IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13551 of 2002 Renuka Rani, wife of Chandra Mauli Mishra, resident of Government Flat No.55/800, Shashtri Nagar, P.S. Shashtri Nagar, District Patna…………………..Petitioner. Versus 1. The State of Bihar 2. The Chief Secretary, Government of Bihar, Patna. 3. The Secretary, Personnel and Administrative Reforms Department, Govt. of Bihar, Patna. 4. The Special Secretary, Cabinet (Vigilance) Department, Government of Bihar, Patna…………………Respondents. For the petitioner : M/s Mahendra Pathak, Maya Shankar Mishra and Narendra Upadhyay, Advocates. For the respondents : Mr. Md. Anis Akhtar, AC to GA-3 P R E S E N T HON’BLE MR. JUSTICE S.N. HUSSAIN O R D E R 15/ 09.09.2011 This writ petition has been filed by the petitioner challenging order dated 06.08.2002 passed by the Secretary, Personnel and Administrative Reforms Department, Government of Bihar (respondent no.3) by which the claim of the petitioner for service /retiral benefits of her husband Chandra Mauli Mishra and for appointment on compassionate ground had been rejected and also for directing the respondents authorities to pay all the legal and consequential dues with compound interest and cost to the petitioner. 2. A further relief has been sought vide I.A. No.6640 of 2008 by the petitioner challenging order dated 27.07.2002 (Annexure-12) passed by the Deputy Secretary, Personnel and Administrative Reforms Department, Government of Bihar by which the husband of the petitioner had been sought to be dismissed from his - 2 - service without considering the facts and circumstances of the case and even the order of this court dated 08.02.2002 (Annexure-9) passed in C.W.J.C. No.1544 of 2002 by which the husband of the petitioner was declared as dead due to his being traceless from 07.05.1994 in view of section 108 of the Evidence Act. 3. The claim of the petitioner is that she is the wife of Chandra Mauli Mishra, who was initially appointed as Stenographer in the Department of Information and Public Relation and thereafter he was promoted as Personal Assistant in the Personnel and Administrative Reforms Department, Government of Bihar but while he was deputed as Personal Assistant to the Special Secretary of Vigilance Department (Cabinet), Government of Bihar, Patna he went to his office on 07.05.1994 from his residence but did not return home and became traceless since then. 4. Learned counsel for the petitioner submitted that immediately thereafter the petitioner informed the authorities with regard to the aforesaid fact, whereafter the above named Special Secretary wrote letter dated 16.06.1994 (Annexure-1) to the Senior Superintendent of Police of Patna, Superintendent of Police of Patna and Officer-In-Charge of Shashtri Nagar Police Station, Patna with respect to the disappearance of petitioner’s husband, but in spite of that long time was passed without any information to the petitioner and hence she sent an application dated 12.07.1995 to the department and also wrote letter dated 20.12.1995 (Annexure-2) asking the legal consequences from the authorities due to disappearance of her - 3 - husband. The authorities sent their reply dated 01.09.1995 (Annexure-3) asking the petitioner to produce certain papers with application, which were supplied by the petitioner but when no action was taken by the authorities, the petitioner wrote to the Chief Secretary of the Department on 16.01.1996 (Annexure-4). 5. It was further submitted by learned counsel for the petitioner that on her application dated 08.04.1996 (Annexure-5) the Chief Minister noted a direction to the authorities take immediate steps for payment and appointment of the petitioner on compassionate ground after verification, whereafter vide order dated 26.08.1996 (Annexure-6) the Chief Minister’s Office directed the Secretary of the Department to comply the directions of the Chief Minister immediately, but in spite of that no heed was paid although the petitioner continued running from pillar to post. Finally the petitioner sent letter dated 10.08.2001 (Annexure-7) to the Secretary of the Department giving the details of her claims to which a reply dated 05.09.2001 (Annexure-8) was received by the petitioner from the Deputy Secretary of the Department asking her to provide a photocopy of the Service Book of her husband as the same was not available in the department. 