Telangana High Court
Smt.B.Aruna vs The Director General Of Police on 26 December, 2023
THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION (TR) No.3511 of 2017
ORDER:
This writ petition is filed seeking to declare the action of the respondents in rejecting the petitioner's representation to rescind the order of removal from service passed against her husband viz., B. Shankarappa vide Memorandum No.1792/T3/2014 dated 20.12.2014 and the connected Memo vide RC.No.1328/A5/2014-15, dated 23.01.2015, as illegal and arbitrary, and consequently, direct the respondents to sanction all the pensionary benefits viz., gratuity, family pension including arrears etc., by declaring the death of the husband of the petitioner as per Section 108 of the Indian Evidence Act, 1872.
2. The facts of the case, in brief, are that the husband of the petitioner viz., B.Shankarappa, was appointed as a Police Constable (Civil) on 16.08.1990 in Mahabubnagar District and thereafter, he was transferred to Railway Police District, Secunderabad, on deputation on 12.02.1999 and that B.Shankarappa was assigned General No. RPC 264 and was sent 2 to Police Training College, Anantapur, on 20.05.2006 to undergo training in 'Policing in Faction Areas' from 22.05.2006 to 27.05.2006. While so, the petitioner came to know that B.Shankarappa absented from training from 26.05.2006 without leave or permission from his superiors. Therefore, B.Shankarappa was declared as 'Deserter' after completion of 21 days of his unauthorized absence.
3. It is stated that despite her best efforts, the petitioner could not trace B.Shankarappa. Therefore, the petitioner lodged a complaint before the Police, II Town Police Station, Anantapur, who in turn, registered a case under the heading "Man missing"
vide FIR No.191 of 2006 dated 29.09.2006. An article of charge was framed against B.Shankarappa in respect of unauthorized absence and an enquiry officer was also appointed. However, the charge Memo could not be served on B.Shankarappa, as his whereabouts were not known. Thereafter, the Deputy Superintendent of Railway Police, Secunderabad, who was appointed as enquiry officer, conducted enquiry and submitted a report. Consequently, the respondent No.3 issued the 3 proceedings vide No.11/A6/PR/2006-09 dated 18.06.2009 ordering that B.Shankarappa be "removed from service" and the period of unauthorized absence from 26.05.2006 to 18.06.2009 was treated as 'Dies Non'.
4. It is further stated that the Sub-Divisional Police Officer, Anantapur Sub-Division, sought permission from the Tahsildar, Anantapur, to refer the case of B.Shankarappa as "untraceable" and permission was granted and the case was referred as "Action Drop". It is stated that a Family Member Certificate was also issued to the petitioner by the Tahsildar, Mahabubnagar Mandal vide No.G/1419/2014, dated 11.03.2014.
5. The grievance of the petitioner is that she submitted a representation to the respondent No.2 on 29.09.2014 with a request to rescind the order of removal from service passed against her husband B.Shankarappa so as to enable her to apply for family pension and other benefits of her husband, whose whereabouts are not known. However, the respondents vide the impugned proceedings rejected the representation of the petitioner by citing Rule 36 (1) of APCS (CC&A) Rules, 1981. 4
6. The respondents filed counter affidavit stating that B.Shankarappa absented from training from 26.05.2006 without obtaining leave or permission from his superiors. After completion of 21 days of unauthorized absence, he was declared as 'Deserter' vide proceedings dated 04.07.2006. Thereafter, on 09.02.2007, an article of charge was framed against B.Shankarappa. However, the charge memo could not be served on B.Shankarappa as his whereabouts were not known. The Deputy Superintendent of Railway Police, Secunderabad, who was appointed as an Enquiry Officer, conduced the enquiry ex parte and submitted the report. The said enquiry report was also published in the A.P. Gazette on 27.11.2008.
7. It is stated that the Government vide G.O.Ms.No.260 dated 04.09.2003 directed that in all the cases of unauthorized absence from duty for a continuous period of more than one year, the penalty of removal from service shall be imposed on the Government employee, after duly following the procedure laid down in the Rules. In the instant case, the respondent No.3 had followed the due procedure and issued the proceedings dated 5 18.06.2009 ordering that B.Shankarappa be removed from service and treating the period of unauthorized absence from 26.05.2006 till that date as "Dies Non".
8. It is further stated that the representation made by the petitioner to rescind the order of removal from service passed against her husband was rejected as per Rule 36 (1) of the Rules, and the same was informed to the petitioner. It is further stated that the husband of the petitioner was removed from service for the misconduct of unauthorized absence, and therefore, Pension Rules are not applicable to the facts of the case and prayed to dismiss the writ petition.
9. Heard Sri Kusuri Satyanarayana, the learned counsel for the petitioner and Sri M.V. Rama Rao, the learned Special Government Pleader appearing for the respondents. Perused the record.
10. Learned counsel for the petitioner has contended that the husband of the petitioner is missing since 26.05.2006; that the petitioner could not trace her husband despite her best efforts, 6 and therefore, she lodged a complaint before the police; that the case was referred as "Action Drop" since the husband of the petitioner could not be traced and his whereabouts were not known. It is contended that the respondents failed to consider the case of the petitioner in terms of the proviso under Appendix- I (14)(ii)(B) of the Revised Pension Rules, 1980 r/w G.O.Ms.No.41, Finance & Planning (FW.PEN.I) Department, dated 08.02.1994, wherein it is clearly stated that in the case of employees whose whereabouts are not known, Family Pension is payable after a lapse of one year from the date of filing of FIR and after obtaining a certificate to the effect that the employee is not traceable. He further contended that the respondents failed to appreciate that an indemnity bond can be obtained from the petitioner to the effect that in case her husband is traced or returns in due course, all the pensionary benefits can be recovered from her.
