Can we file case in CAT chandigarh
Jaswant Singh
(Querist) 19 April 2018
This query is : Resolved
Greetings!
my father was working in DoT (nowdays BSNL) as wireman. He went missing in 1994. My grandfather lodged a FIR in 1995 even my mother lodged too in 1997 and wrote a letter their GM for pension,they didnt accept the application and said that it will take 7 years but after 7 years, nobody rispond. After a year, my grandfather passed away so there is no one with my mother to stand against DoT but my mother went there till 2008 but never get any anwers from them. When i was 22, i got to know everything by my mother so in 2015 by the help of legal person, my mother wrote an application to GM and again they didnt rispond then i decided to write to Hon. Prime Minister of India.PMO gave them pressure and Finally we got reply by them and according to them, they removed my father from the services in 2000, after the 5 years of he went missing so my question is that possible we file an case to the Hon. CAT chandigarh? do we get justice or get nothing because most of the lawyer suggest me that there is no chances after so many years. What should i do and where i can find lawyer for for service matter?
Ms.Usha Kapoor
(Expert) 19 April 2018
According to law if a man doesn't appear for 7 years it shall be presumed that your father is no more. Find a good service lawyer to fight for y0ur father's service benefits. You can contact free legal aid panel attached to CAT to fight for your father's service matter.
Sudhir Kumar, Advocate 
(Expert) 19 April 2018
no need to rush to CAT right now.
Also there is no legal aid panel attached in CAT it is in distt courts only. Legal aid authority in distt court will provide " a lawyer" and there is no guarantee of the same being aware of service law.
At present you have to challenge removal from service. First you have to check whether they have held ex-parte inquiry or not, if no then this is additional ground.
However, main ground of challenge will be that (as already explained by Ms Kapoor) you father is to be presumed dead from the date when he went missing as 7 years are there and the penalty has been imposed on a dead man. Ex-parte Inquiry, if any has also been conducted against a dead man.
This penalty can now not be challenged before Appellate Authority as the case is more than 46 days old, this has to be challenged be Revisionary Authority. If depttl challenge fails then CAT can be moved.
So move step by step.
Guest
(Expert) 19 April 2018
Wherever you go, whether in CAT, Court, or BSNL, everywhere a basic question would arise, did any of the family member filed a missing report of your father with the police and when?
Some basic paper formalities are a must to be followed before going legal. Even as per rules, if an FIR is made with the police for missing of a person, the family pension would start after one year of that report along with payment of other retirement benefits, subject to indemnity bond for refund, if the missing person appears later.
So, in the whole of your description, you have nowhere stated that a missing person report was ever filed with the police or not.
Please bear in mind, HITTING IN THE THIN AIR WON'T YIELD ANY RESULT, even if you or your mother make efforts for years together with the help of any number of lawyers with court cases in CAT, HC or even SC. Any hit & trial method may continue to spoil your case more and more.
Pension file of your father must have a copy of death certificate or the court declaration of death of your father, along with the prescribed application forms for Family Pension/ DCRG, PF, EIS, etc., before processing of his pension case.
So, now it is up to your own wisdom, how you would like to take up the case systematically, so that the retirement benefits can take place in the shrtest possible time.
P. Venu
(Expert) 19 April 2018
The action of the BSNL is certainly highhanded. First of all, obtain copy of the alleged removal of your father from service and then approach the CAT. The OA could be filed in the CAT Bench where your mother is residing at present.
There is no need to be apprehensive; you have a good cause.
Guest
(Expert) 19 April 2018
I can only wish you good luck, if you go by the advice of Mr. P. Venu, if removal of your father from service was as a measure of penalty in departmental inquiry for his unauthorised absence in the absence of evidence of the legal formality of FIR/declaration of civil death of the deceased employee.
I can only say that chances of winning of CAT case would be quite bleak in the absence of evidence of report of missing person or civil declaration of death by the competent court of law. You may better be aware, CAT is not competent to declare a missing person as dead.
Sudhir Kumar, Advocate
(Expert) 19 April 2018
If BSNL has conducted ex-parte inquiry then there is no highhandedness on their part.
the death declaration by the court, as suggested by Mr Dhingra would be needed before taking any action which I suggested.
P. Venu
(Expert) 19 April 2018
Payment of family pension and other retirement benefits to employees whereabouts are not known have been governed by Government of India Decision No. (10), (11) and (12) below Rule 54 of CCS(Pension) Rules, 1972:
(10) Payment of retirement gratuity and family pension to the family, in case an official's whereabouts are not known.
A number of cases are referred to this Department for grant of family pension to the 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 108 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, the burden of proving that he is alive is shifted to the person who affirms it.
