Mr. R.V. Sinha, Mr. A.S. Singh, Mr. Amit Sinha, Ms. Nidhi Singh and Ms v. GOVERNMENT OF NCT OF DELHI & ORS

Judgment

1. The petitioner Rani Singh, moved the Central Administrative Tribunal1 by way of OA 516/2021, seeking family pension in terms of Signature Not Verified 1 “the Tribunal”, hereinafter Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 W.P.(C) 12604/2022 Office Memorandum2 dated 29 August 1986 issued by the Department of Pension & Pensioners’ Welfare3, on the ground that as her husband had left home on 8 June 2005 and had never returned, he was presumed dead and, consequently, she was entitled to family pension in terms of the aforesaid OM. The Tribunal has rejected the petitioner’s OA. She has, therefore, approached this Court by means of the present writ petition.

2. The dispute is only, therefore, whether the petitioner is entitled to family pension in terms of DOPPW OM dated 29 August 1986. Relevant Instructions

3. DOPPW OM dated 29 August 1986, as also DOPPW OM dated 18 February 1993, to the extent relevant, are reproduced thus: DOPPW OM dated 29 August 1986 “(9) Payment of retirement gratuity and family pension to the family, in case an official whereabouts are not known.- 1. A number of cases are referred to this Department for grant of family pension to eligible family members of employees who have suddenly disappeared and whose whereabouts are not known. At present, all such cases are considered on merits in this department. In the normal course, unless a period of 7 years has elapsed since the date of disappearance of the employee, he cannot be deemed to be dead and the retirement benefits cannot be paid to the family. This principle is based on Section 1084 of the Indian Evidence Act which provides that when the question is whether the man is alive or dead and it is proved that he has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, 2 “OM”, hereinafter 3 “DOPPW”, hereinafter 4 108. Burden of proving that person is alive who has not been heard of for seven years. –Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 W.P.(C) 12604/2022 the burden of proving that he is alive is shifted to the person who affirms it.

2. The matter has been under consideration of the Government for some time as withholding of the benefits due to the family has been causing a great deal of hardship. It has been decided that (i) when an employee disappears leaving his family, the family can be paid in the first instance the amount of salary due, leave encashment due and the amount of GPF having regard to the nomination made by the employee (ii) after the elapse of a period of one year* other benefits like retirement or death gratuity/family pension may also be granted to the family subject to the fulfillment of conditions prescribed in the succeeding paragraphs. The above benefits may be

3. Administrative Ministry/Department after observing the following formalities:- sanctioned by (i) The family must lodge a report with the concerned Police Station and obtain a report that the employee has not been traced after all efforts had been made by the Police. (ii) An Indemnity Bond should be taken from the nominee / dependants of the employee that all payments will be adjusted against the payments due to the employee in case he appears on the scene and makes any claim.

4. The Head of Office will assess all Government dues outstanding against the Government servant and effect their recovery in accordance with Rule 71 of CCS (Pension) Rules, 1972, and other instructions in force for effecting recovery of Government dues.

5. The family can apply to the Head of the Office of the Government servant for grant of family pension and death / retirement gratuity, after one year* from the date of disappearance of the Government servant in accordance with the prescribed procedure for sanction of family pension and death / retirement gratuity. In case the disbursement of death / retirement gratuity is not effected within three months of the date of application, the interest shall be paid at the rates applicable and responsibility for the delay fixed. NOTE - The above orders regulate 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 needs to be sanctioned only on the Government employee being acquitted by the Court of Law or after the conclusion of the disciplinary proceedings, etc., as the case may be. Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 W.P.(C) 12604/2022 ***** DOPPW OM dated 18 February 1993

“(11) Family pension should be sanctioned from the date of lodging FIR or expiry of leave of the employee, whichever is later. - *** At present, the family pension is sanctioned and paid to the eligible member of the family one year after the date of registering the FIR with the Police and no family pension is paid for the intervening period of one year from the date the FIR is lodged to the date the family pension can be sanctioned. This practice is causing hardship to the families. It has now been decided that the family pension which, in pursuance of the earlier orders, will continue to be sanctioned and paid one year after the date of lodging the FIR, will accrue from the date of lodging the FIR or expiry of leave of the employee who has disappeared, whichever is later. When the sanction for family pension is issued, the payment of pension from the date of accrual may be authorized. The usual procedure of obtaining the Indemnity Bond, etc., as laid down in the OM, dated 29-8-1986 [Decision (9) above] will continue to be followed. While sanctioning payment of family pension, it will be ensured by the concerned authorities that family pension is not authorized for any period during which payment of pay and allowances in respect of the disappeared employee has been made.” Facts

4. Jiwan Kumar Singh5, the husband of the petitioner, joined the Delhi Police as Sub Inspector in 1989. According to the petitioner, he had been sanctioned 33 days’ leave, by the respondents, on 6 May 2005, and was due to report back to office on 13 June 2005. However, during that period, Jiwan left home on 8 June 2005. He never returned, and, according to the petitioner, was never seen thereafter.

5. After making certain preliminary inquiries, the petitioner informed the respondents about the disappearance of her husband on Signature Not Verified 5 “Jiwan”, hereinafter Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 W.P.(C) 12604/2022 16 June 2005.

