JUDGMENT : J.J. MUNIR, J. The District Cane Officer, Meerut, by his order dated 31st March, 2021, has terminated the services of Avinash Yadav, a one-time Peon in the Office of the Senior Cane Development Inspector, Meerut, a man missing since 13.04.2010, with his whereabouts not known to those who would normally have heard of him, if alive, retrospectively from the date he went missing. 2. It appears that Avinash Yadav disappeared from the lives of his family members as well as his employers on 13.04.2010. He has not been heard of eversince. While the family, particularly, the petitioner, his wife, a handicapped woman with 60% disability in her lower limb, has been destituted, waiting in vain for her missing husband, the respondents, who are Avinash’s employers, think that he is guilty of absenteeism from duty. They have punished him on those charges by the order impugned, with retrospective effect, after holding a departmental inquiry, as already said, more than ten years after he went missing. 3. The facts giving rise to this petition are these : The petitioner, Kamlesh Yadav alias Kumari Kamlesh Yadav’s husband, Avinash Yadav, was a Class IV employee, a Peon in the Office of the Senior Cane Development Officer, Meerut. The petitioner is 60% permanently disabled in the right lower limb, suffering this handicap as a non-progressive condition. She is an unemployed woman, with no source of sustenance. The petitioner says that since 13.04.2010, Avinash Yadav went missing and has not been found eversince. He has remained absent from his duties, without sanctioned leave or permission of the respondents. He has not been heard of by the petitioner as well as other members of the family, who would have normally heard of him, if alive. Avinash’s family members did their best to trace him out, but with no success. The petitioner says that looking to the duration of his whereabouts remaining unknown both by his employers and the members of his family, including the petitioner, his wife, all of whom would have heard of him, if alive, must lead to raising a presumption of his civil death. After 13.04.2010, when Avinash failed to resume duties, various notices were sent in his name by the respondents, asking for an explanation regarding his unauthorized absence from duty and directing him to join upon pain of departmental action. After 13.04.2010, when Avinash failed to resume duties, various notices were sent in his name by the respondents, asking for an explanation regarding his unauthorized absence from duty and directing him to join upon pain of departmental action. The earliest on record is a notice dated 30.06.2010 issued by the District Cane Officer, Meerut. Avinash failed to turn up and report for duty. The Office of the Senior Cane Development Inspector, Daurala, Meerut got a press note published in the Hindi daily ‘Dainik Jagran’ issue dated 18.01.2011, asking Avinash to rejoin duty within one week, again upon pain of disciplinary action. His whereabouts remained unknown and the man untraceable. He failed to rejoin duties. 4. On 28.02.2018, almost eight years after Avinash’s disappearance, the Senior Cane Development Officer initiated departmental proceedings against him and issued a charge-sheet, asking him to answer charges carried there. These charges read : 5. The petitioner says that the fact that the Inquiry Officer issued a charge-sheet to Avinash on 28.02.2018, is an acknowledgement of the fact that the respondents considered Avinash still to be in their employ and it is the said fact which led them to initiate departmental proceedings against him. On 06.11.2019, the Senior Cane Development Officer sent a communication to Avinash Yadav through the petitioner, asking him for an explanation and seeking his cooperation in the departmental proceedings. For the first time ever, the petitioner says it was inquired of her if Avinash is alive or dead, so that the fact may be reported to the Senior Cane Development Officer. In this regard, there is on record a copy of the communication dated 06.11.2019 from the Senior Cane Development Officer, Daurala, Meerut addressed to Avinash through the petitioner, as already said. 6. Since a period of more than nine years had elapsed, with no clue about Avinash’s whereabouts, the petitioner asserts that a presumption about his death has to be drawn and acted upon. She applied on 02.06.2020 to the Senior Cane Development Inspector, Daurala, Meerut, where Avinash served, to grant her compassionate appointment, in order to enable her to survive and live with dignity. The petitioner says that at the time she made her application for compassionate appointment, the respondents regarded Avinash alive and in their employ. She applied on 02.06.2020 to the Senior Cane Development Inspector, Daurala, Meerut, where Avinash served, to grant her compassionate appointment, in order to enable her to survive and live with dignity. The petitioner says that at the time she made her application for compassionate appointment, the respondents regarded Avinash alive and in their employ. A period of ten years having come to pass from the date when the man went missing, the respondents had to raise a presumption on the principles of Section 108 of the Indian Evidence Act, 1872[‘Act of 1872’ for short] and grant death-cum-retirement benefits to the petitioner, including a consideration for compassionate appointment. 7. On 04.07.2022, the petitioner sent a letter to the Commissioner, Meerut Division, Meerut, requesting release of death-cum-retirement benefits due to her on account of Avinash’s services with the Cane Department. She also canvassed her case for grant of compassionate appointment in order to enable her family to survive. The Commissioner, Meerut Division, Meerut asked for a report from the District Cane Officer, Meerut with regard to the petitioner’s claim. The District Cane Officer, in his reply, apprised the Divisional Commissioner that Avinash was absent from duty without leave since 13.04.2010 and failed to rejoin, despite a number of notices. Accordingly, his services had been dispensed with vide order dated 31.03.2021 retrospectively with effect from 13.04.2010. 8. Aggrieved by the order dated 31.03.2021, terminating Avinash Yadav’s service retrospectively with effect from 13.04.2010, the petitioner has instituted the present writ petition. 9. When this petition came up for admission for the first time on 05.07.2023, the following order was made : The District Cane Officer, Meerut has passed an order dated 31.03.2021, terminating the services of the petitioner's husband Avinash Yadav, on account of his long absence and closing the departmental proceedings initiated against him. He has done so, on the principle of abandonment of employment. Let a personal affidavit be filed by the District Cane Officer, Meerut within a week, bringing on record a copy of his order dated 31.03.2021 and specifically indicating the provision in the service rules entitling him to treat an employee to have abandoned service on account of long absence. It will also be indicated in the affidavit, if there is any evidence to show that Avinash Yadav is alive and yet staying away from his duties. Lay as fresh on 12.07.2023. It will also be indicated in the affidavit, if there is any evidence to show that Avinash Yadav is alive and yet staying away from his duties. Lay as fresh on 12.07.2023. Let this order be communicated to the District Cane Officer, Meerut by the Registrar (Compliance) within 48 hours. 