IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH AMENDED CIVIL WRIT PETITION 6688 OF 2006 DECIDED ON :27-11-2008 Chander Kanta Sharma ....Petitioner versus U.H.B.V.N. & others ....Respondents CORAM : HON'BLE MR.JUSTICE MEHTAB S GILL HON'BLE MR.JUSTICE K.KANNAN Present: Shri P.C.Chaudhary, Advocate, for the petitioner Shri Narender Hooda, Advocate, for the respondents K.KANNAN, J I The lis : 1.The issue involved in this writ petition is the validity of an order of removal from service of the petitioner's husband on account of unauthorised absence and for consequential benefits. 2.Although the relief is couched for setting aside the order and for reinstatement of the petitioner's husband, the arguments have been advanced only to the effect that a person who is not known to be alive for a period of not less than 7 years shall be presumed to be dead and the order of removal issued against such a person as though he was deliberately absent, is vitiated and has the portents of disentitling the legal heirs from claiming the benefits that could accrue to the family on the submission that the person is dead. II The facts: 3.The admitted case is that the petitioner had joined as an Assistant Lineman at HSEB, Kalayat, district Jind (now Kaithal) and appointed against a regular sanctioned post. He had been later promoted as a Lineman on 28-01-1986. He left the house on 02-08-1998 but never to return. Proceedings had been initiated for his long absence and the Disciplinary Authority after purporting to serve the charge sheet through substituted service and paper publication directed his removal from the post of Lineman with immediate effect vide his order dated 03-08-2000. The appeal had been filed by the ACWP 6688 of 2006 --2-- petitioner as the wife of the workman assailing the order on the ground that at no stage of the proceedings, any notice has been given and even copy of the order had not been delivered and the proceedings that culminated in the removal of the person who had been missing since 04-08-1998 was not tenable. The petitioner had also brought out the fact that the complaint had been registered with the police and the police had also given an “untraceable report” on 26-07-2003. The appeal had been dismissed by the Appellate Authority vide Office Order Number 220 dated 06-04-2004. He had still further filed a revision before the Revisional Authority and it had also met with the same fate of dismissal by order dated 08-06-2004. 4.It was not as if the respondent-authorities did not know about the fact that their employee had been missing from his house and was not heard of but there had been representations at the instance of the petitioner on 24-04-2001 and 15-05-2001 seeking for employment on compassionate grounds for the daughter of the employee and the Managing Director had replied on 09-07-2001 (Annexure P-1) that there was no scope for consideration under ex-gratia scheme since the claim was not admissible to the dependent who stood removed from the service of the Nigam. III Consideration of relevant Rules: 5.Although the petitioner claims reinstatement of her husband,it would seem to be only a veiled attempt to stave off a possible obstacle for securing compassionate employment and the terminal benefits that could accrue to the family by the fact that the petitioner's husband had been treated as removed after the disciplinary proceedings. The learned counsel for the petitioner drew our attention to the provisions of the Haryana State Electricity Board Employees (Punishment and Appeal) Rules, 1990 (hereinafter referred to as the 1990 Rules) and the Rules of the Government relating to compassionate assistance to the dependents of the deceased Government employees to bring home the fact that the enquiry conducted without actually effecting service of notice of the proceedings to the petitioner's husband was not valid and ex-parte enquiry that led to the inflicting of the major penalty of removal could not have been validly passed without affording opportunity to show-cause against the proposed action. Even at the outset, we may point out that the case essentially was that the petitioner had approached the authorities for grant of compassionate appointment on the ground that her husband ACWP 6688 of 2006 --3-- had gone missing and he was not traceable. It would virtually be asking for the impossible to require personal service of notice of the disciplinary proceedings at the instance of a person who was missing and where his whereabouts were not known. The conduct of the enquiry after necessary publication in the newspaper and the conclusion arrived at on the date when the order was based for removal for “unauthorised absence” could not be faulted. The petitioner herself had not joined the enquiry with any proof that any attempt had been made to trace the husband and that she had failed and the enquiry should have been kept in abeyance. We, therefore, find that there is no merit in the contention that the enquiry had been vitiated or that the order that had been passed was legally unsustainable. IV Presumption of death, when arises in the context of S.108 of the Indian Evidence Act 6.Normally, in a case where the main relief claimed in the writ petition impugning the order of the disciplinary authority could not be granted in view of specific finding that there have been no legal lapse attached to the proceedings, we ought to have left the matter there with the observation that no relief was possible but we are alive to a poignant situation of a claim by the widow that the order of removal that had been passed was not for any deliberate absence of the employee when he had been alive but on account of the fact that the person was not known to be living, and hence the order could have