Oral Judgment:
1. The petitioner has prayed for following reliefs in paragraph 10(A) to (C) in this petition filed under Article 226 of the Constitution of India.
œ(A) That this Honble Court may be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to release the arrears of family pension with 12% interest from the date of the issuance of the policy by the State Government of Gujarat and further continue to pay the family pension to the petitioner till the life time.
(B) This Honble Court may be pleased to issue appropriate writ, order or direction directing the respondents No.1and2 to release the amount of Gratuity and the Provident Fund and two months salary which has not been paid to the petitioner with interest.
(C) This Honble Court may be pleased to direct the respondents No.1and2 to consider the application of the petitioner for grant of compassionate appointment to her son.?
2. Case of the petitioner is that her husband who was serving as Talati-cum-Mantri from 16.11.1975 suddenly eloped on 28.8.1979 while in service. Police Complaint was lodged about missing of her husband on 23.9.1979 which was registered as Janva Jog Entry No. 67 of 1979 and though more than 23 years have passed, the petitioner has been left in lurch and lost the only earning member in the family. It is the case of the petitioner that as per the policy of the State Government, the petitioner was entitled to family pension and other benefits including the compassionate appointment. However, there is no response from the concerned authorities to whom the application was made by the petitioner. The petitioner has averred that as per the policy dated 12.9.1987 issued by the Government of Gujarat, members of the family of missing employee would be entitled to family pension. However, the respondents have not released any such benefit to the petitioner.
3. The petition is opposed by the respondent No.1 by filing affidavit in reply stating that the husband of the petitioner who was serving as Talati-cum- Mantri was not on duty from 20th August, 1979 and never made any report thereafter. It is further stated that later on the petitioner approached the Taluka Development Officer, Vallabhipur for various benefits and some details were called for from the petitioner. It is further stated that respondent No.2 also addressed letter to the Police Inspector, Valabhipur on 6th June, 2000 to provide necessary certificate declaring husband of the petitioner as dead. It is also stated that the husband of the petitioner had served for three years and 7 months and minimum seven years service is required and, therefore, the petitioner is not entitled to family pension. It is further stated that the PSI informed respondent no.2 that there was no details and information about death of husband of the petitioner and, therefore, no death certificate could be issued for the husband of the petitioner.
4. I have heard learned advocates for the parties.
5. Learned Advocate Mr. M.D. Rana appearing for the petitioner submitted that the husband of the petitioner disappeared while in service on 28.8.1979 and thereafter, after making search at various places since the husband of the petitioner could not be traced out or found out, information was lodged with the police which came to be recorded as Janva Jog Entry No. 67 of 1979. Police Officer of the concerned police station had given certificate to the effect that during the investigation carried out in connection with the missing report of the husband of the petitioner, husband of the petitioner actually disappeared and could not be traced out. Learned Advocate Rana submitted that the Government of Gujarat in partial modification of the resolution of the Finance Department dated 1st January, 1972, issued resolution dated 31st July, 1987 and has done away with the requirement of minimum five years service for the employee died in harness provided that such employee was in service on 1st January, 1986. Learned Advocate Mr. Rana submitted that by virtue of the resolution dated 31st July, 1987, even if the employee who died while in service had not put in minimum five years service, still, his family members would be entitled to family pension. Learned Advocate Mr. Rana submitted that by subsequent resolution dated 26.9.1987, the Government has further provided that in the case of disappeared employee unless a period of seven years has elapsed since the date of disappearance of the employee, he cannot be deemed to be dead and retirement benefits can not be granted to the family. Learned Advocate
Mr. Rana submitted that in this further resolution, the government has provided procedure to be followed in the case of employee who disappeared from service. Learned Advocate Mr. Rana submitted that in the case of the husband of the petitioner, from the date of his disappearance, seven years would be over on 27.8.1986 which would be after 1st January, 1986, meaning thereby, till 27.8.1986, husband of the petitioner could not be treated as dead as required by Resolution dated 26.9.1987. Learned Advocate Mr. Rana submitted that till the above said period of seven years was over, neither any order of suspension was passed against the husband of petitioner nor was any order dismissing or removing the husband of the petitioner was passed and, therefore, husband of the petitioner will be required to be treated in service as on 1st January, 1986.
6. Learned Advocate Mr. Rana submitted that since the petitioner had lodged complaint with the police station and since the police had made report that the husband of the petitioner has not been traced out inspite of efforts made and since the minimum five years service was not required by the husband of the petitioner as provided by resolution dated 31st July, 1987, the petitioner was entitled to family pension. He, thus, urged to allow this petition.
