Central Administrative Tribunal - Madras
P S Jailani vs M/O Communications on 5 January, 2023
1 OA 1074/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA NO.1074/2019
Dated Thursday the 5th day of January Two Thousand Twenty Three
CORUM: HON'BLE MS. LATA BASWARAJ PATNE, JUDICIAL MEMBER
P.S.Jailani,
W/o S.Aslam Basha,
Door No.97, Public Works Department Quarters,
Sarojini Naidu Street, Chinnachockikulam,
Madurai-2. ...Applicant
By Advocate M/s K.Krishnamoorthy
Vs.
1.The Union of India,
Rep., by its Secretary, Department of Communication,
No.20, Sanchar Bhawan, Ashok Road, New Delhi 110 001.
2.The Principal General Manager,
Bharat Sanchar Nigam Limited,
O/o the General Manager-BSNL,
No.2, Rathinasamy Nadar Road,
Bibikulam Madurai-2 ...Respondents
By Advocate Mr.K.Kannan(R1)
Mr.S.Udayakumar (R2)
2 OA 1074/2019
ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicant has filed the present OAs under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief: OA 1074/2019
Directing the 2nd respondent to pay the Family Pension to the Petitioner on the basis of the official memorandum in F.No.1/17/2011-P&PW(E), Government of India, Ministry of Personnel, P.G & Pensions, Department of Pension & Pensioner's Welfare dated 14.09.2011 and on the basis of the representation of the petitioner dated 10.01.2019."
2. The brief facts of the case as stated by the applicant in nutshell are as under:
The husband of the applicant S.Aslam Basha while working as Sr.TOA at SDE(G) at Melur, Madurai District before the 2nd respondent was found missing on 08.12.2014 and he has been declared as "Dies Non" w.e.f 08.12.2014. FIR in Crime No.210/2017 dated 23.03.2017 was registered under Man Missing at Nagamalai Pudukkottai Police Station. As per DoP&PW OM in F.No.1/17/2011-P&PW(E) dated 14.09.2011, the applicant is entitled to receive the family pension and hence she made representations but the same were not considered by the respondents. Aggrieved she has filed the present OA.
2.1 The applicant submitted that since there was a dispute between the applicant and her husband, they approached the Family court, Madurai by filing Cr.M.P.No.99/2009 and the Family court, vide order dated 05.03.2010 3 OA 1074/2019 awarded maintenance to the applicant and her son. Though there was an order from the Family court for grant of maintenance for the applicant Rs.6000 and for her son Rs.5000, however the same has not been complied and therefore the applicant has filed Cr.M.P.160/2010 and claimed attachment of the salary of her husband and the said petition was allowed.
The respondent department deducted the said amount from the salary of the applicant's husband and deposited Rs.11000 in the court and subsequently the same has been withdrawn by the applicant. Thereafter, though the order of maintenance was passed by the Family Court neither the applicant nor the applicant's son was getting the same. Therefore by letter dated 07.04.2015 the applicant has submitted her request for release of entitled amount towards maintenance against the said request. The respondents have replied vide their letter dated 24.04.2015 informed that her husband has been under Dies-Non w.e.f 08.12.2014 and he has been paid pay and allowances only till December 2014. The respondents have also given a paper publication in a newspaper namely Dinamani and reported that the husband of the applicant, i.e., the employee of the respondents is not reporting to the office from 08.12.2014. The applicant, vide representation dated 16.03.2016 pointed out the hardship and the suffering she was facing and requested the respondents to provide all monetary benefits for which her husband was entitled and also requested to provide pension to her. However, there was no heed to the said representation. Therefore she has submitted another representation dated 13.07.16 wherein she has also requested for the compassionate appointment and there was no response for the same too. 2.2 Subsequently, she has approached the police authorities and lodged a FIR under Section Man Missing dated 23.03.2017. The applicant has submitted representation dated 13.05.2017 and pointed out the said FIR 4 OA 1074/2019 registered with the police authorities and requested for the family pension as well as other retirement benefits along with compassionate ground appointment. Since there was no response to the said representation, she again made representations dated 12.07.2017 11.11.2017, 07.02.2018. However by order dated 19.03.2018, the respondents have informed that no report has been received so far from the Sub Inspector of Police, Nagamalai- Pudukottai Police station and hence no action has been taken on her representation. Therefore after receipt of the said intimation, the applicant again submitted her request dated 09.01.2019 and the same has been turned down by communication dated 23.02.2019 stating that the husband of the applicant has been finally imposed with the penalty of 'Removal from service' by the competent authority w.e.f 12.12.2018. It is also informed that any claim submitted by the official himself only be entertained, however the question of claiming family pension and appointment under compassionate ground does not arise and the applicant's request cannot be acceded to. Being aggrieved the applicant has challenged the said order in the present OA.
