Central Administrative Tribunal - Allahabad
Jyoti Devi vs Union Of India on 21 January, 2026
Reserved on 12.1.2026 CENTRAL ADMINISTRATIVE TRIBUNAL, ALLAHABAD BENCH ALLAHABAD This is the 21st day of January, 2026.
Original Application No. 1678 of 2012 HON'BLE MR JUSTICE OM PRAKASH -VII, MEMBER (J) HON'BLE MR. MOHAN PYARE, MEMBER (A) Jyoti Devi wife of Sri Onkar Kannaujiya, Khallasi Senior Section Engineer (South) presently residing at Miyan Bazar Harijan Basti Hatthi Mai Ka Sthan, Post Sadar, District Gorakhpur.
.Applicant By Adv : Shri S.K Kushwaha VERSUS
1. Union of India through its General Manager, N.E. Railway, Gorakhpur.
2. Chief Engineer, N.E. Railway, Gorakhpur.
3. Deputy Chief Engineer, Gorakhpur Zone, N.E. Railway, Gorakhpur.
4. Finanical Advisor and Chief Account Officer, N.E. Railway, Gorakhpur.
. . . Respondents By Adv: Shri Arvind Kumar (O R D E R) BY JUSTICE OM PRAKASH -VII, MEMBER (J) The present O.A has been filed by the applicant under section 19 of the Administrative Tribunal Act, 1985 seeking following reliefs:-
"(i) The Hon'ble Tribunal may graciously be pleased to quash and set aside the impugned chargesheet dated 22/26.8.2008 and punishment order dated 18/28.12.2008 being disciplinary proceeding is annulled as per Railway Board's letter dated 12.8.1991 and further direction to the respondents, as the removal from services order has been declared illegal, the applicant is entitled for appointment on compassionate ground and all terminal benefits treating her dependant of deceased Railway Servant and the arrears of family MANISH KUMAR SRIVASTAVA 2 pension altogether with 12% interest per annum in the interest of justice along with other benefits accrued to her.
(ii) To issue any other or further order or direction to applicant's representation, which is before to this Hon'ble Tribunal.
(iii) To award cost throughout to the applicants".
2. The brief facts of the OA are as follows:-
The applicant is the widow of a deceased employee who was working as a Khalasi. Her husband went missing on 12.01.2006 when he had gone to arrange money for her medical treatment. Despite repeated efforts, he could not be traced. An FIR regarding his disappearance was lodged on 23.01.2006, and the concerned department was also informed. The applicant submitted representations to the authorities seeking family pension and compassionate appointment, but no action was taken. She also requested that the railway quarter not to be vacated until her case for compassionate appointment was decided. The applicant later came to know that her husband had been removed from service on 18.12.2008 on the ground of unauthorized absence. Through an RTI application, she obtained copies of the charge-sheet and punishment order, but the inquiry report and attendance records were not provided. Thereafter, the applicant amended the Original Application with permission of the Tribunal and prayed for quashing of the removal order and for grant of pensionary benefits and compassionate appointment.
3. Per contra, learned counsel for the respondents has filed a counter affidavit stating therein that the applicant's husband was absent from duty without permission from 17.12.2005. Due to the unauthorized absence, disciplinary proceedings were initiated and he was removed from service vide order dated 18.12.2008. The respondents further stated that several letters were received in the office through postal service allegedly sent by the applicant's MANISH KUMAR SRIVASTAVA 3 husband, in which he claimed that he is alive and had gone underground due to threats to his life caused by his wife. In view of these letters, the respondents informed the applicant on several occasions that compassionate appointment and payment of settlement dues in her name were not permissible. Counter affidavit was also filed after amendment of the O.A. almost stating the same grounds.
4. In reply to the counter affidavits, applicant has filed rejoinder affidavit opposing the contentions as made in the counter affidavit while reiterating the averments as already advanced in the OA. Nothing new has been averred in the rejoinder affidavit.
5 We have heard Shri S.K. Kushwaha, learned counsel for the applicants and Shri Arvind Kumar, learned counsel for the respondents and perused the record.
