Central Administrative Tribunal - Patna
Kiran Devi vs East Central Railway on 24 January, 2024
1 OA No. 563/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00563/2021
Reserved on: 5th January, 2024.
Pronouncement on: 24th January, 2024.
CORAM
HON'BLE MR AJAY PRATAP SINGH, MEMBER [J]
KIRAN DEVI WIFE OF LATE RAJESHWARI PRASAD (EX HELPER
KHALASI, BG, LOCO, E.C. RAILWAY, (GARAHARA),
RESIDENT OF VILLAGE/ MOHALLA MAKHDUMPUR, DIGHA GHAT,
POST-DIGHA, GALI NO.89, DISTRICT - PATNA (BIHAR).
.......Applicant.
-VERSUS-
Patna
Bench
1. THE UNION OF INDIA THROUGH THE GENERAL MANAGER, EAST
CENTRAL RAILWAY, HAJIPUR, P.O. DIGGHI KALAN, P.S. HAJIPUR,
DISTRICT VAISHALI AT HAJIPUR, PIN CODE 844101 (BIHAR).
2. THE DIVISIONAL RAILWAY MANAGER, EAST CENTRAL RAILWAY,
DANAPUR DIVISION, P.O.KHAGAUL, P.S. DANAPUR, TOWN &
DISTRICT PATNA-801105 (BIHAR).
3. THE SENIOR DIVISIONAL PERSONNEL OFFICER, EAST CENTRAL
RAILWAY, DANAPUR DIVISION, P.O. KHAGAUL, P.S. DANAPUR,
TOWN & DISTRICT-PATNA-801105 (BIHAR).
4. THE SENIOR DIVISIONAL MECHANICAL ENGINEER, EAST
CENTRAL RAILWAY, DANAPUR DIVISION, P.O. KHAGAUL, P.S.
DANAPUR, TOWN & DISTRICT PATNA-801105 (BIHAR).
5. THE SENIOR DIVISIONAL FINANCIAL MANAGER, EAST CENTRAL
RAILWAY, DANAPUR DIVISION, P.O. KHAGAUL, P.S. DANAPUR,
TOWN & DISTRICT - PATNA-801105 (BIHAR).
........Respondents.
For Applicant:- Shri M.P. Dixit, Advocate
For Respondents:- Smt. P.R. Lakshmi, Additional Standing Counsel
O R D E R (O R A L)
As Per:- Ajay Pratap Singh, Member[Judicial]
1. The applicant has filed present original application under Section 19 of the Administrative Tribunals, Act 1985 seeking direction to the respondents to pay settlement dues including family pension alongwith arrears with an interest of 18 percent per annum on account of service rendered by her missing husband Rajeshwari Prasad.
2 OA No. 563/2021PRAYER
2. The applicant has claimed following relief (as extracted from the OA) as under:-
"(i) That your Lordships may graciously be pleased to declare the impugned action of respondents denying her with the benefit of settlement dues of her husband presumed to be dead, as null, void, abinitio wrong and contrary to Railway Board order dated 22.08.1991 as contained in Annexure-A/7.
(ii) That your Lordships may graciously be pleased to command / direct the Respondents to accord / release / pay the entire settlement dues in view of Annexure A/7 including family pension in favour of applicant.
(iii) That your Lordships may further be pleased to command / direct the Respondents to pay all consequential benefits including arrears without any further delay.
(iv) That your Lordships may further be pleased to award compound interest against the Respondents in favour of the Applicant on the arrears amount at the rate 18 percent per annum till the date of its actual payment.
(v) Any other relief or reliefs including the cost of the proceeding with suitable compensation may be allowed in favour of the Applicant which may be directed to be paid from the erring Officials who have rejected the applicant's claim without application of mind."
Patna Bench FACTUAL MATRIX
3. Briefly stated facts as stated by applicant that applicant is wife of permanent railway employee Rajeshwari Prasad, Ex helper Khalasi, GB, Loco, East Central Railway, Garhara. Husband of applicant was appointed on 01.05.1981, GPF No. 726169. The identity card of year 1994 shows designation and place of posting. The husband of applicant did not turn up since 06.07.1994 and is missing.
4. The Misc. case No. 2910 (m) of 2005 was filed before Learned CJM Patna to make enquiry. The learned CJM Patna directed police to submit report. The Ld. CJM accepted police report on 20.05.2006. The RBE No. 150/1991 dt. 22.08.1991 stipulates that missing person-railway employee if not traced, presumed to be met Civil death under Section 108 of the Evidence Act and families be granted family pension to which they would have been entitled.
