IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP (T) No. 3871/2008 (OA No.1737 of 1996) Reserved on :15th May, 2009 Date of Decision:29th May, 2009 Bimla Devi Petitioner Versus State of H.P. and another Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the petitioner: Mr. J.L.Bhardwaj, Advocate, For the respondents: Mr. R.K.Bawa, Advocate General, with Mr.Vivek Thakur, and Ankush Dass Sood, Addl. Advocate Generals. Sanjay Karol, J. Petitioner has prayed for the following reliefs:- “It is, therefore, respectfully prayed that this application may kindly be allowed throughout with costs and Annexure A-5 may kindly be quashed and set aside and the applicant may be awarded the following reliefs:- a) direct the respondents to grant pensionary benefits from the date of missing of her husband, that is, from 3rd November, 1988 till its realization alongwith interest at the rate of 18% per annum; b) direct the respondents to grant gratuity and other service benefits admissible under the rules; Whether the reporters of Local Papers are allowed to see the Judgment? 2 c) direct the respondents to pay rupees one lac as damages on account of sufferings caused at the hands of the respondents for non-payment of pensionary and other benefits; d) allow cost of the application and e) allow any other relief deemed fit and proper by this Hon’ble Tribunal in favour of the applicant in the peculiar facts and circumstances of the case.” Shri Babu Ram, husband of the petitioner, was discharged from Indian Military force on 1.4.1983. On 1.8.1986 he was enrolled as temporary Constable against the existing vacancy in District Solan. He was transferred from Solan and deployed at Police Lines, Bharari on rotational duty. While being posted at Police Lines Bharari, on 9.11.1987, he proceeded on sanctioned leave of six days casual leave and one day earned leave but, however, did not join the duties thereafter and was marked as absent. He continued to remain willfully absent from duty for 279 days and reported for duty only on 21.8.1988. The record reveals that he had sent a telegram to the Deputy Superintendent of Police, Police Lines, Bharari stating that his mother had expired, which fact he himself contradicted in the reply dated 21.8.1988 wherein it was stated that actually it was his mother- in-law who had expired. For his negligence, grave irresponsible conduct and willful absence from duties, a regular departmental inquiry was ordered on 6.9.1988 and an inquiry officer was appointed. While the proceedings were on he did not report to duty and again willfully absented himself with effect from 3.11.1988. 3 Petitioner vide letter dated 19.1.1989 (Annexure A-2) requested the respondents to search for her missing husband. Vide letter dated 10.7.1989 (Annexure A-3) petitioner was assured of all possible help and was requested to send a photograph of her husband, which was promptly done by her. It appears that efforts were made by the respondents to search for the petitioner’s husband, but, however, in vain. In the meanwhile, since the petitioner’s husband did not appear and participate before the inquiry officer in the departmental proceedings, on 19.3.1999 he was proceeded ex parte and after inquiry was found to have willfully absented himself from duty for a period of 279 days, which conduct was found to be grave and as such due to dereliction and negligence of duties, the delinquent official was found to be a person not fit to be retained in the police service. After issuance of a show cause notice, penalty of dismissal from service was imposed upon Shri Babu Ram vide order dated 6.7.1990 (Annexure A-5). Importantly, before passing of the said order, show cause notice was issued to the petitioner’s husband, which was affixed at his house and sufficient opportunity of hearing/representation, in compliance of principles of natural justice, was afforded to the delinquent official. Petitioner made various representations to the respondents requesting for retiremental benefits of her husband and also for employment on compassionate grounds, under the Kith and Kin Policy of the State. The petitioner also filed Civil Suit No.3751/04/2001 titled as Smt. Bila Devi @ Soma Devi vs. General Public, for declaration and vide judgment and decree dated 2.9.2006, the Civil Judge (Junior Division), Solan, District Solan, decreed the suit to the effect that the petitioner is 4 entitled to retiral benefits of her husband as her husband was not heard by the persons who would have naturally heard him since 2.11.1988. The retiremental benefits have been denied to the petitioner for the reason that her late husband, due to the passing of the order of dismissal from service was not entitled to the same. The order dated 6.7.1990 cannot be faulted on any ground. The principles of natural justice stand fully complied with. Even as per petitioner’s own case, evident from the judgment and decree dated 2.9.2006, her late husband had left the service on 2.11.1988 without any information or leave. Notices issued in the name of petitioner’s husband were affixed at his house. Even the petitioner did not dispute the legitimacy/maintainability or the outcome of the said disciplinary proceedings. In none of the representations made by the petitioner, she ever raised any issue with regard to the same. Therefore, petitioner’s prayer that the order of dismissal be quashed cannot be allowed. With respect to petitioner’s other prayer, the respondents have not passed any order so far. It is for the first time here, that the respondents in opposition to the petition have disputed the same. The respondents themselves, in fact, have admitted in the affidavit dated 5.5.2009 as under:- “Furthermore, since the husband of the petitioner has been dismissed from service and thus his family is not entitled for the pensionary benefits. However, the Commandant 1st HPAP Battalion, Junga was advised that in case the GPF of husband has not been released, the same can be paid to the petitioner. Further