jiwan Kumar Singh and Ms. Preeti Meenakshi, were missing from the same date and had also reportedly stayed in a hotel at Kathmandu, Nepal on 22.05.2005.
7. Once it was established from all possible means that Shri Jiwan Kumar Singh had deliberately indulged himself in various crimes, including abduction, illicit relationship and deliberately not joining duties to avoid his arrest/prosecution in the criminal case registered against him, he was dismissed from service vide Office Order dated 23.12.2005. It is the contention of the respondents that the said Shri Jiwan Kumar Singh is deliberately absconding in the apprehension of getting arrested in the said criminal case. It is only on 02.10.2020 that the applicant sent a Notice for releasing his pending service benefits. She was advised vide order dated 23.10.2020 that in view of the dismissal from service of her husband, she is not entitled to pension, gratuity, leave encashment and other retiral benefits. However, the amount of GPF of Rs.1,96,671/- found payable in his case has already been paid to her 8 OA No. 516/2021 Item No.2 vide Bill dated 29.01.2021 and the amount of CGEGIS of Rs.10,448/- has also been paid on 08.04.2021, without any delay.
8. It is further submitted that the cases relied upon by the applicant are not relevant to the facts of this case as this is not a case of a person going missing and whose whereabouts are unknown. In the present case, the applicant's husband is deliberately absconding in order to avoid arrest/prosecution in the criminal case registered against him. The action of dismissal has been taken against him under Section 311 (2)(b) of the Constitution of India, as it was not possible to hold any enquiry for want of the person, who was absconding. However, in view of the grave misconduct and heinous charges and registration of a criminal case against him, he has been rightly dismissed from service and there is no anomaly and, therefore, the cases relied upon by the applicant, are not applicable.
9. In the rejoinder filed by the applicant, the points made in the OA have been reiterated and reliance has been placed on order of this Tribunal in O.A. No. 1912/2015 dated 11.03.2021 and in O.A. No. 1383/2020 and batch dated 10.02.2022. Both these orders deal with applicability of Article 311 (2)(b) and take into account various judgments of the Hon'ble Apex Court in this regard. 9 OA No. 516/2021 Item No.2
10. Heard Mr. R.V. Sinha, learned counsel for the applicant and Mr. Amit Anand, learned counsel for the respondents, and perused the pleadings and the judgments relied upon.
11. There is no dispute to the facts of the case. The applicant's husband, while posted in the Security Unit in Delhi Police on 06.05.2005, proceeded on sanctioned EL for 33 days and 4 days permission. He was supposed to join back on 13.06.2005 after his leave period. The applicant lodged a report in the Police Station Malviya Nagar, New Delhi on 16.06.2005, stating that her husband left the house in the evening of 08.06.2005 and has not come back. Since the applicant's husband did not join his duties on 13.06.2005, he was marked absent. On 26.06.2005, a Criminal Case vide FIR No.358/2005 dated 06.06.2005 under Section 363 IPC in PS Bhagalpur, Bihar was registered against him, due to his involvement in the said criminal case. He was placed under suspension vide order dated 07.07.2005. Copy of the suspension order was duly served upon the applicant, as her husband was not found available at his residence. Subsequently, on 13.09.2005, a Sub-Inspector of Bihar Police, who was I.O. in the criminal case, visited the Security Unit, Delhi Police to ascertain the identity/whereabouts of SI Jiwan Kumar Singh (husband of the applicant), who was the prime accused and wanted in the said criminal case, having charges of abduction, illicit relationship and keeping in wrongful confinement one Ms. Preeti Meenakshi, who was the real niece of the applicant's 10 OA No. 516/2021 Item No.2 husband. Since SI Jiwan Kumar Singh never joined duties nor collected the Subsistence Allowance, an Absentee Notice dated 22.09.2005 addressed to his residential address in Delhi, was issued by Delhi Police. This was also served upon his wife, the applicant herein. A copy of this Absentee Notice was also sent to his native place at Dumka, Bihar through registered post, but was received back by the Postal Department with the remarks that "the addressee has left without address". Subsequently, a complaint was received from one Mr. Guneshwar Prashad Singh (father of Ms. Preeti Meenakshi), and an enquiry was conducted by ACP Crime Branch of Delhi Police. In the PE it was established that SI Jiwan Kumar Singh has deliberately indulged himself in the crime of abduction, having illicit relationship with a lady and deliberately not joining his duties to avoid arrest/prosecution in the criminal case registered against him. He was dismissed from service vide Office Order dated 23.12.2005.
