ORDER : The above writ petition is filed impugning the proceedings issued by respondent No.2 vide D.O.No.499/2022 C.No.62/OE-PR/2012, dated 02.08.2022, whereby a penalty of removal from service was imposed against one Sri Trinatha Rao, who is the husband of the first petitioner and father of petitioners 2 and 3, as illegal and arbitrary and to direct the respondent authorities to release the death benefits. 2. The case of the petitioners, in brief, is that : (a) the 1 st petitioner is wife and petitioners 2 & 3 are children of one Sri Trinatha Rao, who worked as a Police Constable in APSP 5 th Battalion. He suffered from psychological disease and took treatment from 1993 to 10.04.2012. He was transferred from Vizianagaram APSP to Armed Reserved Police, Kakinada, East Godavari District 2001. He claimed medical reimbursement. During verification, the Auditing Department objected that the bills uploaded by Sri Trinatha Rao were fake and concluded that Rs.1,71,974/- was to be recovered. Accordingly, a show-cause notice vide C.No.8492/P6/2011, dated 11.11.2011 (Ex.P4) was issued to Sri Trinatha Rao by respondent No.2. Sri Trinatha Rao submitted a reply dated 16.11.2011. Respondent No.2, by exercising powers conferred under Rule 8(1) of Andhra Pradesh Civil Services (CC&A) Rules 1991 (hereinafter referred to as 'the Rules'), suspended Sri Trinatha Rao vide proceedings in DO.No.247/2012 C.No.2013/A8/2012, dated 20.03.2012 (Ex.P7). Aggrieved the said proceedings, Sri Trinatha Rao filed O.A.No.2702 of 2012 on the file of the learned Administrative Tribunal, Hyderabad, wherein an interim order was granted on 11.04.2012, suspending the suspension proceedings (Ex.P7). However, Sri Trinatha Rao was not reinstated into service. (b) The Administrative Officer, District Police Officer, East Godavari District, complained, against Sri Trinatha Rao at II Town Police Station (Law & Order), Kakinada on 23.04.2012 and the same was registered as a case in Cr.No.91 of 2012. The whereabouts of Sri Trinatha Rao were not known from 18.05.2012. The brother of Sri Trinatha Rao complained to Nagaram Police Station and the same was registered as a case in Cr.No.50 of 2012 on 05.06.2012. (c) The petitioners filed suit in O.S.No.22 of 2020 on the file of learned Junior Civil Judge, Rajolu, to declare that Sri Trinatha Rao died on 18.05.2012 and to direct the defendants therein to enter his date of death in the Date of Births & Deaths register. As the matter stood thus, respondent No.2 passed the order impugned in the writ petition. As the matter stood thus, respondent No.2 passed the order impugned in the writ petition. Hence, the writ petition. 3. (a) A counter affidavit was filed on behalf of respondent No.2. While not disputing the appointment of Sri Trinatha Rao as a Police Constable in 5 th Battalion, APSP and his transfer to Armed Reserve Police, Kakinada, East Godavari District, it was contended that the Senior Audit Officer, Office of the Principal Accountant General (Civil Audit), Andhra Pradesh, Hyderabad vide letter No. Prl.AG(CA)/CA-I/U-/2010-11/14, dated 09.05.2011, pointed out that Sri Trinatha Rao furnished fake and false fabricated bills. The Accountant General opined that the claim was not genuine and instructed to recover the amount from the claimant in one lump sum. Accordingly, a show-cause notice vide Ex.P4 was issued. Sri Trinatha Rao, in turn, submitted an explanation vide Ex.P5. The Additional Superintendent of Police (Admn), East Godavari, Kakinada, inquired into the matter and submitted a report vide C.No.08/(Admn)/Camp-E,G/2011, dated 07.01.2012, stating that the medical bills submitted by Sri Trinatha Rao are false and recommended to register a case. The said Sri Trinatha Rao was placed under suspension vide Ex.P7. The Administrative Officer, District Police Officer, East Godavari District, complained to at II Town Police Station (Law & Order), Kakinada on 23.04.2012 and the same was registered as a case in Cr.No.91 of 2012 for the offence punishable under Section 420, 467, 468, 471 of IPC, against the said Trinatha Rao. A charge sheet was filed and the same was numbered as C.C.No.242 of 2015 on the file of the learned AJFCM Court, Kakinada. (b) Initially an interim order was granted in O.A.2702 of 2012. The said O.A., was closed on 12.01.2013. On coming to know about the registration of a criminal case in Cr.No.91 of 2012 of II Town (Law & Order) Police Station, Kakinada, Sri Trinatha Rao was absconded from 18.05.2012. The brother of Sri Trinatha Rao approached Nagaram Police Station and lodged a complaint and the same was registered as a case in Cr.No.50 of 2012. After making efforts to trace out the missing person i.e. Sri Trinatha Rao, the Sub-Inspector of Police, Nagaram Police Station submitted a proposal to the Sub-Divisional Police Officer, Amalapuram to accord permission to refer the case as 'Undetectable'. The Sub-Divisional Police Officer, accorded permission to refer the case as 'Undetectable' vide proceedings in C.D.No.672/RFD/SDPO_A/2018, dated 30.11.2018. After making efforts to trace out the missing person i.e. Sri Trinatha Rao, the Sub-Inspector of Police, Nagaram Police Station submitted