SBCWP NO.1615/02. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.1615/2002. Smt.Parmeshwari Devi Saini Vs. State of Rajasthan & Ors. DATE OF ORDER :: January 16, 2009. HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ Shri Dharam Veer Tholia for the petitioner. Shri Zakir Hussain, Additional Government Counsel. REPORTABLE BY THE COURT:- This writ petition has been filed with the prayer that respondents be directed to sanction the family pension to the petitioner in accordance with the proviso to Rule 268B of the Rajasthan Service Rules, 1951 release the amount of GPF, State Insurance, amount of Police Welfare funds and other consequential benefits which petitioner is entitled to as well as to give compassionate appointment to her son. 2) Facts in brief as unfolded in the writ petition are that the petitioner's husband Shri Ramchandra was appointed in the services of respondents as a Constable in IIIrd Battalion RAC in 'B' Company vide order dated 11/12/1971. During service, Shri Ramchandra was granted SBCWP NO.1615/02. 2 status of permanent employee since his date of joining w.e.f. 12/4/1979 passed by the Commandant, IIIrd Battalion, RAC Jaipur since 3/2/1978. Name of Ramchandra was at Sr.No.42 in the confirmed list of Constables. In 1983, he was posted in IIIrd Battalion RAC at Jaipur. During service, he was got hospitalised in Unit Hospital for treatment of his ailment w.e.f. 18/7/1983 to 5/8/1983 and thereafter the doctor of the Unit granted him 15 days Medical Leave w.e.f. 6/8/1983 to 20/8/1983. During the period in between 6/8/1983 to 20/8/1983, Ramchandra disappeared from the Unit and did not report back to the said Unit. He neither came to the house nor joined the duties and still his whereabouts are not traceable. It has been stated that despite the efforts made by the family members and friends, the whereabouts of Ramchandra could not be known. Respondent No.4 also wrote letters to all Superintendents of Police of Rajasthan as well as Commandants of RAC regarding furnishing information of Ramchandra and for his search. An advertisement was also got published in various newspapers publishing photograph of Ramchandra but all in vein. Petitioner's son gave application to the respondents for giving him compassionate appointment in place of his father Shri Ramchandra. When for a long time, Ramchandra SBCWP NO.1615/02. 3 did not return back to join his duties, respondents sent a notice under Rule 19 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 at the petitioner's address on 24/2/1989 and taking ex-parte proceedings, terminated the services of Ramchandra, husband of the petitioner vide order dated 15/11/1990. Aggrieved thereby, petitioner submitted representation to the Director General of Police on the same day on 15/11/1990. It was argued that several letters were written by the Director General of Police to respondent No.4 for providing family pension to the petitioner but neither the family pension has been paid to the petitioner nor compassionate appointment has been given to her son. Hence, this petition. 3) I have heard learned counsel for the parties and perused the material available on record. 4) Shri D.V. Tholia, learned counsel for the petitioner has argued that neither the respondents have sanctioned the family pension to the petitioner nor considered the case of her son for compassionate appointment. Refusal by the respondents for family pension was contrary to proviso of Rule 268B of the Rajasthan Service Rules and denial of giving compassionate appointment is arbitrary. SBCWP NO.1615/02. 4 5) Learned counsel for the petitioner has placed reliance on judgments of this Court in State of Rajasthan & Ors. vs. Phooli Devi & Ors., reported in 2003 (1) WLC (Raj.) 479 and further in the case of Smt.Shakuntala Kanwar Vs. Union of India & Ors., reported in 2002 (4) WLC (Raj.) 315 and Single Bench judgments of this Court in Kaushlendra Singh Naruka vs. The State of Rajasthan & Anr. reported in 2000 (1) WLC (Raj.) 723 and Indira Devi (Smt.) Vs. State of Rajasthan & Anr. {2007(1) RLW 92}. 6) Learned counsel for the petitioner has further argued that the petitioner had been regularly representing to the respondents for redressal of her grievances. But the respondents except writing letters to each others, did nothing in the matter of sanction of family pension to the petitioner as well as giving compassionate appointment to her son. The disciplinary proceedings against husband of the petitioner were conducted ex-parte and no notice of those proceedings was served either on the petitioner or any of her legal heirs. Such proceedings conducted in utter disregard of the principles of natural justice were void in law and consequently the order of dismissal passed on the basis of such proceedings was also illegal. 7) Shri Zakir Hussain, learned Additional SBCWP NO.1615/02. 5 Government Counsel argued that the present petition suffers from delay and latches. Husband of the petitioner was absenting from duty since 6/8/1983 and he was dismissed from service vide order dated 15/11/1990 therefore, no step was required to be taken as per notification of the Department of Finance dated 19/11/1993. Shri Ramchandra, husband of the petitioner was admitted in the unit hospital for medical treatment of his illness from where he was granted 15 days leave by the unit doctor. He was required to join the duties after 15 days of leave but after the medical rest, he never resumed the duties and remained absent from duty since 6/8/1983 till date. Therefore, after holding disciplinary proceedings, he was rightly dismissed from services and family pension has rightly not been granted to the petitioner on the ground of 'willful absence'. In the circumstances, the writ petition is liable to be dismissed. 