6. Submission of the learned counsel for the applicant is that the applicant's husband is missing since 12.01.2006. Immediately after his disappearance, the applicant informed the controlling officer of her husband on 13.01.2006. She also approached the police but initially no FIR was registered. Only after repeated efforts, an FIR was finally lodged on 24.03.2007 on the directions of the Senior Superintendent of Police. It is further submitted that despite continuous efforts by the police, the applicant's husband could not be traced. Even after several years, the police submitted reports stating that he was still missing. Thus, for all practical purposes, the applicant's husband must be treated as a missing employee under law. Learned counsel for the applicant further argued that the applicant informed the department about the missing status of her husband well in time and also submitted representations on 31.07.2009 and 27.05.2012, requesting family pension and compassionate appointment but the respondents did not take any action. It is further argued that the Railway Board has issued several circulars clearly providing that in cases of missing employees family MANISH KUMAR SRIVASTAVA 4 pension and other benefits should be granted after the prescribed period. These circulars are based on Section 108 of the Indian Evidence Act, which presumes a person to be dead if he is not heard of for seven years. Learned counsel for the applicant next argued that the removal order dated 18.12.2008 passed against the applicant's husband is illegal, arbitrary and mala fide. At the time of issuing the charge-sheet in August 2008, the department was already aware that the employee was missing since 2006 and an FIR had been lodged. Therefore, issuing a charge-sheet and passing a removal order against a missing person is unjustified and against law. It is also argued that the removal order has been given with retrospective effect, as it was signed later on 28.12.2008, which is not permissible under service law. Moreover, no charge-sheet, inquiry report or punishment order was ever served on the applicant's husband as he was already missing. Learned counsel for the applicant next argued that the respondents have wrongly relied upon alleged letters said to have been written by the applicant's husband claiming that he is alive. These letters were never properly verified and cannot override the official police records and FIR which clearly show that he is missing. It is also submitted that the removal order was passed only with the intention to deny family pension, pensionary benefits and compassionate appointment to the applicant. Therefore, the learned counsel for the applicant sought that the impugned removal order be quashed and the respondents be directed to grant family pension, pensionary benefits and compassionate appointment to the applicant in accordance with law and Railway Board instructions. Learned counsel for the applicant has relied upon the following case laws:-
(i) Smt. Rekha Bai Vs. Union of India and others decided in OA No. 1079 of 2011 on 18.07.2013 by CAT, Jabalpur Bench;
(ii) Union of India and others Vs. Smt. Jira Devi others decided in Civil Writ Jurisdiction Case No. 7761 of 2013 on 16.07.2014 by Hon'ble Patna High Court;
MANISH KUMAR SRIVASTAVA 5
(iii) Ramakant Singh Vs. State of U.P reported in 2011 - ADJ - 4 - 874;
(iv) Smt. Nirmala Vs. Union of India and others reported in 2025 (7) ADJ 402;
(v) Smt. Mithlesh Vs. State of UP and three others decided in Writ A No. 3987 of 2021 on 21.07.2025 by Hon'ble Allahabad High Court;
(vi) The Commissioner Nagpur Municipal Corporation & others Vs. Lalita & others decided in Civil Appeal No. 14786 of 2024 on 29.10.2025 by Hon'ble Supreme Court.
