SBCWP NO.5967/04. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. :::: O R D E R S.B. CIVIL WRIT PETITION NO.5967/2004. Smt.Mooli Devi Vs. State of Rajasthan & Ors. DATE OF ORDER :: December 17, 2008. HON'BLE SHRI JUSTICE MOHAMMAD RAFIQ Shri Hari Bareth for the petitioner. Shri Aklesh Jain, Deputy 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 w.e.f. 15/3/1989 along with interest @ 18% p.a. and also the amount of Gratuity, GPF, State Insurance and encashment of leave along with interest @ 18% p.a. 2) Facts in brief as unfolded in the writ petition are that the petitioner's husband was appointed in the service of respondents on the post of Teacher w.e.f. 2/12/1972 in Government SBCWP NO.5967/04. 2 Primary School, Gordhanpura, Panchayat Samiti Dantaramgarh, District Sikar. Shri Hari Naraian, husband of the petitioner was a psychiatric patient and all of a sudden, after 20/6/1985 he did not resume his duties. When after a long time of four years, Shri Hari Naraian did not return back either at home or office, petitioner thereupon applied for issuance of death certificate in the year 1989 to the Registrar (Birth & Death). Registrar (Birth & Death) of Village Panchayat Nathusar issued a death certificate on 6/9/1994. Thereafter, petitioner gave number of representations to the respondents for payment of amount of family pension, Gratuity, GPF, State Insurance and Privilege Leave. Some of the representations dated 28/10/1992 and 7/11/2001 are on record. But, till date, neither of the aforesaid benefits have been given to the petitioner. Hence, this writ petition. 3) I have heard learned counsel for the parties and perused the material available on record. 4) Shri Hari Bareth, learned counsel for the petitioner has argued that refusal by the respondents for family pension was contrary to proviso of Rule 268B of the Rajasthan Service Rules. SBCWP NO.5967/04. 3 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. The respondents have however refused to sanction family pension to her which is violative of Articles 14 and 21 of the Constitution of India. 7) Shri Aklesh Jain, learned Deputy Government Counsel argued that payments towards General Provident Fund have already been paid to the petitioner vide order No.4330 dated 6/6/1992 but so far as payment of amount of State Insurance is concerned, that cannot be paid to her because deductions towards State Insurance were started to be deducted w.e.f. 1989 whereas late Shri Hari Narain already died on 20/6/1985. SBCWP NO.5967/04. 4 Proceedings regarding service pension were already started vide order No.Shiksha/01/3635 dated 14/11/1991. Except this, the respondents have averred nothing about the merits of the case in their reply. 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 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 SBCWP NO.5967/04. 5 (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.” 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 SBCWP NO.5967/04. 6 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 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 SBCWP NO.5967/04. 7 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 Death Certificate dated 6/9/1994 makes it clear that the petitioner's husband has already been presumed died on 20/6/1985 therefore, there was no reason for the respondents not to grant family pension and other service benefits of late Shri Hari Iaraian to her widow, Smt.Mooli Devi, the petitioner. 12) There was no justification for the respondents not to have made the payment of family pension to the petitioner even after expiry of four years when Registrar (Birth and Death) had already issued death certificate in regard to late Shri Hari Narain, husband of the petitioner. The respondents ought to have given to her pension after expiry of one year from the date her husband disappeared with effect from 20/6/1985 as per Rule 268-C of the Rajasthan Service Rules, 1951. A period of twenty two long years has gone by since the husband of the petitioner died. SBCWP NO.5967/04. 8 13) In the result, the writ petition is partly allowed. The petitioner is declared entitled to receive family pension w.e.f. 20/6/1985 after expiry of period of one year from the date her husband was last heard of and was accordingly declared died on 15/3/1989. Since petitioner has already received amount of GPF and State Insurance was started to be deducted only w.e.f. 1989, petitioner shall only be entitled for pension, gratuity and encashment of leave. Consequently, the respondents are directed to grant all terminal benefits to the petitioner widow of deceased government servant w.e.f. 20/6/1985 for the purpose of computation of terminal benefits and make payment of all terminal benefits except amount of GPF and State Insurance 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. It is made clear that apart from Pension, petitioner shall only be entitled to receive Gratuity and encashment of leave @6% p.a. w.e.f. 20/6/1985. There shall however be no order as to costs. (MOHAMMAD RAFIQ), J. anil