a proposal to the Sub-Divisional Police Officer, Amalapuram to accord permission to refer the case as 'Undetectable'. The Sub-Divisional Police Officer, accorded permission to refer the case as 'Undetectable' vide proceedings in C.D.No.672/RFD/SDPO_A/2018, dated 30.11.2018. Notice was served on the complainant on 02.12.2018 vide P.R.No.295/2018. The investigating agency concluded that there was no foul play for the missing of the charged officer and whereabouts are not known, even after making efforts. (c) As per the findings of the investigating officer in Cr.No.50 of 2012 (man missing case), the whereabouts of Sri Trinatha Rao, ARHC 2929 are not known for 10 years and he was removed from service treated as 'Not on Duty' by the proceedings impugned in the writ petition. The sanction of family pension/providing a job on compassionate grounds is applicable only in the case of employee disappearance under normal circumstances and not in the case in which the employee disappears after committing fraud etc., as per G.O.Ms.No.41 Finance & Planning (FW PEN.I) Department, dated 08.02.1994 and G.O.Ms.No.378 General Administration (Ser.A) Department, dated 24.08.1999. Eventually, prayed to dismiss the writ petition. 4. Heard Sri P.S.P. Suresh Kumar, learned counsel for the petitioners and Sri S.Raju, learned Assistant Government Pleader for Services appeared for the respondents. 5. Learned counsel for the petitioners and learned Assistant Government Pleader for Services reiterated the contentions as per the averments made in the affidavit and counter affidavit. 6. The point for consideration is : Whether the proceedings, issued by respondent No.2 vide D.O.No.499/2022 C.No.62/OE-PR/2012, dated 02.08.2022, legally sustainable? 7. Shorn of other details, there is no dispute that the 1 st petitioner is the wife, 2 nd petitioner is the daughter and 3 rd petitioner is the son of Sri Trinatha Rao; issuance of show-cause notice vide Ex.P4; submission of explanation by the Sri Trinatha Rao vide Ex.P5; thereafter, Sri Trinatha Rao was suspended vide Ex.P7; granting of interim order vide Ex.P8 in O.A.No.2702 of 2012; registration of case in Cr.No.91 of 2012 by the Station House Officer of II Town (Law & Order) Police Station on 23.04.2012; thereafter, Sri Trinatha Rao found missing from 18.05.2012; the brother of Sri Trinatha Rao complained to the Nagaram Police Station and the same was registered as a case in Cr.No.50 of 2012 on 05.06.2012. 8. 8. A perusal of the case dairy submitted by the Sub-Inspector of Police vide Ex.P2 in Cr.No.50 of 2012, would disclose that there is no foul play of the missing man, but the identity was not established. The investigating agency made efforts to trace out the missing man, but in vain. Thus, it is beyond a reasonable doubt, that the whereabouts of Sri Trinatha Rao were not traced out and he was found missing from 18.05.2012. The Sub-Divisional Police Officer, Amalapuram by proceedings in C.dNo.672/RFD/SDPO_A/2018, dated 30.11.2018, accorded permission to refer the case as 'Undetectable' and notice in that regard was served to the complainant on 02.12.2018. Thereafter, the petitioners filed O.S.No.22 of 2020 on the file of learned Junior Civil Judge, Rajolu to declare that Sri Trinatha Rao died on 18.05.2012 and to direct the defendants therein to enter his date of death in the Date of Births & Deaths register and the same is pending. The learned trial court will record a finding about the date of death etc., after a full-fledged trial. 9. Be that as it may, respondent No.2 initiated departmental proceedings vide Ex.P1. As seen from Ex.P1, the Article of Charge is dated 07.09.2020, framed against the delinquent reads as follows: “Exhibited gross neglect of duty and reprehensible conduct by submitting fake/false medical reimbursement bills for a tune of Rs.1,71,974/- which was drawn and paid to him and also submitted 05 fake/false medical reimbursement bills @ Rs.24,850/- for each bill to this office which was under process towards his treatment of BPAP Malaria with Psychosis Disease.” 10. It is pertinent to observe here that the charge memo issued vide Ex.P1, was not communicated to the delinquent/charger officer, on the ground of his non-availability. In fact, in the proceedings impugned, it was noted that the charge memo was not communicated due to the non-availability of the charged officer and the charged officer absconded from 18.05.2012. It was also indicated that the complaint made by one Sri V.Suryanarayana Murthy, brother of Sri Trinatha Rao and submission of final report by the investigating agency dated 30.11.2018. Despite mentioning the said factum, respondent No.2 imposed a major penalty. Thus, it is clear that the authority conducted an inquiry, without serving the articles of charge on the delinquent. It was also indicated that the complaint made by one Sri V.Suryanarayana Murthy, brother of Sri Trinatha Rao and submission of final report by the investigating agency dated 30.11.2018. Despite mentioning the said factum, respondent No.2 imposed a major penalty. Thus, it is clear that the authority conducted an inquiry, without serving the articles of charge on the delinquent. In the considered opinion of this Court, such a course adopted is unknown to service jurisprudence and also violates the Principles of Natural Justice. On this ground alone the order impugned is liable to be set aside. 