Central Administrative Tribunal - Hyderabad
Masula Aparanji vs Dept Of Posts on 5 July, 2019
1 OA 021/147/2018
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH: HYDERABAD
Original Application No.21/147/2018
Reserved on: 28.06.2019
Pronounced on: 05.07.2019
Between:
Masula Aparanji, W/o. late Masula Manikaiah,
Retd. Postmaster, Sangareddy,
Aged about 57 years, R/o. H. No. 6-43,
Angadipet, Manjeera Barrage,
Sadasivapet, Sangareddy Mandal, Medak District - 502 294.
... Applicant
And
1. Union of India, Rep. by its Secretary to the Govt. of India,
Ministry of Communications & IT,
Department of Posts - India,
Dak Bhavan, Sansad Marg, New Delhi - 110 001.
2. The Postmaster General,
Hyderabad HQ Region, Hyderabad - 500 001.
3. The Director of Accounts (Postal),
Telangana Circle, Hyderabad - 500 001.
4. The Superintendent of Post Offices,
Sangareddy Division, Sangareddy.
... Respondents
Counsel for the Applicant ... Mr. ABLN Pavan Kumar for
Mr. M. Venkanna
Counsel for the Respondents ... Mr. B. Laxman, Advocate for
Mrs. B. Gayatri Varma,
Sr. PC for CG
CORAM:
Hon'ble Mr. B.V. Sudhakar, Member (Admn.)
ORDER
{As per Hon'ble Mr. B.V. Sudhakar, Member (Admn.) }
2. The OA is filed in regard to withholding 10% pension of the applicant's late husband.
2 OA 021/147/2018
3. Brief facts of the case are that the late husband of the applicant while working for the respondents organization was issued a Rule 14 charge sheet on 28.02.2011. The applicants late husband submitted a brief on 25.07.2013 and from 02.12.2013 onwards, he is reported to be missing. A missing complaint was lodged with the Station House Officer, Sangareddy by the applicant and the same was registered as FIR No. 240/2013. A police was submitted to the Hon'ble Additional Judicial First Class Magistrate, Sangareddy on 30.05.2014. The respondents proceeded with the inquiry and the Inquiry Officer submitted the report on 25.03.2014. The disciplinary authority has admitted that the inquiry report sent to the applicant's late husband was returned with an endorsement "addressee left". The fact that the applicant's late husband was missing was brought to the notice of the respondents. Yet, the 1st respondent imposed the penalty of 10% cut in the monthly pension on 18.12.2015. Aggrieved over the same, the OA has been filed.
4. The contentions of the applicant are that the disciplinary action abates once the employee dies. Therefore, the reduction of pension is not permissible under the rules. Besides, even while grating family pension, it has been calculated as 30% of basic pay instead of 50%.
5. The respondents in their reply statement have stated that the applicant's late husband was proceeded under Rule 14 while he was in service and it was continued under Rule 9 of CCS (Pension) Rules, 1972.
3 OA 021/147/2018 Provisional pension of Rs.10,460 per month was granted. Further, retirement gratuity was not released as disciplinary proceedings were pending against the applicants late husband. The inquiry officer's report when sent to the applicants late husband, it was returned with an endorsement "as addressee left, return to sender". Later, the respondents were informed on 26.05.2014 by the applicant that her husband is missing from 02.12.2013. Stating so, she has claimed for family pension. The copies of the FIR dt. 03.12.2013 and the final police report dt. 30.05.2014 were received by the respondents on 30.06.2014 for processing family pension. Provisional pension sanctioned to the applicants late husband was paid up to 30.11.2013 and on being reported as missing from 02.12.2013, provisional family pension at enhanced rate of Rs.10,460/- per month (50% of last pay drawn Rs.20,920/-) was sanctioned with effect from 03.12.2013 and paid till the date of finalization of the Rule 14/9 case against the applicants late husband by the Postal Directorate. The disciplinary proceedings were concluded by the President of India vide order dt. 18.12.2015 imposing the penalty of 10% cut in the monthly pension for a period of 2 years and further gratuity admissible should be released, if not required otherwise. The 3rd respondent on receipt of the departmental proceedings sanctioned family pension at the normal rate of Rs.6276/- on 14.06.2016 w.e.f. 18.12.2015 and also ordered to recover the excess paid provisional family pension for the period from 3.12.2013 to 18.12.2015 as the provisional family pension was paid at enhanced rate of Rs.10560/- instead of normal rate of Rs.6276/-. Therefore, the excess amount of Rs.2,37,508/- was recovered from the retirement gratuity of the applicants late husband.