10. Again, on 12.07.2023, the following order was passed by this Court: The personal affidavit filed today is taken on record. Let it be numbered by the Office. This affidavit will also be regarded as a counter affidavit and the learned Counsel for the petitioner shall be at liberty to file a rejoinder affidavit to the affidavit filed today. Looking to the personal affidavit filed by respondent no. 5, prima facie it appears that the respondents have acted too much on presumption to terminate the services of an employee, who claims to have gone missing since 13.04.2010. The petitioner, who is the missing employee's wife, seeks to quash the order terminating the employee's services. There is an allegation that his whereabouts are not known for past more than seven years by those who should have normally heard of him. To the Court's mind, proceedings to punish a man whose whereabouts are not known, without properly inquiring into the fact whether he is missing, may not be a lawful course to adopt prima facie. A perusal of the order terminating the petitioner's services shows that the foundation to proceed against the missing employee, treating him to be an absentee and not a missing man whose whereabouts are not known, is the fact that his wife or other family members have not produced any evidence like a missing report lodged with the Police. The missing employee's wife, that is to say the petitioner, is a physically handicapped person with 60% permanent impairment in her right lower limbs. This fact is evident from the perusal of the certificate dated 24.09.2018 issued by the Medial Board in the office of the Chief Medical Officer, Bulandshahr. In such circumstances, it is ordered that upon the petitioner conveying a written information to the Senior Superintendent of Police, Meerut about the fact of her husband Avinash Yadav going missing, an appropriate case shall be registered forthwith by the Police and whereabouts of the missing man ascertained. In such circumstances, it is ordered that upon the petitioner conveying a written information to the Senior Superintendent of Police, Meerut about the fact of her husband Avinash Yadav going missing, an appropriate case shall be registered forthwith by the Police and whereabouts of the missing man ascertained. A report with regard to the whereabouts and the circumstances in which he went missing or whatever is gathered by the Police, apart from the follow up action as the law warrants, be reported to this Court by the Senior Superintendent of Police, Meerut on or before 26.07.2023 positively. In addition, it is directed that the information required to be sent by the petitioner to the Senior Superintendent of Police, Meerut shall be sent within 48 hours by speed post. A copy of the speed post dispatch receipt shall also be brought on record by learned Counsel for the petitioner. A copy of the report shall also be forwarded to the District Cane Officer, Meerut by the Senior Superintendent of Police, Meerut. Ms. Monika Arya, learned Additional Chief Standing Counsel shall file a detailed counter affidavit on behalf of respondent nos. 1 to 6 on or before the date fixed. List on 26.07.2023 at 2.00 p.m. Let this order be communicated to the Senior Superintendent of Police, Meerut by the Registrar (Compliance) within 48 hours. 11. Under orders of this Court, a personal affidavit was filed by Rohit Singh Sajwan, Senior Superintendent of Police, Meerut on 03.08.2023 and he also appeared in Court, in compliance with our earlier orders. The following order was passed on 03.08.2023 : A personal affidavit has been filed by Rohit Singh Sajwan, Senior Superintendent of Police, Meerut,. It is taken on record. In paragraph nos. 9, 10 and 11 of the affidavit, it is averred thus: "9. That it is further noteworthy to mention here that the husband of the petitioner was gone missing in the year 2010 while the petitioner lodged the FIR after 13 years which on 28.07.2023. 10. That thereafter, RT massage issued by the deponent to the all SHO's/SO's of District Meerut. Moreover, a letter was sent to the Branch Manager Punjab National Bank Daurala, Meerut to provide photograph of the missing person i.e. husband of petitioner. 10. That thereafter, RT massage issued by the deponent to the all SHO's/SO's of District Meerut. Moreover, a letter was sent to the Branch Manager Punjab National Bank Daurala, Meerut to provide photograph of the missing person i.e. husband of petitioner. True copy of RT Message issued to all SHO's/SO's of District Meerut dated 28.07.2023 is being annexed herewith and marked as Annexure No. 1 to this counter affidavit. 11. That thereafter, in pursuance of RT letters, all the SHO's/SO's vide provided their report informing that no such missing report has never been lodged in their respective police stations. True copy of information/reports provided by all the SHO's/SO's are being collectively annexed herewith and marked as Annexure No.-1 to this Counter affidavit." Let a further affidavit be filed by the Senior Superintendent of Police, Meerut after three weeks with regard to the whereabouts of the missing man. Counter affidavit shall be filed within the same period of time i.e. three weeks. List on 25.08.2023 at 02:00 p.m. Personal presence of Rohit Singh Sajwan, Senior Superintendent of Police, Meerut, who is present in Court today, is exempted. 12. On 25.08.2023, another affidavit was filed before the Court by the Senior Superintendent of Police, Meerut, where, it is averred in paragraphs Nos. 5 to 13 : 5. That now the deponent is bringing on record the steps which are being taken for tracking out the missing Avinash Yadav. 6. That the petitioner moved a missing complaint of her husband Avinash Yadav on 28.07.2003, based on which missing report was recorded at G.D. Rapat No. 31 at 14.16 hours on 28.07.2023, subsequently copy of which was given to the petitioner/applicant. 7. That in pursuance of the application of the petitioner, Kamlesh Yadav was instructed to forthwith provide the photograph of missing Avinash Yadav. Thereafter, investigation of matter was entrusted to Sub- Inspector Mahesh Kumar and also for assistance of investigation officer, a team was also constituted comprising of Sub-Inspector Sri Navratan Rastogi, Head Constable Deepak Kumar and Constable No. 154 Ajeet Kumar for searching the missing husband of the petitioner (Avinash Yadav). 8. Thereafter, investigation of matter was entrusted to Sub- Inspector Mahesh Kumar and also for assistance of investigation officer, a team was also constituted comprising of Sub-Inspector Sri Navratan Rastogi, Head Constable Deepak Kumar and Constable No. 154 Ajeet Kumar for searching the missing husband of the petitioner (Avinash Yadav). 8. That during the course of investigation, the investigation officer sent a letter dated 28.07.2023 to Manager, Sugar Cane Development Board, Daurala, Meerut and Manager, Punjab National Bank, Daurala for obtaining the salary account and photographs of Missing Avinash Yadav S/o Raghvan Yadav, R/o House No. 629 Jawahar Colony Patel Nagar, Muzaffar Nagar. Subsequently, after obtaining the photograph of the missing person, on 28.07.2023, the investigation officer by preparing the photo patrolling search (Photo Gashti Talash Gumshuda) of missing, sent the report to In charge D.R.C.B- Meerut, Bagpath Station Baghpat, G.R.P. City Stations of District Shamli, Muzaffar Nagar, Saharanpur and Meerut and circulated the R.T. Massage to all the In Charge Inspectors/S.H.Os of all the police station in respect of missing person. 9. That on 11.08.2023 the Sub Inspector Mr. Vinesh Kumar- Police Station Mutaina Daurala was sent to Delhi, District Ghaziabad, Aligarh to search the missing Avinash Yadav and paste pamphlets. Subsequently, the I.O. conducted the search in respect of missing person by roaming around the Police Station GRP Ghaziabad, Railway Station Ghaziabad and Police Station GRP Aligarh, railway station Aligarh, Roadways Bus Stand Aligarh and DCRB Office Aligarh and pasted patrol search pamphlets. Thereafter, on 12.08.2023, the search for the missing was done by roaming around the Roadways Bus Stand, Kashmiri Gate Delhi and P.S. Kashmiri Gate Delhi and pasted patrol search pamphlets. 