IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07 / 06 / 2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.25787 OF 2010 AND M.P.NOS.1 AND 2 OF2010 Zaibunnisa .. Petitioner Vs. 1.The Commissioner Corporation of Chennai Ripon Building, Chennai. 2.The Government of Tamil Nadu Rep by its Secretary, Municipal Administration and Water Supply Department Secretariat, Chennai. 3.The Accounts Officer (P) Public Department (Pension Division) Chennai Corporation Chennai-3. .. Respondents PRAYER: This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the third respondent dated 04.06.2010 in Po.Thu.Rc.No. B1/768/2010 and quash the same and consequently direct the respondents to pay the petitioner's husband's pension arrears and other benefits from 17.10.1993. For Petitioner : Mr.N.A.Nissar Ahmed For Respondent-1: Mr.V.Bharathidasan For Respondent-2: Ms.C.Devi Government Advocate O R D E R The petitioner has filed the present writ petition seeking to challenge the order dated 04.06.2010 passed by the third respondent and after setting aside the same, seeks for a direction to the respondents to pay pension along with arrears with effect from 17.10.1993. https://hcservices.ecourts.gov.in/hcservices/ 2.Notice was directed to be taken by the learned Standing Counsel for the Corporation of Chennai. But they have not filed any counter affidavit till date. 3.The case of the petitioner is that her husband Mr.G.Khader Ali was working as an Assistant Executive Engineer in the Corporation of Chennai and got retired from service on 01.12.1986. After his retirement, he was getting pension from the Corporation. On 17.10.1993, when he went for offering prayers in the mosque, he did not come back to home. A police complaint was filed as well as a paper publication was effected. The petitioner also filed a suit in O.S.No.2412 of 2003 seeking for a declaration that her husband Mr.G.Khader Ali had met with a civil death. In that suit, the Corporation of Chennai was made as a party and the suit was decreed by the Civil Court on 20.01.2004 declaring that the petitioner's husband is deemed to have suffered civil death. The petitioner armed with these documents, sent a representation to the respondent Corporation seeking family pension. The request made by the petitioner was forwarded to the State Government, the second respondent herein. The second respondent also issued an order in G.O.(Ms) No.117, Municipal Administration and Water Supply Department, dated 28.03.2006. Accepting her representation, the State Government directed the Commissioner of Corporation of Chennai to grant family pension and other benefits to the petitioner by holding that the petitioner's husband must deemed to have been missing from 17.10.1993 and that he should be considered as died. Pursuant to the same, the petitioner was granted family pension by order dated 11.07.2007 and also paid arrears of pension. The pension arrears payable to her late husband was also calculated only from 06.02.2005 to 31.05.2007 and not as per the Government Order, which stated that the petitioner's husband must have deemed to have been missing with effect from 17.10.1993 and the amounts are payable from that date. The petitioner's representation sent to the second respondent was forwarded to the third respondent, who in-turn informed the petitioner that as per the Government letter, a person can be deemed to have been missing only from two years from the date of F.I.R. Lodged with the police and accordingly, the petitioner had been paid pension arrears with effect from 06.02.2005 and it cannot be from the date on which the petitioner's husband was found to be missing. Challenging the same, the petitioner has filed the present writ petition. 4.Mr.N.A.Nissar Ahmed, learned counsel for the petitioner contended that the stand taken by the respondents based on the Government letter dated 09.04.1991 by holding that a disappearance can be reckoned only from two years from the date of lodging of the F.I.R., was illegal, especially when the petitioner has moved the Civil Court and got a declaration that her husband declared to have been died. But a perusal of the decree produced by the petitioner in the typed-set shows that the Civil Court had not given any particular date on which the date of death has to be reckoned. But such issues need not be gone into in the facts and circumstances of the present case. https://hcservices.ecourts.gov.in/hcservices/ 5.The petitioner's husband, admittedly got retired from service on 01.12.1986 and was drawing pension till 17.10.1993, nearly for a period of seven years. Had he been alive, he would continue to get pension. It is only after his death, the question of his wife getting family pension will arise. This is not a case where a Government servant while in service found to be missing and thereafter, the question should arise whether he is dead or alive. Under such circumstances, the date of reckoning may be relevant for the purpose of grant of family pension. In those cases, the Government can stipulate certain guidelines for reckoning the date of death of a Government servant for the purpose of awarding family pension to his family. In the case of a Government servant while dying in service the question of payment of pension or arrears of pension will not arise as pension is payable either on account of reaching the age of superannuation or death whichever is earlier. But in the case of pensionary benefits, like the petitioner's husband, who will continue to get pension and if any particular date of death is arrived at for the grant of family pension, then up to the date of death he is eligible for pension and in case, it is stopped on account of no information regarding his existence, certainly pension is payable till the date of his deemed death. Therefore, the petitioner was partly right in stating that the respondents should comply with the order of the Government in reckoning the date of his disappearance being confirmed and the eligibility of the petitioner in getting pension will arise. In case the Government comes to the conclusion that the petitioner is eligible to get family pension only from 06.02.2005 by holding that F.I.R., was registered only on 06.02.2003 based upon the Government letter of clarification, that will not defeat the claim of the petitioner from getting pensionary benefits, which is due and payable to the petitioner's husband who was drawing pension from 1986 to 1993 and if he alive, he would have continued to get pension till the date of his actual death or deemed death, whichever is earlier. Therefore, while the writ petitioner's request for family pension to be reckoned from 17.10.1993 cannot be considered, but her request for pension arrears payable on account of the same, since the respondents have reckoned the date of death as two years from the date of lodging of F.I.R., cannot be granted. 6.Therefore, the writ petition is allowed to the extent indicated below: (a) While this Court is not ordering family pension from the date mentioned in the Government Order in G.O.(Ms)No.117, Municipal Administration and Water Supply Department, dated 28.03.2006 viz., 17.10.1993, certainly the obligation to pay pension to the petitioner's late husband Mr.Khader Ali cannot be stalled by the respondents and hence, a direction is issued to the respondents to pay pension arrears payable to the petitioner's husband from 17.10.1993 to 06.02.2005. https://hcservices.ecourts.gov.in/hcservices/ (b) Since the petitioner had admittedly payable, the respondents are directed to implement this order within a period of three months from the date of receipt of a copy of this order. 7.The writ petition is allowed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar TK To 1.The Commissioner Corporation of Chennai Ripon Building, Chennai. 2.The Secretary Government of Tamil Nadu Municipal Administration and Water Supply Department Secretariat, Chennai. 3.The Accounts Officer (P) Public Department (Pension Division) Chennai Corporation Chennai-3. + 1 cc to Mr. V. Bharathidasan, Sr.32866 + 1 cc to Mr. N.A. Nissar Ahamed SR.32370 W.P.NO.25787 OF 2010 BS(CO) EU 15.6.11 https://hcservices.ecourts.gov.in/hcservices/