Central Administrative Tribunal - Allahabad
Smt Brijesh Kumari vs Chief Post Master General Up Circle on 3 February, 2022
OA No. 1129/2016
Open Court
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Dated : This the 3rd day of February 2022
Original Application No. 1129 of 2016
Hon'ble Ms. Pratima K Gupta, Member (J)
1. Smt. Brijesh Kumari, W/o late Shri Dori Lal, R/o MOhalla Damdama
Sikandra Rao, District Hathras UP).
2. Sandeep Kumar, S/o late Shri Dori Lal, R/o MOhalla Damdama
Sikandra Rao, District Hathras UP).
. . .Applicants
By Adv : Shri Vivekanand Rai and Shri A.D. Singh
VERSUS
1. Union of India through Secretary, Ministry of Communication and
I.T. Department of Posts Dak Bhawan Sansad Marg, New Delhi.
2. The Chief Postmaster General UP Circle Lucknow.
3. The Postmaster General, Agra Region, Agra.
4. The Sr. Supdt. Of Post Offices, Aligarh Division, Aligarh.
. . . Respondents
By Adv: Shri Radhey Shyam Yadav
ORDER
I have joined this Single Bench online through video conferencing.
2. Shri A.D. Singh, learned counsel for the applicants and Shri Radhey Shyam Yadav assisted by Shri L.M. Singh, learned counsel for the respondents are present.
3. This OA has been filed by the applicants against the impugned order dated 11.09.2015 whereby the case of the applicant No. 2 has been rejected for consideration of appointment on compassionate ground. Relevant portion of the said order reads as under:-
Page 1 of 10 OA No. 1129/2016
"उऩरोक्त सन्दर्भित आऩके प्राथिना ऩत्र के सम्बन्ध में सूचित है कक श्री डोरीऱाऱ भू ० ऩू० उऩ डाकऩाऱ िकौरा ने ऩद ऩर रहते हुये विभाग में ऱगभग िार ऱाख ऩाांि हज़ार रुऩए का गमन ककया था जिसमे विभाग को अतयांत छती उठानी ऩड़ी थी। इसके उऩरान्त प्रिर अधीछक डाकघर अऱीगढ के ज्ञाऩन सांख्या - 4 /1 /05 -06 ददनाांक 21 .08 .2007 के द्िारा सेिा से बखािस्त कर गया था।
अत् उक्त ऩरजस्थततयों में अनुकम्ऩा के आधार ऩर तनयुजक्त के सम्बन्ध में कोई औचित्य प्रतीत नहीां होता है ।"
4. Through this OA the applicants have sought the following reliefs:-
"a. An order or direction in the nature of certiorari quashing the impugned order dated 11.09.2015 passed by the respondent no. 3 (Annexure no. A-7 to this Original Application in Compilation -II) rejecting the appointment under dying in harness quota of applicant's son.
b. issue an order, direction or writ in the nature of mandamus direct the respondents to appoint the applicant's son namely Sandeep Kumar on a suitable post according to his qualification under the dying in harness quota forthwith.
c. issue a writ, order or direction in the nature of mandamus direct the respondents to pay terminal benefits viz family pension, DCRG, Group Insurance, leave encashment etc., within a time frame period.
d. any other benefit or relief which in the present facts and circumstances of the case deem fit and proper be allowed to the applicant.
c. Award cost of this application to the applicants."
