Judgment S.P.Mishra and B.Prasad JJ. 1. Petitioner is the wife of an Assistant Sub-Inspector of Police (Wireless) who was posted at Dhaka Police Station in the district of East Champaran. He, however, became traceless and when his whereabouts were not ascertained for about four months, his wife filed representation before the Assistant Inspector-General of Police (Wireless), Bihar, Patna, informing him that her husband had been missing and that her efforts to search him out had revealed that he was asked by the Superintendent of Police, East Champaran at Motihari orally to report to him at Motihari and that he reported as ordered, but thereafter became traceless. She had learnt, according to her representation that her husband had been put under suspension by the Superintendent of Police and his quarters, according to the order of suspension, was fixed at Eastern Railway Police Station, Muzaffarpur. She requested that steps should be taken to search him out. She filed several other representations for the said purpose, but with no result. The office of the Director General-cum-Inspector-General of Police, however, on 25-6-1988 informed the petitioner that the only information that the office had, was that her husband had been traceless since June 1987 and that a decision had been taken to publish his photographs to the newspapers and the gazette so that information about his whereabouts if available to any person, could be obtained. Side by side some orders issued including one dated 9-8-1988 (Annexure-6) addressed to the husband of the petitioner at his village address, calling upon him to show cause and to report on duty by 14-8-1988. 2. When this application was placed before a Bench of this Court on 24-11-1988, the Court ordered: Before any further order is made on the application of the petitioner we are satisfied that the police be directed to forthwith launch a vigorous search to find out the husband of the petitioner, Shri Haldhar Singh, who has been reportedly missing from Motihari, after he had been called by the then District Superintendent of Police, East Champaran at Motihari, We accordingly, direct the District Superintendent of Police, East Champaran, Motihari to forthwith proceed to investigate and find out the whereabouts of Shri Haldhar Singh and produce him in Court on the next date. The investigation shall be under the direct control and supervision of the Inspector General of Police, Muzaffarpur Zone, who shall provide necessary guidance as and when required by the District Superintendent of Police, East Champaran. The Inspector, General of Police, Muzaffarpur Zone, is directed to provide any and every assistance, equipment and force under his command to the District Superintendent of Police, East Champaran, for the said purpose and if required, to requisition such assistance, equipment and force from the Director General of Police, who, in turn, is directed to ensure availability of such assistance, equipment and force. The Court fixed a date in January 1989. According to the respondents, a search, however, was launched but nothing fruitful happened. The Court on 31-1-1989 recorded: It appears that the investigation as directed by this Court on 24-11-1988 is still not concluded and no fruitful information has yet been available from which it can be said that the petitioners husband has died or deliberately absconded. In our view a relentless search of the whereabouts of the husband of the petitioner is still necessary and we accordingly direct the respondents to proceed with the investigation and to conclude the same within a period of two months from today. We have taken notice of the facts of the case to satisfy ourselves. It is a case in which until it is finally decided whether the husband of the petitioner has absconded and/or has died, some parts of the emoluments payable to the husband of the petitioner are made available to the petitioner so that she can maintain herself and her family We accordingly, direct the respondents to pay to the petitioner half of the emoluments payable to her husband until the conclusion of the investigation and further order by this Court, including the arrears up-to-date at the same rate. After several adjournments, the case was finally heard. Investigation, as ordered on 1441-1988, is not concluded. Respondents have not been able to give any definite information about the fact as to whether the petitioners husband has deliberately absconded or has died. He is still missing. The petitioner and her children are existing upon half of the emoluments payable to the petitioners husband by the respondent State Government which, we are informed, is being paid to her pursuant to the order of the Court dated 31-1-1989. 3. He is still missing. The petitioner and her children are existing upon half of the emoluments payable to the petitioners husband by the respondent State Government which, we are informed, is being paid to her pursuant to the order of the Court dated 31-1-1989. 3. Respondents in their counter-affidavit have stated that Haldhar Singh had an altercation with some Harijans near the Police Station Dhaka in a drunken state on 29-8-1987 which created an unseemly situation Dhaka police intervened and somehow controlled the situation. Haldhar Singh, however, continued the quarrel and entered in altercations with the policemen on duty including the Officer Incharge, Dhaka Police Station. The Officer Incharge reported to the Superintendent of Police that Haldhar Singh was a habitual drunkard, that he had picked up the quarrel for no apparent reason and that he was required to be shifted from Dhaka Police Station. Upon that report, the then Superintendent of Police, Sri Suprabhat Dass reported that in the interest of local administration in order to avoid any untowards or law and order situation directed that Sri Singh should report in the District Police (Wireless) Headquarters at Motihari. On 28-9-1987 Haldhar Singh reported at the Headquarter, but absconded from work with effect from 1-10-1987 without information. Police Radio Headquarters, Panta was accordingly informed on 1-10-1987. In course of the investigation, pursuant to the order of this Court, wireless messages were sent to all S.P.s and S.R.P.s, intensive investigation was carried out, but no trace of Haldhar Singh could be found. He had, however, been last seen by one Robin Patel, Wireless Supervisor, Motihari on 1-10-87 and told him that he was proceeding to Muzaffarpur where his wife resided. Search party sent to different places, returned with no specific information. On 4-1-1989, however, some one informed that Haldhar Singh had been residing at Birat Nagar in the Kingdom of Nepal. A search party was sent and some definite information was expected in near future. 4. Respondents have drawn a blank and given no other information to the court about the whereabouts of the husband of the petitioner. He has been missing since 1-10-1987. 5. In course of the hearing it has been accepted that the husband of the petitioner in the capacity of the Assistant Sub-Inspector of Police (Wireless) was under the administrative control of the Dy. He has been missing since 1-10-1987. 