7. Learned counsel for the respondents in rebuttal argued that the applicant's husband was absent from duty without permission from 17.12.2005. He neither reported back to duty nor informed the department about his absence. Such unauthorized absence amounts to serious misconduct under the Railway rules. It is also argued that since the employee remained absent for a long period, the department was left with no option but to initiate disciplinary proceedings against him. A charge-sheet was issued and after following due procedure, an order of removal from service dated 18.12.2008 was passed. Therefore, the removal order is legal and valid. The learned counsel for the respondents further submitted that the case of the applicant's husband cannot be treated as a case of a "missing employee" because several letters were received by the department through postal service allegedly written by the employee himself. In those letters, he stated that he is alive and had deliberately gone underground due to threats to his life caused by the applicant. These letters clearly show that the employee was alive and had intentionally absented himself from duty. It is further argued that since the employee himself avoided duty and concealed his whereabouts, the department cannot be held responsible for his absence. In such circumstances, the presumption under Section 108 of the Indian Evidence Act cannot be made. Learned counsel for the applicant next argued that since the employee was removed from service, the applicant is not entitled to family pension or compassionate appointment. Compassionate appointment is not a MANISH KUMAR SRIVASTAVA 6 matter of right and can be granted only when the employee dies while in service or is presumed dead under law, which is not the case here. It is also argued that there is no illegality, arbitrariness or mala fide intention in passing the removal order. The disciplinary action was taken strictly in accordance with rules and the applicant has failed to make out any legal ground for interference by the Tribunal. Thus, the learned counsel for the respondents argued that the Original Application is liable to be dismissed, as the applicant is not entitled to any relief sought.
8. We have considered the rival submissions advanced by the learned counsel for the parties and have gone through the entire records.
9. Before discussing the submissions raised across the bar, it will be profitable to quote the relevant paragraphs of the case laws relied upon by the applicant's side.
(i) The relevant portion of Smt. Rekha Bai (supra) case reads as under:-
5. We are unable to send the aforesaid arguments of the learned counsel for the respondents, as the Hon'ble High Court has already negated the aforesaid objection of the respondents, while considering the case of applicant for compassionate appointment in paragraphs 6 of its judgment which reads as under;
The contention of the respondents that the services of Chundrika Prasad were terminated on the ground of his unauthorized absence has also got no merit. The absence of Chandrika Prasad was reported by petitioner No.1 by lodging FIR on 11.10.1995. It is after filing of the said missing reports and notifying that Chandrika Prosad is not traceable, the respondents took action against him for his absence and passed termination order on the ground of his unauthorized absence. Obviously such order of termination after getting the knowledge that the employee is missing on the ground of his unauthorized absence will have no effort so far as the claim for compassionate appointment. On the basis of such plea the respondents cannot be allowed to deprive the petitioners from claiming compassionate appointment.
2. Since the Han'ble High Court has already held that the applicant is entitled tor compassionate appointment as per clause 11 of the scheme for compassionate appointment which is applicable in case of missing Government servants and thus treated the husband of the applicant as Government servant ignoring his order of removal, for remaining unauthorised absence after due departmental enquiry. By taking into consideration that the employee concerned was missing, during that MANISH KUMAR SRIVASTAVA 7 period, it is not open to the respondents to reject the applicants claim for family pension by reiterating the same ground. The Government of India. Ministry of Personnel, Public Grievance and Pensions, Department of Pension & Pensionars. Welfare has issued the consolidated instructions vide their O.M NO1/17/2011- P& PW(F) dated 24th June, 2013 on the subject of Grant of family pension and gratuity to the eligible member of the family of an employee/pensioner/ family pensioner reported missing, which read thus The provisions regarding grant of gratuity and family pension to the members of families of the deceased Government servants/pensioners who were appointed on or before 31st December, 2013 and who are/were born on pensionable establishments are contained in Rules 50-54 of the Central Civil Services (Pension) Rules, 1972. The instructions regarding grant of family pension and gratuity under these rules in the eligible member of the family of an employee reported missing had been issued vide this Department's earlier office memorandum No. 1/17/86-P&PW dated 29 August, 1986. Classification/amendments in this regard were issued vide OM No. 1/17/86-P&PW, dated 25 January, 1991 and 18th February, 1991 and OM No. 1/28/04-P&FW(E) dated 31 March, 2009 and 2nd July, 2010. OM of even number, dated 14th September, 2011 and OM No1/7/2010-P&PW (E), dated 2nd January, 2012.