8) I have given my anxious consideration to the submissions aforesaid and perused the material on record. 9) The issues raised in this writ petition in so far as the proposition of law on the controversy involved herein is concerned, are no longer res interga. A Division Bench of this SBCWP NO.1615/02. 6 Court in Phooli Devi (supra) authoritatively held in somewhat similar circumstances as under:- “12 Rather action of the appellant State in initiating inquiry proceedings after seven years of disappearance of the Government servant and further holding such inquiry proceedings without service of pre and/or post initiation of proceedings in order to culminate into order of punishment of removal, both are against the constitutional mandate and principle of natural justice. That being so, the learned Single Judge has rightly condemned the action of the appellant State by holding that termination of a Government servant who has not been traced out or not heard of at all or his whereabouts were not known for more than seven years, is no meaning, inasmuch as no charge sheet could be issued to a dead person who by virtue of S. 108 of the Evidence Act is presumed to have died. 13. Once the decks are clear that admittedly Nanagram Meena was not heard of at all for more than seven years from the date of his disappearance of missing (3.4.1986), in support of which there is an uncontroverted pleadings of the writ petitions duly supported by an affidavit to the effect that she has not heard of her husband (Nanagram Meena) since 3.4.86 and for last more than seven years, a presumption would must arise in her favour by virtue of Section 108 of the Evidence Act that her husband has been dead. Thus viewed, the appellant State therefore have to grant relief to the writ petitioners on the presumption that her husband is dead and she is a widow of deceased government servant entitling to grant of relief as sought for in their writ petition. Having scanned the impugned judgment of the learned Single Judge assailed before us, we find no infirmity whatsoever in the said judgment and the learned Single Judge was justified in allowing the writ petition and in granting relief in favour of the writ petitioners as detailed above, which does not warrant any interference by this Court. In the said view of the matter, this appeal is dismissed. No Costs.” SBCWP NO.1615/02. 7 10) Another Division Bench judgment of this Court in Smt.Shakunala Kanwar (supra) also on the same issue held in para 11 and 12 as under:- “11. By reading this relevant clause 3 of the memorandum, it is clear that a report should be lodged with the concerned Police Station about missing of the personnel and this fact should also come on record that employee have not been traced despite all efforts having been made by the police. In the present matter, both conditions are satisfied. Report has been lodged in police by Commandant 27th battalion BSF himself about missing of Sayar Singh and this fact is also established that Sayar Singh has not been traced despited all efforts having been made by the police, so we are of the considered view that the case is fully covered by the Government Decision O.M. No.1/17/86 P & PW dated 29th August, 1986 and the petitioner appellant is entitled for all benefits which are available to the family of Sayar Singh according to above Government Decision. In the writ petition filed by the appellant-petitioner it has been stated that her husband had been wrongly dismissed from service from 9.6.83, she has also mentioned that no such copy of order regarding dismissal of service of petitioner' husband was received by the petitioner and entire action of respondents is mere cover up of their mistake. On the other hand, learned counsel for the respondents have also not placed on record copy of any such order of dismissal. The circumstances of this case and facts established by the petitioner clearly shows that it is not a case of desertion by constable Sayar Singh but it is a case of missing of a personnel and therefore if any such order has been passed about dismissal of Sayar Singh that is absolutely bad in the eye of law. We are also of the view that it is a case of missing of Sayar Singh and therefore case of the petitioner should be treated as her husband Sayar Singh is SBCWP NO.1615/02. 8 missing and his whereabouts are not known since 1983 and under these circumstances provisions given in above mentioned memorandum are fully applicable in present matter. We are also of the view that if any dismissal order has been passed by concerned Commandant of any Official, such order is absolutely illegal and deserves to be set aside which we hereby do. We are also of the view that this appeal should be accepted and judgment of the learned Single Judge should be set aside and the writ petition should also be accepted. 12. Consequently, we allow this special appeal filed by the petitioner-appellant Shakuntala and set aside the judgment dated 10.07.1995 passed by the learned Single Judge. The husband of the appellant Smt. Shakuntala is missing since 1983, he could not be traced despite all efforts having been made by the Police and her case is fully covered by the Government Decision O.M. No.1/17/86-P & PW, dated the 29th August, 1986, D.P. & P.W. On 25.1.1991 and Memorandum the Government of India, Ministry of Personnel PG & Pension dated 18.2.1993, therefore respondents Nos 1 to 4 are directed to consider the case of appellant-Smt.Shakuntala in accordance with the Government Decision O.M. No.1/17/86-P & PW, dated the 29th August, 1986, and grant all the benefits which are available to petitioner according to the above mentioned Government order with all consequential benefits. Costs made easy.” 11) A bear look at the order dated 15/11/1990 makes it clear that the petitioner's husband was dismissed from service on the charge of being willfully absent from 6/8/1983. Although a notice was sent under Rule 19 of the CCA Rules but no one appeared and the proceedings were thus conducted ex-parte and finally culminated into SBCWP NO.1615/02. 