10. That on 11.08.2023 S.I. Mr. Vinod Kumar Goswami was sent to search the missing Avinash Yadav, who pasted pamphlets to Police Station Balaini, District Baghpat. On making enquiry, one Suresh Chand S/o Vishal Singh, R/o Village Balani had informed as follows: Copy of Written Statement Given by Suresh Chand is being annexed herewith and marked as ANNEXURE NO.-1 to this affidavit. 11. That on 12.08.2013, S.I. Mr. Vinod Kumar Goswami searched the missing at his residence i.e. House No. 629 Jawahar Colony Patelnagar, Muzaffar Nagar but the missing person was not found at his residence. Thereafter, pamphlets were pasted at P.S. Nai Mandi Muzaffar Nagar. Thereafter interrogation was made from uncle and aunty of missing person namely Sanjeev Yadav and Smt. Anuradha. That on 12.08.2013, S.I. Mr. Vinod Kumar Goswami searched the missing at his residence i.e. House No. 629 Jawahar Colony Patelnagar, Muzaffar Nagar but the missing person was not found at his residence. Thereafter, pamphlets were pasted at P.S. Nai Mandi Muzaffar Nagar. Thereafter interrogation was made from uncle and aunty of missing person namely Sanjeev Yadav and Smt. Anuradha. Subsequently, Sanjeev Yadav by entrusting a letter informed as under: Sri Sanjeev Yadav also provided the photocopy of death certification of younger brother of Avinash Yadav. True copy of death certificate of younger brother of Avinash Yadav and relevant part of the GD revealing the information about missing Avinash Yadav by the Uncle and Aunt of the missing Avinash Yadav are being annexed herewith and marked as ANNEXURE NO.-2 and 3 to this affidavit. 12. That on 14.08.2023, Sub Inspector Mahesh Kumar was sent at office of S.P. G.R.P., Moradabad for pasting the missing photo pamphlets of missing person but no such record or any substantial break through could be found from the office of S.P. G.R.P., Moradabad. Meanwhile, G.R.P. Ghaziabad vide letter dated 16.08.2023 informed that there is no record available at P.S. GRP, Ghaziabad. Moreover, records of the year 2010 are also weeded out in Police Line Ghaziabad. 13. That in view of the aforesaid factum, it is submitted that best possible efforts are being made by the answering respondent for tracking the whereabouts of missing Avinash Yadav but despite of best efforts no such substantial information could be collected. However, the team constituted for the said purpose, are continuously trying their level best in respect of tracing out the missing person. 13. On 12.10.2023, an affidavit dated 11.09.2023 was filed in Court, because the matter could not be taken up on 12.09.2023 and 25.09.2023. The stand of the Senior Superintendent of Police, Meerut in the affidavit dated 11.09.2023 is recorded in the Court’s order dated 12.10.2023, which reads : An affidavit has been filed today in Court on behalf of the Senior Superintendent of Police, Meerut, by Ms. Monika Arya, learned Additional Chief Standing Counsel. It is taken on record. Let it be numbered by the Office. In paragraph nos. 4, 5 and 6 of the said affidavit, it is averred: "4. Monika Arya, learned Additional Chief Standing Counsel. It is taken on record. Let it be numbered by the Office. In paragraph nos. 4, 5 and 6 of the said affidavit, it is averred: "4. That it is noteworthy to mention here that the husband of the petitioner was gone missing in the year 2010 while the petitioner lodged the FIR after 13 years on 28.07.2023. 5. That in compliance of the aforesaid direction of this Hon'ble Court, deponent craves indulgence of this Hon'ble Court to bring on record copy of letter dated 31.08.2023 sent by Inspector In-Charge Daurala, District Meerut to Inspector In-Charge R.P.F. & G.R.P. Ghaziabad and Inspector In-Charge R.P.F. & G.R.P. Moradabad in respect of providing the post-mortem related details of dead/missing Avinash S/o Raghavan R/o House No. 629 Jawahar Colony, Patel Nagar, P.S. Nai Mandi, District Muzaffar Nagar. 6. That in response to the aforesaid communication, In-Charge R.P.F. and G.R.P. Ghaziabad District Ghaziabad vide his endorsement on the letter sent by the Inspector In-Charge Daurala, District Meerut, informed that as per records, no accident with respect to person namely Avinash S/o Raghavan is recorded in the year 2010 in R.P.F. Post Ghaziabad and also no record is available in G.R.P. Police Station Haza, Ghaziabad. In-Charge R.P.F. Moradabad vide his endorsement on the letter sent by the Inspector In-Charge Daurala, District Meerut, informed that no case is registered with regard to missing Avinash S/O Raghavan and In- Charge G.R.P. Moradabad has informed that no information is mentioned as per the records available in Police Station in relation to the missing Avinash S/O Raghavan. True copy of letter dated 31.08.2023 which bears the endorsement report of In-Charge R.P.F.& G.R.P. Ghaziabad and In-Charge R.P.F. & G.R.P. Moradabad are being filed herewith and marked as ANNEXURE NO.-1 respectively to this affidavit." Apparently, the whereabouts of the petitioner's husband are not known by those who would have normally heard of him had he been alive. True copy of letter dated 31.08.2023 which bears the endorsement report of In-Charge R.P.F.& G.R.P. Ghaziabad and In-Charge R.P.F. & G.R.P. Moradabad are being filed herewith and marked as ANNEXURE NO.-1 respectively to this affidavit." Apparently, the whereabouts of the petitioner's husband are not known by those who would have normally heard of him had he been alive. Let a supplementary counter affidavit be filed within ten days by the Commissioner Cane and Sugar, Uttar Pradesh Lucknow, the Deputy Cane Commissioner, Meerut, U.P, the Senior Cane Development Inspector, Meerut and the District Cane Officer, Meerut indicating what is the position under the rules regarding presuming the civil death of an employee, who is absent for a long period of time with his whereabouts not being heard of by those who would have normally heard of him, of (sic) alive. The respondents shall bear in mind that abandonment of service postulates the fact that the employee is alive and has an animus to abandon employment. It requires, if the respondents say that the petitioner's husband has abandoned service, that he is or was alive at the relevant period of time and consciously committed acts of absenteeism entitling the respondents to hold him as having abandoned service. It would require the respondents to produce evidence showing that the petitioner's husband was alive at the time when he abstained form duties or that he is still alive. The affidavit shall make due reference to the rules and the law on the subject and the manner in which such issues are dealt with by the respondents. Since this matter has been sufficiently heard and substantial affidavits already exchanged, this petition is admitted. List for further hearing on 02.11.2023. Let this order be communicated to the Commissioner Cane and Sugar, Uttar Pradesh Lucknow, the Deputy Cane Commissioner, Meerut, U.P, the Senior Cane Development Inspector, Meerut and the District Cane Officer, Meerut by the Registrar (Compliance) by Tuesday. 14. This Court must remark that in response to the order dated 12.10.2023, two Government Orders dated 20.03.1987 and 21.07.1991 were quoted extensively in a subsequent counter affidavit filed on behalf of respondents Nos. 2 to 5 about the benefits admissible to the dependants and heirs of government servants going missing. The respondents, in a most insensitive stand, did not acknowledge the position that indeed, Avinash Yadav had gone missing. 