3. A reference has been received in this Department to clarify whether in a situation where SHO states that FIR is not required to be lodged in the case of person gone missing the eligible member of the family can be granted family pension. The matter has been examined in consultation with the Ministry of Home Affairs. Section 154 (1) of fle Criminal Procedure Code mandates filing of an FIR by the Police authorities on a report received of the commission of a cognizable offence. A missing person per se does not point to commission of a cognizable offence. In view of this, cognizance of a person disappearance can be taken by the Head of Office on the bash of an authenticated Daily Diary (DD)/General Entry (GDE) filed by the Police authorities concerned, as per the practice prevalent in that State/UT It has now been decided to issue consolidated instructions in supersession of previous instructions regarding grant of family pension to the eligible members of family of the employee/pensioner/family pensioner reported missing and whose whereabouts are not known. It includes those kidnapped be insurgents/terrorists but does not include those who disappear after committing frauds/crime ete
4. In the cave of a missing employee/pensioner/family pensioner, the family can apply for the grant of family pension, amount of salary due, leave encashment due and the amount of GPF and gratuity (whatever has not already been received to the Head of Office of the organization where the employee/petitioner had last served, six months after lodging of Police report. The family pension and/or retirement gratuity may be sanctioned to the Administrative Ministry/Department after observing the following formalities;
(i) The family must lodge a report with the concerned Police Station and obtain report from the Police, that the employee/pensioner/family pensioner has not been traced despite all efforts made by them. The report may be a First Information Report or as other report such as a Daily Diary General Diary Entry.
(ii) An Indemnity Bond should be taken from the nominee/dependants of th employee/pensioner/family pensioner that all payments will be adjusted against the payments due to the employee/pensioner family pensioner in case she/he appears on the scene and makes any claim.
MANISH KUMAR SRIVASTAVA 8
5. In the case of a missing employee, the family pension, at the ordinary or enhanced rats as applicable, with accrue from the expiry of leave or the date up to which pay and allowances have been paid or the date of the police report, whichever is later. In the case of a missing pensioner/family pensioner, it will accrue from the date of the police report or from the date immediately succeeding the dare till which pension/family pension had been paid, whichever is later.
6. The retirement gratuity will be paid to the family within three months of the date of application. In case of any delay, the interest shall be paid at the applicable rates and responsibility for delay shall be fixed. The difference between the death gratuity and retirement gratuity shall be payable after the death of the employee is conclusively established or on the expiry of the period of seven years from the date of the notice report"
(ii) The relevant portion of Smt. Jira Devi (supra) case reads as under:-
"Before proceeding further, what needs to be noted is that two issues, broadly speaking, fall for determination in this writ petition, namely, (i) whether family pension shall be made available to the wife of a missing Railway employee after one year from the date, when the employee was found missing, or one year Patna High Court CWJC No.7761 of 2013 (5) dt.16-07-2014 7/11 after the date on which the F.I.R., as regards disappearance of the employee, was lodged and the second issue is (ii) if, in the facts and circumstances of the present case, the direction, given by the learned Tribunal to pay pension with effect from 01.06.1998 (i.e., one year after the date on which the husband of the respondent went missing) is legally valid?
We notice that the Railways Circular, bearing R.B.E. No.3/94 read thus:
"GOVERNMENT OF INDIA (BHARAT SARKAR) MINISTRY OF RAILWAYS/RAIL MANTRALAYA (RAILWAY BOARD) RBE No. 3/1994 No. F(E)III/86/PN 1/17 dated 21/01/1994 Subject :- Grant of settlement dues to eligible family members of Railway employees who have suddenly disappeared and whose whereabouts are not known.