5. Per contra, the respondents have contested the claim of the applicant by filing written statement wherein it is stated that Rajeshwari Prasad was appointed as Substitute Loco on 01.05.1981. The provisional Provident Fund Contribution slip shows PF amount deducted for fiscal year 1989-90 as substitute. The service book and family particulars of deceased are not available. The claim of applicant as status of widow of missing person are not established. The identity card is also not signed by authorized Officer (Personnel Branch).
6. The respondents have further stated that there is no service record available to ascertain details of length of service performed on duty by missing person. The respondents denied claim of the applicant in absence of material to 3 OA No. 563/2021 establish applicant's status as widow of missing official. The applicant's husband worked as 'Substitute' against permanent post and substitutes are not of status of regular railway servants. In absence of documentary proof status of applicant as widow of Rajeshwari Prasad is not established.
7. The rejoinder has been filed by the applicant specifically denying the contention made in written statement. The husband of applicant was appointed on 01.05.1981 as Helper Khalasi, GB, Loco, East Central Railway, Garhara in pensionable establishment with GPF No. 7261690 and GPF deductions made for year 1989-90. Due to the fault of railway is not being able to trace out service record of applicant's husband, the applicant cannot be made to suffer and adverse inference should be drawn against respondents and in favour of applicant.
SUBMISSIONS
8. Shri M.P. Dixit Learned counsel for the applicant argued that husband of Patna Bench the applicant was duly appointed Helper Khalasi, GB, Loco, East Central Railway, Garhara on 01.05.1981 as pensionable employee with GPF No. 7261690 and deductions were made for year 1989-90.
9. Shri M.P. Dixit further contended that to maintain service record is the responsibility of the employer and the applicant cannot be made to suffer. The applicant is entitled for benefits of family pension and other settlement dues of husband whose whereabouts are not known since 06.07.1994.
10. Shri M.P. Dixit learned counsel for applicant also submitted that husband of applicant though missing since 06.07.1994, the police report dated 08.05.2006 submitted to the Court of CJM also prima-facie be treated as presumption of Civil death, under section 108 of Evidence Act, of person unheard for more than eight years. The claim of the applicant is to settle the settlement dues in accordance with RBE No. 150/1991, dt. 22.08.1991, and she is entitled for family pension with arrears alongwith interest.
11. Learned counsel for the applicant also relied on judgments summarised as under:-
(i) Naseem Bano Vs. State of UP and Others (1994) 26 ATC 123 (SC).
Relevant para 9 reads:-
Averment made in writ petition not controverted by the respondents, held- should be presumed to have been admitted.
(ii) H.D. Singh Vs. Reserve Bank of India and Ors. (1985) 4 SCC 201 Relevant Para 11 reads as:-
Employee's failure to produce attendance register to controvert workman's claim -on facts held, workman's claims acceptable.4 OA No. 563/2021
(iii) Maniben Versus Union of India & Ors. 2006 (1) ATJ 629-
A period of seven years have been passed after missing- employee should be treated as died in harness after the expiry of leave- wife entitled to family pension and other terminal benefits.
12. Smt. P.R. Lakshmi Learned Additional Counsel for respondents argued that husband of the applicant was engaged as per work requirement as substitute and not as railway servant, so also did not have status of regular railway employee and so applicant is not entitled for family pension under RS (Pension) Rules, 1993.
13. Smt. P.R. Lakshmi Learned Additional Counsel further argued that husband of applicant went missing since 06.07.1994 and till 08.05.2006 no steps taken to obtain declaration, from Civil Court, of Civil death and for legal heir, succession certificate to claim status of wife of missing employee.
14. Smt. P.R. Lakshmi Learned Additional Counsel vehemently argued that Patna Bench no right accrued to the applicant for claim of settlement dues, if any, unless status as widow of missing employee is proved. There is no record that applicant acquired status of widow. The applicant has not filed any marriage certificate, Adhaar Card etc. to prima-facie show as widow of deceased employee. Hence the OA lacks merits and deserves to be dismissed.
ANALYSIS
15. I have heard learned counsel appearing for respective partites, perused the record and considered precedents cited.
16. Rajeshwari Prasad was initially engaged in railway on 01.05.1981 with GPF No. 726169. In the identity card showing Helper Khalasi, BG, Loco, Eastern Central Railway, Garhara, PF deductions shown from 1989-1990. The railway authorities are disputing the status of husband of applicant and treated his engagement as substitute and not a regular railway servant.
17. The applicant stated that her husband went missing since 06.07.1994, but not a single application or steps shown to have been taken to trace whereabouts of missing employee till 2005. Before year 2005 no application or any efforts made to register FIR as to missing person.
18. The applicant is claiming herself to be legally wedded wife of missing employee, went missing since 06.07.1994. There is neither any service details as to family of missing employee nor any material brought on record by the applicant to prima-facie establish status of widow of Rajeshwari Prasad.