11. The charge framed against Sri Trinatha Rao, is regarding the submission of fake/false medical bills. However, when it comes to the penalty, it was stated that the charged officer was absent to the duty continuously exceeding one year. Thus, it is clear that the charge framed against the said Sri Trinatha Rao is different from the guilt said to have been committed by the delinquent. 12. It is a classic case that the department proceeded with the inquiry without serving the charge memo on the delinquent, knowing fully well that the delinquent has not been seen for more than seven years. The departmental proceedings are deemed to commence upon service of the charge memo. 13. Rule 6(a) of the Revised Pension Rules, 1980 relevant is extracted hereunder: (6) For the purpose of this rule- (a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner of if the Government servant has been placed under suspension from an earlier date; on such date; 14. Thus, Rule 6(a) makes it clear that the departmental proceedings deemed to be instituted on the issuance of the charge memo, i.e. service of charge memo. 15. In the State of U.P. and Another vs. Shri Krishna Pandey , (1996) 9 SCC 395 the Hon'ble Apex Court observed that the Departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or if the officer has been placed under suspension from an earlier date, from such date the date of suspension and proceedings shall be deemed to have been instituted in the case of criminal proceedings etc. 16. 16. Regarding the presumption of death, while dealing with Sections 107 and 108 of the Indian Evidence Act, the Hob'ble Apex Court In LIC of India v. Anuradha , (2004) 10 SCC 131 the Hon'ble Apex Court observed as follows: “14. On the basis of the abovesaid authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words: the law as to presumption of death remains the same whether in the common law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872 . In the scheme of the Evidence Act, though Sections 107 and 108 are drafted as two sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. 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 a 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. 15. If an issue may arise as to the date or time of death the same shall have to be determined on evidence, direct or circumstantial, and not by assumption or presumption. The burden of proof would lie on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely may it be permissible to proceed on the premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed. 16. We cannot, therefore, countenance the view taken by the High Court in either of the two appeals that on the expiry of seven years by the time the issue came to be raised in the Consumer Forum or civil court and evidence was adduced that the person was not heard of for a period of seven years by the wife and/or family members of the person then not only could the death be presumed but it could also be assumed that the presumed death had synchronised with the date when he was reported to be missing or that the date and time of death could be correlated to the point of time coinciding with the commencement of calculation of seven years backwards from the date of initiation of legal proceedings. In order to successfully maintain the claim for benefit under the insurance policies, it is necessary for the policy to have been kept alive by punctual payment of premiums until the claim was made. In order to successfully maintain the claim for benefit under the insurance policies, it is necessary for the policy to have been kept alive by punctual payment of premiums until the claim was made. The appellant LIC was justified in turning down the claims by pleading that the policies had lapsed and all that could be paid to the claimants was the paid-up value of the policies.” 17. Thus, as seen from the material available on record, despite mentioning about non-availability of the delinquent/charger officer, proceeding further with inquiry and imposing a penalty of ?removal from service? is contrary to the Andhra Pradesh Civil Services (CC&A) Rules, 1991 and the revised pension Rules. 18. The civil case filed by the petitioners qua death of Sri Trinatha Rao is pending consideration vide O.S.No.22 of 2020 on the file of learned Junior Civil Judge, Rajole. The Civil Court will record a finding based on evidence. 19. Given the facts and circumstances of the case, the Writ Petition is allowed by setting aside the proceedings issued by respondent No.2 vide D.O.No.499/2022 C.No.62/OE-PR/2012, dated 02.08.2022. The respondent authorities are directed to take necessary steps regarding the release of retirement benefits of Sri Trinatha Rao, strictly as per the Rules. The observations, if any, made in the order regarding the presumption of death, do not bind the Civil Court while adjudicating the Civil Suit. No order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.