Attention is invited to this Ministry's letters of even number dated 19.9.1986 and 27.3.1991 [RBE 63/1991] on the above subject as per which the families of the employees/pensioners whose whereabouts are not known are paid in the first instance, the amount of salary due, leave encashment due and the amount of Provident Fund pertaining to his own subscription in the State Railway Provident Fund having regard to the nomination made by the employee and after the lapse of a period of one year other benefits like DCRG and family pension are also paid. The period of one year is reckoned MANISH KUMAR SRIVASTAVA 9 with reference to the date on which FIR is lodged with the police about the disappearance of the concerned employee/ pensioner. At present the family pension is Patna High Court sanctioned and paid to the eligible member of the family one year after date of registering the FIR with the police and no family pension is paid for the intervening period of one year from the date the FIR is lodged to the date the family pension can be sanctioned. It has now been decided that the family pension, which in pursuance of the earlier orders, will continue to be sanctioned and paid one year after the date of lodging the FIR, will accrue from the date of lodging the FIR or expiry of leave of the employee who has disappeared whichever is later. When the sanction for family pension is issued, the payment of pension from the date of accrual may be authorised. The usual procedure of obtaining the indemnity bond etc. as laid down in the letter dated 19.9.1986 will continue to be followed. While sanctioning payment of family pension, it will be ensured by the concerned authorities that family pension is not authorised for any period during which payment of pay & allowances in respect of the disappeared employee has been made.
This is in supersession of Board's earlier order of even number dated 21.01.1992 [RBE 8/1992] "
From a cautious reading of what has been reproduced above, it becomes abundantly clear that when a Railway employee is found missing, family pension to his wife will be made available and, for this purpose, it is the date of the F.I.R., lodged with the police, which would be taken into account and the benefits of family pension would be made available after one year of the date of report of disappearance.
The learned Tribunal is, therefore, wholly incorrect in taking the view that the family pension becomes payable after one year of the date, when a Railway employee goes missing irrespective of the fact as to whether the F.I.R. was lodged or not. To this extent, the impugned order, dated 13.07.2012, passed by the learned Tribunal, is incorrect and, we hasten to reiterate, that family pension would become available to the wife of a missing Railway employee with effect from one year after the date of lodging of the F.I.R. as regards the disappearance of her husband.
Coming to the relief, which has been granted in the present case, what needs to be noted is that the petitioner‟s husband, admittedly, went missing on 01.06.1997. There is also no denial, as the written statement filed in the learned Tribunal indicates, of the fact that the respondent had tried to get the F.I.R. registered with regard to the disappearance of her husband, but having not succeeded, she made a complaint, in this regard, under registered MANISH KUMAR SRIVASTAVA 10 post, to the jurisdictional Chief Judicial Magistrate on 03.02.2003. In the face of the fact that no denial of these assertions of the respondent herein took place in the proceedings before the learned Tribunal, it clearly follows that it was soon after the disappearance of the husband of the applicant- respondent herein Patna High Court dt.16-07-2014 10/11 that attempted to lodge an F.I.R. was made by the respondent herein, but she did not succeed".
(iii) The relevant portion of Ramakant Singh (supra) case reads as under:-
7. The learned Single Judge has dismissed the writ petition on the ground that neither the State nor the District Judge was made parties in the suit.
The case was conducted without impleading the proper and necessary parties. The decree obtained therefore would not be against the District Judge, and will not binding on him or the State Government.
8. Learned counsel for the appellant has relied upon judgments of the Supreme Court that in the matter of presumption drawn under Section 108 of the Evidence Act, and submits that it was not necessary for the petitioner to have filed the suit. Section 108 of the Evidence Act comes into play, for presuming civil death.
9. Section 108 of the Indian Evidence Act, 1872 is quoted hereunder:-
"108. Burden of proving that person is alive who has not be heard of for seven years. - Provided 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."
10. In the present case the son (appellant) of the deceased employee had filed a suit impleading his sister and Avam (general public) for declaring that his father will be presumed to have died. The plaint was verified by the son of the deceased, and that there was no denial by any one that his father Sri Veer Pratap Singh went missing and that an FIR was lodged in which the police had filed a closure report.
11. We find that the learned Single Judge did not consider that even if the suit was not filed, the presumption could be drawn, if the conditions imperative for raising the presumption were satisfied. Once a presumption of civil death is raised on the satisfaction of the conditions given in Section 108 of the Indian Evidence Act, the burden of proof that he is alive, is then shifted to the person who affirms that the person reported missing was seen and is alive".
