JUDGMENT 1. - This appeal under Section 18 of the Rajasthan High Court Ordinance preferred by Smt. Shakuntala Kanwar is directed against the judgment dated 10th July, 1995 passed by the learned single Judge whereby he held that this Court has no jurisdiction to entertain the writ petition filed before this Court and directed to return the petition to the petitioner appellant for filing before the Court of competent jurisdiction. 2. Brief facts relating to this appeal are as under : 3. Smt. Shakuntala Kanwar filed a writ petition before this court stating therein that she was married to constable Sayar Singh of 27th Battalion of the Border Security Force (BSF) in the year 1980. She further stated that her husband has been missing from the Unit since 15th April, 1983. Ultimately her father-in-law Shri Pabudan Singh was informed by the Unit that Sayar Singh has left the Unit on 15-4-1983 after taking 45 days leave. When the father-in-law received such letter from the Unit on 15th July, 1983, he immediately submitted an application to the Commandant of the above mentioned Battalion informing him that the husband of the appellant did not reach home and requested him to make a search regarding his whereabouts. Her father-in-law also approached the headquarter of BSF in order to know whereabouts of his son but that turned out to be an exercise in futility. Missing report was also lodged by the Commandant of 27th Battalion BSF to Sr. Superintendent of Police, Jammu on 29-8-83 and Sr. Superintendent of Police, Jammu informed the Commandant that Sayar Singh was not traceable. Major S.S. Rathore (Retd.) who was known to the appellant's family also tried to find out whereabouts of the appellant's husband and wrote D.O. letter to the Director General, Border Security Force. In reply of this letter appellant received a letter from the Commandant of 27th Battalion on 11-3-89 whereby she was informed that her husband was dismissed from service on 9-6-83. A request was made to give a copy of order of Court of Inquiry under which appellants husband was declared as deserter but same was not made available to her. Ultimately, appellant had sent a notice for demand of justice through her counsel on 15-2-1995 demanding that she should be given family pension etc. as per the Pension Service Rules. A request was made to give a copy of order of Court of Inquiry under which appellants husband was declared as deserter but same was not made available to her. Ultimately, appellant had sent a notice for demand of justice through her counsel on 15-2-1995 demanding that she should be given family pension etc. as per the Pension Service Rules. A notice was duly received in the office of Commandant but no reply has been received by the appellant-petitioner. Appellant-petitioner in her writ petition also stated the rules, Government Decisions and Circulars which deal with the payment of retirement benefits, gratuity and family pension to the family in case an official's whereabouts are not known. In the writ petition, appellant-petitioner has referred to Government of India Decision O.M. No. 1/17/86-P & PW dated 29th August, 1986 and office memorandum issued by D.P. & P.W. on 25-1-1991 and another memorandum of Government of India Ministry of Personnel PG & Pension issued on 18-2-93. It has been stated in the petition that in spite of above mentioned circulars having been issued by the Central Government and admitted position that the husband of the appellant-petitioner is missing and his whereabouts are not known since 1983, the appellant- petitioner has not been given family pension/gratuity or any other benefits etc. It is further stated that in this matter First information Report has been lodged by the Commandant regarding the missing of Sayar Singh from the Unit and whereabouts of Sayar Singh are also not known in spite of best efforts being made by the police, therefore her case is fully covered by the rules and latest instructions issued by the Government of India and as such the appellant-petitioner should be granted family pension and other benefits including G.P.F., leave encashment and other benefits. 4. This writ petition was disposed of by the learned single Judge on 10th July, 1995 by holding that this court has no jurisdiction to hear this petition and therefore it was directed that the writ petition should be returned to the petitioner for filing it before the court of competent jurisdiction. Against the above judgment of learned single Judge Smt. Shakuntala preferred this Special appeal. 5. This appeal was admitted on 6th November, 1995 and notices were issued to respondents. Learned counsel for the respondents Nos. 1 to 4 put in appearance and has also filed the reply. Against the above judgment of learned single Judge Smt. Shakuntala preferred this Special appeal. 5. This appeal was admitted on 6th November, 1995 and notices were issued to respondents. Learned counsel for the respondents Nos. 1 to 4 put in appearance and has also filed the reply. On 24-8-2000, the Division Bench of this Court has held that the impugned order passed by the learned single Judge holding that this court has no jurisdiction to entertain this petition is not correct and has also held that this court has jurisdiction to entertain this petition. It was further held by the Division Bench that as five years' time has already been passed in this appeal, therefore, instead of sending back the matter for decision to the learned single Judge, the Division Bench should decide the case on merits. Two weeks time was given for filing the reply. Respondents filed reply on 31-1-2001. 