6. Learned counsel for the petitioner stated that such direction from the authorities pained the petitioner a lot as after seven years of disappearance of her husband and after seven years of inaction by the authorities they were asking for a copy of Service Book from a hapless widow, who had no one to support, whereas the department - 4 - and its authorities were custodians of records including the Service Book of the husband of the petitioner, but it vanished from there which clearly showed some conspiracy against the petitioner. Hence, the petitioner filed C.W.J.C. No.1544 of 2002 which was disposed of vide order dated 08.02.2002 (Annexure-9) by a bench of this court directing the authorities concerned to consider the matter as stated therein and pass necessary reasoned order with respect to grievances of the petitioner for payment of legal dues to her within a period of three months from the date of receipt/production of a copy of that order and it was also made clear that till then no coercive action shall be taken against the petitioner for vacating the premises where she was living. 7. Learned counsel for the petitioner also claimed that when the said order of this court was produced before the authority concerned, namely the Secretary of Personnel and Administrative Reforms Department, Government of Bihar he passed the impugned order dated 06.08.2002 rejecting the entire claim of the petitioner, whereafter the service of the husband of the petitioner was also terminated by the authorities vide order dated 27.07.2002 (Annexure-12) which were in complete violation of the provisions of law and the order of this court. 8. On the other hand, learned counsel for the respondents stated that the husband of the petitioner while working as Personal Assistant to the Special Secretary, Vigilance Department (Cabinet), Government of Bihar stopped attending his office and subsequently filed an application on 18.09.1995 (Annexure-A series) - 5 - for allowing him to join but his application was rejected and vide order dated 22.11.1995 (Annexure-A) he was suspended and departmental proceeding was initiated against him for remaining willfully absent since 02.05.1994. He stated that proceeding continued and finally the husband of the petitioner was dismissed from his service vide order dated 27.07.2002 (Annexure-12) and the consequential order was passed by the authority concerned on 06.08.2002 communicated to the petitioner vide letter dated 08.08.2002 (Annexure-10) in which the conduct of the petitioner and the service of notice had also been discussed. 9. Learned counsel for the respondents further argued that the order of High Court dated 08.02.2002 (Annexure-9) passed in C.W.J.C. No.1544 of 2002 was merely for payment of retiral-cum- death benefits and no declaration had been made in that order that the husband of the petitioner having become traceless would be deemed dead, hence there is no question of any violation of the said order of this court. He further argued that the question was raised in Vidhan Sabha about the genuineness of matriculation certificate of the husband of petitioner and his age as it was alleged that his service was on the basis of a forged certificate for which Sachiwalya P.S. Case No.722 of 1994 was lodged on 23.11.1994 against the husband of the petitioner and the abovementioned departmental proceeding was initiated. Hence, learned counsel for the respondents claimed that the entire allegation of the petitioner is absolutely frivolous and misconceived and she is not entitled to the relief claimed by her. - 6 - 10. From the respective claims raised by learned counsel for the parties, it transpires that the main questions in issue are (i) as to whether the husband of the petitioner had become traceless since 07.05.1994 as claimed by the petitioner, (ii) as to whether the departmental proceeding and the final orders against the husband of the petitioner were legal and justified and (iii) as to whether the authority concerned was justified in passing the impugned order dated 06.08.2002 communicated to the petitioner vide memo dated 08.08.2002 (Annexure-10) and was not in violation of the order of this court dated 08.02.2002 (Annexure-9) passed in C.W.J.C. No.1544 of 2002. 11. From a bare perusal of order dated 08.02.2002 (Annexure-9) passed in C.W.J.C. No.1544 of 2002 it becomes quite obvious that at the time of hearing of the said writ petition all the parties to the said writ petition had admitted that the husband of the petitioner was an employee of the State Government and was traceless with effect from 07.05.1994 information of which was given to Shashtri Nagar Police Station also. Even learned counsel for the State had stated before that court that the Superintendent of Police had also submitted his report (Annexure-9 to the said writ petition) stating that petitioner’s husband was traceless with effect from 07.05.1994. After noting the aforesaid position, the said court considered the legal aspect of the matter as per section 108 of the Evidence Act as well as the Government Circular dated 24.02.1990 with respect to such situation and held that burden of proving that he was alive would be on the - 7 - person who was claiming him to be alive as the husband of the petitioner had not been heard of for more than seven years and hence the husband of the petitioner can be treated as dead and direction can be issued to the respondents to pay the legal dues of her husband to the petitioner. Thereafter the said writ petition was disposed of directing the authority concerned to consider the aforesaid aspect of the matter and pass necessary order with respect to the grievances of the petitioner for payment of legal dues to her within a period of three months from the date of receipt/production of a copy of that order. It was also made clear that till the legal dues were not paid to the petitioner no coercive action shall be taken against her for vacating the premises where she was living at that time and the petitioner was also given liberty to file an application before the authority concerned for appointment on compassionate ground. 