IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16416 of 2004 SUMITRA DEVI, W/O Ex Sepoy Rajendra Pd. Rai, Sepoy No. 13947645, a resident of village Turki, P.O. + P.S. Turki, District – Muzaffarpur ……….. Petitioner Versus 1. THE UNION OF INDIA through the Chief Secretary, Govt. of India, New Delhi. 2. The Commanding Officer, Army Medical College Pune, 100, Field Ambulance, C/O 56 APO, Pune, Maharashtra. 3. Major, S.R.O. (Officer-in-charge), Sena Chikitsa Corps Abhilesh, Army Medical Corps Records, Lucknow-2 (U.P). 4. Secretary, District Soldier Board, (D.S.S. & A. BOARD), Dist. Muzaffarpur. 5. Officer-in-charge (Finance Deptt.), Army Group Insurance Fund, A.I.G. Bhawan Rao Tularam Marg, P.O. Bag No. 14 Basant Vihar, New Delhi – 110 057. …………………. Respondents For the petitioner: M/S. S S P Yadav and R J Maharaj. For the Union of India: Mr. Rakesh Kumar Singh, Central Govt. Counsel. ----------- 05. 03.02.2009 Sumitra Devi, the petitioner is wife of Ex Sipoy Rajendra Pd. Rai. She has filed the present writ application for a direction upon the respondents to pay to her the family pension, gratuity and other retiral dues since her husband is missing for more than seven years. The basic facts are that husband of the petitioner joined Indian Army on 7th February, 1979. The post was ambulance assistant. He was posted in the field at various places and had served the army for almost 10 years. Last of the posting of the petitioner’s husband was at Pune. He visited home on a twenty days leave and then reported back to the unit. After the day of joining duty he absented from duty and has not been heard of since then. Petitioner was informed about absence of her husband and some of the communications have been brought on record but till date he has neither showed up nor being - 2 - apprehended by civil or military authorities. No dispute that petitioner was paid group insurance and A.F.P.P. funds but that does not satisfy the petitioner because she wants family pension since petitioner’s husband has been missing for more than 7 years. Respondents were directed to file a counter affidavit which has been filed. The narration in the counter affidavit does not match the averments made in the writ application. They have stated that the husband of the petitioner was no doubt in service of the respondents and had worked for a little over 10 years in the Army Medical Corps. While being posted at A.F.M.C. Pune, husband of the petitioner absented himself without leave from the unit. This was with effect from 17.11.1987. The unauthorized absence led to issuance of apprehension roll which was issued to the concerned civil authorities of the district from where petitioner’s husband belonged and even the petitioner had been informed to the effect as would be evident from annexure-1 to the writ application. Since the apprehension roll did not have required effect right up to April, 1989, the husband was declared as a deserter with effect from 17th November, 1989 after holding enquiry under section 106 of the Army Act. Subsequently the husband of the petitioner did not report even thereafter, power under section 20(3) of the Army Act was invoked read with the necessary army orders in this regard and he was dismissed from service on 20.4.1993. The stand of the respondents is that in terms of Part-113(9) of Pension Regulation of the Army (Part-1) no pension is payable and terminal benefits have already been allowed to the - 3 - present petitioner. Learned counsel appearing for the petitioner submits that it does not make a difference whether petitioner’s husband was terminated, dismissed or cashiered because petitioner still is entitled to pension which is family pension in the present case. The submission is based on the decision rendered in the case of Hazara Singh v. Chief of the Air Staff, 1982 (1) SlR 521. After perusing the Division Bench decision of the Delhi High Court this Court is constrained to record that such decision had no application to the present case. The issue before the Delhi High Court was whether the President could exercise his jurisdiction in passing an order of forfeiture of pension after the same was already awarded to an employee earlier. The Regulation 16(a) in question is a different issue altogether and is of no avail to the petitioner in this regard. The other decision which has been relied by the learned counsel for the petitioner is the case of Jodh Singh v. Union of India, AIR 1980 SC 2081. A reading of the judgment would also demonstrate that it has no application to the issues raised in the present writ application because the Hon`ble Supreme Court had to decide as to what would be the effect of grant of family pension already sanctioned to a widow vis-à-vis the testamentary disposition of a husband . The Court fails to understand as to how the judgment is of any avail to the issue of grant of family pension. Last of the decision relied by the petitioner is the case of Ramesh Chander v. Union of India, 1999 (7) SLR 427. The Court is constrained to record that a reading of this decision also does not - 4 - leave this court any wiser on the issue. In the above stated position and the submissions which have been made in support of the writ application, the Court does not find any merit with regard to the claim of the petitioner for family pension when the fact is that the petitioner’s husband was dismissed from service in the backgrounds which have been recorded in the earlier part of the order. The writ application has no merit. It is dismissed accordingly. rkp (Ajay Kumar Tripathi, J)