7. As against the above arguments, learned Asstt. Government Pleader Mr. Niraj Ashar submitted that since the husband of the petitioner completed just three years and seven months of service, the petitioner could not be made entitled to benefit of family pension. Learned A.G.P. Mr. Ashar submitted that to become entitle to family pension, minimum 7 years service was required. Learned A.G.P. Mr. Ashar submitted that since the PSI informed respondent No.2 that there was no details or information about the husband of the petitioner having died, no action could be taken for providing benefit of family pension to the petitioner. Learned A.G.P. Mr. Ashar submitted that though the husband of the petitioner disappeared while in service, entitlement to family pension could be only on providing full details by the petitioner and, therefore, since the petitioner did not comply with the requirement of resolutions passed by the Government from time to time, benefit of family pension could not be given to the petitioner.
8. Learned Advocate Mr. H.S.Munshaw appearing for respondents NO.1 and 2 submitted that after the husband of the petitioner disappeared from service, no details were available with respondent no.1 and 2. However, when the petitioner asked for benefit of family pension, petitioner was required to provide necessary details. Learned Advocate Mr. Munshaw submitted that even the communication was also made by respondent no.2 with the police to know about the details of disappearance of the husband of the petitioner so that the further action could be taken. Learned Advocate Mr. Munshaw submitted that in absence of any details, it was not possible to arrive at any conclusion that the petitioner was entitled to benefit of family pension on the basis of resolution dated 31st July, 1987 and 26.9.1987 issued by the Finance Department of the State. Mr. Munshaw thus submitted that since the husband of the petitioner had not completed requisite service before his disappearance and since no details were available after he disappeared from service, no illegality could be found with the decision of respondents in not giving benefit of family pension to the petitioner. He thus urged to dismiss the petition.
9. Having heard the learned advocates for the parties and having perused the record of the case, it appears that after the husband of the petitioner disappeared while in service on 28.8.1979, the petitioner lodged information about missing of her husband with the police on 23.9.1979 which was recorded as Janva Jog Entry No. 67 of 1979.
10. It appears from the certificate at annexure C issued by the concerned police authority that after carrying out investigation and making full efforts to trace out the husband of the petitioner, police has given certificate stating that during the investigation, husband of the petitioner could not be traced out. It appears that pursuant to the letter by respondent No.2 inquiring with the police authority as to whether the husband of the petitioner could be declared as dead, the police stated that no such report could be made. However, fact remains that till 27.8.1986 when the period of seven years from the date of disappearance of husband of the petitioner was over, husband of the petitioner could not be declared dead. Resolution dated 26.9.1987 is based on sec. 108 of the Indian Evidence Act and by the said resolution, it is provided that unless the period of seven years elapsed after disappearance of the employee, such employee cannot be declared or deemed as dead. Therefore, as on 1st January, 1986, the husband of the petitioner could not be declared or said to be a dead person.
11. There is no dispute about the fact that till the period of seven years was over or at least till 1st January, 1986, the husband of the petitioner was neither suspended nor removed or dismissed from service. Therefore, as on 1st January, 1986, husband of the petitioner was required to be treated in service.
12. It appears that by resolution dated 1st January, 1972, it was provided that the family members of an employee who died in harness could be made entitled to benefit of family pension only if such employee had completed minimum five years of service. However, vide resolution dated 31st July, 1987 issued by the Finance Department of the State Government, such requirement of minimum five years has been given go bye. Thus, even if the employee who has not completed five years of service, but still was in service as on 1st January, 1986 and thereafter either died or disappeared while in service and considered to be dead as per the deeming provisions of section 108 of the Indian Evidence Act, family members of such employee could be made entitled to family pension. In the present case, there is no dispute about the fact that after disappearance of the husband of the petitioner, seven years got over on 27.8.1986, therefore, he is presumed to be dead. The petitioner being his widow, was therefore entitled to benefit of family pension as her husband was presumed to be dead only after 1st January, 1986 and till 1st January, 1986, there was no order of either suspension or removal or dismissal of her husband from service. However, the petitioner was also required to complete other formality as required by resolution dated 26.9.1987. The petitioner has already fulfilled some of the requirements like lodging of complaint about disappearance of her husband etc. However, if the petitioner is required to submit indemnity bond as required by resolution dated 26.9.1987, it is for the concerned authority to ask for such indemnity bond from the petitioner. Therefore, action on the part of the respondents in not conferring benefit of family pension to the petitioner cannot stand scrutiny of law as the case of the petitioner stands covered by resolution dated 31st July, 1987 and 26th September, 1987.
13. Petitioner has however also asked for interest on the arrears of family pension. In ordinary circumstances, petitioner could have been made entitled to such interest on delayed payment of benefits of family pension. However, when the respondent authorities had not taken the action on some genuine grounds and because of not getting details from the petitioner as also from the police authority, interest cannot be granted to the petitioner. Though the petitioner has prayed for direction to grant compassionate appointment, at this belated stage, there is no question of considering such prayer. Hence the Court has not gone into such plea of compassionate appointment.
14. For the reasons stated above, the petition is partly allowed. Petitioner is held entitled to family pension benefits under resolution issued by the State Government dated 31st July, 1987 and 26th September, 1987. Respondents are directed to work out and pay such benefits of family pension to the petitioner within three months from the date of receipt of this order. Rule is made absolute to the extent stated.