11. In support of the said contentions, the learned counsel for the petitioner relied upon the judgments of the Supreme Court in Lal Chand Marwari v. Ramrup Gir 1 and LIC of India v. 1 1926 AIR (PC) 9 7 Anuradha 2 , the High Court of Madras (Madurai Bench) in Managing Director, State Express Transport Corporation Tamil Nadu Limited: General Manager (Operation); Branch Manager; General Manager (Admin) v. E. Tamilarasi 3 ; High Court of Madras in N. Psnkajam v. State of Tamil, Nadu, rep. by its Commissioner and Secretary Department of Transport and Metro Transport Corporation Limited, rep. by its Managing Director 4 and High Court of Andhra Pradesh in Union of India v. Polimetla Mary Sarojini 5.
12. On the other hand, the learned Special Standing Counsel, while reiterating the averments made in the counter affidavit, contended that the representation made by the petitioner to rescind the order of removal from service passed against her husband was rejected in view of Rule 36(1) of the Rules; that there are no specific provisions in the Rules for entertaining/disposing of the representations of the wives of the Police Personnel against the punishment awarded to their spouses and that the husband of 2 (2004) 10 SCC 131 3 2016 (2) LLJ 116 4 2006 (3) MadLJ 702 5 2017 (3) ALD 285 (DB) 8 the petitioner was removed from service for the misconduct of unauthorized absence, and therefore, Pension Rules are not applicable to the facts of the case.
13. A perusal of the record discloses that B.Shankarappa, the husband of the petitioner, was appointed as Police Constable (Civil) on 16.08.1990 and he is missing since 26.05.2006. The petitioner lodged a complaint, on the basis of which, FIR No.191 of 2006 was registered on 29.09.2006 under the heading "Man Missing". However, despite their best efforts, the police could not trace out the husband of the petitioner. Therefore, case was referred as 'Action Drop'. The record further discloses that the respondent No.3 issued the proceedings dated 18.06.2009 ordering that B. Shankarappa be 'removed from service' and treating the period of absence as 'Dies Non'. Therefore, the petitioner submitted a representation 29.09.2014 to the respondents rescind the order of removal from service passed against her husband. However, the said representation was rejected by the respondents.
9
14. In Tamilarasi's case (3 supra), which was relied upon by the learned counsel for the petitioner, the High Court of Madras held as under:
"The dismissal order has been passed in disciplinary proceedings taken ex parte. The reason for non-appearance of the respondent's husband before the disciplinary authority is the factum of his missing. Once it is established that he has not been heard of for seven years from May 1999, it was impossible for him to participate in the enquiry. Therefore, the punishment by itself cannot stand unless the presumption under Section 108 of the Indian Evidence Act, 1872 is rebutted by the employer."
15. Furthermore, in Bandita Sarkar v. State of Assam 6 , the High Court of Gauhati, after due consideration and analysis of Section 108 of Indian Evidence Act, 1872, and relying on the judgment of the High Court of Kerala in Indira K. v. Union of India (OP No.18590 of 1999 (K), held that if the police report has stated that a missing person/employee is untraceable for seven years, and as the presumption of death of such person is available under Section 108 of the Evidence Act, the family members of the missing person can claim all the benefits, as if he is dead on the date of his disappearance.
6 2015 (2) GauLT 1042 10
16. In Smt. K.Lakshmi v. The A.P.S.R.T.C 7 , the petitioner's husband, who was working as Driver in respondent-Corporation (APSRTC) went missing on 03.04.1992. Disciplinary proceedings were initiated against the husband of the petitioner therein after his disappearance and he was removed from service. The wife of the driver filed a suit vide O.S.No.267 of 2006 for a declaration that her husband shall be deemed to have been dead. The Civil Court, eventually, allowed the suit through judgment and decree dated 11.07.2006.
(i) The learned Single Judge of this Court held that once a legal fiction is employed, it should run its full course. Ipso facto, as the workman was deemed to have been dead on the date of his disappearance, the disciplinary proceedings are deemed to have been initiated against the dead person. Those proceedings are a nullity. A fortiori, the workman is deemed to have died in harness, since by the date of his presumptive death, the workman was not removed from service.
7 2013 SCC OnLine AP 815 11
(ii) By referring to the judgment of the Division Bench of this Court in Chief Engineer, APSEB v. K. Naga Hema 8 , the learned Single Judge held that the husband of the petitioner therein shall be treated to have died in harness and accordingly, set aside the order impugned therein and directed the respondent Corporation to pay the balance of terminal benefits to the petitioner treating the workman to have died in harness.
17. Admittedly, the husband of the petitioner is missing since 26.05.2006. The case was referred as 'Action Drop', as the police could not trace the husband of the petitioner. As per the presumption under Section 108 of Indian Evidence Act, if a person is unheard for more than seven years, the said person is deemed to be dead. Further, as per G.O.Ms.No.41 dated 08.02.1994, if the whereabouts of the employees are not known, Family Pension is payable after a lapse of one year from the date of filing of FIR and after obtaining a certificate to the effect that the employee is not traceable.
8 1996 (1) ALD 304 (DB) 12
18. In the light of the above discussion, the ratio laid down in the above judgments and also in view of the fact that Family Member Certificate was also issued to the petitioner, this Court is of the considered opinion that the impugned proceedings are liable to be set aside and the petitioner is entitled to the pensioary benefits.
19. Accordingly, the impugned proceedings are set aside and the respondents are directed to pay the pensionary benefits viz., gratuity, family pension including arrears etc., to the petitioner, within a period of eight weeks from the date of receipt of a copy of this order.
20. The writ petition is accordingly allowed. There shall be no order as to costs.
Pending Miscellaneous Applications, if any, shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 26.12.2023 va