5. The brief facts of the case are that the husband of the applicant No. 1 was reported missing on 17.11.2005 while working in the respondents organization as Postal Assistant, After waiting for almost 8 years, the applicant filed a Civil Suit No. 211 of 2013 on 20.03.2013 namely Brijesh Kumari vs State and Ors for declaration that since Shri Dori Lal was missing for more than 7 years, accordingly he be declared dead before Ld. Civil Judge (SD) Hathras. Ld. Civil Court vide its judgment dated 07.07.2015 (Annexure A-3). declared husband of the applicant Shri Dori Lal as dead. In pursuance of which the local body Hathras issued a death certificate declaring the death of Shri Dori Lal as 17.11.2005 page 27 of the OA. Thereafter, the applicant No. 1 preferred an application Page 2 of 10 OA No. 1129/2016 dated 13.07.2015 before respondents for seeking appointment on compassionate grounds for her son Shri Sandeep applicant No. 2 under dying in harness quota. The respondents while rejecting the claim of the applicant informed the applicant No.1 vide impugned order dated 11.09.2015 that since husband of the applicant late Shri Dori Lal was dismissed from service in 2007 her son was not entitled to get appointment under dying in harness quota. Aggrieved by this impugned order the applicants have filed the present OA.
6. The respondents have filed their counter affidavit rebutting the claim of the applicants and submitted, That husband of the applicant no.1 Late Dori Lal misappropriated government money to the tune of Rs. 4,05,000/-, an FIR no. 445/2004 under section 406 and 409 IPC was lodged against him on 03.12.2005. Late Dori Lal was proceeded against under Rule 14 of CCS (CCA) Rules 1965 and charge sheet dated 07.11.2006 was sent to him by registered post on 09/11/2006 on his last known address but the same was received back at the office of SSPOs Aligarh. The Inquiry Officer concluded his proceedings. A copy of the Inquiry Report dated 18.06.2007 was sent to the applicant the same also retuned back to the SSPOs Aligarh on 25.06.2007.The Inquiry report was pasted at the door of the residence of the employee Shri Dori Lal and a notice was also published in the daily newspaper. As there was no response from the applicant the charges stood proved against him and he was awarded punishment of dismissal from service vide order dated 31.07.2007.
7. Learned counsel for the applicant argued that since the husband of the applicant went missing from 17.11.2005. He was never served with the charge sheet as he went was missing. The departmental proceedings Page 3 of 10 OA No. 1129/2016 against were not valid being proceedings against a dead person. Counsel for the applicant added that even in the criminal proceedings the husband of the applicant has been declared as PO under section 82/83 of CrPC. He claims that in view of the declaration of death of the husband of the applicant by the Ld. Civil Court at Hathras on 07.07.2015, and the local body issuing the death certificate incorporating the date of death as 17.11.2005. The applicant who is the wife of the deceased employee of the respondents is entitled to receive the retrial dues and the case of the applicant no 2 be considered for compassionate appointment. He draws support from the judgement passed by the Delhi High Court in WP(C) 1577/2016 in Tripta Rani vs. Union of India & Ors.
8. Learned counsel for the respondents argued: a) that the OA is not in accordance with section 10 of the Tribunal procedure rules, as the applicant has sought multiple reliefs, that the reliefs sought do not flow from each other therefore this OA in present form is not maintainable. b) that husband of the applicant was dismissed from service in 31.07.2007 itself in pursuance of DE proceedings for grave charges i.e. misappropriation of government money to the tune of Rs. 4,05,000/-, an FIR No. 445/2004 under section 406 and 409 IPC was lodged against him 03.12.2005.c) It is disputed that the Shri Dori Lal went missing from 17.11.2005 as the applicant has not reported about the same to the local police station/ competent authority. d) the Ld. Civil Court has only declared the death of the Shri Dori Lal but is silent about the date of death of Late Dori Lal e) As in the civil suit the respondents were not a party therefore the respondents are not bound by the same f) He vehemently emphasised that the OA was devoid of merit as particularly in the circumstances when the government servant Shri Dori Lal was dismissed from service. g) That facts of this case are different from relied upon judgement passed by the Page 4 of 10 OA No. 1129/2016 Delhi High Court in WP (C) 1577/2016 in Tripta Rani vs. Union of India & Ors. As in that case the employee had sought voluntary retirement and went missing thereafter.