5. In course of the hearing it has been accepted that the husband of the petitioner in the capacity of the Assistant Sub-Inspector of Police (Wireless) was under the administrative control of the Dy. Inspector General of Police (Wireless) and not the District Administration including the District Superintendent of Police. The District Superintendent of Police was not empowered to change the place of posting of the petitioner from Dhaka Police Station to the Headquarters at Motihari. The petitioners posting on transfer could have been done only by or under the orders of the Dy. Inspector General of Police (Wireless), We are not required to examine whether Haldhar Singh was in the habit of taking liquor or not, whether he had picked up the quarrel, as alleged by the respondents, or not, whether he had been taken to the Police Station after the quarrel but again picked up quarrel with the policemen on duty including the Officer Incharge of the police or not ? Even if it is expected that Haldhar -Singh deserved action against him for nuisance, assault, etc. on 29-8-3987, police as the law enforcing agency, was required to apprehend him, lock him up, produce him before a Judicial Magistrate and proceed against him in accordance with law. It was, more so because the Officer Incharge of Dhaka Police Station had reported the matter to the District Superintendent of Police who In all fairness was required to instruct Dhaka Police to proceed in accordance with law. That, however, he did not do instead he transgressed his jurisdiction, entered into the field of control of the Dy. Inspector General of Police (Wireless) and ordered for transfer of Haldhar Singh from Dhaka to Headquarters at Motihari, Haldhar Singh reported at Headquarters, Motihari. Whether he had absconded, as alleged, on 1-10-1987 or not, is a matter which cannot be decided. The respondents have failed to trace him out. 6. Contract of service will be deemed to exist and continue notwithstanding absence from duty unless action to determine the contract of service for unauthorized absence is taken. Such action can be taken only after service of notice and affording opportunity of being heard in accordance with law. The respondents, thus, cannot determine the service of the husband of the petitioner until such notice is served upon him and opportunity of being heard is given to him. Such action can be taken only after service of notice and affording opportunity of being heard in accordance with law. The respondents, thus, cannot determine the service of the husband of the petitioner until such notice is served upon him and opportunity of being heard is given to him. That can be done only when he is found out Article 21 of the Constitution of India states that, "no person shall be deprived of his life or personal liberty except according to procedure established by law". Since a service contract is vitally linked with life determination by action according to the procedure established by law alone is permissible. The State cannot act arbitrarily and hold that one who is reporting to work, is guilty of a misconduct without affording opportunity of being heard to him. Action without such opportunity afforded will be in the teeth of Article 16(1) of the Constitution of India. Since husband of the petitioner held a civil post, he had the additional protection of Article 311 of the Constitution of India. Any presumption that petitioners husband ceased to be a servant of the State without he having been traced out, enquiry held after affording opportunity of being heard to him and a finding recorded to the effect that he had remained absent without leave shall be violative of Articles 14, 16, 21 and 311 of the Constitution of India. 7. A habeas corpus writ shall be futile. Respondents have categorically said that they have not been able to trace out the husband of the petitioner. Had he been traced out and proceeded against in accordance with law, his service contract would have been rescinded and he would have been denied the benefits of emoluments, allowances etc. Since he is traceless, it is not possible to give any direction to proceed against him in accordance with law. The State Government has got many welfare schemes including family pension and employment to a dependent of the Government servant, who died in harness. It is not possible to say that petitioners husband died in harness. There if no report so far that he has died. In such a situation it is indeed necessary to examine whether petitioner and her children are entitled to receive compensation or pension of some sort or not. It is not possible to say that petitioners husband died in harness. There if no report so far that he has died. In such a situation it is indeed necessary to examine whether petitioner and her children are entitled to receive compensation or pension of some sort or not. No presumption can be drawn only on the basis of absence of the petitioners husband from duty that he has not been prevented from reporting to duty by reason either of interference by some one or reasons beyond his control. There are some provisions in the Evidence Act including one in Sec. 107 and another in Sec. 108 which states 2-- When the question is whether a man is alive or dead and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. And Provided that when the question is whether a man is alive or dead, and it is proved that he had not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. The stage, however, to draw any presumption that he is dead has not yet arisen. Seven years have not yet elapsed Presumption today will be that he is alive. No direction, therefore, can be given to pay to the Petitioners family pension treating her husband as one who has died in harness or other such benefits which accrue on account of such death. The situation like one in hand could not have arisen, had the Dhaka police and the Superintendent of Police, Motihari acted in accordance with law. We for the reasons aforementioned, therefore, are of the opinion that respondents cannot escape the liability of providing to the petitioner and her children livelihood as her husband provided to them. The situation like one in hand could not have arisen, had the Dhaka police and the Superintendent of Police, Motihari acted in accordance with law. We for the reasons aforementioned, therefore, are of the opinion that respondents cannot escape the liability of providing to the petitioner and her children livelihood as her husband provided to them. In our view respondents shall be liable to pay to the petitioner full employments of her husband both arrears and current until it is found that her husband is dead or his contract of service is determined in accordance with law either by the age of compulsory retirement or by action in accordance with the prescribed procedure of Law, Respondents, however, shall be at liberty to further investigate and find out the whereabouts of the husband of the petitioner and take decision accordingly either to determine pension payable to the petitioner in the event of her husband having been found dead or to proceed to determine the contract of service of the petitioners husband if he is found out, serve with a notice, hear in accordance with law and punish by a major punishment as envisaged in Article 311 of the Constitution of India. Respondents shall continue to pay to the petitioner full emoluments payable to her husband until such time as stated above, with effect from 1-10-1987. The application is accordingly allowed. Lel a writ in the nature of mandamus accordingly issue.