IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.16006 of 2005 Date of decision:22.12.2009 Kulwinder Kaur ....Petitioner versus Union of India and others. ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Maninder Arora, Advocate, for the petitioner. Mr. Naveen Chopra, Central Government Standing Counsel, for respondent No.1. Ms. Monica Chhibbar Sharma, Deputy Advocate General, Punjab. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral) 1. The petitioner challenges the dismissal order alleged to have been issued against her husband Nirmal Singh on 28.03.2001, on the ground that he has deserted the service on 11.08.2000 and he had not reported for duty. He was sought to be apprehended through a complaint to police which yielded to a report that he was not traceable and treating this to be a misconduct of having abandoned the service, he was ordered to be dismissed. Quite unaware of the order of dismissal, a writ petition was filed by his wife seeking for family pension admissible under the Central Civil Services Pension Rules, 1972, which contemplates the payment of pension to a family of the person whose whereabouts are Civil Writ Petition No.16006 of 2005 - 2 - not known. Rule 54 of the aforesaid Rules enables the payment of pension to the family if the employee had suddenly disappeared and whose whereabouts are not known. If there is a proof of the fact that the employee could not be traced after all efforts made by the police and he is not known to be alive for a period of 7 years from the date when he was found missing, a further requirement that the Rule contemplates is that the indemnity bond should be taken from the nominee or the dependent of the employee that all payments would be adjusted against the payments due to the employee in case, he appeared on the scene and made any claim. 2. After the writ petition was filed, and when it was stated on behalf of the respondent that Nirmal Singh had been ordered dismissed from service on 28.03.2001 and therefore, there was no eligibility for the petitioner to claim family pension, the writ petition came to be amended seeking to quash the order dated 28.03.2001. An abandonment of service was an enumerated misconduct on the basis of which action for dismissal has been taken. This assumes abandonment was without reasonable cause and deliberate. if, on the other hand, the failure to report for duty was on account of death, the question of making such an inference does not arise nor there could be a scope for visiting a dead person with a punishment of dismissal. A person, who is interested in denying that there was a voluntary abandonment of service is the petitioner herself who on such proof that her husband is no longer alive, is entitled to family pension. She will not be able to prosecute a claim for pension so long as the order of dismissal dated 28.03.2001 remains. Civil Writ Petition No.16006 of 2005 - 3 - 3. The learned counsel appearing for the respondent states that there is a statutory provision for appeal against an order of dismissal though I am not able to secure any assistance from the counsel as to what the provision is. There is not even a reference about any alternative procedure as available in the written statement, although the amended prayer in the writ petition specifically seeks for quashing the order of dismissal. Even if there is any alternative remedy available, having regard to the fact that the petition is before this Court and the petitioner ought to have an appropriate remedy to challenge the order of dismissal which has been passed on the assumption that the employee had abandoned the service and was guilty of an action of the misconduct, I set aside the order dated 28.03.2001 and direct the competent authority amongst the official respondents to give an opportunity to the petitioner to state her case before taking a decision regarding the status of service of Shri Nirmal Singh. The adjudication about the entitlement of the pension will be undertaken soon after appropriate orders are passed on the status of the employee Nirmal Singh, whose whereabouts are reported to be not known. The notice of enquiry shall be made within a period of one month and the proceedings shall be concluded within a period of 3 months from the date of this order and the decision shall be made as per rules. 4. The writ petition is allowed in the above terms. (K.KANNAN) JUDGE 22.12.2009 sanjeev