3. After notice the respondents have entered appearance through their counsel and filed their counter affidavit stating therein that the applicant's husband S.Aslam Basha was frequently awarded punishment for his misappropriation of handling the cash in Customer Service centre at Nagamalai Pudukkottai and Melur. For misappropriate of cash in CSC Melur he was awarded suspension w.e.f 25.01.2012 in terms of FR53 vide X/DISC proceed/SAB/2011-12/20 dt 25.01.2012. The recovery of court attachment is not enforceable from subsistence allowance under FR 53 GIO(5) & CCS(CCA) Rules, Chapters 3 &4 paid to the employee. As S.Aslam Basha had not submitted the certificate of Non-employment as per rule FR 53(2) 5 OA 1074/2019 (OM No.F.1(2)-EIV(A)/63-III dated 29.08.1963) he has not been paid the subsistence allowance and his suspension was revoked on 25.07.2012 as disciplinary proceeding was initiated. After joining Rs.11000 was recovered and paid to family court Madurai from July 2013 to December 2014. From 08.12.2014 S.Aslam Basha was under Dies Non for not attending duty. He has been finally imposed with the penalty of "Removal from Service" by the competent authority w.e.f 12.12.2018 vide memo dated 12.12.2018. The respondents contended that the applicant cannot rely on the OM No.1/17/2011-P when departmental proceeding was initiated against her husband who was removed from service later. The same OM in Point 3 last line states that "IT DOES NOT INCLUDE THOSE WHO DISAPPEAR AFTER COMMITTING FRAUDS/CRIME ETC". The respondents have contended that in view of the position as stated above neither the applicant nor the applicant's family is entitled for any claim of retiral benefits and family pension and till date the applicant has not produced before the respondent authorities any certificate from the police authorities as necessitated as per law in such man missing case. Hence the OA is not maintainable and needs to be dismissed.
4. Heard both sides and perused the OA along with relevant records.
5. Learned counsel for the applicant in support of his contention relied upon the OM issued by the DOP&PW dated 14.09.2011. Para 2,3,4 of the said OM is extracted hereunder:
"2. As per this Department's OM Dt.29.08.1986, subject to fulfilment of certain conditions, the family pension can be granted to the family of an employee reported missing and whose whereabouts are not known after a period of one year reckoned from the date of iling the FIR with the police authorities. Subsequently, it was clarified vide this Department's OM dated 25th January, 1991, that the Department of Pension & Pensioners' Welfare's OM dated 29.08.1986, would be applicable in the case of missing pensioners mutatis mutandis. It was further clarified vide this Department's OM No.1/17/86-P&PW(E) dated 28.02.1993 that family pension to the eligible family member of an employee reported missing, would accrue from the date of 6 OA 1074/2019 lodging the FIR or expiry of leave in the case of an employee who had disappeared, whichever is later.
3. While providing that the fmaily pension to the family of the missing employee/pensioner may be sanctioned after a period of six months from the date of registration of an FIR with the police vide this Department's OM dated 2nd July 2010 it was also made clear that the earlier instructions did not make any distinction between the government servant and the pensioner and cover both of them for the purpose of grant of family pension. However doubts have been raised by some quarters to the effect as to whether family pension will accrue from the date of lodging the FIR in the case of missing pensioners as well.
4. The matter has been considered in this Department in consultation with Department of Expenditure, Ministry of Finance. It is hereby clarified that as the previous instructions did not make any distinction bwetween the Government servant and the pensioner, the family pension to the family of a missing pensioner would accrue with effect from the date of lodging the FIR or from the date immediately succeeding the day till pension had been last paid to the pensioner, whichever is later. Accordingly, arrears in past cases would also be admissible."
In support of his contention, the learned counsel for the applicant has also relied upon the order passed by the Hon'ble High court of Andhra Pradesh in the matter of UOI vs. Polimetla Mary Sarojini in WP 34859/2016 wherein while allowing the writ petition the Hon'ble High court has considered the facts as under:
3. The 1st respondents husband was employed as a Gestetner Operator in the office of the Assistant Collector of Central Excise, Eluru Division, Eluru. It appears that from 07- 10-1992, he went on earned leave for 3 days. But upon the expiry of the leave, he did not report for duty on 10-10-1992.
4. The 1st respondent lodged a police complaint on 04-9-1994 and a First Information Report was registered in Crime No.104/1994 for man missing.
5. After nearly 3 years, the Sub Inspector of Police, Eluru, filed a final report on 06-12-1997 declaring that the 1st respondents husband is not traceable. On the basis of the said report and after the expiry of 7 years from the date he went missing, the 1st respondent gave a representation dated 16-12-1999 for the sanction of family pension.