2 to 5 about the benefits admissible to the dependants and heirs of government servants going missing. The respondents, in a most insensitive stand, did not acknowledge the position that indeed, Avinash Yadav had gone missing. In the supplementary counter affidavit that they filed in compliance with our order dated 12.10.2023, it was averred : In the instant matter, the petitioner failed to submit any documentary evidence i.e., Missing complaint, death certificate from any court of law with regard to Mr. Avinash Yadav, succession certificate etc. in her favour. It is further submitted that the alleged husband of the petitioner, Mr. Avinash Yadav absconded from his duties without any sanctioned leave and despite of several notices on his residential address, he failed to present himself on duties to explain the unauthorized absence. Thereafter, considering the unauthorized absence of Mr. Avinash Yadav, through order dated 31.03.2021, the disciplinary authority/opposite party no. 5 terminated the services of Avinash Yadav w.e.f. 13.04.2010 and concluded the disciplinary proceedings initiated against him. More so, as per service book and service records of Mr. Avinash Yadav, the petitioner is not included amongst his family members. Therefore, the petitioner is not liable to receive the retiral dues of Mr. Avinash Yadav as alleged by her in the writ petition. The True and typed copies of the Government Order No. 369-88/10-909-87 dated 20.3.1987 and Government Order No. Bima - 1905/Ten 91-4687 dated 21.7.1991 are being annexed herewith collectively and marked as ANNEXURE No. SCA - 1 of this affidavit. 5. That as specified in Rule 35 and 36 of the Uttar Pradesh Subsidiary Rules or in the notes under Rule 66 of the Uttar Pradesh Fundamental Rules; any leave, other than disability leave, admissible under the Fundamental Rules, may be granted to a non-gazetted government servant by the authority whose duty it would be to fill up his post if it were vacant, or such other competent authority to grant such leave or extension thereof. Mr. Avinash Yadav working on the post of 'Peon' in the office of Senior Cane Development Inspector, Daurala, Meerut was continuously absent from duties w.e.f. 13.04.2010 without any permission or sanctioned leave; therefore, through several letters, the office of deponent and the Senior Cane Development Inspector, Daurala, Meerut directed to Mr. Avinash Yadav to join his duties immediately. The aforesaid letters sent at the residential address of Mr. Avinash Yadav to join his duties immediately. The aforesaid letters sent at the residential address of Mr. Avinash Yadav at 629, Jawahar Nagar Colony, Patel Nagar, District - Muzaffarnagar' had been returned by the Postal Department of Government of India as unserved at the address of the Mr. Avinash Yadav (address as provided by Mr Avinash Yadav in his Service Book). 15. In this affidavit, a stand has also been taken that in Avinash’s service book at Page No. 25 carrying the details of his family members, the name of his brother, Vishal Yadav, alone is mentioned, who is also the nominee entitled to receive Avinash’s general provident fund. There is no mention of Avinash’s wife. The respondents have virtually disowned the fact that the petitioner is his wife and said that if Avinash is missing, the burden to prove his presumed civil death under Section 108 of the Act of 1872 would lie upon the petitioner. The insistence is on the fact that since there is no missing report lodged regarding Avinash by the petitioner, the fact of his death cannot be presumed. The respondents say that since there is no missing complaint by the petitioner or a death certificate from a Court of law with regard to Avinash Yadav or a succession certificate in the petitioner’s favour produced by her, it has to be presumed that Avinash Yadav has absconded without sanctioned leave. The stand taken in the supplementary counter affidavit is, indeed, not only very insensitive and nonchalant, but also very illegal. No one in the world of law would perhaps have heard of a party bearing the burden of proving a presumption, a stand the respondents have had the audacity to put on affidavit in the following words : 8. That it is significant to submit that Section 108 of the Indian Evidence Act, 1872 provides that when the question is whether a man is alive or dead, and it is proved that he has 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. Therefore, the petitioner is having the burden of proving her presumption that her husband Mr. Avinash Yadav is missing dead as per rule of law and settled propositions of law. Therefore, the petitioner is having the burden of proving her presumption that her husband Mr. Avinash Yadav is missing dead as per rule of law and settled propositions of law. The observations made by the Hon'ble Apex Court in the case of LIC of India Vs. Anuradha, reported in (2004) 10 SCC 131, in para-12, 13, 14 and 15 are relevant in the present context. The true copy of the Judgment and Order passed by the Hon'ble Apex Court in the case of LIC of India Vs. Anuradha, reported in (2004) 10 SCC 131 is being filed herewith and marked as Annexure No. SCA-3 to this supplementary affidavit. (emphasis by Court) 16. Upon hearing learned Counsel for parties and perusing the record, apart from the remarks that we have already made above, it must be said that the respondents’ stand, as it were, casting a doubt about the petitioner’s status as Avinash’s wife, goes against their own stand earlier taken. There is on record of the writ petition Memo No. 427 of 2019 dated 06.11.2019 addressed by Sauveer Singh, Senior Cane Development Inspector, Daurala, Meerut addressed to Avinash Yadav through the petitioner, describing her as Avinash’s wife in the following terms : 17. This letter would show that the petitioner was reputed to be Avinash’s wife, not only that she was. The mere fact that her name did not find mention in the Peon’s service book may well be attributed to the fact that the service book might have been constructed at a time when the petitioner was not yet married, or for some other reason, not posted with the necessary details about his family members and revision of nomination etc. Even if the respondents still insist that the petitioner is not Avinash’s wife, they can always ask her to produce a succession certificate from a Court of competent jurisdiction, entitling her to receive his dues and give them valid acquittance. But, that is not the question here. The question is : If the respondents could terminate the services of a missing man, who ought be presumed dead on principles analogous to Section 108 of the Act of 1872, if not proprio vigore, after proceeding against him in their disciplinary jurisdiction, holding him guilty of the charge of unauthorized absence from duty. 18. The question is : If the respondents could terminate the services of a missing man, who ought be presumed dead on principles analogous to Section 108 of the Act of 1872, if not proprio vigore, after proceeding against him in their disciplinary jurisdiction, holding him guilty of the charge of unauthorized absence from duty. 18. The question fell for consideration before the Delhi High Court in Banarasi v. Government of NCT of Delhi and others, ILR (2008) Supp. 2 Delhi 1. Vipin Sanghi, J. (as the learned Chief Justice then was), speaking for the Bench, held : 9. Even though the said Shri Bhagwan Singh was a member of respondent police force, no effort appears to have been made by the respondents to ascertain whether Shri Bhagwan Singh was in fact alive at the relevant time. Even though the address of the family of Shri Bhagwan Singh at Ajmer was furnished by Shri Amar Singh on 10.4.1997, and by the petitioner in her statutory appeal, no efforts seem to have been made to make any enquiry to trace out Shri Bhagwan Singh. No doubt the service record of Shri Bhagwan Singh shows that he was in the habit of remaining absent, inasmuch as, there were 20 occasions cited in the enquiry report between the year 1990 to January, 1996 when he had remained unauthorizedly absent. However, a perusal of the enquiry report shows that even in the said enquiry proceedings none of the witnesses stated that they had seen Shri Bhagwan Singh alive. 