a serious repercussion on the entitlement of dependent to claim retiral benefits on the assumption that the person is dead. 7.The law presumes death under Section 108 of the Indian Evidence Act., if a person is not known to be alive within a period of 7 years by a person who normally would have known about his existence. The petitioner as the wife ought to have been normally the person who could have known if he had been alive and if she complains that her husband is not known to be alive, presumption of a civil death could be drawn. Our Courts have consistently held that the law does not extent to making a presumption that person died on any one particular date and the presumption itself could not be drawn that the death had occurred exactly 7 days prior to the date when 7 years' period had lapsed. It has been held in Saroop Singh versus Banto 2005(8) SCC 330 that no presumption as to the time of death arises under Section 108 of the Indian Evidence Act. ACWP 6688 of 2006 --4-- Question of time of death is question of evidence, factually or circumstantially and not of presumption. It has also been held in LIC of India versus Anuradha 2004(10) SCC 131 cited by the counsel for the respondents that all that would be permissible is that such person was presumed dead at the time when the question arose subject only to the fact that the said period of 7 years should have then lapsed. Should the above decision to the effect that the claim for insurance amount by drawing the presumption of death after 7 years would not lie when the policy itself had lapsed for non payment of premium after second year and the only relief that a nominee or a legal heir could get, would be the refund of premium that had been paid but lapsed later. This principle was also illustrated with equal verve in a recent decision in Oriental Insurance Company versus Sovumai Gogoi 2008(4) SCC 572 where the Court held that if the driver of a car had been missing along with car, a claim under the Workman's Compensation Act against the employer could not succeed on the mere fact that he was not known to be alive within a period of 7 years by drawing presumption under Section 108 of the Indian Evidence Act. The Hon'ble Supreme Court had held that there were further facts to be proved such as the death occurred in the course of and out of employment and such a presumption could not be inferred by resorting to section 108 of the Indian Evidence Act. V Compassionate consideration – its relevance 8.Counsel for the petitioner relies upon the Haryana Compassionate Assistance to the Dependents of the deceased employees Rules, 2006 (for short Rules, 2006) for considering her claim to compassionate appointment. We have not been apprised of any other specific provision under the Electricity Act itself or of any parlticular scheme as applicable for employees of the Electricity Board. However, we do not wish to part with the case without observing that the removal of the employee for absence after departmental enquiry ought not to be taken as the ground for disallowing any of the terminal benefits which he would have been entitled if he had been alive. The Hon'ble Apex Court has dealt with several incidents where even in the case of termination of an employee for long period of “unauthorised absence”, the mere absence itself ought not be a ground to assume that the employee had committed the gravest misconduct. Courts have time and again pointed out that the removal from service could ACWP 6688 of 2006 --5-- not be treated as valid if it is made without taking note of the length of service and the pensionary benefits payable to such an employee. The Division Bench of this Court has held in Dhan Singh versus State of Haryana in CWP 1309 of 2008 decided on 26-05- 2008 that while dealing with the case of police constable that the absence from duty ought not to be construed as a serious misconduct to visit a person with dismissal. We are aware that a decision rendered in particular reference to the Rules which an employee was governed by, could not be applied to a different circumstance where the same set of rules are not applicable. We are pointing out to the case only as an enumeration of the principle that the removal of a person from service for long absence is not always a sine qua non. It is only in this context that the Courts have held that the removal for long absence could be done only after examining the length of service put in by the employee and its effect on the entitlement to the retiral benefits. VI Present disposition: 9.The relevant rules of the 1990 Rules (supra) lists out removal from service as a major penalty and while making dismissal as necessarily a disqualification for future employment, it states that removal from service shall not be a disqualification for future employment under the Board. While rejecting the claim of the petitioner to set aside the order of removal already passed by the disciplinary authority we direct the respondents to take a sympathetic consideration and re-open the service records of the husband of the petitioner and treat the employee as having civilly dead, consequent on invoking the legal presumption available under Section 108 of the Indian Evidence Act after the completion of 7 years from the date when he went missing, namely, on 02-08- 1998. Taking the death as having occurred at the relevant time when the consideration is made, the terminal benefits could be issued to the petitioner having regard to the admitted length of service of the petitioner as from 14-12-1970 to 02-08-1998 and also take up the issue of compassionate appointment or ex-gratia payment if the Rules so permit. Subject to the above, the writ petition is disposed of. Sd/- Sd/- {Mehtab S Gill} {K.Kannan} Judge Judge 27-11-2008