9 dismissal of the services of petitioner's husband. But that was no reason not to grant family pension to her. Presumption has also been provided about the death of missing person in Section 108 of the Indian Evidence Act, 1872 which can be raised only upon expiry of period of seven years. But proviso to Rule 268B of R.S.R. as quoted below makes it clear that the grant of family pension would not await the expiry of period of seven years. If it is proved that a government servant is missing for more than a period of one years as prescribed under Rule 268- C, payment of family pension shall be sanctioned and be paid to the authorized member of family of missing government servant as defined under Rule 268C on submission of application alongwith affidavit in prescribed form and also a copy of FIR lodged in the Police Station. Reference in this regard is made to proviso to Rule 268B, which is as follows:- “Provided further that if a Government servant is unheard of for more than a period of one year the family pension at the rate prescribed under Rule 268 C shall be sanctioned and authorized to the member of his/her family as defined under Rule 268D on submission of an application alongwith Indemnity Bond and Affidavit in the prescribed form and also a copy of F.I.R. lodged with the Police about the dis-appearance of the Government servant. If in any case, the Government servant subsequently re-appears the family pension shall immediately cease to be admissible and payable. The amount of family pension already paid to the family, shall be SBCWP NO.1615/02. 10 recoverable from the salary of the Government servant.” 12) Above rule is analogous to the proviso of Rule 61 of the Rajasthan Civil Service (Pension) Rules, 1996. 13) Division Bench of this Court in Phooli Devi (supra) was dealing with a case wherein also husband of the petitioner Nanagram Meena absented from his duties w.e.f. 03rd April, 1986 and did not report back despite publication of notice in newspaper on 11th October, 1987 and 22nd March, 1988. Finally a charge sheet was issued to him on 28th May, 1993 followed by an order of his removal from service on 23rd April, 2001. The Division Bench held that whatever the pre and/or post inquiry proceedings initiated against Nanagram, were totally against the constitutional mandate so also principles of natural justice. None of the communications issued prior to or after initiation of inquiry upon charge sheet dated 28.5.93 were got served upon him as they all returned back duly unserved as is established from the statements of memo of the chargesheet itself or published notices obviously because Nanagram has been missing; his whereabouts were neither known nor heard of for seven years from 3.4.86 the date of disappearance of Nanagram. Thus observing, the Division Bench upheld the SBCWP NO.1615/02. 11 view taken by the learned Single Judge wherein action of the respondents was condemned as illegal and unconstitutional. 14) In the present case also, the observations made by the Division Bench squarely applies to the facts of the present case. There is however one additional factum that need to be noticed which is that when husband of the petitioner was absent from 6/8/1983 and notice was sent to him and when husband of the petitioner not having been heard about for more than seven years, is presumed dead, entire disciplinary proceedings conducted against him stood vitiated and were rendered illegal. His dismissal from service having been made contrary to provisions of C.C.A. Rules and in utter disregard of principles of natural justice was therefore void, non-est and illegal. 15) There was no justification for the respondents not to have made the payment of family pension to the petitioner on expiry of period of one year from the date her husband disappeared with effect from 6/8/1983. A period of twenty four long years has gone by since the husband of the petitioner disappeared. 16) In my considered view, petitioner is entitled to family pension however, I do not deem it appropriate to direct the respondents to SBCWP NO.1615/02. 12 consider the case of the petitioner's son for grant of compassionate appointment. 17) In the result, the writ petition is partly allowed. Order of dismissal of the husband of the petitioner dated 15/11/1990 is declared illegal and is consequently quashed and set- aside. On expiry of period of seven years from 6/8/1983, a presumption should arise with regard to the death of the petitioner's husband with effect from the said date. The petitioner is however declared entitled to receive family pension w.e.f. 6/8/1983 after expiry of period of one year from the date her husband was last heard of, in accordance with proviso to Rule 268B of R.S.R. However, prayer of the petitioner to give compassionate appointment to her son is declined. Consequently, the respondents are directed to grant all terminal benefits to the petitioner treating her to be a widow of deceased government servant though taking 6/8/1983 as the basis for calculating terminal benefits and make payment of all terminal benefits and arrears of family pension together with interest @6% per annum within a period of three months from the date of production of copy of this order. There shall however be no order as to costs. (MOHAMMAD RAFIQ), J. anil