WP(C) 3884/2008 202BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA Heard Mr. S.K. Medhi, learned counsel for the petitioner as well as Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate. The petitioner is the wife of one Krishna Ram Das who went missing since 17.01.8 6 while was serving under the respondent as constable. She has filed the writ pe tition assailing the legality and validity of the order dated 27.09.87 (Annexure -9) issued by the Commandant, 4th Assam Police Battalion, Guwahati removing her husband from service w.e.f. 17.01.86. The order so passed was pursuant to the de partmental proceeding initiated against the husband of the petitioner which was concluded ex parte in his absence. Further prayer made in the writ petition is f or a direction to the respondents to grant family pension to the petitioner deem ing her husband to be dead for which the petitioner has already obtained a decla ration from the competent Civil Court vide judgment and decree dated 13.08.07 in Title Suit No. 138/06. Be it stated here that the suit was contested by the Sta te Govt. Be it further stated here that the State was represented by (1) State o f Assam represented by the Chief Secretary, (2) Commissioner-cum- Secretary to t he Govt. of Assam in the Home Department, (3) Inspector General of Police (Admn. ), Ulubari, Assam, (4) The Commandant, 4th Assam Police APBn., Kahilipara, Guwah ati and (5) Commandant, 3rd APBn., Titabor, Jorhat. It is the case of the petitioner that the ex parte proceeding against her husban d could not have been drawn and finalised without first ascertaining as to wheth er her husband was available to contest the proceeding relating to the charges o f unauthorised absence from duty. Mr. Medhi, learned counsel for the petitioner upon a reference to the inter depa rtmental communications made by the respondent No. 6 (Annexures 5 and 6 letters dated 12.04.05 and 30.05.05), submits that the departmental authorities are yet to take a decision in the matter. He further submits that if the proceeding init iated against the petitioner’s husband was illegal in view of the fact that it w as not the case of unauthorised absence, but was a case in which the husband of the petitioner lost himself, the respondents are bound to release the family pen sion to the petitioner deeming the husband of the petitioner to have died. Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate on the other hand submits that there being a departmental proceeding and the charges of unauthorised abse nce from duty having been established, the husband of the petitioner was rightly dismissed from service by the impugned order dated 27.09.87. According to her t he petitioner was aware of the said proceeding and thus cannot now pray for rele ase of the family pension deeming her husband to be a dead person. She has produ ced the departmental proceeding file. Mr. Das, learned counsel representing Acco untant General (respondent No. 6), submits that if the pension papers are forwar ded to the office of the Accountant General by the authority of the State respon dent, necessary follow up action will be taken by the said office. I have considered the submissions made by the learned counsel for the parties an d the materials available on record including the departmental proceeding file. From the departmental proceeding file, it appears that the husband of the petiti oner was found missing from duty and inspite of repeated requests and issuance o f notices he did not resume duties. However, it is on record that no personal no tice could be effected on him except the one dated 30.04.86 which was a notice a sking him to rejoin his duties with the caution that upon failure to rejoin duty , departmental proceeding would be drawn against him. In the notice there is an endorsement of one Shri Thaneswar Saikia to the effect that the notice was se rved on the person concerned. However, in all other notices including the notice s pertaining the departmental proceeding there is no such endorsement. From the evidence on record it appears that when the petitioner was contacted by the process server and/or by the authorities of the respondents, she had stated that her husband was missing for quite sometime and that his whereabouts were n ot known. The evidence on record has further revealed that no personal service of notice p ertaining to departmental proceeding could be effected in absence of the husband of the petitioner, but service of notice was done by affixing the same on the h ouse of the petitioner etc. It appears that it was all along the case of the pet itioner that her husband was missing and did not keep any track of his family. After effecting service of notice in the above manner, the departmental proceedi ng was concluded ex parte and thereafter the aforesaid order of removal was pass ed. When the petitioner took up the matter with the authorities as to the whereabout s of her husband, the aforesaid interdepartmental correspondences were made, but no avail. It appears that the authorities have not taken any final decision. In the meantime, the writ petition was filed. As stated above, the petitioner has obtained the required declaration from the c ompetent Civil Court in terms of which her husband is presumed to be dead. If th e departmental proceeding is ignored, then in that case in view of the declarati on made by the competent Civil Court, the petitioner would be entitled to family pension. The petitioner submits that by the time her husband went missing, he h ad almost 15 years of service in his credit. Be it stated here that the husband of the petitioner had joined his service as Constable under the respondents on 2 6.06.1971 and went missing w.e.f. 17.01.86. Considering the matter in its entirety and having regard to the facts and circum stances involved in the case, this writ petition is disposed of directing the In spector General of Police (Admn.), Ulubari, Guwahati, Assam to take a decision i n the matter. While considering the case of the petitioner, he will also bear in mind the observations made above on the basis of the materials disclosed by the records pertaining to the departmental proceeding. It is hereby provided that t he husband of the petitioner went missing and from the materials, perhaps cannot be said to be a case of deliberate absence from duty. Since the husband of the petitioner has not returned back after 17.01.86, the competent Civil Court has passed the aforesaid judgement and decree. The Inspector General of Police (Admn .) shall pass appropriate order strictly in accordance with rules and the materi als available on records as expeditiously as possible preferably within 31.03.20 10. Writ petition is disposed of.