10. Merely because the officer who had visited the address at Sikar to serve notice upon Shri Bhagwan Singh had stated that he was informed by the mother of Shri Bhagwan Singh that he had gone to Ajmer to attend to his ailing children, it cannot lead to a reasonable inference that he was alive at that point of time. Even though the rules of evidence do not apply to departmental enquiries, and it is not for this Court to assess the weight of the evidence produced in a departmental enquiry, it is open to us in judicial review to appreciate, whether there was any evidence or material at all before the enquiry officer to come to his findings or not. 11. 11. The scope of enquiry in judicial review of a departmental enquiry is well established, and we may only quote a short passage from Bank of India v. Degala Suryanarayana, 1999 SCC (L & S) 1036 to refresh ourselves. The Supreme Court held: “Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity i.e where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India v. H.C. Goel the Constitution Bench has held: “[T]he High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question if proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not.” 12. Such far fetched statements, which are in themselves hearsay, attributed to the mother of Shri Bhagwan Singh, which are also hearsay and are also not based on any other corroborative material, could not, in our opinion, be used to conclude about the existence of Shri Bhagwan Singh on the relevant date. No man acting reasonably and with objectivity could have arrived at a finding that Shri Bhagwan Singh was in existence at the relevant time. No man acting reasonably and with objectivity could have arrived at a finding that Shri Bhagwan Singh was in existence at the relevant time. We may also state that at the time when the enquiry was held, as not much time had passed since the disappearance of Shri Bhagwan Singh, presumably it did not even cross the mind of the Enquiry Officer or the Disciplinary Authority that he may not be alive. No enquiry into this possibility was held. Consequently, while his absence cannot be disputed and it is a matter of fact, it remains a mystery whether the same was willful or not. It could be said to be willful only if Shri Bhagwan Singh was shown to have been alive at the relevant time. then, possibly it could be assumed that he was in a position to attend to his duties and he knowingly and deliberately did not report for duty. However, in case he was already dead, there is no question of his absence being willful. 13. Section 107 read with Section 108 of the Indian Evidence Act, 1872 states that when a question arises whether a person is alive or dead, and it is proved that he has 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 shifts upon the person who affirms it. Consequently on the expiry of the seven years period from the date Shri Bhagwan Singh went missing on 24.7.1996, the burden of proving that he was alive rested on the respondent while prior to the expiry of seven years, the burden would have been on the persons who may have wanted to assert his death. 14. In LIC of India v. Anuradha, (2004) 10 SCC 131, the Supreme Court held that the presumption under Section 108 of the Indian Evidence Act cannot be extended to a presumption as to the time of death by presuming that the time of death coincide with the time when the said person went missing. The Supreme Court held that there is neither a presumption as to the date or the time of death nor as to facts and circumstances of death of a person under Section 107 and 108 of the Evidence Act. The Supreme Court held that there is neither a presumption as to the date or the time of death nor as to facts and circumstances of death of a person under Section 107 and 108 of the Evidence Act. The only inference that is permissible to be drawn on the presumption is that such person was dead at the time when the question arose, subject to the said period of seven years having elapsed. Question of time of death is a question of evidence, factual or circumstantial and is not a matter of presumption. The onus of proving the time of death rests on the person who stakes the claim, establishment of which will depend on proof of date or time of death. However, the Supreme Court also observed that rarely it would be permissible to proceed on the premise that death had occurred on any given date before the expiry of the said period of 7 years. 15. Considering the fact that Shri Bhagwan Singh was not living with his family and was living in police barracks from he went missing and is unheard of since then, we are of the view that the facts of this case are exceptional and rare and, Therefore, circumstantially, it can fairly be inferred that Shri Bhagwan Singh was dead when he went missing or within a reasonable time thereafter. 16. If an employee, who is residing in accommodation provided by the employer, away from his family suddenly goes missing and is thereafter neither seen or heard of, either by his employers, colleagues or his family members, the responsibility of answering the question about his whereabouts lies, at least in the first instance, with the employer and not the family members of the missing person. In this case, the situation is even more grave, inasmuch as the employer happens to be the Police Force which is even otherwise responsible to trace out the missing persons once it is reported to it that a person is missing. 17. The Respondents have also relied upon Union of India v. Geetha Devi, (2002) 10 SC 166 wherein the Supreme Court held that where the services of a employee had been terminated under Rule 5 of the CCS(Temporary Services) Rule, 1965 after unauthorized absence for about 2 years, his wife could not claim relief of compassionate appointment, arrears of salary, family pension, etc. on the ground of presumption of her husband's death during his employment as he had remained missing after more than 7 years. This decision does not apply in the peculiar facts of this case, since, as aforesaid, in the present case the husband of the Petitioner was living in the police barracks and not with his family, when he suddenly went missing. 18. Our attention has also been drawn to another decision of Patna High Court in Arti Devi @ Arti Pandey v. Union of India and others, 2003 (3) Administrative Total Judgements 126. In that case, the husband of the Petitioner was an employee of the Central Reserve Police Force who proceeded on leave and was not traceable thereafter. He was declared as deserter and dismissed after inquiry and on that basis the claim for family pension and other retiral benefits were denied to the Petitioner. The High Court in the facts of that case directed that the Petitioner may produce evidence and satisfy the authority to discharge the onus upon her under Section 108 of the Evidence Act, whereupon the authorities were required to discharge their onus and to proceed and conclude the matter. 19. We have considered the respective submissions thoughtfully. It is not in dispute that the husband of the petitioner went missing, which was treated as absent from duty. On this basis, disciplinary proceedings were initiated against Sh.Bhagwan Singh, husband of the petitioner. As his whereabouts could not be found, ex parte inquiry was held and he was dismissed from service. Normally, on the charge of absence from duty, such an action could be taken by the respondents. To that extent there may not be any quarrel. However, in the present case, what is to be borne in mind is that it is not a case where Sh.Bhagwan Singh started absenting from duty, though he was very much available. It is a case where whereabouts of Sh.Bhagwan Singh right from the date of his absence could not be known to any person in this world, including his family members. In the process, more than seven years passed and Therefore, presumption under Section 108 of the Indian Evidence Act to the effect that Sh.Bhagwan Singh is not alive came into effect. In such a scenario, it cannot be said that absence of Sh.Bhagwan Singh from service was willful. In the process, more than seven years passed and Therefore, presumption under Section 108 of the Indian Evidence Act to the effect that Sh.Bhagwan Singh is not alive came into effect. In such a scenario, it cannot be said that absence of Sh.Bhagwan Singh from service was willful. When he is presumed dead, maybe such a presumption arises after the expiry of seven years from the date he was not seen, it can reasonably be presumed that absence from service by Sh.Bhagwan Singh was not intentional. 