6. Learned counsel for the appellant-petitioner has submitted that the Government of India's Decision vide O.M. No. 1/17/86-P&PW dated 29th August, 1986 is very clear and it deals with the payment of retirement gratuity and family pension etc. to the family in case an official's whereabouts are not known. He has also submitted that in the present matter FIR was lodged about missing of Constable Sayar Singh by Commandant of 17th Battalion BSF himself so there is no dispute about lodging of report. He has submitted that this fact is an admitted fact and it is also clear from the reply filed by respondents in special appeal on 31-1-2001. This fact is also fully established that employee constable Sayar Singh has not been traced even after all efforts have been made by the police. This fact is also established by the letters written by the police of Jammu to Officers of BSF which have been reproduced by the petitioner with the writ petition. It is further submitted that husband of the appellant-petitioner was constable in BSF he is missing since 1983, a report has been lodged in police and every effort has been made to trace him but he could not be traced. Under these circumstances, the case of the appellant-petitioner is fully covered by the above Government Decision and she should be given all the benefits to which she is entitled according to above Government decision. Under these circumstances, the case of the appellant-petitioner is fully covered by the above Government Decision and she should be given all the benefits to which she is entitled according to above Government decision. It is also submitted that appellant-petitioner has not been given copy of any order of dismissal of Sayar Singh and even with the reply given in special appeal, no copy of such dismissal order has been placed on record. Even if any such dismissal order is passed by any authority, it has to be set aside and treated as non est having been passed in breach of minimum requirements of natural justice and the same cannot come in the petitioner's way for the purpose of pension and other retiral benefits. 7. Learned counsel for the respondent submitted that Sayar Singh was sanctioned 45 days earned leave from 14-4-83 but after completion of such leave, he had not reported to headquarter and ultimately he was dismissed from service. He further submitted that after dismissal of Sayar Singh, an information was received from a relative of Sayar Singh that he is missing. On this information, FIR was lodged on behalf of Commandant 27th Battalion BSF that Sayar Singh is missing but prior to that Unit was not aware about this fact and he has also submitted that in writ petition, petitioner did not challenge the order of dismissal. He submitted under these circumstances this appeal should fail. 8. After considering rival contentions of the learned counsel for the parties, we are of the view that learned single Judge has disposed of the writ petition only on the ground of jurisdiction and this point of jurisdiction has already been decided on 24-8-2000 and the Division Bench of this court has held that this court has jurisdiction to entertain this petition. The Division Bench of this court has also held that five years period has already passed for which the appeal has remained pending and therefore we should decide this appeal on merit. We have heard this appeal on merit. In this matter, case of the appellant-petitioner is that her husband Sayar Singh, constable of BSF, is missing since 1983, this is an admitted fact that a report has been lodged about missing of appellant petitioner's husband in Jammu Police by the Commandant 27th Battalion BSF, in this way, this fact is not disputed. In this matter, case of the appellant-petitioner is that her husband Sayar Singh, constable of BSF, is missing since 1983, this is an admitted fact that a report has been lodged about missing of appellant petitioner's husband in Jammu Police by the Commandant 27th Battalion BSF, in this way, this fact is not disputed. This fact is also established that Sayar Singh has not been traced out despite all efforts having been made by the Police. This fact is fully proved by an affidavit filed by the appellant-petitioner and by the documents submitted by her with writ petition which are not controverted or disputed by the respondents. The question is as to whether the case of the appellant- petitioner is covered by the Government of India Decision O.M No. 1/17/86-P & PW dated 27th August, 1986 or not which reads as follows : Government of India's Decisions "(10) Payment of retirement gratuity and family pension to the family in case an official's whereabouts are not known - A number of cases are referred to this Department for grant of family pension to the eligible family members of employees who have suddenly disappeared and whose whereabouts are not known. At present all such cases are considered on merits in this department. In the normal course unless a period of 7 years has elapsed since the date of disappearance of the employee, he cannot be deemed to be dead and the retirement benefits cannot be paid to the family. This principle is based on Section 108 of the Indian Evidence Act which provides that when the question is whether the man is alive or dead and it is proved that he has not been heard of for 7 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 affairs it (sic). 2. The matter has been under consideration of the Government for some time as withholding of the benefits due to the family has been causing a great deal of hardships. The President is now pleased to decide that (i) when an employee disappears leaving his family, the family can be paid in the first instance the amount of salary due, leave encashment due and the amount of G.P.F. having regard to the nomination made by the employee. The President is now pleased to decide that (i) when an employee disappears leaving his family, the family can be paid in the first instance the amount of salary due, leave encashment due and the amount of G.P.F. having regard to the nomination made by the employee. (ii) after the elapse of a period of one year, other benefits like retirement or death gratuity/family pension may also be granted to the family subject to the fulfilment of conditions prescribed in the succeeding paragraphs. 3. The above benefits may be sanctioned by the Administrative Ministry/Department after observing the following formalities : (i) The family must lodge a report with the concerned Police Station and obtain a report that the employee has not been traced after all efforts had been made by the police. (ii) An Indemnity Bond should be taken from the nominee/dependants of the employee that all payments will be adjusted against the payments due to the employee in case he appears on the scene and makes any claim. 