6. Over 15 years thereafter, on 2 October 2020, the petitioner addressed a “notice of demand” to the respondents, invoking the aforenoted DOPPW OMs dated 29 August 1986 and 18 February 1993 and claiming family pension thereunder, as there was no news of her husband for over seven years since the time he left home on 8 June

7. On 23 October 2020, the Deputy Commissioner of Police6 addressed the following communication to the petitioner, rejecting her request: “OFFICE OF THE DY. COMMISSIONER OF POLICE SECURITY:HQ: VINAY MARG, CHANKYA PURI, NEW DELHI-21 Telephone No.011-24671493/011-24154700/225 Subject:- Notice Dated 02.10.2020 Received (Through Advocate Amit Sinha from Smt. Rani Singh W/o Sh. Jiwan Kumar Singh, No.D-2808 (Ex-SI, PIS Since No.16890091-Reportedly 16.06.2005)- For Grant of Post Death Financial Benefits to her. Missing Reference Notice Dated 02.10.2020 received in this office in the matter of grant of post death financial benefits in the case of Sh. Jiwan Kumar Singh: (Ex-SI, PIS No. 16890091 -Reportedly Missing Since 16.06.2005). It is intimated that as per this office record, Sh. Jiwan Kumar Singh (Ex-SI, PIS No. 16890091). was’ dismissed from service vide this office Order No. 8026-8125/HAP-Sec. (P-l), Dated 23.12.2005 (Copy Enclosed) due to his involvement in Criminal Case registered vide F.I.R. No.358/2005 Dated 06.06.2005 U/s 363 (365) IPC P.S. Bhagalpur, ’Bihar. Signature Not Verified 6 “DCP”, hereinafter Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 W.P.(C) 12604/2022 As provided in Rule 24 of CCS. Pension Rules -1972 (Copy Enclosed) "Dismissal or removal of a Government Servant from a service or post entails forfeiture of his past service". Hence, in the. case of Sh. Jiwan Kumar Singh, Ex-SI No.D-2808 (PIS No. 16890091). Pension/Family Pension/Gratuity are not admissible as he was dismissed from Service. However, family (Wife) of the Ex-SI may report to Account Branch-Security at Vinay Marg, Chankyapuri, New Delhi on any working day alongwith the documents such as G.P.F. Book/GP.F. Balance Sheet her Aadhar Card/PAN Card/Bank Pass Book etc. so final payment of G.P.F./C.G.E.G.I.S in the .Case, if any found payable. this office may process ACP-HQ For Dy. Commissioner of Police, Security (HQ), New Delhi”

8. On 28 January 2021, GPF7 dues of ₹ 1,96,671, along with interest till November 2005, were released by the respondents to the petitioner.

9. It was in these circumstances that the petitioner approached the Tribunal by way of OA 516/2021. The prayer clause in the OA read thus: “In view of the facts and circumstances as made herein above, it is most respectfully prayed that this Hon’ble Tribunal graciously be pleased to :- call for the relevant records of the respondents in the (i) matter, hold and declare that the husband of the Applicant (ii) Shri Jiwan Kumar Singh, Ex-S.I., PIS No.16890091 working under the respondent No.2 is dead in terms of section 107 & 108 of the Indian Evidence Act, 1872 with consequential relief under law. (iii) Hold and declare that the order dated 23.12.2005, passed by the Respondent No.2 vide No.8026-8125/HAP- SEC(P1) is non est and nullity in the eyes of law and Signature Not Verified 7 General Provident Fund Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 W.P.(C) 12604/2022 consequently quash the same. (iv) Hold and declare the letter dated 23.10.2020 of the Respondents No.1 & 2 to the extent it denies the grant of family pension to the applicant as illegal, arbitrary and accordingly quash the same to that extent. (v) Hold and declare that the applicant is entitled for family pension and arrears thereof including other retiral benefits i.e. Gratuity, Leave Encashment, CGEGIS, etc. w.e.f. 16.06.2005 with interest thereon the arrears @ 12% per annum till the realization with consequential relief directing the respondents to pay the same within time bound manner. (vi) Hold and declare that nonpayment of interest on the GPF account of the husband of the applicant as per rate of interest applicable on GPF amount till date of payment and restricting the interests on GPF paid by the Respondent No.3 till 11/2005 is arbitrary and illegal and consequently direct the respondent to release the difference of interest from 11/2005 till payment of the GPF amount. (vii) award cost of the proceedings in favour of the applicant and against the official respondents. (viii) may also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.”

10. We may note, at the very outset, that prayer (ii) was beyond the scope of jurisdiction of the Tribunal. A declaration that Jiwan was dead, as he had not been seen for seven years, could only have been sought by way of a civil suit, and the Tribunal could not have issued such a declaration. Prayer (ii) in the OA was, therefore, clearly misconceived.

11. Mr. R.V. Sinha, learned Counsel for the petitioner submits, however, that he was not pressing, before us, prayer (ii) as advanced before the Tribunal as the petitioner was, even under the OMs dated Signature Not Verified Digitally Signed By:AJIT KUMAR Signing Date:01.07.2025 13:29:56 W.P.(C) 12604/2022 29 August 1986 and 18 February 1993 of the DOPPW, entitled to family pension consequent on her husband having remained unseen for over seven years.

12. Before the Tribunal, the petitioner placed reliance on the aforenoted DOPPW OMs as well as the judgments of the Supreme Court in State of Punjab v Amar Singh Harika8, Dulu Devi v State of Assam9 and UOI v Dinanath Shantaram Karekar10.

13. Additionally, in support of her contention that the dismissal of Jiwan from service was illegal, the petitioner placed reliance on the following authorities: (i) UOI v Tulsiram Patel11, (ii) Satyavir Singh v UOI12, (iii) UOI v Polimetla Mary Sarojini13, (iv) T.K. Parukutty Amma v Garrison Engineer14, (v) Banarasi v Government of NCT of Delhi15, (vi) Govt. of NCT of Delhi v Manbhar Devi16, and (vii) Tripta Rani v UOI17.

14. Contesting the petitioner’s claim, the respondents contended, before the Tribunal, that the case was not one of a person being missing for seven years and, therefore, being presumed dead, but of