4 OA 021/147/2018
6. Heard both the counsel and perused the material placed on record.
7. The applicants late husband was proceeded under Rule 14 of CCS (CCA) Rules and after submitting his written brief, he was missing from 02.12.2013. The police have also filed a report before the competent court i.e. Hon'ble Additional Judicial First Class Magistrate at Sangareddy on 30.05.2014. The respondents have imposed the penalty of reduction of 10% in monthly pension for a period of two years on 18.12.2015 and ordered to recover the excess pension paid from 3.12.2013 to 18.12.2015. Thus, it is seen that after the applicant was reported missing from 02.12.2013, imposing penalty is not as per rule and law. Family pension has to be granted to the applicant as per the OM F. No. 1/17/201-P&PW (E), dated 24.6.2013 of the Dept. of Pension and Pensioners Welfare, which deals with grant of family pension to the family member of a missing employee, provided certain conditions are 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
5 OA 021/147/2018 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 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 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." In respect of the present case, the applicant would be eligible for family pension from the date of police report about the missing of her husband i.e. 03.12.2013. The applicant's family pension has to be regulated as per clause 3(a)(ii) of CCS (Pension) Rules, extracted hereunder:
"3(a)(i) Where a Government servant, who is not governed by the Workmen's Compensation Act, 1923 (8 of 1923), dies while in service after having rendered not less than seven years' continuous service, the rate of family pension payable to the family shall be equal to 50% per cent of the pay last drawn and the amount so admissible shall be payable from the date following the date of death of the Government servant for a period of ten years.
(ii) In the event of death of a Government servant after retirement, the family pension as determined under sub-clause (i) shall be payable for a period of seven years, or for a period up to the date on which the retired deceased Government servant would have attained the age of 67 years had he survived, whichever is less."
II. Besides, a similar case was dealt with by Hon'ble High Court of A.P in Writ Petition No.34859 of 2016, vide judgment dated 30.1.2017 6 OA 021/147/2018 involving Govt. of India, Ministry of Finance Vs. Polimetla Mary Sarojini and Anr and the Hon'ble Court, relying on the Circular bearing the No.4-52/86-Pen., dated 3.3.1989 of the Dept. of Pension and Pensioners' Welfare (DOP & PW) has held as under:
"41. The above circular clinches the issue with respect to the claim of the respondent. Therefore, irrespective of our decision on the purport of section 108 of the Evidence Act, 1872, the respondent is entitled to all other benefits as per the aforesaid decision of the Government of India under the circular letter no 4- 52/86-Pen dated 3.3.1989
42. Hence, the wit petition is disposed of modifying the order of the Tribunal and directing the petitioners to grant all the benefits applicable to the respondent under the circular letter no 4-52/86- pen dated 3.3.1989 within a period of 4 weeks."
This Tribunal allowed OA No. 499/2019 vide order dt. 18.06.2019 placing reliance on the observations of the Hon'ble Supreme Court, in Rubabbuddin Sheikh v. State of Gujarat, (2007) 4 SCC 404, wherein the Hon'ble Supreme Court has observed that if the dead body is not found or the person is not found for a period of 7 years, then the said person can be presumed to be dead. The observations of the Hon'ble Supreme Court read as under:
"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."
Thus, as can be seen from the above, the applicant's late husband has to be construed to be dead after expiry of seven years from the date of police report about his missing. Against a dead person, disciplinary action abates. Relevant instructions of DOPT are extracted as under:
7 OA 021/147/2018 "(4) Disciplinary cases should be closed on the death of charged official - The Department has been receiving references seeking the clarification whether disciplinary cases initiated against the Government servant under CCS (CCA) Rules, 1965 could be closed in the event of death of the charged official during pendency of the proceedings. After careful consideration of all the aspects, it has been decided that where a Government servant dies during the pendency of the inquiry i.e. without charges being proved against him, imposition of any of the penalties prescribed under the CCS (CCA) Rules, 1965 would not be justifiable. Therefore, disciplinary proceedings should be closed immediately on the death of the alleged Government servant. (GI, Dept. Per & Trg. OM NO. 11012/7/99-Estt (A) dated the 20th October, 1999)."
III. Therefore, keeping in view the aforesaid facts and the legal principles laid down by the Hon'ble Supreme Court, the respondents are directed to consider as under:
a) to revise and fix the family pension of the applicant after a lapse of 7 years from the date of filing of the First Information Report on 03.12.2013, after ensuring that the conditions laid down in DOPT OM dt. 24.06.2013 are strictly complied;
b) To refund the amount of Rs.2,37,508/- recovered from gratuity after 7 years from the date of FIR;
IV. With the above directions, the OA is disposed of. There shall be no order as to costs.
(B.V. SUDHAKAR) MEMBER (ADMN.) Dated, the 5th day of July, 2019 evr