9 Heard learned counsel for both the parties and carefully perused the records.
10. The respondents have raised an objection contending that the applicant has sought multiple reliefs, the said objection cannot be sustained as the cause of action remains the same, the reason for denying the reliefs remains the same. The argument that the factum of the Shri Dori Lal going missing and being dead is disputed does not find favour in view of the findings of the Ld. Civil Court further it cannot be accepted that since the respondents were not a party to the civil suit they would not be bound by the findings of the Ld. Civil Court. Even w.r.t to the argument that the husband of the applicant has misappropriated huge amount and therefore a FIR was registered against him also does not hold good in view of the fact that the respondents are not aware about the status of the criminal proceedings. The main contention of the applicant is that her husband went missing from 17.112005. She approached the Ld. Civil Court Hathras by way of a civil suit for declaration no 211/2013 Smt Brijesh Kumari vs state. The Ld. Civil Court while deciding the suit vide order dt. 07.07.2015, observed as under:
"आदे श िादनी के िाद विरुद्ध प्रततिादीगण आज्ञप्त ककया िाता है और िादनी के ऩतत डोरीऱाऱ की र्सविऱ मृत्यु होने की उद्घोषणा की िाती है ।"
11. It is not in dispute fact that the whereabouts of Late Dori Lal were not known to the department since 17.11.2005 and the said Shri Dori Lal never participated in the departmental inquiry as well as the criminal Page 5 of 10 OA No. 1129/2016 proceedings. The Ld. Civil Court has come to conclusion that the applicant's husband is dead as he was missing since17.11.2005 on the presumption envisaged in section 108 of the Indian Evidence Act 1872. The respondents claim that the Shri Dori Lal was given adequate opportunity by providing him the copy of the charge sheet, Inquiry report and therefore the inquiry under Rule 14 of CCS (CCA) Rules imposing the penalty was done by following the rules on the subject. However, the counter reply filed by the respondents indicate that the charge memo/Inquiry report though was sent to the applicant's husband but returned as un served. This Tribunal relies on the observations of the Hon'ble Supreme Court in Union of India & Ors v. Dinanath Shantaram Karekar & Ors, (1998) 7 SCC 569, which are as under:
"10. Where the disciplinary proceedings are intended to be initiated by issuing a charge-sheet, its actual service is essential as the person to whom the charge-sheet is issued is required to submit his reply and, thereafter, to participate in the disciplinary proceedings. So also, when the show-cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both the situations, the employee is given an opportunity to submit his reply, the theory of "communication" cannot be invoked and "actual service" must be proved and established. It has already been found that neither the charge-sheet nor the show-cause notices were ever served upon the original respondent, Dinanath Shantaram Karekar. Consequently, the entire proceedings were vitiated."
12. The above judgement squarely applies to the case of the applicant. Neither the show cause notice nor the charge sheet was served on the missing employee. Hence, the entire disciplinary proceedings are vitiated. Moreover, the respondents themselves were aware that the applicant's husband has been reported missing since November 2005. It is also supported by the fact that the husband of the applicant did not participate in the criminal proceedings and was declared proclaimed offender under Section 82/83 of CrPC. Incidentally, since the applicant's husband was missing, there was no scope for any defence to be presented by him to the charge memo issued by the respondents under Rule 14 of CCS (CCA) Page 6 of 10 OA No. 1129/2016 Rules. Further, one has to take note of the observation of the Ld Civil Court, wherein it has been observed that the applicant's husband is missing from November 2005 and he is to be presumed to be dead. Based on the judgement of the competent court, the local body has issued the death certificate incorporating the date of death of the husband of the applicant as 17.11.2005 that is prior to the dated of dismissal of Shri Dori Lal. Therefore, the respondents claim that since the applicant's husband has been dismissed from service after initiating disciplinary action is invalid and the dismissal is a nulity.
