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2006 DIGILAW 1645 (RAJ)

Smt. Chandrakala v. State of Rajasthan

2006-05-12

AJAY RASTOGI

body2006
Judgment Ajay Rastogi, J.-At joint request and with consent of parties, since both the petitions are based on common and identical facts, have been finally heard and disposed of at admission stage by this Order. 2. Petitioners are wife and son of Shri Khuman Singh, who was initially appointed as Prahari (Warder) vide order dated 28.01.1978 (Annexure-1) and on promotion as Assistant Superintendent (Warden) vide order dated 010.1982 (Annexure-2), he was posted at Government Hostel Jhed (Udaipur) where he proceeded from his house as usual for discharging official duty on 011.1993 but did not return to home till date and since then was missing-report whereof was lodged by his brother vide No. 1439 dated 29.01.1994 (Annexure-4) at PS Udhyog Nagar (Kota). After usual investigation, police reported on 02.03.1995 (Annexure-5) that he is not traceable. The department where he was serving, also issued notice to him on 21.08.1998 (Annexure-7) as he was absent from duty since 011.1993, to report for duty within 15 days failing which he would be treated as willful absent from duty in proceedings under Rule 86 of RSR, and charge-sheet dated 21.08.1998 (Annexure-8) was also issued under Rule 16 of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (“CCA Rules”). Both notice and charge sheet were also published in daily newspaper Rajasthan Partika. Immediately on News being published in Rajasthan Patrika, petitioner Chandra Kala submitted applications (Annexures-10 and 11) requesting Department that her husband is missing and efforts be made for his search. After waiting for sufficient long time, police submitted final report on 20.01.2001 (Annexure-13) that after making investigation, Shri Khuman Singh is not traceable and his whereabouts could not be made known to the police. Thereafter petitioners served legal notice (Annexure-14) to treat Khuman Singh as dead in view of seven years having elapsed from the date of his missing-as a consequence whereof , raised grievance for release of terminal benefits and also for compassionate appointment to Nishant Singh being son of Shri Khuman Singh under Rajasthan Compassionate Appointment to dependents of deceased Government Servant Rules, 1996 (“Rules, 1996”) 3. It has also come on record that in the family of Shri Khuman Singh, his wife, two daughters and one son; and one daughter is already married. It has also come on record that in the family of Shri Khuman Singh, his wife, two daughters and one son; and one daughter is already married. However, application for grant of compassionate appointment was rejected by respondents vide order dated 211.2002 (Annexure R-1) on the premise that Shri Khuman Singh is missing but there is no certificate issued by competent Court of jurisdiction holding that he is dead in absence whereof , application for compassionate appointment cannot be considered. 4. Pendente writ petition, Superintendent of Police, Kota vide letter dated 18.04.2006 again informed the Department that on investigation being made, Shri Khuman Singh still has not been traceable and his whereabouts are not made known even to residents where he was residing since 1994. 5. Counsel for petitioners, contends that after transfer to Jhed Udaipur, Shri Khuman Singh (husband and father of petitioners) is missing and his whereabouts are not known to the family despite efforts being made -FIR was lodged at police station and the police authorities also made due investigation and submitted their reports stating that he is not traceable, about which department also got news published in Rajasthan Partika and even on 18.04.2006 Superintendent of Police, Kota also informed the department about missing of Khuman Singh since 1994 and more than 7 years have rolled by; in such circumstances, presumption ought to have been drawn in view of Section 108 of Evidence Act that Khuman Singh is dead and in this view of matter, action initiated against Khuman Singh under Rule 86 of RSR and under Rule 16 of CCA Rules; and so also denial of retiral benefits for period of service rendered by Khuman Singh, and compassionate appointment to petitioner, and passing of an order prejudicial to legal heirs of the deceased is arbitrary and in violation of principles of natural justice. In support of his contention, Counsel placed reliance upon decision of this Court in Shakuntala Kanwar vs. Union of India, 2002 (4) WLC 315, Phuli Devi vs. State, 2001 (5) WLC 625 upheld by Division Bench in State vs. Phuli Devi, 2003 (1) WLC 479 and Chhaya Nadini vs. State, 1996 Writ Law Report 87). 6. In support of his contention, Counsel placed reliance upon decision of this Court in Shakuntala Kanwar vs. Union of India, 2002 (4) WLC 315, Phuli Devi vs. State, 2001 (5) WLC 625 upheld by Division Bench in State vs. Phuli Devi, 2003 (1) WLC 479 and Chhaya Nadini vs. State, 1996 Writ Law Report 87). 6. Respondents have filed reply in both petitions and inter alia submitted that in absence of any certificate of Khuman Singh being dead, produced by petitioners, neither they are entitled for retiral benefits accrued for services rendered by Khuman Singh nor his son is entitled for compassionate appointment under Rules, 1996. 