20. We are, Therefore, of the view that the claim of the petitioner made in the original application could not have been rejected while placing the entire responsibility of proving the demise of her husband, at the time when he was accused of remaining willfully and unauthorizedly absent, upon her shoulders. In view of the fact that Shri Bhagwan Singh was not residing with his family and was living away from his family in police barracks, when he went missing from the place of duty under the control of the respondents and did not go back to h is own house and his whereabouts could not even be traced, the charge of absence from duty, coupled with the fact that Sh.Bhagwan Singh has not been seen for all these years, cannot be treated as sustained in the facts and circumstances of this case. In fact, it was for the respondents to trace out the whereabouts of Sh.Bhagwan Singh if he was alive at the relevant time. The petitioner being a lay person cannot be fasten with this responsibility, who claims not to have seen her husband from the time when he went missing while on duty in Delhi. 21. In case the husband of the petitioner was dead when he went missing in 1996, it would be highly inequitable and unjust to the petitioner to deny her family pension. She would be doubly condemned. Firstly because of the death of her husband, and secondly because of the denial of family pension. 19. The same question again arose before the Andhra Pradesh High Court in Smt. K. Lakshmi v. The A.P.S.R.T.C. and others, 2013 SCC OnLine AP 815. The short facts giving rise to the issue, as these appear in paragraphs Nos. 2 and 3 of the report in Smt. K. Lakshmi (supra) read : 2. 19. The same question again arose before the Andhra Pradesh High Court in Smt. K. Lakshmi v. The A.P.S.R.T.C. and others, 2013 SCC OnLine AP 815. The short facts giving rise to the issue, as these appear in paragraphs Nos. 2 and 3 of the report in Smt. K. Lakshmi (supra) read : 2. The facts, in brief, are that the petitioners husband, namely Mr. K. Ramesh, was working in the respondent Corporation as a driver with batch No. E.505379. On 03.04.1992, when he was off duty, the petitioners husband went out, but never came back home. Not knowing the whereabouts of her husband, the petitioner lodged a police complaint on 09.06.1992, based on which, the 5th Town Police Station, Nellore, registered a case in Cr. No. 115 of 1992 for man missing and investigated further. Finally, the S.H.O of the said Police Station informed the petitioner through a notice dated 30.07.1992 that her husband could not be traced. 3. Clueless about what course of action she should take, having lost the bread winner of the family, the petitioner and her three children waited up to 2006 with a fond hope that her husband would turn up. When the wait proved futile, on legal advice, the petitioner filed O.S. No. 267 of 2006 on the file of III Addl. Junior Civil Judge, Nellore, for a declaration that her husband is deemed to have been dead. The competent Civil Court, eventually, allowed the suit through Judgment and Decree dated 11.07.2006, thus declaring that the petitioners husband is deemed to have been dead, in terms of Section 108 of the Indian Evidence Act. 20. The only feature that was different from the present case was that the missing employee’s wife had obtained a decree from the Civil Court, declaring his civil death, but that we think is not at all decisive. What is decisive is the man remaining unheard of for a period of seven years by those who would have naturally heard of him. This does not always require a declaration by the Civil Court. This rule of evidence engrafted under Section 108 of the Act of 1872 is based on robust common sense and human experience about life. It cannot be limited and made dependent upon decrees of the civil judicature, as a matter of universal application. It has to be understood and applied pragmatically. This rule of evidence engrafted under Section 108 of the Act of 1872 is based on robust common sense and human experience about life. It cannot be limited and made dependent upon decrees of the civil judicature, as a matter of universal application. It has to be understood and applied pragmatically. In dealing with the issue, in Smt. K. Lakshmi, Dama Seshadri Naidu, J. held : 20. The presumption of death of a person unheard of for seven years is an aspect of English Common Law, given statutory recognition in India through Section 108 of the Evidence Act, 1872. In fact, section 108 is not a substantive provision of law, but only a procedural one. Thus, it cannot be stated that the said provision exhaustively covers all the facets of the Common Law concept of presumed death. For instance, on completion of seven years, as per the first limb of the provision, the initial burden is on the one who asserts that the person has not been heard for seven years to prove it to be so. On such proof, the burden shifts on to the other who asserts the persons existence. As such, section does not deal with the aspect of when the person has exactly died or deemed to have died. It all depends on the facts of each case. In any event, the presumption comes into play only after the completion of seven years, but not before. 21. Though the respondent Corporation has taken recourse to a convenient option of setting the petitioners husband ex parte and passed orders removing him from service, it is not the case of the Corporation that the petitioners husband had deliberately absconded from duty, or had been guilty of any grave crime or misconduct, thus fleeing from the course of justice, by performing the vanishing act. 24. Indeed, the petitioner could have approached the Labour Court invoking Section 2-A of the Industrial Dispute Act. On that count, the learned Standing Counsel for the respondent Corporation has laid much stress, contending that the petitioner has an efficacious alternative remedy available to her. 24. Indeed, the petitioner could have approached the Labour Court invoking Section 2-A of the Industrial Dispute Act. On that count, the learned Standing Counsel for the respondent Corporation has laid much stress, contending that the petitioner has an efficacious alternative remedy available to her. Be that as it may, it is quite prosaic to once again stress what is otherwise a very established legal principle that while exercising powers under Article 226 of the Constitution, though the alternative remedy is one of the factors to be considered, it cannot be said that it is an insurmountable legal hurdle, which cannot be overcome under any circumstance. In fact, confining the discussion to the facts of the present case, it can be stated without fear of contradiction that the totality of the circumstances would amply justify to hold that not taking recourse to Section 2-A of the Act is not fatal, given the history of the litigation i.e., the petitioners approach on more than one occasion to this Court assailing the inaction on the part of the respondent Corporation. In fact, the respondent Corporation ought to have considered the case of the petitioner without insisting on technicalities, especially since it is a peculiar case of delinquent workman disappearing and having never been traced thereafter. Once the respondent Corporation never doubted the bona fidies of the petitioner, it could not have insisted on technicalities, thus denying the petitioners claim, which is otherwise justifiable. 