13. With regard to grant of the retrial benefits to the family member of the missing employee, OM No.F.No.1/17/2011-P&PW(E), dated 24/25.06.2013 of the Department of Pension and Pensioners Welfare, stipulates certain conditions to be complied with, which are extracted as under:
"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 organisation where the employee/pensioner had last served, six months after lodging of 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 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/dependants 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 Page 7 of 10 OA No. 1129/2016 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 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 8 OA 20/757/2019 fixed. The difference between the 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."
14. In addition, the Hon'ble Supreme Court has observed that in case the family members who are supposed to hear the person missing do not hear so, or the person is not found for a period of 7 years, then, the person concerned is presumed to be dead after lapse of 7 years. The observation of the Hon'ble Supreme Court in Rubabbudin Sheikh v state of Gujarat (2007) 4 SCC 404 is relied upon to assert the above. The relevant portion is extracted hereunder:
"13. Before parting with this order, we may keep it in mind that under the law, there is a presumption that if the dead body is not found or the person concerned is not found for a period of seven years, only then the said person can be presumed to be dead."
15. Thus, in the present case, applying the law laid down by the Hon'ble Supreme Court above Supra, OM No.F.No.1/17/2011-P&PW(E), dated 24/25.06.2013 of the Department of Pension and Pensioners Welfare and the judgement of the Learned Civil Court Hathras, the date of missing of the applicant's husband has to be considered as 17.11.2005. It may be noted that the OM dated 24/25.06.2013 stipulates that the family of the missing employee must lodge a police complaint in this regard which is missing in this case but this condition cannot be allowed to precipitate in light of the Judicial finding of the Ld Civil Court at Hathras. From that date, till 7 years have lapsed, the family of the missing employee has to be granted full pension since till such date, it is presumed that the applicant's husband is alive. The facts of the present case are on Page 8 of 10 OA No. 1129/2016 a better footing than the facts of the judgement of the Hon'ble Delhi High Court in its judgment in WP (C) 1577/2016 wherein it held that full pension has to be granted to the eligible family member of the missing employee up to the date, which is considered to be as the date of presumed death as per law. The Hon'ble High Court had passed the judgement wherein the employee had sought voluntary retirement after which he went missing while in the present case he went missing while serving the respondents, relevant portion of the judgment is extracted here under:
"11. Xxx Pension is payable till the pensioner dies or is presumed to be dead. Family pension is payable after the death of the pensioner and not 9 OA 20/757/2019 for the period before his death. The affect thereof is that the respondent would be liable to pay pension and not family pension, till the pensioner had died or is presumed to be dead. If any pension amount remains unpaid to the pensioner for the period when he was alive or is presumed as alive, the said amount would be paid to the legal heirs of the pensioner, who has died or has gone missing and is presumed to be dead. This unpaid pension amount does not get forfeited. The arrears or unpaid pension would be payable after the death of the pensioner to his legal heirs as per law. The OMs relied do not state that the unpaid pension would not be paid to the legal heirs/ representatives. This is not the purport and objective of the OMs. The first OM dated 29.08.1986, rightly observes that unpaid dues like salary, leave encashment and GPF would be paid. Therefore, we fail to understand the reason or cause as to why the respondents have failed to make payment of the arrears of pension to the petitioner."
16. Therefore, In light of the above the applicant is eligible for grant of family pension as the husband of the applicant is presumed to be dead from the date he went missing i.e. 17.11.2005 as the date of missing has been confirmed as 17.11.2005 by the Learned Civil Court Hathras followed by the death certificate. In view of the aforesaid, the respondents are directed to release family pension and other retrial benefits to the applicant, as per the rules on the subject by reckoning the date of missing/death of shri Dori lal as 17.112005. The respondents are further directed to consider the claim of applicant No. 2 for compassionate appointment as per rules. The respondents are directed to comply with the Page 9 of 10 OA No. 1129/2016 above direction within a period of three months from the date of receipt of this order.
17. Accordingly, the OA is allowed, with no order as to costs.
(Pratima K Gupta) Member (J) /Piyush/ Page 10 of 10