Orissa High Court
Afr Smt.Gayatri Pattanaik vs This Petition Was Originally ... on 6 September, 2022
ORISSA HIGH COURT : C U T T A C K
WPC(OA) NO.1550 OF 2017
In the matter of an application under Articles 226 & 227 of the Constitution of India.
AFR Smt.Gayatri Pattanaik : Petitioner
-Versus-
State of Odisha & Others : Opp.Parties
For Petitioner : Mr.P.Mohapatra
For O.Ps. : Mr.S.Mishra, ASC
CORAM :
JUSTICE BISWANATH RATH
Date of hearing & Judgment :: 06.09.2022
1. This Petition was originally filed before the Odisha Administrative
Tribunal, Bhubaneswar registered as O.A. No.1550/2017. On the
Tribunal being abolished, the matter was transferred to this Court for
disposal. The Petition involves the following prayer :-
"The applicant humbly prays that this Hon'ble Tribunal be
graciously pleased to -
i) Admit and allow this O.A.
ii) Direct respondents to sanction and disburse Family
Pension and Death Gratuity in favour of the applicant
within a period of one month along with arrear.
And
iii) Pass such other order/direction as may be deemed
appropriate in the interest of justice."
Page 1 of 10
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2. Background
involving the case is the Petitioner being the legally
married wife of the employee, Arjun Kumar Pattanaik approached the
Competent Authority for release of benefit including pensionary benefit
to the applicant on the premises that her husband was a Government
Servant entered into service on 13.3.1996 and posted as Excise
Constable. This fact has been established through Annexure-1 appearing
to be the extract of the employee's Service Book. It is pleaded by the wife
of the employee involved that her husband while working as Excise
Constable at Ujalpur in the district of Sundargarh under the
administrative control of Respondent No.2 herein disappeared from his
working place without any information to anyone including the present
Petitioner. Finding no trace of her husband, the Petitioner appears to have
lodged a missing F.I.R. on her husband on 24.2.2013, vide Annexure-2. It
further reveals from the pleading that on the basis of such F.I.R.,
Lephripada P.S. Case No.S.D.E. No.456 dated 24.2.2013 got registered.
Pleading further reveals, finding no development through such F.I.R.,
there has been drawing of attention of the Inspector and finally the O.I.C.,
Lephripada Police Station after investigation reported that the husband of
the Petitioner remained untraceable as appearing from Annexure-8. The
Petitioner while bringing this fact to the notice of O.P.2 requested it for
considering her case for sanction of family pension as well as death
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gratuity involving her husband. On the premises that the Petitioner
finding no respite from the Employer in the matter of release of gratuity
as well as family pension approached the Tribunal for appropriate relief.
3. Mr.Mohapatra, learned counsel for the Petitioner for the factual
background of the case and reading through the report of the concerned
Police Station communicated to the Superintendent of Police,
Sundargarh, vide Annexure-8 reading together through the provisions at
Rule 56(19) & (20), particularly the provision at Rule 56(19)(II) and the
provision at Sub-Rule (20) therein of the Orissa Pension Rules attempted
to establish the entitlement of the Petitioner and in the circumstance, Mr.
Mohapatra alleged, first of all there has been no proper attention to the
claim of the Petitioner at least release of pension and retiral dues in terms
of the above legal provisions and secondly, even in filing counter here,
there has been illegal attempt to block the benefits already flowing to the
Petitioner for no legal grounds. Mr.Mohapatra, learned counsel for the
Petitioner in addition to the above submission also brought to the notice
of this Court that for the provision in the Evidence Act, once a person is
missing for nearly seven years, there is civil declaration of death. Thus,
Mr.Mohapatra alleged, the missing of the person involved having taken
place in 2012 from the Office premises, thus there is sufficient
presumption of declaration of death of such person and in the above legal
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background, learned counsel for the Petitioner also claimed, the Petitioner
is already entitled to the benefits and has been illegally deprived of the
same and under unlawful manner. In the circumstance, Mr.Mohapatra,
learned counsel for the Petitioner requested this Court for allowing the
application and passing suitable direction facilitating family pension and
death gratuity in favour of the Petitioner at an early date.
4. In his opposition, Mr.S.Mishra, learned Additional Standing
Counsel for the O.Ps. reading through the counter averments submitted
that undisputedly there is pendency of a disciplinary proceeding
involving the husband of the Petitioner, who is facing charge of
unauthorised absence. Mr. Mishra contended, unless the disciplinary
proceeding involving the husband of the Petitioner gets concluded, there
is no possibility of considering the relief claimed by the Petitioner herein.
Further taking this Court to the provision of Note-4 of Rule 20 of the
Orissa Pension Rules, Mr.Mishra admitted, there is some sort of
obstruction in attending the claim of the Petitioner unless the proceeding
involving the husband of the Petitioner gets lawfully concluded, there is
no scope acceding to request of the Petitioner. It is in the circumstance,
Mr.Mishra, learned Additional Standing Counsel attempted to justify the
action of the O.P. involving non-release of the gratuity as well as family
pension, if any. There is of course no denial to the existence of the final
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report of the IIC involved reporting husband of the Petitioner not
traceable.
5. Heard the submission of the learned counsel for the Parties at
length. Keeping in view the entire backdrop herein, this Court finds, there
is relevancy in the provision at Rule 19(ii) and Rule 20 including Note-4,
which are placed herein as follows :-
"(19)Family Pension and death gratuity to the family members
of the government employees who disappears or absconded
from the Government service shall be as follows :
(i) xxx
(ii) After the elapse of a period of one year, other benefits
like death gratuity/family pension including arrears shall
also be granted to the family provided that the
concerned family shall initiate the fact of disappearance
of the Government servant to the Head of Office under
where the Government servant served last for the
purpose of sanction of the benefits. Where the Head of
Office is not the pension sanctioning authority of the
disappeared Government servant he will send the papers
with recommendation/comments to the pension
sanctioning authority who will sanction the benefits
under Sub-rule (2) or (4), as the case may be, after
observing the following formalities, namely :
(a) An F.I.R. should be lodged with the nearest Police
Station under intimation to the concerned Head of
Office. The Head of Office should obtain a report
from the Police Station through the District Police
Officer that the employee has not been traced out
after all efforts made by police.