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 sanctioned by the administrative ministry/department after observing the following formalities:-
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.
An indemnity bond should be taken from the nominee/dependants of the employee that all payments will be adjusted against the payment due to the employee in case he appears on the scene and makes any claim.
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.
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.
[G.I., Dept. of P.&P.W., O.M. No. 1/17/86-P. & P.W., dated the 29th August, 1986.]
Note:- The above orders regulate genuine cases of disapearance 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.
[G.I., Dept. of Posts, Circular Letter No. 4-52/86-Pen, dated the 3rd March, 1989.]
(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 (10) 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.
[G.I., Dept. of Pen. & P.W., O.M. No. 1 (17)-P. & P.W./86-E dated the 18th February, 1993.]
(12) Payment of retirement gratuity and family pension to the family in case an official's/pensioner's whereabouts are not known - further instructions. -
Following certain doubts expressed by some Ministries/Departments in the application of O.M. No. 1/17/86-P. & P.W., dated the 29th August, 1986 [Decision (10) above], clarifications/further instructions regarding the formalities to be observed, regulation of payment of the benefits, etc., as contained in the following paragraphs, are circulated.
This Department O.M. No. 1/17/86-P. & P.W., dated 29-8-1986 [Decision (10) above], as well as this OM, will also be applicable in the case of missing pensioners mutatis mutandis.
The date of disappearance of the employee/pensioner will be reckoned from the date the First Information Report is lodged with the Police, and the period of one year after which the benefits of family pension and gratuity are to be sanctioned will also be reckoned from this date. However, the benefits to be sanctioned to the family, etc., of the missing employee will be based on and regulated by the emoluments drawn by him and the rules/orders applicable to him as on the last date he/she was on duty including authorized periods of leave. "Family pension at normal/enhanced rates, as may be applicable in individual cases, will be payable to the families of missing employees." Family pension where sanctioned at pre-1-1-1986 rates will be revised and consolidated, w.e.f. 1-1-1986 in terms of O.M. No. 2/1/87-PIC I, dated 16-4-1987 (not printed), as amended from time to time.
In the case of missing pensioners, the family pension at the rates indicated in the PPO will be payable and may be authorized by the Head of the Office concerned. Where the PPO does not contain this information, the Head of Office will take necessary action to sanction the family pension as due, as provided in para. 3 above.
Death gratuity will also be payable to the families, but not exceeding the amount which would have been payable as retirement gratuity if the person had retired. The difference between retirement gratuity and death gratuity shall be, subsequently, payable after the death is conclusively established or on the expiry of seven years period from the date of missing.
The indemnity bond to be obtained for this purpose from the family members, etc., will be in the formats enclosed with this Office Memorandum. Separate formats for use in the case of missing employees and missing pensioners have been prescribed. These formats have been finalized in consultation with the Department of Legal Affairs.
Cases already settled otherwise than in accordance with this Office Memorandum need not be re-opened, unless such a re-opening will be to the advantage of the beneficiaries.
[G.I., Dept. of P. & P.W., O.M. No. 1/17/86-P. & P.W. (C), dated the 25th
January, 1991.]
Admittedly, the family of the missing employee had lodged the FIR and had requested the authorities for sanction of Pension. As such, there was had been a strict obligation cast on the authorities to abide by the extant norms and sanction family pension and other benefits. Instead they had allegedly removed the employee. Such proceedings cannot but be a sham and highhanded.
Guest
(Expert) 19 April 2018
Good job by Mr. P. Venu in reproducing the DOP&PW OMs, but sorry to say, he has not brought any new thing through his post by merelly reproducing the DOP & PW OM, verbatim. It seems as if he has read only between the lines, instead of reading that carefully, that too without applying his mind.
He seemed to have deliberately ignored the very important points of the OM, which prescribes, as follows:
(1) 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.
(2) 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.
Secondly, if the Disciplinary Authority has removed the employee from service in the year 2000 that clearly reveals that the family had neither submitted copy of the FIR for 6 years (1994 to 2000), nor submitted application for pension as per the prescribed procedure and the employee was removed from service on conduct of departmental inquiry on account of his unauthorised absence, while notice of inquiry would have been sent to his home address, which the family would have received for and on behalf of the employee or would have refused to be taken delivery of.
Thirdly, Mr. P. Venu has probably not gone through the post of Mr. Dhingra, also, who has very clearly stressed on these points.
Before stressing on his point that there had been a strict obligation on the authorities to abide by the extent norms, Mr. P. Venu should have given proper thought over the requirement of application in accordance with the prescribed procedure, which is stressed in his own quoted reference of the OM. OBLIGATION DOES NOT ARISE AUTOMATICALLY, IF PRESCRIBED PROCEDURE WOULD NOT HAVE BEEN FOLLOWED BY THE APPLICANT ALSO.