12. It is indeed intriguing that over 15 long years, the applicant did not take any action or made any representation. Only on 02.10.2020, the Notice was sent to Delhi Police for releasing pending service benefits of her husband, including family pension, gratuity and leave encashment etc. It was also mentioned in the Notice of Demand that in terms of Sections 107 and 108 of Indian Evidence Act, 1872, if a person is not heard of for 7 years, there is a presumption of his death. Thus the aforesaid Shri Jiwan Kumar 11 OA No. 516/2021 Item No.2 Singh is a dead person in law and consequently all retiral benefits should be granted to the legally entitled, including family pension etc. This Demand Notice does not mention anything about the dismissal order. The respondents took note of the Demand Notice and passed an Order dated 23.10.2020 indicating that as Shri Jiwan Kumar Singh, the applicant's husband, was dismissed from service vide Office Order dated 23.12.2005 due to his involvement in the Criminal Case registered vide FIR No.358/2005 dated 06.06.2005 under Section 363(365) IPC PS Bhagalpur, Bihar, in terms of rules, the Pension/Family Pension/Gratuity are not admissible. It was, however, indicated that the applicant may contact the concerned Accounts Branch and submit necessary details for release of GPF/CGEGIS, which has since been paid to the applicant.
13. The impugned order of dismissal is a detailed speaking order. It is indicated in the Order that a Criminal Case FIR dated 06.06.2005 has been registered against SI Jiwan Kumar Singh. At the same time, Crime Branch of Delhi Police is also conducting an enquiry. The Competent Authority has passed a detailed order, operative part of which is as under:
"In view of the above, it is categorically clear that SI Jeewan Kumar Singh No. D-28O8 ( Under Suspension) has violated the provision of Rule 3 (1) (i) (ii) & (iii) of CCS (Conduct) Rules 1964 for maintaining illicit relation with a married lady. He also violated the provision of rule 26 (3) (ii) of Delhi Police (Punishment & Appeal) Rules 1980 for not attending the unit lines since the date of suspension i.e. 7.7.05, besides running unauthorisedly and willfully absence w.e.f. 13.6.05. Accordingly, a PE was initiated under Rule 15 (i) of Delhi Police (Punishment & Appeal) Rules 1980 vide order No 12 OA No. 516/2021 Item No.2 6313/HAP/Sec. (P-1) dated 13.10.05 and entrusted to Shri Ravi Sehgal, ACP/Sec. On 4.11.2005, Sh. Ravi Sehgal, ACP submitted his enquiry report stating therein that the allegations of willful and unauthorized absence as well as the allegations of concealment of facts that he ( SI Jeewan Kumar Singh ) is named in FIR No. 358/2005 u/s 363 PS Bhagalpur are already proved. The EO further reported that the delinquent and the said lady are missing and have not been traced so far. The S.P. Bhagalpur vide his office letter No. 4664/office SP Bhagalpur dated 27.9.05 has intimated that the delinquent has not been arrested in the aforesaid case FIR so far and is absconding. This report further reveals that section 366 IPC has also been added during the course of investigation.
In view of above, it has categorically established that SI Jeewan Kumar Singh No.D-2808 has violated the provisions of the following Rules sequence wise:-
1. CCS (Leave) Rules, 1972, as he did not report for duty after the expiry of his E.L.
2. Rule 3(1) (i) (ii) & (iii) of CCS (Conduct) Rule-1964 as he maintained illicit relation with a married lady.
3. Rule 26 (3)(ii) of Delhi Police (Punishment & Appeal) Rules, 1980 as he did not report to CDI/Main Lines Security when he was placed under suspension.
Thus, he deserves strict disciplinary action. When he is absconding since 6.6.05, as such it is not practically possible to initiate a regular DE against him. Thus, I have no other alternative except to examine his misconduct under article 311
(ii)( B) of the Constitution of India. As far as, his misconduct is concerned, he has committed a grave misconduct. Being a Govt. Servant, it was incumbent upon him to maintain absolute integrity, maintain devotion to duty and do nothing which is unbecoming of a Govt. servant but he did not do so. He maintain illicit relation with a married lady and that too with that lady who is having a relation as his daughter because the delinquent SI is her real "Mausa". Further, he has acted in a manner unbecoming of a Police Officer which is highly prejudicial to the society. He has indulge in a heinous crime. The task is much more difficult when the SI being a member of law protecting agency, is himself involved in such type of heinous crime and is now absconding. Therefore, his further retention in the force is totally undesirable and an injustice to the uniformed force.
Considering the overall facts and circumstances of the case, gravity of misconduct, I, therefore, Dependra Pathak, DCP/Security came to the conclusion that it would not be reasonably practical to hold a DE under these circumstances where the SI is absconding. I have also n0 reason to disbelief the reports of D.O. Main Line Security, Sh. Ravi Sehgal, ACP/Sec. and Crime Branch Delhi Police as well as SP Bhagalpur. It is also established that under these circumstances an opportunity of defence could not be provided 13 OA No. 516/2021 Item No.2 to SI. Jeewan Kumar Singh, as he is absconding. Thus, I have no other alternative in such a situation except to dismiss him from the force in the interest of principle of natural justice. Therefore, SI Jeewan Kumar Singh No. D-2808 (PIS No. 16890091) is hereby dismissed from the force under the provision of article 311 (ii) (B) of Constitution of India with immediate effect. His suspension period from 7.7.05 to the date of issue of this order is decided as period not spent on duty for all intents & purposes. Further his absence period from 13.6.05 to 6.7.05 is also decided as period not spent on duty and the same is not being regularized in any manner.
xxx xxx xxx xxx A copy of this order is being given to SI Jeewan Kumar Singh No.D/2808 (under suspension) free of cost. He can file an appeal against this order to Addl. C.P./Security, New Delhi within 30 days from the date of its receipt by him or his wife as the case may be, on non judicial stamp paper worth Rs. 00.75 by enclosing a copy of this order, if he so desires."
