Madhu Baia vs State of Rajasthan and Others

Sandeep Mehta, J.—The instant writ petition has been preferred by the petitioner being a widow of late Shri Madan Singh Rajpurohit, Constable seeking a direction for special pension under Rule 268-1, 268-J and 268-K of the Rajasthan Service Rules, 1951. Facts in brief are that the petitioner''s husband Madan Singh Rajpurohit was employed as a Constable having belt No. 375 in the Police Department and was posted at the police out post Mandore on the relevant date. On 15.11.79 he left the out post in the discharge of his duties and was proceeding in a tempo which collided with a city bus. Madan Singh received injuries in the accident and was taken to M.G. Hospital where he expired. An F.I.R. No. 261/79 came to be registered at the Police Station Mahamandir, Jodhpur in relation to the accident wherein it is clearly mentioned that Constable Madan Singh bearing belt No. 375 had left the out post in a tempo. The tempo met with an accident resulting into death of Madan Singh Rajpurohit while undergoing, treatment at the M.G. Hospital. It is further pleaded that the Police Department itself treated the petitioner''s husband to be a Martyr and his name was entered in the Roll of Honour vide document Ex. 3. The petitioner has also placed on record an invitation letter Ex. 4, as per which the Supdt. of Police organised a Tree Plantation Programme in the honour and memory of late Shri Madan Singh Rajpurohit treating him to be a martyr.

Counsel for the petitioner submits that the Police Department itself is treating the petitioner''s husband to be a martyr which by necessary implication gives rise to a presumption that the department itself considers that the petitioner''s husband expired while on duty. Thus, he contend that the petitioner is entitled to receive special pension as per Rules 268-1, 268-J and 268-K of the R.S.R. which were applicable at the relevant time. He placed reliance on a Single Bench decision of this Court in Mst. Papu Devi v. State of Rajasthan and Ors. being S.B. Civil Writ Petition No. 3087/1996 decided on 23.10.2008 involving identical controversy wherein the widow of an Assistant Sub Inspector in Police who expired in an accident while on duty was field entitled to receive special pension under the aforesaid Rules of the R.S.R. Learned counsel submits that other matters in which, this Court followed Mst. Papu Devi''s case (supra) were carried by the Department to the Hon''ble Supreme Court and the view taken in Mst. Papu Devi''s case was approved by the Supreme Court as well. He, therefore, prays that the writ petition deserves to be accepted.

Per contra Mr. Anil Bissa, learned A.G.C. vehemently opposed the submissions advanced by the counsel for the petitioner. His basic objection is that the petitioner has failed to establish that her husband expired while on duty and thus she is not entitled to the relief claimed for. He submits that as the petitioner failed to discharge the burden of proving that her husband, a police constable expired while on duly, she is not entitled to receive special pension nuclei Rules 268-1, J and K of the R.S.R. He, however, candidly admits that the dependent of a police officer who is killed while on duty is entitled to receive especial pension in accordance with Rule 268-I, 268-J and 268-K of the R.S.R.

Heard and considered the arguments advanced by the learned counsel for the parties. Perused the material available on record. The issue regarding the entitlement of the dependents of a police officer to receive special pension in cases where the police officer dies while on duty is not in dispute. Thus, the only question which remains to be examined is as to whether the petitioner''s husband Shri Madan Singh Rajpurohit, Constable died while being on duty. The petitioner has specifically averred in the writ petition that Madan Singh Rajpurohit was proceeding on duty from the Police Out Post, Mandore in a tempo. The tempo wherein he was travelling met with an accident and the resultant injure s proved fatal. In support of this averment a copy of the F.I.K. No. 261/1979 registered at P.S. Mahamandii, Jodhpur has been placed on record as Annex. 1. It has specifically been mentioned in the F.I.R. that Madan Singh Rajpurohit had left the Out Post in a tempo. The vehicle carrying him met with an accident and he expired while undergoing treatment. As per the F.I.R., Madan Singh had left the Out Post at about 8 A.M. in the morning. It is neither the case of the respondents that Madan Singh was on leave on that day nor that he was not posted at the cut post. The documents Ex. 3 and 4 clearly indicate that the Madan Singh was treated as a martyr in the department. The respondent department has taken a plea in the reply that the burden to prove that the petitioner''s husband expired while on duty was on the petitioner. It is further averred in the reply that had he been on duty, then certainly there would have been some entry in the Roznamcha. Obviously, this averment made in the reply goes against the respondent department itself. It is the settled principle of evidence that the burden of moving a document is on the party who is in possession thereof. The Roznamcha register being maintained at a police out post is obviously a property of the department and if it was desirous to counter the petitioner''s plea on the strength of the Roznamcha entry, the department would have been in best position to place the same on record but it failed to do so. Thus, on account of non-production of the relevant Roznamcha entry adverse interference deserves to be drawn against the respondent department. Thus, it has to be assumed that Madan Singh was performing his official duties when he met with the fatal accident. The case set up by the petitioner that her husband was killed while he was on duty gains further support from the contents of the F.I.R. Annexure 1 and the documents Annex. 3 and 4 and as a consequence this Court has no hesitation in holding that the petitioner has been able to establish beyond all manner of doubt that the her husband Constable Madan Singh died while on duty. Resultantly, the petitioner is entitled to receive special pension as held in Mst. Papu Devi''s case (supra). Accordingly, the writ petition is allowed. The respondents are directed to give the arrears of pension computing the same under Rule 268-K of the R.S.R. with effect from the date of death of the husband of the petitioner. The payment of the arrears accrued shall be paid within a period of three months from today. The said arrears will bear interest at the rate of 9% per annum as per Rule 89 of the Pension Rules, 1996. If not paid within three months from today the rate of interest shall stand enhanced to 12%. The petitioner shall be further entitled to regular special pension as a for said on month to month basis in accordance with Rules 268-K at the rate of monthly emoluments which the deceased constable Shri Madan Singh Rajpurohit was drawing at the time of his death with further revision in pay scab and other benefits, had he remained in service till his age of superannuation. No order as to costs.