(iv) The relevant portion of Smt. Nirmala (supra) case reads as under:-
"8. Here is one such case where there was no contest regarding succession by petitioner to Anil Kumar's property, nor there was any third party setting up a rival claim to be the wife of Anil Kumar. In these circumstances, respondents were not justified in denying a valid claim of terminal dues to the petitioner. It is also a case where denial has been made on flimsy grounds despite report of police that there were no traces available of missing Anil Kumar. It is also not a case where the police had expressed any doubt regarding conduct and character of wife or her involvement in Anil Kumar going missing. Hence petitioner not only is entitled to claim qua terminal dues but also deserves interest for such forced litigation thrown upon her over these years".
MANISH KUMAR SRIVASTAVA 11
(v) The relevant portion of Smt. Mithlesh (supra) case reads as under:-
"31. In view of the above, therefore, I hold the enquiry report holding petitioner's husband to be guilty of misconduct for being absent from duty without leave to be absolutely bad for want of evidence, hence unsustainable. Since finding in the enquiry report itself is bad, therefore, the action taken by the disciplinary authority to terminate the services of Deshraj Singh is also held to be bad and unsustainable.
32. In normal course the Court would have remitted the matter for enquiry afresh, but it is a case where police himself admitted Deshraj Singh to be missing for more than 7 years and no traces of him could be found and hence, the Department concerned is liable to treat his case as of civil death and no amount of enquiry would not change this admitted fact.
33. In the circumstances, therefore, Court considers the case of Deshraj Singh to be a case of civil death and hence petitioner is held entitled to all terminal dues and so also the son of the petitioner is held entitled to be offered compassionate appointment. The Court also notices that more than five years have expired since civil death of Deshraj Singh but since application for compassionate appointment was moved in the year 2020 itself, in my considered view said application deserves to be granted.
34. In view of the above, writ petition succeeds and is allowed. The enquiry report dated 08.08.2024 and the order dismissing/ terminating the services of Deshraj Singh dated 29.11.2020 are quashed. The order rejecting the application of the petitioner for terminal dues and compassionate appointment for her son dated 05.11.2020 is also hereby quashed.
35. Respondent concerned is directed to forthwith compute the terminal dues of late Deshraj Singh and disburse the same within next two months of production of certified copy of this order. The application moved by the petitioner for the employment of her son on compassionate basis shall be reconsidered and an appropriate order shall be passed thereupon and if there is no legal impediment, the application should be granted offering compassionate appointment to the son of the petitioner after completing formalities within a further period of six weeks'
(vi) The relevant portion of Lalita (supra) case reads as under:-
"9. Thus, in the facts and circumstances of the case, the father of the respondent No.2 would be deemed to have died a civil death upon the expiry of seven years from the date he went missing i.e., 01.09.2019. It is pertinent to note that despite having gone missing, he was treated to be in continuous service and he duly retired on 31.01.2015. The family members were paid all the retiral dues and have also been receiving monthly pension. In these circumstances, when the respondent No.2 has accepted that his father had retired, he cannot claim compassionate appointment.
10. This apart, the High Court manifestly erred in directing the appellants to straight away grant compassionate appointment to respondent No.2, instead of directing them to consider his case for compassionate appointment and thereafter to extend the appointment, upon satisfaction of prescribed conditions.
11. In view of the aforesaid facts and circumstances, we are of the opinion that the impugned judgment and order dated 18.07.2024 passed by the High Court cannot be sustained in law. Accordingly, the impugned judgment and order dated 18.07.2024 passed by the High Court is hereby set aside.
MANISH KUMAR SRIVASTAVA 12 However, we leave it open to the appellants to consider the case of the respondent No.2 for appointment for any suitable post within its jurisdiction, independent of claim for compassionate appointment, if necessary by granting age relaxation, provided the same is otherwise permissible in law".
10. In the instant matter, as is evident from the record, the applicant's case is that her husband, who was employed under the respondent department, is missing since 12.01.2006. It is also the case of the applicant that she approached the local police immediately thereafter, but no report was lodged by the concerned police authorities at that time. From the perusal of the record, it is further evident that a missing report was ultimately lodged by the police on 24.03.2007 and this fact was duly informed to the competent authority regarding the missing of her husband along with the information lodged with the police.
