MINISTRY OF DEFENCE SENIOR ACCOUNTS OFFICER DEPARTMENT OF ADMINISTRATIVE REFORMS PUBLIC GRIEVANCES NEW DELHI Vs. GADDE YELLAMMA

JUDGEMENT

(1.) This Writ Petition has been filed by the Union of India challenging the order of the Tribunal passed in O.A. No. 1088 of 2001 dated 1-8-2001. The case of the respondent-applicant before the Tribunal was that her husband was enrolled on 24-9-1965 in the Indian Army. He died while in service on 15-4-1987. She made several representations to respondent No.2 in the O.A (2nd petitioner) for family pension and other pensionary benefits. The representations had been rejected stating that her husband had deserted the Army and his services had been terminated with effect from 2-5-1987. The Tribunal found that, since the applicant's husband had not been dismissed from service while he was alive and an order of dismissal had been passed after his death therefore he is presumed to have been in service on the date of his death. This order has been challenged in Writ Petition.

(2.) Though there is dispute with regard to the date of death of husband of the respondent, but it is not disputed that the respondent's husband had died by the time the order of dismissal was passed. It is contended by the Writ petitioners that while the husband of the respondent was working at 13th Engineer Regiment he was granted Annual leave from 9-1-1974 to 5-3-1974. He was supposed to report back after expiry of his leave on 6-3-1974. He failed to report to duty. He was declared deserter and finally in terms of Section 20(3) of the Army Act he was dismissed from service with effect from 2-5-1987 by the Commandant, Madras Engineer Group and Centre. The respondent filed application on 18-2-1988 stating that her husband had died on 10-4-1987. After a lapse of more than 25 years the respondent made representation on 26-12-1998 to the Joint Secretary, Department of Defence, South Block, New Delhi requesting for release of family pension to her as her husband who was serving Army had died on 10-4-1987. This application was considered and proceedings were issued on 9-1-1999 rejecting the claim for family pension. It was reiterated that the husband of the respondent had been dismissed from service on 2-5-1987.

(3.) Since the respondent's husband had died prior to issuance of order of dismissal, therefore, the learned Counsel for the respondent submits that, the dismissal would have no effect. He relies on a judgment of Delhi Court reported in Smt. Harnandi v. Union of India, 2002 (2) AISLJ 49. But the learned Counsel for the petitioners submits that the O.A was not maintainable because it was filed after 25 years and the Central Administrative Tribunal had no jurisdiction to hear the matter. The learned Counsel for respondent, however, submits that this objection was not taken before the Tribunal. Whether the objection was taken or not taken the Tribunal is not expected to take up matters which are outside the jurisdiction of the Tribunal. Therefore, we are not rejecting the plea of lack of jurisdiction on the ground that this plea was not taken before the Tribunal. Section 2 of the Administrative Tribunals Act, 1985 lays down: