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IN THE HIGH COURT OF GAUHATI, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
SOUMITRA SAIKIA, J.
Smti. Pravabati Devi, W/o. Late Triloki Nath Singh - Petitioner
Versus
The State of Assam, Represented by the Commissioner & Secretary to the Govt of Assam, Home & Political Department and Ors. - Respondents
Writ Petition (C) No. 2095 Of 2016
Decided On : 18-10-2023
Pension - Family Pension - Assam Service (Pension) Rules, 1969 - Rule 143A - Presumption of death - Grant of family pension to widow of missing constable - Discharge from service - Death certificate issued - Legal principle of presumption of death under Section 108 of the Indian Evidence Act, 1872 - Judgment of the court in favor of the petitioner for grant of family pension benefits
Fact of the Case:
The petitioner, widow of a missing constable, sought family pension benefits after her husband's disappearance in 1969. Despite efforts to trace him, he was declared dead in 1977, and the petitioner applied for family pension. The authorities rejected her claim citing Rule 143A, which came into effect after her husband's disappearance. The petitioner challenged the rejection, arguing that the provisions of the OM and the Rule were misinterpreted, and the disciplinary proceedings leading to her husband's discharge were illegal.
Finding of the Court:
The court found that the husband had completed over 4 years of service and was entitled to family pension benefits. The court held that the presumption of death under Section 108 of the Indian Evidence Act applied, and the death certificate issued in 1977 confirmed his death. The court declared the discharge order as not enforceable and directed the authorities to release the family pension benefits to the petitioner.
Issues: Interpretation of Rule 143A and OM No. FMP/45/85/139 - Validity of disciplinary proceedings and discharge order - Entitlement to family pension benefits
Ratio Decidendi: Presumption of death under Section 108 of the Indian Evidence Act applies - Death certificate issued in 1977 confirms death - Discharge order not enforceable - Entitlement to family pension benefits upheld
Final Decision: The writ petition is allowed, and the authorities are directed to release the family pension benefits to the petitioner.
Based on the provided legal document, the key points are as follows:
The court applies the legal principle of presumption of death under Section 108 of the Indian Evidence Act, 1872, which allows for the presumption that a person is dead if they have not been heard from for seven years. The death certificate issued in 1977, based on official communication, confirms the death of the missing constable, Triloki Nath Singh (!) (!) .
The petitioner, as the widow of the missing constable, is entitled to family pension benefits since her husband had completed over four years of service and was presumed dead as per legal standards (!) (!) .
The order of discharge from service, which was based on departmental proceedings and the disciplinary order, is declared not enforceable and is considered legally invalid. The proceedings and the order of discharge cannot operate as a bar to the petitioner’s claim for family pension (!) (!) (!) .
The provisions of the relevant pension rules, including the Assam Service (Pension) Rules and the Family Pension Scheme, 1964, support the petitioner’s claim for family pension, especially since the death was legally presumed and certified (!) (!) (!) (!) .
The order rejecting the claim for family pension, based on the departmental order and the interpretation that the case does not fall under the applicable rules, is set aside. The court directs the authorities to release the family pension benefits to the petitioner from the date of the death certificate, i.e., 28.11.2007 (!) (!) .
The court emphasizes that the declaration of death issued by the authorities, along with the presumption under the Evidence Act, provides sufficient legal basis to grant the family pension, regardless of the departmental proceedings or the order of discharge (!) (!) .
The authorities are instructed to process the family pension claim promptly within a specified time frame, ensuring compliance with the court’s directions (!) .
The legal validity of the departmental proceedings and the discharge order against the husband is questioned, and such proceedings are deemed invalid in the context of the pension claim (!) (!) .
The court clarifies that the presumption of death under Section 108 does not specify the date or circumstances of death; it only establishes that the person is presumed dead at the time the question is raised (!) (!) .
Overall, the court rules in favor of the petitioner, allowing her claim for family pension benefits based on the legal presumption of death, the issuance of the death certificate, and the invalidity of the departmental discharge order (!) (!) .
These points collectively support the conclusion that the petitioner is entitled to family pension benefits, and the orders denying her claim are to be set aside.
JUDGMENT :
This writ petition has been filed by the petitioner aggrieved by the speaking order No. HMA.575/2012/77 dated 17.11.2015 whereby the family pension was held to be not payable to the petitioner who was the widow of missing Constable 580 Triloki Nath Singh of Cachar DEF as per Rule in view of the opinion of the Pension and Public Grievances Department that family pension to the wife of the missing constable cannot be granted since the case is neither covered under Govt. O.M. No. PPG(P)75/91/242 dated 29.03.2000 nor does it fall under Rule 143 of Assam Service (Pension) Rules, 1969. The further prayer of the petitioner is for setting aside the order being D.O. No. 3283 dated 25.06.1971, by which order, it was stated that the husband of the petitioner was discharged from service but a copy thereof was never served upon the petitioner. The facts pleaded in the writ petition are that the husband of the petitioner, Triloki Nath Singh, was duly appointed as Constable in Unarmed Branch (UB) against the existing vacant post where he joined on 31-03-1965 in Assam Police and he had undergone basic training at Dergaon. After successful completion of the training, he was posted in different units in the Cachar district. The husband of the petitioner discharged his duties as Constable under administrative jurisdiction of Superintendent of Police, Cachar, Silchar without any blemish throughout his service career. It is stated that the husband of the petitioner while in service at Karimganj police station in undivided Cachar district was missing from 30-12-1969 and his whereabouts were not traced out till date inspite of all efforts from the family as well as by the authority concerned. At that time, the petitioner was at her matrimonial home at Ailakhimillia(via-Ratanpura), District-Mau, Uttar Pradesh although her male child who was aged about only 4 months then. The information regarding her husband missing came to the knowledge of the petitioner vide letter No. R/8646 dated 23-04-1970 issued by the Superintendent of Police, Cachar, Silchar directing her husband to resume in his duties. But the said letter could not served to the addressee since he had remained untraced and as such it was sent to his permanent address at Mau in U.P., which was the matrimonial home of the petitioner.
2. As the petitioner did not receive any service benefit of her husband as his whereabouts could not be traced out, the petitioner submitted several representations before the respondents authorities praying for release of the service benefits in respect of her missing husband. Since these representations did not evoke any response, the son of the petitioner who by that time had attained majority approached the respondent authorities to enquire about the status of the case of his father who was missing since 30.12.1969. As no satisfactory replies were forthcoming from the respondents, a legal notice was served on the respondents by a counsel demanding release of service benefit of her husband. Pursuant to the said legal Notice, the Inspector General of Police vide WT Massage under Memo No. E/II-17.660/10-A dated 17.04.2001 directed the Superintendent of Police, Silchar/ Karimganj to submit detailed report regarding the status of the missing husband of the petitioner with a request to send the pension proposal for grant of provisional pension/Death-cum-Retirement Gratuity (DCRG) etc. In pursuance to such directions issued by the Inspector General of Police, the Superintendent of Police, Cachar, Silchar directed the son of the petitioner to appear before him with all relevant papers and service records of his father to facilitate preparation of pension papers. Accordingly, the son of the petitioner appeared before the Office of the Superintendent of Police, Cachar, Silchar and submitted all relevant papers.
3. The Superintendent of Police, Cachar, Silchar vide memo No. SLC/R/13/2005/8765 dated 22.12.2005 intimated the District Magistrate, Cachar, Silchar
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