11. From the pleadings of the parties, it is also evident that till date no police report/final report has been submitted by the concerned police and efforts to trace the missing employee are still continuing. The record further reveals that after the information given by the applicant to the respondents, a charge-sheet was issued in the year 2008 on the ground of unauthorized absence and vide order dated 18.12.2008, the applicant's husband was removed from service. It further appears that the applicant's husband did not participate in the enquiry proceedings. A copy of the removal order dated 18.12.2008 was sent to the address of the applicant's husband, but the same was returned unserved. Thereafter, publication was made in the newspaper. The removal order passed by the respondents (Annexure CA-1) also reveals that the enquiry was concluded in ex parte manner, presuming that the applicant's husband was not willing to continue in service.
12. Perusal of the record further reveals that the applicant applied for family pension on the ground that her husband had been missing from duty since 12.01.2006 and his whereabouts were not traceable, therefore, she was entitled to family pension. Learned counsel for MANISH KUMAR SRIVASTAVA 13 the applicant has relied upon Annexure A-8 (Page 23) as well as RBE No. 150/1991. Learned counsel has also relied upon RBE No. 8/1992 and RBE No. 3/1994. RBE No. 150/1991 deals with cancellation of penalty of removal from service imposed on charge of unauthorized absence where it later transpires that the case is one of genuine missing and grant of consequent benefit to the missing person's family. In this RBE, it is clarified that in such type of cases where it is established that the railway employee was really missing and not unauthorizedly absent, the disciplinary action should be treated as initiated on invalid premises and the on-going disciplinary action or the punishment order should be annulled. It is also clarified that annulment in the on-going disciplinary proceedings in such type of cases may be made by the disciplinary authority, in the case of punishment order already issued, the annulment may also be made by the appellate/revision authority as the case may be. Further clarification has been made in this RBE that "it is not necessary to follow any 'Revision' or 'Review' procedure since the charges/punishment are obviously based on invalid premises".
13. In the rejoinder affidavit, the applicant has annexed a copy of the attendance register and information obtained under the Right to Information Act.
14. In the counter affidavit, the respondents have annexed orders passed by them as well as letters allegedly sent by the applicant's husband. The respondents have also annexed a copy of the plaint filed before the competent court under Section 13 of the Hindu Marriage Act (Divorce Petition) as well as the publication made by the respondents for informing the missing employee about the punishment imposed upon him. Annexure CR-11 has also been filed, which was sent by one Shiv Das claiming himself, the brother of the missing employee. The respondents have rejected the claim of the applicant on the ground that several letters have been sent either MANISH KUMAR SRIVASTAVA 14 by the missing employee or his brother to the department claiming that the employee is still alive.
15. Perusal of the record also reveals that the concerned employee neither appeared before the respondents nor participated in the enquiry proceedings. There are two versions presented by the applicant and the respondents regarding the date of missing of the applicant's husband. In the OA, the date of missing is shown as 12.01.2006. The disciplinary proceedings were initiated by issuing a charge-sheet against the applicant's husband showing that he was unauthorizedly absent from duty since 17.12.2005, although the disciplinary proceedings were initiated in the year 2008.
16. The question that arises is whether, in the facts and circumstances of the case when the applicant's husband did not appear before the concerned authority, nor participated in the enquiry proceedings, and also did not appear before this Tribunal to resist the applicant's claim particularly when several letters allegedly sent in his name were received by the respondents claiming that he is alive, it would be appropriate to presume the civil death of the applicant's husband or not. It is also to be decided whether, in the facts and circumstances of the case, the removal order passed against the applicant's husband can be annulled and whether the pleadings and evidence brought on record by the applicant are sufficient to establish that her husband has been missing since 12.01.2006.