14. It is evident that SI Jiwan Kumar Singh proceeded on sanctioned leave on 06.05.2005 and did not resume his duty after the said leave period. In view of the criminal case filed against him and as he was absconding from duty, he was placed under suspension. Accordingly, a PE was initiated under Rule 15(i) of Delhi Police (Punishment & Appeal) Rules, 1980 vide Order dated 13.10.2005. The EO in his report submitted that allegations of willful and unauthorised absence as well as allegation of concealment of facts that he is named in FIR No. 358/2005 under Section 363 PS Bhagalpur, are already proved. The EO further reported that the delinquent and the said lady are missing and not traced so far. The Disciplinary Authority observed in his order that in view of SI Jiwan Kumar Singh violating provisions of various rules, he deserved strict disciplinary action and that since he is absconding from 06.06.2005, it is not practically possible to initiate regular DE against him and, 14 OA No. 516/2021 Item No.2 therefore, his misconduct has to be examined under Article 311 (2)(b) and accordingly he is dismissed from service. In the DA Order dated 23.12.2005, it is clearly stated that he can file an appeal against the order within 30 days from the date of its receipt by him or his wife, as the case may be.
15. Catena of judgments have been relied upon by the applicant to establish that her husband should be presumed dead as he has been missing for more than 7 years, in terms of Sections 107 and 108 of the Indian Evidence Act, 1872. It is sought that the Tribunal should hold and declare that the husband of the applicant, Shri Jiwan Kumar Singh, SI, is dead in terms of Sections 107 and 108 of the Indian Evidence Act 1872, with consequential relief under law, i.e., award of family pension and other retiral benefits. In this connection, the relied upon judgments can be distinguished from the facts of this case, as the husband of the applicant proceeded on sanctioned leave and did not report back. Subsequently, in view of lodging of FIR and criminal charges against him, he was suspended and after an enquiry, taking into account his gross misconduct and the criminal charges, the Competent Authority decided to dismiss him from service vide Order dated 23.12.2005.
16. We have perused the judgments relied upon by the applicant and found them distinguishable from the facts of the instant case. 15 OA No. 516/2021 Item No.2
17. Sections 107 and 108 of the Indian Evidence Act, 1872 can be well applicable in those cases where an employee simply goes missing and does not return back to his normal work and there is no immediate action taken against him for other violations much before the period of 7 years. Disciplinary Proceedings in the case of applicant's husband were started and culminated in the dismissal from service within a period of six months. In the O.A., the challenge is also to the non-communication of dismissal order. In this case, suspension order, absentee notice and the dismissal order have all been sent to the address of the SI Jiwan Kumar Singh and also to the applicant. As the person himself is absconding, as submitted by the respondents, in order to avoid his arrest and conviction in the criminal case, it could well be a deliberate action on his part and cannot be considered as a non-communication of the order to him, which would make the impugned order non est or nullity in the eyes of law. The SI, Jiwan Ram Singh, husband of the applicant, was found indulged in activities which cannot be ignored in any way, especially being a person who is a member of the law protecting agency. In his case PE was conducted and in view of the applicant's husband absconding, the Disciplinary Authority decided his case under Section 311(2)(b) in accordance with law. Penalty of dismissal was imposed upon him by the Disciplinary Authority for violation of:
1. CCS (Leave) Rules, 1972, as he did not report for duty after the expiry of his E.L. 16 OA No. 516/2021 Item No.2
2. Rule 3(1) (i) (ii) & (iii) of CCS (Conduct) Rule-1964 as he maintained illicit relation with a married lady.
3. Rule 26 (3)(ii) of Delhi Police (Punishment & Appeal) Rules, 1980 as he did not report to CDI/Main Lines Security when he was placed under suspension.
It is also a fact that the applicant has, for the first time, submitted the Demand Notice in 2020, i.e. after 15 years, seeking pensionary benefits and retiral dues, requesting that in terms of Sections 107 and 108 of Indian Evidence Act, her husband should be presumed dead. It is evident that there is no illegality and infirmity in the impugned Order dated 23.12.2005 as the husband of the applicant was dismissed from service and, in view of that, the applicant is not entitled for pension, family pension, gratuity etc. We also do not find any infirmity in the dismissal order by applying Article 311(2)(b).
18. The due amount of GPF and CGEGIS has already been paid to her. It is, however, seen that the interest has not been paid on the GPF amount for the period 11/2005 till the date of payment, i.e. 29.01.2021. The respondents are, therefore, directed to make payment of the interest at the GPF rate on the GPF amount for the period 11/2005 till the date of payment, i.e., 29.01.2021 within a period of 3 months.
17OA No. 516/2021 Item No.2
19. We, therefore, dispose of the O.A. with the above directions. There shall be no order as to costs.
(Mohd. Jamshed) (Manjula Das)
Member (A) Chairman
/jyoti/