he was directed to obtain legal opinion for further course of action. It was opined by the Deputy District Attorney, Solan, that the petitioner has agitated all her grievances qua the service matter of her husband Babu Ram, 5 before Hon’ble Administrative Tribunal and the matter is subjudice. Hence notice under reply may be ignored. In the above facts and circumstances, no action was to be taken to implement the decree passed by the Ld. Civil Judge.” Simply because the matter was pending was no ground for the respondents to have withheld the GPF to which the petitioner, in any event was legitimately entitled to. The stand taken by the respondents, however, is untenable in law. In the petition, petitioner had claimed benefits in addition to the amount of GPF. At least the same could have been released. Learned counsel for the petitioner has invited my attention to the following decisions:- Smt.Sandhaya Devi Parmar vs. Union of India and others,, 1997(2) Sim.L.C. 310, Sunehru Devi vs. Union of India and others, Latest HLJ 2005 (HP) (DB) 885, Sunita Devi vs. Union of India and others, Latest HLJ 2007 (HP) 3. He has also referred to the Notification/Clarifications issued by the Government of India, which are reproduced as under:- (12) Payment of retirement gratuity and family pension to the family, in case an official’s whereabouts are not known. – 1. A number of cases are referred to this Department for grant of family pension to the eligible family members of employees who have suddenly disappeared and whose whereabouts are not known. At present all such cases are considered on merits in this department. In the normal course unless a period of 7 years has elapsed since the date of disappearance of the employee, he cannot be deemed to be dead and the retirement benefits cannot be paid to the family. This principle is based on Section 108 of the Indian Evidence 6 Act which provides that when the question is whether the man is alive or dead and it is proved that he has not been heard of for 7 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. 2. The matter has been under consideration of the Government for some time as withholding of the benefits due to the family has been causing a great deal of hardship. It has been decided that (i) when an employee disappears leaving his family, the family can be paid in the first instance the amount of salary due, leave encashment due and the amount of GPF having regard to the nomination made by the employee. (ii) after the elapse of a period of one year, other benefits like retirement or death gratuity/ family pension may also be granted to the family subject to the fulfillment of conditions prescribed in the succeeding paragraphs. 3. The above benefits 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 that the employee has not been traced after all efforts had been made by the police. (ii) An Indemnity Bond should be taken from the nominee/dependants of the employee that all payments will be adjusted against the payments due to the employee in case he appears on the scene and makes any claim. 4. The Head of Office will assess all Government dues outstanding against the Government servant and effect their recovery in accordance with Rule 71 of CCS (Pension) Rules, 1972 and other instructions in force for effecting recovery of Government dues. 5. The family can apply to the Head of the Office of the Government servant for grant of family pension and death/retirement gratuity after one year from the date of 7 disappearance of the Government servant in accordance with the prescribed procedure for sanction of family pension and death/retirement gratuity. In case the disbursement of death/retirement gratuity is not effected within three months of the date of application, the interest shall be paid at the rates applicable and responsibility for the delay fixed. (G.I., Dept. of P.&P.W.,OM No.1/17/86-P.P.W., dated the 29th August 1986] Note.- The above orders regulate genuine cases of disappearance under normal circumstances and not the cases in which officials disappear after committing frauds, etc. In latter type of cases the family pension needs to be sanctioned only on the Government employee being acquitted by the Court of Law or after the conclusion of the disciplinary proceedings, etc., as the case may be. [G.I., Dept.of Posts, Circular Letter No.4-52/86-Pen, dated the 3rd March, 1989] The applicability of the same to the employees of the State has not been disputed at the Bar. While taking the objection with regard to petitioner’s entitlement for the retiremental benefits, if any, the respondents have obviously not taken into account the clarificatory instructions issued by the Government of India. Considering the length of his service, it is not clear as to whether the petitioner’s husband was otherwise entitled for the pensionary benefits. Under these circumstances, the respondents are directed to take a decision with respect to the retiremental benefits of the petitioner’s husband, including the amount of gratuity, GPF etc. While taking the decision the respondents shall also take in account the ratio of law laid 8 down in Sandhaya Devi Parma (supra), Sunehru Devi (supra) and Sunita Devi (supra). The decision shall be taken within a period of four months from today, after affording opportunity of hearing/representation to the petitioner. Needless to add, the respondents shall pass a reasoned order, which shall be communicated to the petitioner. The respondents are also directed to consider as to whether any member of the petitioner’s family would be entitled to compassionate appointment in accordance with Kith and Kin Policy framed by the respondents. It is also clarified that since the petitioner was entitled for immediate release of the amount of GPF, the respondents shall also consider the question of payment of interest, if any, in accordance with law. With the aforesaid observations, the present petition is disposed of. 29th May, 2009 (Sanjay Karol) (C) Judge.