19. The right to claim settlement dues admissible in accordance with rules due to deceased employee is entrusted to a person acquiring a particular legal status. The applicant has to establish status of widow of Rajeshwari Prasad, 5 OA No. 563/2021 then only right accrues in her favour to claim amount of settlement dues legally payable to her husband.
20. The applicant has not even brought any material on record, i.e. Adhaar Card, Marriage Card, Marriage Certificate, School Leaving Certificates of children. There is no material in the entire OA to establish applicant's status as widow of Rajeshwari Prasad and legally wedded wife of deceased employee.
21. It appears in the factual aspects of the matter on record and averments made in the written statement that action of respondents at this stage cannot be construed as arbitrary. In absence of conclusive and reliable proof as to status of applicant as wife of deceased employee settlement dues could not be processed. However proper inquiry into the aspect of the status of widow need to be duly conducted by the respondents in the light of the following legal provisions.
22. The Section 107 and 108 of Indian Evidence Act reads as:-
Patna "107. Burden of proving death of person known to have been alive Bench 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.
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."
There arises presumption of death under Section 108 Evidence Act when person is unheard for more than eight years by person who would have knowledge about him had he been alive.
23. In the instant case Rajeshwari Prasad did not turn up since 6.7.1994. In year 2005 Misc. Case No. 2910/2005 filed before CJM Court Patna for direction to the police to lodge FIR. The Police submitted report on 17.05.2006 that whereabouts is not known. The Ld. CJM accepted police report dt. 20.05.2006. The legal presumption to be dead cannot be ignored.
24. The Railway Board has issued RBE No. 150/1991 dated 22.08.1991, in cases of genuine missing for grant of consequent benefits to the missing person's family, and the same is reproduced as under for ready reference.:-
"RBE No.150/1991: Disciplinary Action - Missing person. No.E(D&A)91 RG6-41, dated 22.08.1991 Sub: Cancellation of penalty of removal from service imposed on charge of un- authorized absence where it later transpires that the case is one of 'genuine missing' and grant of consequent benefits to the missing person 's family.
1. Some cases have come to notice where Railway servants who were missing and whose whereabouts were not known to their family were removed from service for un-authorized absence. It has been represented by the NFIR in PNM meeting with Railway Board that initiation of disciplinary action in such cases where even the police after all-out efforts have not been able to trace the employee, is not justified 6 OA No. 563/2021 since they are to be presumed as dead under Section 108 of the Indian Evidence Act. The NFIR also represented that in such cases, the disciplinary action / punishment should be annulled and the families be granted pension and their request for compassionate appointment to wards etc. to which they would have been entitled but for the disciplinary action be also considered.
2. The Board have considered the matter and it is clarified that in cases of the type mentioned above where it is established that the railway employee was really missing and not un-authorizedly absent, the disciplinary action should be treated as initiated on invalid premises and the on-going disciplinary action or the punishment order should be annulled. While the annulment of on-going disciplinary proceedings in such cases may be made by the disciplinary authority, in the cases of punishment orders already issued, the annulment may be made by the appellate / revisionary authority, as the case may be, for this purpose. It is not necessary to follow any 'Revision' or 'Review' procedure since the charges / punishment are obviously based on invalid premises. After dropping of the disciplinary action and annulment of the punishment of removal, as the case may be, the relevant benefits like grant of leave encashment, salary dues, retirement benefits, etc. may be extended as outlined in Board's letter No.F(E)III/86/PN1/17, dated 19.09.1986.
3. In the cases of aforesaid type, the question of giving compassionate appointments towards may also be considered after a period of 7 years/ 3 years as provided in item (iii) of para 1 of Board's letter No.E(NG)III/78/RC1/1, dated 07.04.1983."
[Emphasis supplied] Patna Bench 25. In this case Ld. CJM Patna accepted the police report dated 08.05.2006 about missing person. Inspite of all efforts Rajeshwari Prasad could not be traceable. There is presumption under Section 108 of Indian Evidence Act. The Railway Board in such genuine missing cases has considered in the above circular for consideration for grant of settlement dues, relevant consequent benefits like retirement benefits etc.
26. For the above reasons, the Tribunal hereby directs the respondents to examine and consider the representations of the applicant at Annexure A/3 & A/8 and pass reasoned and speaking order within three months from date of receipt of copy of this order.
27. In the event, if the applicant is found entitled to benefits as prayed, the same shall be disbursed within further period of 60 days in accordance with law.
28. The original application accordingly stands allowed to the extent indicated hereinabove.
29. The Pending Misc. Application, if any, stands disposed of.
28. There shall be no order as to costs.
sd/-
(Ajay Pratap Singh) Judicial Member, Central Administrative Tribunal, Patna Bench, Patna.
24.01.2024 du/-