IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIFTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.RAMULU WRIT PETITION NO : 22768 of 2000 Between: Appapuram Samrajyam W/o Nageswara Rao, R/o. Vemure Post and Mandal Guntur District. ..... PETITIONER AND 1 The Officer-In-Charge, Madras Regiment, Post Bag No.1, Wellingtion(nilgiris) -643231 2 The Chief Controller of Defence Accounts, (Pensions), Drowpathi Ghat, Alahabad, Uttar Pradesh India .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction particularly in the nature of Writ of Mandamus by declaring the order dt.11.11.1992 communicated on 10.8.2000n as illegal, arbitrary and in violation of right to livelihood as guaranteed is Art. 31 of the constitution of India and pass such other order or orders as are deemed fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.V.MALLIK Counsel for the Respondenzxct Nos.1 & 2: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) The Court made the following : ORDER This writ petition is filed seeking a Mandamus to declare the order dated 11.11.1992, communicated to the petitioner on 10.8.2000 as arbitrary and illegal and violative of Article 21 of the Constitution of India. Petitioner is the wife of one Nageswara Rao. The said Nageswara Rao worked as Sepoy in the Indian Army and after serving for more than 14 years, he was due for retirement in the month of October, 1983. While that being so, he was granted annual leave for a period of 30 days from 26.8.1982 to 26.9.1982 and since then, he was missing and his whereabouts were not known to the family. The same was intimated to the concerned officials. It is the case of the petitioner that the Government of India has formulated a scheme of pension and gratuity in cases of missing personnel and issued Memorandum dated 23.3.1992. As per the said scheme, the first respondent addressed a letter to the petitioner seeking submission of claim form and other documents, such as, indemnity bond and a copy of the FIR as required in the said Memorandum dated 23.3.1992. Accordingly, through Ex-servicemen Association and in her individual capacity vide letter dated 24.10.1992, the claim form along with all the required documents have been furnished to the 1st respondent, who is the unit authority. Further, the petitioner also filed a suit in O.S.No.19 of 1996 on the file of District Munsif Court, Tenali seeking appropriate declaration that her husband died since missing for more than seven years and the same was decreed on 18.7.1996. After completing all the formalities, surprisingly, she received the order dated 20.5.1996 rejecting her case stating that her husband was dismissed from service as he deserted the army. Therefore, she is not entitled for pension. Questioning the same, petitioner filed WP No.34219 of 1997 before this Court and the same was dismissed on 30.12.1997 upholding the said order. However, when the mater was carried in appeal being WA No.183 of 2000, a Division Bench of this Court vide its Judgment dated 8.3.2000 directed the respondents to communicate the order of dismissal by giving liberty to the petitioner to question the same. Thereafter, the respondents have communicated the letter of dismissal purportedly issued on 11.11.1992, dismissing husband of the petitioner with effect from 20.10.1992. Hence, the present writ petition. A detailed counter-affidavit has been filed denying the allegations made by the petitioner. It is stated that the Government of India, Ministry of Defence had issued orders regarding payment of family pension in respect of those serving Armed Forces Personnel/Pensioners, who are declared as disappeared/missing from the date of lodging the first information Report or expiry of leave of the service persons whichever is later vide letter No.12 (16)86/D (Pension/Services) dated 23.3.1992 and amended letter dated 26.8.1993, whereas the individual was not reported as missing but has been declared as deserted with effect from 25.9.1982 by a Court of Enquiry held at Unit in terms of Section 106 of Army Act and subsequently, dismissed from service with effect from 20-10-1992 being deserter for more than 10 years from field area. No record is available in the office regarding reporting of missing of the individual by his Next of Kin till April, 1989, nor the Next of Kin had registered any First Information Report with any Police Authorities till the petitioner submitted a petition to the Superintendent of Police, Guntur District, through the Majee Sainikdyogula Samkshema Sangam, Tenali. The provisions of Government of India, Ministry of Defence letter quoted above are not applicable in the instant case. However, the case was taken up by the office at Allahabad for grant of family pension to the petitioner vide letter dated 12.11.1995, but the same was rejected vide letter dated 26.4.1996 stating that the family of dismissed soldier is not entitled to family pension. Heard both sides. The fact that the husband of the petitioner was missing from 26.9.1982 is not in dispute. It is also not in dispute that the first respondent addressed to the petitioner to submit claim for family pension as per the Government of India scheme dated 23.3.1992 and the petitioner obtained the decree in O.S.No.19 of 1996 on the file of District Munsif Court, Tenali declaring deemed death of husband of the petitioner. The only objection raised by the respondents is that there was no First Information Report lodged by the petitioner nor it was reported to them immediately after the person was missing. In fact, this seems to be not correct. May be, there was no FIR lodged by the petitioner and no representation was made by her as to missing of her husband. But when the matter was brought to the notice of the Unit, family pension was recommended by the Unit Officer. While the same was under consideration, unfortunately, 10 years period as to missing was completed. Therefore, while invoking the provisions of the Army Act, the services of the husband of the petitioner was dismissed by a Court of Enquiry held at Unit in terms of Section 106 of Army Act and subsequently, dismissed from service with effect from 20-10-1992. It is unfortunate that such a stand is taken, simply because, there was no FIR lodged, but that does not mean that the petitioner has not reported as to missing of her husband. In fact, only after obtaining the decree and after filing of petition by her, before the Ex-servicemen Association, she was able to approach the respondents and the respondents have asked her to claim for family pension as per the scheme. Under those circumstances, and also in view of the decree passed by the Civil Court, it must be deemed that the husband of the petitioner was missing and it cannot be said that he had deserted. In fact, in the entire counter it is not stated as to whether the respondents have conducted any enquiry, as to the desertion of husband of the petitioner, reporting the same to local Superintendent of Police, nor as to whether the husband of the petitioner was alive or deserted. Therefore, declaring him as deserted in the absence of any such efforts made by the respondents, is untenable. The respondents have made a pedantic approach in rejecting the pension of a lady/widow of Sepoy, who served in the Indian Army for 14 years, unceremoniously. The action of the respondents in passing the impugned order is capricious, arbitrary and illegal and therefore, the same is liable to be set aside. Accordingly, the writ petition is allowed and the impugned order is set aside. The respondents are directed to settle the pension of the petitioner within a period of three months from the date of receipt of copy of this order and communicate the same to the petitioner. No order as to costs. ___________ 25-03-2008 rkk .. REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Officer-In-Charge, Madras Regiment, Post Bag No.1, Wellingtion(nilgiris) -643231 2 The Chief Controller of Defence Accounts, (Pensions), Drowpathi Ghat, Alahabad, Uttar Pradesh India 3.2CD copies