25. Now I may consider the submissions of the learned Standing Counsel for the respondent Corporation that all the terminal benefits were paid, treating the delinquent workman as having been removed from service. In the face of declaration granted by the Civil Court under section 108 of the Evidence Act, the petitioners husband, for all intents and purposes, is dead or deemed to have been dead. Having stated that the presumption comes into play only on the completion of seven years, as a natural corollary, the date of death shall also be presumed to be at the end of the seventh year or thereafter. However, as there cannot be no hard and fast rules in this regard, and such presumption as to the exact time of death is a matter of conjecture, it entirely depends on the facts of each case. However, as there cannot be no hard and fast rules in this regard, and such presumption as to the exact time of death is a matter of conjecture, it entirely depends on the facts of each case. In this case, taking recourse to a beneficial approach of the issue, it shall be presumed that the presumption relates back to the initial disappearance of the petitioners husband, on completion of seven years, though. 26. Once such a legal fiction is employed, it should run its full course. Ipso facto, as the workman was deemed to have been dead on the date of his disappearance, the disciplinary proceedings are deemed to have been initiated against the dead person. Those proceedings are a nullity. A fortiori, the workman is deemed to have died in harness, since by the date of his presumptive death, the workman was not removed from service. 28. In that case the writ petitioners husband has been missing for more than a decade. She has been running from pillar to post seeking from the employer - Electricity Board - Compassionate appointment for herself or family pension. The Board, however, maintained that her husband was unauthorisedly absent for more than five years and for that reason his services stood automatically terminated. The Board gave no consideration to her for either compassionate appointment or family pension. When the wife has approached this Court, this Court has given a direction to treat her husband as legally dead and grant to her family pension. The petitioner-wife has also been allowed to make application for compassionate appointment. This Court further observed that in case such application is filed by her, the Board shall give a sympathetic consideration. Aggrieved there by, the Board has filed a Writ Appeal. 29. The Division Bench of this Court has held that the presumption as to the death of the workman, however, is not in any manner against the interest of the Board, for if he is alive, he is entitled to claim continuity in service until the service is determined in accordance with law and if he is dead for all legal purposes, the obligation upon the Board is to pay the family pension to his wife and dependents only. Finding no merits in the appeal, in that context, their Lordships have observed: 5. Finding no merits in the appeal, in that context, their Lordships have observed: 5. We, however, take notice of the long suffering of the wife of an erstwhile employee of the Board and the family which has gone without anything for its subsistence provided by the employer of the husband of the writ-petitioner. While we endorse the directions of the learned Singled Judge, we direct the Board to consider the case of the writ petitioner for compassionate appointment and give to her such appointment in accordance with law at the earliest. As we have noticed above, for all practical purpose the husband of the writ petitioner will be deemed to have died and as he has died while in service of the Board, he will be deemed to have died in harness. 30. Being in respectful agreement with the above ratio laid down by the Division Bench of this Court, I am of the considered opinion that for all practical purposes, the petitioners husband shall be treated to have died in harness. Accordingly, the impugned Order, dt.07.09.2009 passed by the second respondent is hereby set aside. Consequently, the respondent Corporation is further directed to pay the balance of terminal benefits to the petitioner treating the workman to have died in harness. 21. The next authority of seminal importance is the Bench decision of the Madras High Court in The Managing Director, State Express Transport Corporation Tamil Nadu Limited, Pallavan Salai, Chennai and others vs. E. Tamilarasi, 2016-3-L.W. 139 : 2015 SCC OnLine Mad 11975 : 2016 Lab IC 2699. The short facts giving rise to the cause in E. Tamilarasi (supra) can again be best gathered from the description of these from the report of their Lordships’ judgment, which read : 3. The respondent's husband was employed as a Conductor in the appellant Corporation. He joined service in the year 1978 and put in about 21 years of service. 4. It appears that on one day in May 1999, the respondent's husband disappeared without any trace. All the attempts made by the respondent to trace her husband, proved futile. 5. After making enquiries in various places, the respondent at last lodged a complaint. An F.I.R. was registered in Cr. No. 259 of 2009, for ‘Man Missing’. Eventually, a report was filed on 30.11.2000, that he was not traceable. 6. All the attempts made by the respondent to trace her husband, proved futile. 5. After making enquiries in various places, the respondent at last lodged a complaint. An F.I.R. was registered in Cr. No. 259 of 2009, for ‘Man Missing’. Eventually, a report was filed on 30.11.2000, that he was not traceable. 6. In the meantime, the appellants issued a charge memo in the name of the respondent's husband on 30.06.1999. The charge was for unauthorised absence. The charge memo returned unserved as the respondent's husband had disappeared in May 1999. 7. Another show cause notice dated 21.07.2000, was issued. It was also returned. Therefore, by a final order dated 09.04.2001, the appellants dismissed the respondent's husband from service. 8. After the final order of dismissal from service, dated 09.04.2001, was served on her, the respondent filed a statutory appeal on the ground that her husband was not traceable. She also sought reconsideration of the decision to dismiss her husband from service. But, the representations did not meet with any response. 9. Therefore, the respondent filed a writ petition in W.P(MD) No. 3796 of 2008. The writ petition was disposed of with a direction to the appellants to consider and pass orders. But, no orders were passed. 10. Therefore, the respondent came up with a writ petition, challenging the final order of dismissal of her husband, dated 09.04.2001 and seeking a direction to grant consequential benefits. The said writ petition in W.P(MD) No. 13064 of 2009 was allowed by a learned Judge of this Court. As against the said order, the appellant Corporation is on appeal. 22. In dealing with the question of civil death, V. Ramasubramanian, J. (as his Lordship then was of the High Court) held : 12. While there can be no dispute about the presumption available under Section 108 of the Indian Evidence Act, 1872, what is important is to see the date on which such presumption arises. As per Section 108 of the Indian Evidence Act, 1872, whenever a question arises whether a man is alive or dead and it is proved that he has not been heard of for seven years by those who would naturally have heard of him, burden of proving that he is alive, is shifted to the person who affirms it. 13. What is provided in Section 108 of the Indian Evidence Act, 1872, is only a presumption. 13. What is provided in Section 108 of the Indian Evidence Act, 1872, is only a presumption. Section 108 of the Indian Evidence Act, 1872 cannot be read in isolation. It should be read along with Section 107 of the Indian Evidence Act, 1872. Under Section 107 of the Indian Evidence Act, 1872, whenever a question arises as to whether a man is alive or dead and it shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. 