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
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
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.
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
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,
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.
1926 AIR (PC) 9
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
(2004) 10 SCC 131
2016 (2) LLJ 116
2006 (3) MadLJ 702
2017 (3) ALD 285 (DB)
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.
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.
2015 (2) GauLT 1042
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.
2013 SCC OnLine AP 815
(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.
1996 (1) ALD 304 (DB)
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