(b) An indemnity Bond in (Form-Q) shall be taken from
the dependants of the employee that all payments
will be adjusted against the payments due to the
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employee in case he appears on the scene and makes
any claim.
20.(A) When a retired Government servant disappears
leaving his family, the family shall be paid in the first instance,
the amount of arear salary and leave encashment due, if any.
The house rent, if any, for the month(s) in respect of which the
salary is due shall be recovered from the amount of salary
payable to the family.
xxx xxx xxx
Note-4. The benefits covered under Sub-rules (19) and (20)
shall only be admissible in the 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 can be sanctioned only to the
Government employee/pensioner being acquitted by the Court
of law or after the conclusion of the disciplinary proceedings
etc., as the case may be."
6. Before adverting to the question of entitlement of the Petitioner
though the above provisions of law, this Court makes it clear that for
there is no dispute that the employee involved is missing since 2012 as
per the F.I.R. dated 24.2.2013 and the report of non-traceable of such
employee by the Competent Authority, vide Annexure-8 since 2.6.2016,
this Court finds, there is declaration of civil death of the husband of the
Petitioner automatically and since the Disciplinary Proceeding involving
the Petitioner was initiated after the Petitioner's husband reported to be
missing, there is no purpose for continuing with such disciplinary
proceeding any further. It has to get a logical end no doubt with dropping
of such proceeding maximum holding abandonment of service by an
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employer and considering releasing of consequential service benefits and
also involving a decision on entitlement of family pension to the wife in
the circumstance the husband is not traceable and no pension can be
provided to such person. This observation of the Court is made here
keeping in view that the charge of unauthorised absence involving the
employee came to exist after the Employer knowing fully that the
employee is not attending to his Office and reported to be missing and
further in between there is already an F.I.R. of his missing from the
Society. Further to add to this, on investigation by the appropriate
Agency competent, there is already reporting since 2016 disclosing the
person involved is not traceable any further.
7. In the circumstance, this Court finds strange in the attitude of the
Employer in still continuing Departmental Proceeding involving
unauthorised absence involving the nature of absence here any further.
There should be only declaration of dropping of the proceeding. This
Court expects, on receipt of copy of this order, the Employer shall drop
the proceeding by passing appropriate order within a period of seven days
of receipt of copy of this order. Consequent upon such declaration,
necessary order must be passed in the releasing of the retiral benefits and
family pension in favour of the Petitioner.
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8. Now coming to the entitlement of the Petitioner even during
pendency of the disciplinary proceeding, this Court here finds from the
provision taken note herein above, particularly the provision of Sub-Rule
19 (ii), there is sufficient mechanism already provided in the matter of
grant of gratuity and family pension in the circumstances involved herein
even within one month of lodging of missing F.I.R. This Court thus
observes, there is already illegal detention of entitlements of the
Petitioner. Further for the provision at Sub-Rule (20) Rule 56 of the
Orissa Pension Rules through Note-4, this Court finds the only
obstruction in the grant of benefits flowing through Sub-Rules (19) &
(20) of Rule 56 of the Orissa Pension Rules in the event the
disappearance of the employee after committing fraud and entitlement
involved in such case shall only be made after there is clearing of such
dispute by the court of law, which is not the case here, and therefore,
there is lawful obstruction in the release of gratuity and family pension in
favour of the petitioner undisputedly the wife of an employee.
Looking to the nature of absence involved herein, this Court finds,
this restriction does not apply to the case at hand. Thus this Court finds,
in all probability there should not have been at least a day delay even in
releasing the financial benefit of the Petitioner, such as gratuity as well as
family pension since the Employer has already come to notice the report
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of the O.I.C. of Lephripada P.S. intimating all concerned on
non-availability of such missing person. There is sufficient delay in
considering the release of gratuity as well as family pension and it can be
well assessed the suffering of a wife and family members of such an
employee in the meantime. Be that as it may since this Court finds, the
Petitioner is already in entitlement of gratuity and family pension after the
all concerned are noticed about the non-traceability of such person being
reported by the Police, vide Annexure-8, rendering the Departmental
Proceeding un-attendable, this Court directs the Employer to calculate the
arrear family pension at least from the date of expiry of one year of the
F.I.R. and release the same at least within a period of one month. For the
miserable suffering of the Petitioner on no account of her, she will also be
entitled to interest @ 5% on the arrear from the date of entitlement all
through. For the Petitioner is likely to get sufficient amount, after
entering into necessary calculation, she may be released with Rs.2.50 lakh
(rupees two lakh fifty thousand only) pending release of the final benefit
towards delay payment of gratuity and part arrear of family pension,
which amount shall however be adjusted from the final payment.
9. To avoid any further complication keeping in view the statement
made by Mr.S.Mishra, learned Additional Standing Counsel for the State
that there is requirement of Indemnity Bond under Rule 19 and looking to
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the matter involving disappearance of the person involved and
untraceable, the Petitioner is directed to serve an Indemnity Bond along
with copy of this judgment on the Employer within ten days for their
working in terms of the direction hereinabove.
10. The Petition succeeds. No cost.
...............................
(Biswanath Rath, J.)
Orissa High Court, Cuttack.
The 6th September, 2022/M.K.Rout, A.R.-cum-Sr.Secy.