Nowhere the DOP&PW OM prescribes that the prescribed procedure should be dispensed with. Obligation of the authorities can be called for only after submission of the copy of FIR as well as the prescribed application forms for various claims, as already pointed out by Mr. Dhingra.
So, instead of vainly stressing on his point, Mr. Venu should have tried to realise the practicability of his advice.
If the family goes to CAT, BSNL would certainly be able to fail their case merely on the aforesaid two points, i.e., wanting copy of FIR and application form in prescribed form as per the prescribed procedure.
MY SUGGESTION, if Mr. P. Venu does not mind, why not take up the case to file in the CAT for and on behalf of the family with the condition that he would charge his fee only on winning of the case against the BSNL leading to sanction of the pension and other retirement benefits by getting the prescribed procedure dispensed with?
Jaswant Singh
(Querist) 19 April 2018
Mr.JIGYASU. . .
BSNL replied us that they have missing the personnel file of my father, if i'm not wrong that the personnel file have all records because my mother submitted the very first copy of FIR to the department but they dont have any records besides the service book records.
Is that possible that they can distroy the records and can file to RTI for copy of inquiry report?
Jaswant Singh
(Querist) 19 April 2018
Mr.JIGYASU. . .
BSNL replied us that they have missing the personnel file of my father, if i'm not wrong that the personnel file have all records because my mother submitted the very first copy of FIR to the department but they dont have any records besides the service book records.
Is that possible that they can distroy the records and can file to RTI for copy of inquiry report?
Jaswant Singh
(Querist) 19 April 2018
Mr.Sudhir so we need not tracable report by the police station and then it require death declaration by the court
Jaswant Singh
(Querist) 19 April 2018
MS.USHA where i can find these attached aid?
Jaswant Singh
(Querist) 19 April 2018
Mr. Dhingra i totally agreed with you. after getting the court declaration of death of my father, then we can file application for Family Pension?
Guest
(Expert) 20 April 2018
You have only now stated that the BSNL has responded saying the personal file not traceable and also that the copy of FIR submitted to the BSNL. You may be right, but even then you are required to clarify on the following issues:
(1) To whom your mother submitted the copy of FIR and whether you have any acknowledgment of the BSNL for the same?
(2) Did your mother apply for family pension on the prescribed form for pension by attaching copy of the FIR with that application form? If so on which prescribed forms she applied for the family pension and the DCRG?
(3) Did she apply for payment of GPF on the prescribed form? if so, on which form did she apply?
(4) On receipt of notices of departmental inquiry at your home address, what action was taken by your your grandfather or mother in response to the notices?
P. Venu
(Expert) 20 April 2018
Author Mr. Jaswant Singh:
Mr. Dhingra and the so-called JIGYASU are one and the same person. The postings made in tandem just to distract and confuse you.
The fact of the matter is that you had lodged the FIR and had informed the authorities. Thereafter, it had been their responsibility to deal with the matter in accordance with the extant norms. In such cases there the Head of the Office ought to have been a guide and mentor for the distraught family. Instead, they have chosen to terminate your father from the service. This was clearly impermissible and amounts to a serious breach of duty.
You need not be concerned about their missing file. It is their responsibility, once the matter reaches the CAT, explain how the file in their custody ha been lost. Moreover, no adverse inference can be drawn against the applicant if the respondent department has lost or misplaced or destroyed the file.
Jaswant Singh
(Querist) 21 April 2018
Mr. P. VENU . . .
the conclusion : my mother submitted the FIR to the department but does not filled up any forms afterwards even i'm not sure about that she submitted successfully or just gave it someone because my grandfather was retired from the above department so everybody knew him so he used to send peon to the authorities even we dont have any receiving about the successfully submission of the FIR and i mentioned above the file got misplaced by department but if they produce the file in court then there will be no FIR in their.
but what my ground is that they gave us in written that the personnel file is missing if they produce the file and there will no FIR then we can say that if the file went missing then its possible that documents (FIR etc) can be misplaced or distroyed
Guest
(Expert) 21 April 2018
Mr. P. Venu,
Since you have stressed upon your point and wished that the querist should go for CAT and you have full faith on CAT, CAN YOU CLARIFY WHY YOU LOST ALL THE FOLLOWING THREE OF YOUR OWN PERSONAL CASES IN CAT AT ERNAKULAM ONE AFTER THE OTHER, INSPITE OF HAVING REPRESENTED BY YOURSELF IN PERSON, WHEN YOU WERE FULLY AWARE OF THE FACTS OF THE CASES AND ALSO A QUALIFIED LAWYER?
