1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.03.2011 CORAM: THE HON'BLE MS. JUSTICE K. SUGUNA AND THE HON'BLE MR. JUSTICE A. ARUMUGHASWAMY W.A. (MD) No.8 of 2011 Ramuthai Appellant/Petitioner vs. 1 The Executive Engineer Highways, Madurai – 2 2 The Divisional Engineer Highways, C & M, Madurai – 2 Respondents/Respondents (R2 impleaded vide order dated 08.02.2011 made in MP (MD) No.1 of 2011) Writ Appeal filed under Clause 15 of the Letters Patent challenging the order dated 23.09.2010 passed by a learned Single Judge in W.P. (MD) No.10664 of 2005. Prayer in WP.10664 of 2005:- Writ Petitionkl filed under Article 226 of the Constitution of India, praying to issue a writ of Certiorarified Mandamus to call for the records in Na.Ka. No.1830/2005/A4/ dated 26..2005 on the file of the respondent and further direct the respondent to pay the terminal benefits and family pension to the petitioner. For appellant Mr. M.V. Venkataseshan For respondents Mr. Rajarajan, Government Advocate - - - - - JUDGMENT (Judgment of the Court was delivered by A. ARUMUGHASWAMY, J.) The present appeal has been filed as against the order dated 23.09.2010 passed by a learned Single Judge of this Court in W.P.No.10664 of 2005. 2. The appellant herein who is the wife of one P.R. Subbiah has filed W.P.(MD)No.10664 of 2005 seeking family pension of her late husband who had served for fifteen years in the office of the respondents as Road Inspector from 06.05.1959 to 29.02.1974. https://hcservices.ecourts.gov.in/hcservices/ 2 3. Three charges were levelled against the said Subbiah and one of the charges is that he was unauthorisedly absent from 01.03.1974 to 18.07.1979. It was contended that for the said allegations, an enquiry appears to have been conducted and ultimately, he was terminated from service. Subsequent to his demise, the present appellant who is his wife had filed the above said writ petition seeking family pension. 4. The above said writ petition was dismissed by a learned Single Judge of this Court on the ground that the termination order itself was not challenged and hence, the writ petitioner is not entitled to get family pension. As against the said order passed by the learned Single Judge, the present writ appeal is filed. 5. It is not in dispute that the appellant's husband served for a period of nearly fifteen years from 06.05.1959 to 29.02.1974. It is also not in dispute that he was unauthorisedly absent from 01.03.1974 to 18.07.1979. The contention of the respondents is that three allegations were levelled and an enquiry was also conducted. Now, the vehement contention of the learned counsel for the appellant is that no notice was served on the appellant's husband and therefore, the findings of the Enquiry Officer will not bind the appellant's husband. 6. The contention of the learned Government Advocate is that only at the third hearing, the appellant's husband appeared for the enquiry and thereafter, final order has been passed and hence, the same has to be confirmed. 7. Heard the learned counsel for the appellant and also the learned Government Advocate appearing for the respondents. 8. The learned counsel for the appellant has contended that no notice was served on the appellant's husband. Page no.3 of the typed set of papers is a reply letter issued by the Divisional Engineer, (Highways), Madurai, to the appellant's advocate in which he has stated that three charges were levelled against the appellant's husband and he had appeared only for the third hearing and he had not participated in the first two hearings and that thereafter, final orders appear to have been passed. From a perusal of the Service Register, we could see that only termination order has been recorded by the Divisional Engineer, (Highways), Madurai, on 19.10.2001. The report of the enquiry officer is also not produced or available. Further, there is no document to show that appellant's husband had participated in the enquiry. After the death of the Government servant only, the present appellant has filed the writ petition. The gist of the charges levelled against the appellant's husband is only "unauthorised absence" to duty and in cases like this, at least, the respondent is expected to maintain records. Even though the other records such as proof of acknowledgment are not produced, the respondents could have produced permanent records such as Service Register and the findings of the Enquiry Officer. But, no such documents have been forthcoming. If really, enquiry had been conducted and findings had been given, it would have been pasted in the Service Register and the findings of the Enquiry Report must have been carried out by the then officer concerned. As already pointed out, relevant entries have been made only in the year 2001, even though enquiry had been conducted subsequent to 1979. https://hcservices.ecourts.gov.in/hcservices/ 3 9. Under such circumstances, this Court has no other option except to hold that the appellant is entitled to family pension. However, on seeing the subsequent entries, we are of the considered view that instead of ordering family pension, the appellant may be referred for old age pension. Accordingly, in the event of the appellant filing an application before the District Collector, Madurai, seeking old age pension, together with a copy of this order, the District Collector, Madurai is directed to consider and dispose of the same, as an extra- ordinary case, within a period of one month from the date of receipt of such application from the appellant, without insisting on other formalities. With the aforesaid observation and direction, this writ petition stands disposed of. No costs. Sd/- Deputy Registrar (L.A) /True Copy/ Assistant Registrar To 1 The Executive Engineer, Highways, Madurai – 2. 2 The Divisional Engineer, Highways, C & M, Madurai – 2 3 The District Collector, Madurai. + 1 cc to Mr.M.V.Venkataseshan, Advocate, SR No.5585 + 1 cc to The Special Government Pleader, SR No.5656 W.A. (MD) No.8 of 2011 08.03.2011 cad RJ/3.5.11 3p/6c https://hcservices.ecourts.gov.in/hcservices/