12. In view of the aforesaid order of a Bench of this court and the stand taken by the respondents themselves in that case, it is quite apparent that the husband of the petitioner admittedly became traceless from 07.05.1994 and even the Officer-In-Charge of Shashtri Nagar Police Station submitted his report finding that he was traceless with effect from 07.05.1994. In the said circumstances the said court rightly applied the provision of section 108 of the Evidence Act and the circular of Government dated 24.02.1990 holding that when nothing was heard of the husband of the petitioner since more than seven years, the burden of proving that he was alive was shifted to the persons who claimed him alive but in that writ petition the authorities - 8 - themselves did not claim him to be alive rather admitted that he was traceless since 07.05.1994. Hence, the husband of the petitioner was rightly presumed to be dead and the claim of the petitioner was directed to be decided by the authorities concerned accordingly. 13. In the said circumstances, the petitioner had rightly claimed the impugned orders of the authorities concerned dated 08.08.2002 (Annexure-10) and 27.07.2002 (Annexure-12) to be in the teeth of order of this court dated 08.02.2002 (Annexure-9) because once the matter had been decided by this court which had never been challenged before any higher court, the authorities concerned were bound to obey the same and were not at all justified to re-open the matter and to give a finding completely against the findings of this court. 14. So far the alleged letter/application claimed by the respondents to have been filed by the husband of the petitioner after 07.05.1994 is concerned, learned counsel for the petitioner had specifically stated that they are forged papers created by the respondents only to justify their illegal actions. To verify the genuineness of the alleged signature of the husband of the petitioner over the said letter/application, this court vide order dated 06.07.2011 directed learned counsel for the respondents authorities to produce the Service Book of petitioner’s husband, but when the case was taken up on 27.07.2011 learned counsel for the respondents submitted that in compliance of order dated 06.07.2011 of this court he contacted the respondents authorities several times but in spite of that they did not - 9 - send the Service Book of petitioner’s husband nor they gave any reply thereto. Learned counsel for the petitioner on the other hand stated that her husband was a poor man who had never executed any registered document and hence she was unable to produce any registered document as directed by this court vide order dated 06.07.2011. 15. In any view of the matter, the respondents authorities are custodians of the records and hence it was expected from them to produce the Service Book of petitioner’s husband or any other official paper from which the genuineness of the signature of the husband of the petitioner over his alleged letter/application could be verified, but non-production and non-cooperation by the authorities in that regard compels this court to take adverse inference against the said letter/application produced by the respondents in this case, specially when they were not produced by them earlier before this court in the previous writ case, namely C.W.J.C. No.1544 of 2002. 16. So far the alleged proceeding against the husband of the petitioner is concerned, only two orders have been produced by the respondents, namely (i) order dated 22.11.1995 (Annexure-A) by which the husband of the petitioner was suspended and departmental proceeding was initiated and (ii) order dated 27.07.2002 (Annexure-12) by which the service of the husband of the petitioner was terminated. No other document with regard to the said proceeding has been produced nor even any notice or show-cause sent to the petitioner either before his suspension or before his termination has been produced which clearly shows that entire proceeding was - 10 - absolutely sham and frivolous about which no mention had been made by the respondents in the earlier writ petition bearing C.W.J.C. No.1544 of 2002. Thus it is quite apparent that the said documents were created as an after thought merely for the purposes of this writ petition and no reliance can be legally placed on them. 17. So far three charges against the petitioner in the alleged proceeding are concerned, they are enumerated in order dated 22.11.1995 (Annexure-A), namely (i) getting appointment on the basis of a forged certificate; (ii) keeping more than one wife; and (iii) remaining absent from service since 02.05.1994. 