(1) OA No. 620/2012:
(2) OA NO. 180/00997 of 2014, as decided on 11.03.2016
(3) OA No. 180/00370/2014, as decided on 20.07.2016.
Hopefully, you would also have lost your promotion due to anyone or all of the above stated cases.
Your main problem is that you try to assert on your point on hit and trial basis only or by reading between the lines. Contrarily, I prove the executive authorities wrong on the basis of provisions of rules and regulations. For example, you lost your APAR case pertaining to a single reporting period by wasting your precious time of about two years and at the cost of your own leave in CAT trial, whereas about 5 years back, I got below benchmark APAR of a GM for 4 reporting periods reversed from the different competent authorities within approximately 3 months duration without the incumbent GM or me paying any visit to them, as located at different parts of India, and also got managed his next promotion as Senior GM by getting Review DPC conducted by the management of one PSU within the next 3 months. Representations were sent by the GM only through courier or speed post, not even email. We talked only about irregularities on their part based on rules and regulations by not including any assumption, presumption or extraneous matter to be commented upon adversely.
I hope, you very well remember that at some earlier occasions also, I made you aware of your drawback that you make too much assumptions, as against the facts and merits of the cases. Not only that in a bid to defame me, you take shelter of false statements also. Even you have tried to fit me in the Garb of another expert, Mr. Jigyasu, when I do not have anything common with him. If somehow or the other his knowledge coincides with my knowledge that does not mean, I and Mr. Jigyasu are the same persons.
Be aware, if in some issues, your knowledge happens to coincide with me that does not mean that I am Mr. P. Venu or you are Mr. Dhingra. Mr. Dhingra is a separate entity, neither Mr. P. Venu, nor Mr. Jigyasu, nor anyone else. With due apology to Mr. Jigyasu, I am yet to assess to what extent he possesses the knowledge, at par, above par or below par than me.
I won't have any objection, if in a bid to hunt clients you try to convince the querists on your view point,. But, when with sheer assumptions and presumptions anyone tries to give false hopes to the querists by misleading them, may be out of greed or even unintentionally I feel that ethically they should have avoided that. When you have lost your own CAT cases by presenting yourself, to assure success to anyone else is really a matter of surprise.
Please be aware, knowledge of ABC and little practical experience do not guarantee success in any case, where knowledge of A to Z and a pretty of practical experience is desirable. Hit and trial methods never guarantee success.
When you could not learn even a bit from your own past mistakes, how anyone can expect that you would try to take advantage of the very crucial points pertaining to the present case, even on pinpointing, which need to be tackled administratively, not through court trials. AS PER MY BELIEF, SOLUTION IS ALWAYS THERE, BUT RIGHT STEPS ARE QUITE NECESSARY TO BE TAKEN, INSTEAD OF HITTING IN THE DARK.
Guest
(Expert) 21 April 2018
Mr. Jaswant Singh,
If yours is not a real problem, any logical reply can do for scoring of adequate marks for your acdemic query. However, if your query relates to some real problem please bear in mind, for justice, besides any just cause, more than just evidence is also required to be in possession in order to achieve that successfully. At present, appropriate4 evidence is absent in your case. You may have to get necessary evidence created before you can get justice.
My intention was not intended to discourage you in any way. My intention was just to caution you that once you go to CAT, your case would likely be got spoiled forever in the absence of any appropriate evidence.
Though your case has become complicated due to not taking timely formal steps by your family members, but possibility to solve your problem lies only in rectification of administrative omissions and commissions.
Service record of an employee can be weeded out after the period preservation up to 5 years after his retirement, removal or dismissal. So, there should not be any surprise about missing of service record of your father. However, there should not be any cause of concern, as reconstruction of service record/service book is not banned for the just cause. But certain prescribed process is quite necessary to be adopted for that purpose. That can only start after the concerned authorities are convinced about the genuineness of the case and reversal of penalty of removal on appropriate representation along with the copy of FIR.
You may be able to achieve success only though administrative actions and may not find any need to go to CAT. But 3-4 different phases of processes may be required to get your problem solved after observing due prescribed process that may take about one to two years, if the case is properly pursued at different levels, which may be the Admn, Vigilance, Vigilance Monitoring/ Drawing & Disbursement Offices concerned, Disciplinary & Reviewing Authorities, Pension unit, etc. Functions of all the wings are different and can start one after the other in a phased manner.
For that purpose, better take help of the experts of the different functions along with the local union leaders of the BSNL representing the cadre to which your father belonged.
Sudhir Kumar, Advocate
(Expert) 22 April 2018
You have not been able to father the facts clearly and have not been able to post all facts here. As a result despite best sympathy and diligence the experts could not form a clear view.
It is in your interest to come with full facts of the case.