6. When the 1st respondent appeared with all necessary documents before the concerned authority, the 1st respondent was informed that her husband had already been imposed with a penalty of removal from service, by an order dated 10-01- 1997 for unauthorised absence. After informing the 1st respondent about the removal from service of her husband, the competent authority rejected the claim of the 1st respondent for payment of family pension by letters dated 06-10-2003 and 12-6-2014. By the order dated 12-6-
2014, the Commissioner of Customs, Central Excise and Service Tax informed the 1st respondent that since her husband was removed from service 7 OA 1074/2019 for unauthorised absence, the pensionary benefits were forfeited in terms of Rule 41 of CCS (Pension) Rules, 1972.
7. Challenging the said order dated 12-6-2014 and a consequential order dated 07-11-2014, the 1st respondent filed O.A.No.1468 of 2014 on the file of the Central Administrative Tribunal, Hyderabad. The Tribunal allowed the application on the ground that under Section 108 of the Evidence Act, the 1st respondents husband should be presumed to be dead from the date he went missing and that therefore the order of dismissal passed against a dead person is a nullity. Aggrieved by the said order, the Union of India has come up with the present writ petition.
8. The main contention of the Union of India is that till the expiry of the period of 7 years from the date a person went missing, no presumption of death would arise and that if such an employee is dismissed or removed from service, even before the statutory time limit for the raising of the presumption, the question of payment of family pension or any other pensionary benefit would not arise.
Considering the above facts, the Hon'ble High court has observed as under:-
40. But the conclusion that we have come to in the preceding paragraph would not take us to our destination. Admittedly, there are executive instructions in the form of Government of Indias decisions issued under Rule 54 of the CCS (Pension) Rules. Since these decisions are issued under the statutory rules, they are binding upon the Departments. One of the decisions of the Government of India could be found in Circular Letter No.4-52/86-Pen., dated 3-3-1989. The circular reads as follows:
Payment of retirement gratuity and family pension to the family, in case an officials whereabouts are not known:-
1. A number of cases are referred to this Department for grant of family pension to the eligible family members of employees who have suddenly disappeared and whose whereabouts are not known. At present, all such cases are considered on merits in this department. In the normal course, unless a period of 7 years has elapsed since the date of disappearance of the employee, he cannot be deemed to be dead and the retirement benefits cannot be paid to the family. This principle is based on Section 108 of the Indian Evidence Act which provides that when the question is whether the main is alive or dead and it is proved that he has not been heard of for 7 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.
2. The matter has been under consideration of the Government for some time as withholding of the benefits due to the family has been causing a great deal of hardship. It has been decided that (i) when an employee disappears leaving his family, the family can be paid in the first instance the amount of salary due, leave encashment due and the amount of GPF having regard to the nomination made by the employee, (ii) after the elapse of a period of one year, other benefits like retirement or death gratuity/family pension may also be granted to the family subject to the fulfilment of conditions prescribed in the succeeding paragraphs.8 OA 1074/2019
3. The above benefits 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 that the employee has not been traced after all efforts had been made by the Police.
6. On the other hand, the learned counsel for the respondents has submitted that the since facts of the case relied upon are different the said decision is not applicable to the present case on the ground that the applicant's husband has not been removed only on the ground of absence but also he has misappropriated funds. Another plea has been taken by the respondents that till date the applicant has not obtained the report from the police authorities that the employee cannot be traced.
7. Against the said argument, the learned counsel for the applicant contended that though they have lodged the FIR and approached the police authority so far the only reply given by the police authorities is that they are investigating the matter and search is going on. However, looking to the FIR registered in the year 2017, learned counsel for the applicant has again submitted that they will approach the police authorities and they will make a written request asking for progress against the said complaint and accordingly they will submit the report given by the police authorities for further necessary action.
8. In my considered opinion, if a direction is given to the respondents after obtaining the said certificate from the police authorities that the missing person is not traceable, the respondent competent authority should consider the case of the applicant in the light of the order passed by the Hon'ble High court of Andhra Pradesh in the matter of UOI vs. Polimetla Mary Sarojini in WP 34859/2016 and grant family pension to the applicant, that will meet the ends of justice.
9 OA 1074/2019
9. Accordingly, the impugned order dated 23.02.2019 is hereby quashed and set aside with a direction to the respondents to consider the claim of the applicant with regard to family pension on submission of the certificate from the police authority and in the light of the judgment of the Hon'ble High court of Andhra Pradesh in the matter of UOI vs. Polimetla Mary Sarojini in WP 34859/2016 within a period of four months from the date of receipt of such certificate.
10. The OA is disposed of accordingly.
(Lata Baswaraj Patne) Member (J) 05.01.2023 MT