14. Thus, Section 108 is an exception to Section 107. If Section 107 provides the rule, Section 108 provides the exception. Once it is established that a person was alive within 30 years, the burden of proving that he is dead is on the person who affirms it. This is the rule under Section 107. But, if it is proved that such a person, despite being alive within 30 years, has 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 that he is alive. 15. Therefore, it follows as a corollary that for the application of Section 107, the outer limit of the period of prescription is 30 years. Similarly, for the application of Section 108, the minimum period of time limit statutorily prescribed for the presumption to arise is seven years. 16. This is why the presumption as to death cannot be raised before the expiry of seven years. It cannot be raised even if the period of seven years falls short by one or two days. In LIC of India v. Anuradha, 2004-4-L.W. 358 : (2004) 10 SCC 131 : AIR 2004 SC 2070 , the Supreme Court held that the presumption as to death by reference to Section 108 would arise only on the expiry of seven years and would not by applying any logic or reasoning be permitted to be raised on the expiry of 6 years and 364 days or at any time short of it. More over, the Court pointed out that an occasion for raising the presumption would arise only when the question is raised in a court, tribunal or before an authority who is called upon to decide as to whether the person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings, the occasion for raising the presumption does not arise. 17. Therefore, the expiry of the full period of seven years is essential to raise the presumption under Section 108. This takes us to the next question as to what exactly could be taken as the date of death. 21. ...The question whether a person was alive or dead at a given date will be decided on all the evidence available at the date of the hearing. 22. Therefore, it is impossible to think that a person can be presumed to be dead from the date on which he went missing. Unless a period of seven years expire from the date of his missing, the very occasion for the raising of the presumption does not arise. Therefore, the learned Judge was not correct in thinking that the respondent's husband should be presumed to be dead from May 1999 onwards. 23. Having cleared the said aspect, what is now to be considered is as to whether the dismissal order is valid or not. Fortunately, the respondent has challenged the order of dismissal. The dismissal order has been passed in disciplinary proceedings taken exparte. The reason for non-appearance of the respondent's husband before the disciplinary authority is the factum of his missing. Once it is established that he has not been heard of for seven years from May 1999, it was impossible for him to participate in the enquiry. Therefore, the punishment by itself, cannot stand unless the presumption under Section 108 of the Indian Evidence Act, 1872 is rebutted by the employer. 23. Now, in the present case, even if one were to go by the respondents’ stand taken in the supplementary counter affidavit to the effect that the presumption of civil death would not attach in the absence of a missing complaint to the Police, that complaint too has come to be lodged under orders of this Court dated 12.07.2023 by the petitioner, though, on 28.07.2023. Intensive efforts were made by the Police to trace out the missing man but to no avail. It is not just a complaint to the Police or an FIR which is decisive. The missing employee, whose services were terminated on account of being absent from duty by the order impugned dated 31.03.2021 was missing since 13.04.2010. During this period of time, the respondents, who are his employers, had published notices in newspapers to seek him out, but to no avail. The family members never came to know about his whereabouts, and now, the Police too have failed. Thus, the date on which the impugned order terminating the petitioner’s services on the charge of long and unauthorised absence was passed by the respondents, was much after lapse of the period of seven years since the employee went missing and never heard of by those who would have naturally heard of him, if alive. None of his family, friends, wife or employers have mentioned in the slightest that they heard of him after 13.04.2010. 24. In the circumstances, after a lapse of ten years that the employee went missing, the respondents had no jurisdiction to pass the impugned order, treating him to be absent from duties for more than five years, invoking their powers under Rule 18 of the Uttar Pradesh Fundamental Rules. Rule 18 aforesaid reads : "18. Unless the Government, in view of the special circumstances of the case, shall otherwise determine, after five years' continuous absence from duty elsewhere than on foreign service in India, whether with or without leave, no government servant shall be granted leave of any kind. Absence beyond five years will attract the provisions of rules relating to disciplinary proceedings." [The earlier Rule 18 of the Uttar Pradesh Fundamental Rules has been substituted by Notification No. G-4-34/X- 89-4-83 dated 12.09.1989]. 25. A perusal of the said Rule shows that it is never meant to apply to the case of a man who, on the date the question comes up for consideration, has not been heard of since seven years past by those who would have naturally heard of him, if alive. Rule 18 clearly is meant to apply to a man who is known to be around and yet absconding or wilfully remaining absent from duty. Rule 18 clearly is meant to apply to a man who is known to be around and yet absconding or wilfully remaining absent from duty. It is to the case of the known living men with traceable or fleeting whereabouts that fundamental Rule 18 would apply. It would not apply to the case of persons about whom a presumption of death can safely be drawn on the analogy of Section 108 of the Act of 1872, on the date the order of termination from service is passed against them. 26. Here, on the date of the impugned order, a period far more than seven years of the employee going missing had elapsed, with none of those who would have naturally heard of him if alive, knowing his whereabouts, including the employers. The additional abortive attempts of the Police, vigorously made under orders of this Court to trace out the missing man, lend credibility to the fact that perhaps the presumption under Section 108 of the Act has turned into a reality. Be that as it may, this Court is of considered opinion that on the date the order impugned was passed, the respondents could not have made it. It is absolutely without jurisdiction and manifestly illegal. 27. In the result, this petition succeeds and stands allowed. The impugned order dated 31.03.2021 passed by the District Cane Officer, Meerut (annexed as Annexure No. CA-1 to the counter affidavit dated 22.08.2023) is hereby quashed. 28. So far as the petitioner’s claim for pension and death-cum- retirement benefits on account of services rendered by Avinash Yadav or her further claim to seek compassionate appointment is concerned, the respondents will be obliged to consider it, subject to the petitioner producing a succession certificate under Section 372 of the Indian Succession Act, 1925 granted by the Court of competent jurisdiction. The Court, wherever the petitioner makes a petition for the grant of a succession certificate, shall expedite proceedings, considering the peculiar facts and circumstances obtaining in this case. 29. There shall be no order as to costs. 30. The Registrar (Compliance) is directed to communicate this order to the District Cane Officer, Meerut through the learned Civil Judge (Senior Division) Meerut.