4. The Head of Office will assess all Government dues outstanding against the Government servant and effect their recovery in accordance with Rule 71 of CCS (Pension) Rules, 1972 and other instructions in force for effecting recovery of Government dues. 5. The family can apply to the Head of the Office of the Government servant for grant of family pension and death/retirement gratuity, after one year from the date of disappearance of the Government servant in accordance with the prescribed procedure for sanction of family pension and death/retirement gratuity. In case the disbursement of death/retirement gratuity is not effected within three months of the date of application, the interest shall be paid at the rates applicable and responsibility for the delay fixed. 6. It is requested that these instructions may be brought to the notice of all concerned." 9. Reading of this above mentioned Government decision makes it clear that when an employee disappears, leaving his family, family can be paid the amount of salary due, leave encashment due amount of G.P.F. and other benefits like retirement of death-cum-gratuity and family pension. 10. Another memorandum is also issued by D. P. and P. W. on 25-1-1991 which has again clarified the above mentioned instructions. The above Government Decision is also clarified by memorandum issued on 18-2-1993 and all the three memorandums have been reproduced in the writ petition. 10. Another memorandum is also issued by D. P. and P. W. on 25-1-1991 which has again clarified the above mentioned instructions. The above Government Decision is also clarified by memorandum issued on 18-2-1993 and all the three memorandums have been reproduced in the writ petition. After reading of all these instructions, it is clear that if an employee disappears leaving his family then his family can be paid amount of salary, leave encashment and retirement benefits like family pension etc. It is also directed in the memorandum 1986 that above benefits may be sanctioned by the Administrative Ministry/Department after observing following formalities : (i) The family must lodge a report with the concerned Police Station and obtain a report that the employee has not been traced after all efforts had been made by the police. (ii) An Indemnity Bond should be taken from the nominee/dependants of the employee that all payments will be adjusted against the payments due to the employee in case he appears on the scene and make any claim. 11. By reading this relevant clause 3 of the memorandum, it is clear that a report should be lodged with the concerned Police Station about missing of the personnel and this fact should also come or record that employee has not been traced despite all efforts having been made by the police. In the present matter, both conditions are satisfied. Report has been lodged in police by Commandant 27th Battalion BSF himself about missing of Sayar Singh and this fact is also established that Sayar Sigh has not been traced despite all efforts having been made by the police, so we are of the considered view that the case is fully covered by the Government Decision O.M. No. 1/17/86-P & PW dated 29th August, 1986 and the petitioner appellant is entitled for all benefits which are available to the family of Sayar Singh according to above Government Decision. In the writ petition filed by the appellant-petitioner it has been stated that her husband had been wrongly dismissed from service from 9-6-83, she has also mentioned that no such copy of order regarding dismissal of service of petitioner's husband was received by the petitioner and entire action of respondents is mere cover up of the their mistake. In the writ petition filed by the appellant-petitioner it has been stated that her husband had been wrongly dismissed from service from 9-6-83, she has also mentioned that no such copy of order regarding dismissal of service of petitioner's husband was received by the petitioner and entire action of respondents is mere cover up of the their mistake. On the other hand, learned counsel for the respondents has also not placed on record copy of any such order of dismissal. The circumstances of this case and facts established by the petitioner clearly shows that it is not a case of desertion by constable Sayar Singh but it is a case of missing of a personnel and therefore if any such order has been passed about dismissal of Sayar Singh that is absolutely bad in the eye of law. We are also of the view that it is a case of missing of Sayar Singh and therefore case of the petitioner should be treated as her husband Sayar Singh is missing and his whereabouts are not known since 1983 and under these circumstances provisions given in above mentioned memorandum are fully applicable in present matter. We are also of the view that if any dismissal order has been passed by concerned Commandant or any Official, such order is absolutely illegal and deserves to be set aside which we hereby do. We are also of the view that this appeal should be accepted and judgment of the learned single Judge should be set aside and the writ petition should also be accepted. 12. Consequently, we allow this special appeal filed by the petitioner appellant Shakuntala and set aside the judgment dated 10-7-1995 passed by the learned single Judge. The husband of the appellant Smt. Shakuntala is missing since 1983. He could not be traced despite all efforts having been made by the Police and her case is fully covered by the Government Decision O. M. No. 1/17/86-P & PW, dated the 29th August, 1986, D. P. & P. W. On 25-1-1991 and Memorandum of the Government of India, Ministry of Personnel PG & Pension dated 18-2-1993, therefore respondents Nos. 1 to 4 are directed to consider the case of appellant Smt. Shakuntala. 1 to 4 are directed to consider the case of appellant Smt. Shakuntala. in accordance with the Government Decision O. M. No. 1/17/86-P & PW, dated the 29th August, 1986 and grant all the benefits which are available to petitioner according to the above mentioned Government Order with all consequential benefits, Costs made easy.Order accordingly. *******