7. I have considered rival contentions of Counsel for parties and with their assistance, examined material on record, this fact remained undisputed that Khuman Singh (husband and father of petitioners) is missing since 011.1993 and his whereabouts are not made known to the family members. In such like situation, this Court in Chhaya Nadini vs. State (Supra), examined controversy and observed as under:- “3. Since there is uncontroversial affidavit of the petitioner that she has not heard of her husband for last seven years, a presumption would arise under Section 108 of Evidence Act that he is dead. The respondents, therefore, have to grant relief to the petitioner on the basis that her husband is dead and she is a widow of deceased Government servant.” 8. Relying on afore-quoted observations, this Court in Phuli Devi vs. State (Supra), observed:-“6. The petitioner has filed an affidavit that her husband had left home on 03.04.1986 and had not been heard of . The respondent has been issuing public notices for appearance of the husband of the Petitioner No. 1 with the direction to resume duty otherwise his services could be dispensed with. It is the common case of the parties that the husband of Petitioner No. 1 was not heard of at all and, therefore, in my opinion, presumption is to be drawn under Section 108 of the Indian Evidence Act that Nanagram Meena is presumed to be dead having not been heard of more than 7 years i.e., there is legal presumed death so far as Nanagram Meena is concerned and in my opinion, respondent was not justified in denying the family pension, provident fund and other benefits which may be otherwise available to the petitioners if Nanagram Meena had actually died.” 9. In instant case also, it has specifically been averred in writ petition that Khuman Singh has not been heard for more than seven years and the police has also made investigation and submitted report on three different occasions about fact that Khuman Singh is not traceable and is missing since 011.1993 and even vide letter dated 18.04.2006, Supdt. of Police, Kota informed department about missing of Khuman Singh since November, 1993 and all these facts remained uncontroverted on the basis whereof , certain presumption would arise in view of Section 108 of Evidence Act that Khuman Singh is dead. Accordingly, action of respondents in issuing notice to Khuman Singh (husband and father of petitioners) under Rule 86 of RSR and so also issuance of charge sheet under Rule 16 of CCA Rules and consequential inquiry proceedings in no manner can be appreciated particularly when no one has heard of Khuman Singh (Employee) for more than seven years for which presumption would arise under Section 108 of Evidence Act that employee is dead; and holding inquiry proceedings in pursuance of Notice under Section 86 of RSR and charge under Rule 16 of CCA Rules, without service of pre and/or post initiation of proceedings are against principles of natural justice and constitutional mandate because once a Government servant has not been traced out or not heard of at all or his whereabouts were not known for more than seven years, proceedings against him has no meaning inasmuch as no charge sheet could be issued to a dead person who by virtue of Section 108 of the Evidence Act is presumed to have died as a legal corollary whereof , family of Khuman Singh (employee) became entitled for retiral benefits under RSR and Pension rules for period of service rendered by him. 10. So far as relief sought for compassionate appointment is concerned, since respondents have rejected his claim treating the employee alive and they have not drawn presumption under Section 108 of Evidence Act, that employee is dead on account of having not heard of him for last seven years, matter is left to be considered by respondents to examine their claim for compassionate appointment in accordance with Rules, 1996. 11. Consequently, both the writ petitions succeed and are hereby allowed. 11. Consequently, both the writ petitions succeed and are hereby allowed. Communication dated 211.2002 (Annexure R-1), Notice dated 21.08.1998 (Annexure-7), Charge sheet dated 21.08.1998 (Annexure-8) and inquiry proceedings vide order dated 26.07.2001 (Annexure-9) are quashed and set aside. Respondents are directed to release all terminal benefits (which became due and payable to the family of Khuman Singh who is presumed to have legally dead by virtue of presumption drawn under Section 108 of Evidence Act. Arrears accrued by virtue of aforesaid direction be paid alongwith interest @ 9% per annum commencing from expiry of seven years from 011.1993. 12. As regards claim for compassionate appointment, respondents are directed to consider application seeking compassionate appointment in accordance with relevant Rules, 1996. 13. However, petitioners and other legal heirs if any, shall jointly furnish an indemnity bond that all payments will be adjusted against payments dues to the employee in case he appears on the scene and makes any claim in this regard. 14. All exercise to comply with aforesaid direction be made within two months. No costs.