1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.5273/06 Smt. Gyana Devi vs. State of Raj. & Ors. Date of order : 27/8/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Deepak Mehta for the petitioner. Shri B.L. Avasthi, Addl. Govt. Counsel for the State. ****** REPORTABLE Challenge in this case has been made to the order of respondent dated 18.12.2004 whereby husband of the petitioner was deemed to have resigned from service and accordingly taken to have been removed from service with effect from 21.4.1999. Shri Deepak Mehta, learned counsel for the petitioner has argued that her husband in fact had gone missing from the office since 21.4.1999 and the petitioner lodged a report of his disappearance with Police Station Newai, Tonk which was entered as rojnamcha at S.No.74. Her husband was never heard of thereafter. Learned counsel submitted that a presumption in view of Section 108 of the Indian Evidence Act should arise about his death. Learned counsel therefore prayed that the order of 2 his removal which has been passed simply on the basis of notice under Section 86(4) of the Rajasthan Service Rules, should be quashed and set aside and the respondents be directed to pay to the petitioner family pension as also the other terminals benefits like death cum retirement, GPF and gratuity which are payable to the widow of a government servant who expired including compassionate appointment. Learned counsel for the petitioner further submitted that the respondents have illegally extracted from the petitioner a sum of Rs.60,000 on the assurance that on deposit of this amount, which was embezzled by her husband, her family pension case would be settled and that the other terminal dues shall also be paid to her. In spite of such deposit, nothing has been paid to her. It is also prayed that the aforesaid amount be directed to be refunded to the petitioner. Learned counsel relied on the judgements of this Court in Smt. Manohar Kanwar & Anr. vs. The State of Rajasthan & Ors.-2007 (2) WLC (Raj.) 607, Smt. Indira Devi vs. State 3 of Rajasthan & Anr.-2007 (5) WLC (Raj.) 352, State of Rajasthan & Ors. vs. Phooli Devi & Ors.-2003(1) WLC (Raj.) 479 and Smt. Shakuntala Kanwar vs. UOI & Ors.-2002(4) WLC (Raj.)315. Shri B.L. Avasthi, learned Additional Government Counsel opposed the writ petition and submitted that as the husband of the petitioner was absent from his duties since 21.4.1999, a notice under Rule 86 of Rajasthan Service Rules was issued on 1.2.2001 requiring him to attend the duties within 15 days. When he did not appear, such notice was again published in two local newspapers i.e. Dainik Pratahkal on 14.2.2001 and Dainik Bharati on 17.2.2001. When still thereafter he did not appear, he was taken to have resigned from government service in terms of Rule 86(4) of Rajasthan Service Rules and was accordingly removed. Learned counsel submitted that the amount of Rs.60,000/- deposited by the petitioner was in fact the amount which was to be recovered from her husband and therefore it cannot be said that such amount was illegally extracted by the respondents. In fact, this 4 amount was liable to be recovered from the husband of the petitioner because of audit objection which led to lodgement of FIR against him on 15.3.2000. I have given my anxious consideration to the rival submissions and perused the material on record. Rule 86(2) of the Rajasthan Service Rules was purposely amended by notification of the Government dated 8.4.1986 to provide that if a government employee remains absent from duty after the expiry of sanctioned leave or after communication of refusal of extension of leave, he is not entitled to any pay and allowances for the period of such absence and the period of such absence shall be commuted into extra-ordinary leave on satisfactory reasons being furnished by grant of leave. It further provided that a government servant shall be liable to disciplinary action for willful absence. Sub-rule (3) which was added by notification dated 22.2.1979 provides that notwithstanding the provisions contained in sub-rules (1) and (2) above, the disciplinary authority may initiate 5 departmental proceeding under Rajasthan Civil Services (Classification, Control & Appeal) Rules against a Government servant who willfully remains absent from duty for a period exceeding one month and if the charge of willful absence from duty is proved against him, he may be removed from service. Sub-rule (4), which has been incorporated vide notification dated 20.8.2001 provides that unless the State government, in view of the special circumstances of the case, determines otherwise, a State Government employee, who remains absent from duty for a continuous period exceeding five years, other than on foreign service, whether with or without leave, shall be deemed to have resigned from service. That is an altogether different fact situation, which is absent in the present case. Sub-rule (3), categorically provides that if a government servant is sought to be removed from service on the ground of willful absence, then the only way to do so is by way of holding a regular disciplinary enquiry and in this case, no such enquiry was conducted. Action of the respondents by deeming the husband of 6 the petitioner to have resigned from service is therefore wholly arbitrary and illegal. Independent of the aforesaid finding, if the matter is examined in the light of the various judgements cited by the learned counsel for the petitioner, it is admitted by the respondents themselves that husband of the petitioner was absent from duty since 21.4.1999 and that the petitioner herself lodged an FIR about his disappearance in the Police Station Newai. Much time has elapsed since he is missing. In these circumstances when the husband of the petitioner was missing and was not heard of for more than seven years, a presumption should arise about his death in terms of Section 108 of the Indian Evidence Act. Action of the respondents in passing the order dated 18.12.2004 and thereby removing him from service was therefore absolutely illegal. The petitioner, would be entitled to grant of family pension in terms of proviso to Rule 61 of the Rajasthan Pension Rules, 1996, which corresponds to rule 268-B of Rajasthan Service Rules, after expiry of period of one year from the date 7 husband of the petitioner was shown to have been missing. This was the view taken by this Court in Smt. Indira Devi vs. State of Rajasthan, supra with reference to Rule 268- B of the Rajasthan Service Rules. Coming now to the argument of the petitioner that the petitioner was made to pay a sum of Rs.60,000/- for the alleged embezzlement made by her husband, such a recovery from the petitioner is not justified because audit report itself could not conclusively prove the correctness of the allegation, particularly when the deceased government servant had no notice of the alleged recovery proceedings and in any case, he could not have been notified because he had gone missing from 21.4.1999. Lodgement of First Information Report by the respondents against him would also not determine this issue against the petitioner, who had nothing to do with the correctness or otherwise of the alleged embezzlement by her husband in so far as the recovery is concerned. Action of the respondents in recovering this amount from the petitioner, therefore, is held to be illegal. In view of 8 however long lapse of time, the prayer of the petitioner for directing the respondents to grant her compassionate appointment cannot be granted. In the result, this petition is allowed in part and the order dated 18.12.2004 is quashed and set aside. A presumption should arise on expiry of period of seven years from 22.4.1999 on which date first information report was lodged by the petitioner in regard to disappearance of her husband about his death and he must therefore be deemed to have died on 21.4.2006. The petitioner is thus held entitled to receive family pension on expiry of one year from the date of her husband went missing i.e. from 22.4.2000 in accordance with the provisions of the Rule 61, supra. Consequent upon the declaration of the removal order being illegal, the respondents are further directed to pay entire terminals benefits to the petitioner treating her to be widow of a deceased government servant taking 18.12.2004 as the date of his death and make payment of gratuity, provident fund, leave encashment 9 etc. and also refund the illegally recovered amount of Rs.60,000/- with interest @ 6% per annum. Compliance of the judgement be made within three months from the date copy of this judgement is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/