18. So far the first two charges are concerned, the respondents have failed to produce any material either before the authorities or before this court to prove the same, although in absence of petitioner’s husband the authorities were duty bound to pass such order only on the basis of materials available on record. They could neither prove that the certificate produced by the husband of the petitioner was a forged one nor they were able to prove that the husband of the petitioner had more than one wives nor any other lady ever came forward to claim to be his wife. 19. So far the third and last charge against the petitioner is concerned, it is not in dispute that the husband of the petitioner has remained traceless since 07.05.1994 but there is nothing to show that after 07.05.1994 he was alive nor the respondents even claimed him to be alive in the earlier writ petition filed by the petitioner bearing C.W.J.C. No.1544 of 2002 although the onus was squarely upon them - 11 - to claim and prove the same. Furthermore, after the husband of the petitioner having remained traceless for more than seven years and also after passing of order dated 08.02.2002 (Annexure-9) by a Bench of this court in C.W.J.C. No.1544 of 2002 under the provision of section 108 of the Evidence Act and the Government Circular dated 24.02.1990 there was no occasion for the authorities to pass the impugned order dated 27.07.2002 (Annexure-12) terminating the services of the husband of the petitioner treating him to be alive for which there was no reliable material at all. 20. Considering the matter in its entirety, it is quite apparent that the acts of the respondents and their assumption in the impugned orders dated 08.08.2002 (Annexure-10) and 27.07.2002 (Annexure-12) are not only baseless, illegal and perverse rather they are mischievous and baneful to the extent of harming a hapless widow, who has been running from pillar to post for her rightful claim. 21. So far the petitioner is concerned, she has claimed to be the wife/widow of Chandra Mauli Mishra. The District Magistrate, Saharsa got the said matter enquired by the Sub-Divisional Officer, who made verification and submitted his report dated 22.08.1996 and on its basis the District Officer issued a certificate that Smt. Renuka Rani daughter of Anirudh Jha was the wife of Sri Chandra Mauli Mishra and sent his report to the Deputy Secretary, Department of Personnel and Administrative Reforms, Government of Bihar on 22.08.1996 (Annexure-11). Thus, it is quite apparent that the petitioner is the wife/widow of Chandra Mauli Mishra rather she is his - 12 - only wife as no other lady had come forward either before the authorities concerned or before this court claiming to be the wife of the said government servant. 22. In the aforesaid facts and circumstances, the claim of the petitioner is supported by valid materials on record which could not be disproved by the respondents by any reliable document. Furthermore, the respondents have failed to substantiate their charges and allegation by any valid evidence and their entire action including the impugned orders are clearly illegal, arbitrary and perverse and are also in the teeth of specific findings given in order dated 08.02.2002 (Annexure-9) passed by a Bench of this court in C.W.J.C. No.1544 of 2002. 23. Accordingly, this writ petition is allowed, order dated 06.08.2002 passed by the Secretary, Department of Personnel and Administrative Reforms, Government of Bihar and communicated to the petitioner vide memo dated 08.08.2002 (Annexure-10) issued by the Deputy Secretary of the Department, as well as order dated 27.07.2002 (Annexure-12) passed by the Deputy Secretary, Department of Personnel and Administrative Reforms, Government of Bihar are quashed and the respondents are directed to calculate and pay to the petitioner all the service/retiral dues of her husband Chandra Mauli Mishra, who was admittedly a government servant treating him to be dead as per the provision of section 108 of the Evidence Act due to being traceless since 07.05.1994. 24. The said order must be complied in full by - 13 - Respondent no.3 within three months from the date of receipt/production of a copy of this order before the Secretary, Department of Personnel and Administrative Reforms, Government of Bihar (respondent no.3) failing which the petitioner must approach this court for initiating a proceeding for punishing the contemnor for disobedience and violation of this order. Harish (S.N.Hussain, J.)