17. To determine the first question formulated above, we have carefully gone through the entire record as well as the case laws relied upon by the applicant, as quoted hereinabove. In the similar circumstances, the Hon'ble Patna High Court in the case of Smt. Jira Devi (supra) allowed family pension by treating the missing employee as civil death. The Hon'ble Allahabad High Court in the case of Ramakant Singh (supra) also allowed the claim and directed the respondents to proceed with compassionate appointment. It was MANISH KUMAR SRIVASTAVA 15 also observed that the burden of proving that the missing employee is alive shifted to the person who asserts it. Again similar issue came up for consideration before the Hon'ble High Court, Allahabad in Smt. Mithlesh (supra) case and disciplinary proceeding started against the missing employee on the ground that he was absent from duty without leave and punishment imposed on the basis of said charge terminating the service of the missing employee was found bad and unsustainable. The Hon'ble Allahabad High Court specifically held that the police had admitted that the whereabouts of the missing employee were not known. As more than seven years had elapsed, the department could treat the missing employee as civil death. It was observed that no amount of enquiry would change the admitted fact. Accordingly, compassionate appointment and other benefits were directed.
18. In the present matter, disciplinary proceedings were initiated against the missing employee on the basis of absence from duty since 17.12.2005. These proceedings were initiated in the year 2008, whereas the applicant had lodged a missing report with the police on 24.03.2007 itself. More than 19 years have elapsed and till date the police have not been able to trace the whereabouts of the missing employee, as is evident from the pleadings contained in the counter affidavit. Several letters were sent to the department and even before this Tribunal in the name of the missing employee, yet he never appeared either before the department or the Tribunal. Had he been alive, he would have appeared before the respondents. No any complaint has been lodged on his behalf to the police regarding the threat said to have been caused by the applicant to him. It is possible that some other persons might have sent letters in his name claiming that he is alive. The burden placed upon the applicant stands discharged, as she lodged the missing report in the year 2007 itself and had duly informed the department. The whereabouts of the missing employee remain unknown even today. Mere letters sent in the name of the missing employee are not sufficient to conclude that MANISH KUMAR SRIVASTAVA 16 he is alive. Therefore, remanding the matter to the authority concerned would not serve any fruitful purpose for fresh enquiry. Since the missing report lodged by the applicant regarding her husband was genuine and he has not been seen since 12.01.2006 and he has not appeared before any authority since then, this Tribunal observes that more than seven years (nearly 29 years) have elapsed since the date of his disappearance, accordingly, a presumption of civil death is drawn.
19. The next question is whether the punishment imposed upon the applicant's husband in the disciplinary proceedings can be annulled. A bare reading of RBE No. 150/1991, RBE No. 8/1992, and RBE No. 3/1994 clearly reveals that annulment of punishment imposed in disciplinary proceedings can be done at the level of the appellate or revisional authority if it is established that the employee was missing on the date of issuance of the charge-sheet and the proceedings were conducted ex parte.
20. In the present matter, the contents of the charge-sheet and the pleadings of the applicant clearly show that the employee did not participate in the enquiry, which was conducted in ex parte manner, resulting in the imposition of punishment. The punishment order was served by way of publication in the newspaper. The applicant's plea also finds support with the respondents' pleadings to the extent that the police have not been able to trace the whereabouts of the employee till date.
21. In these circumstances, it can safely be presumed that the missing of the employee was genuine. Mere pendency of the divorce petition and the sending of letters in his name without his appearance, do not discredit the applicant's case. It is clarified that Courts/Tribunals have also annulled the punishment if circumstances established before it. Since the punishment was imposed solely on the ground of absence, the same is also liable to be annulled in light of RBE No. 150/1991, RBE No. 8/1992, and MANISH KUMAR SRIVASTAVA 17 RBE No. 3/1994. The punishment imposed upon the employee is annulled in light of RBE No. 150/1991, RBE No. 8/1992, and RBE No. 3/1994. Consequently, the prayers made in the OA for grant of family pension, other post-retiral benefits, and consideration for compassionate appointment are liable to be allowed.
22. Accordingly, the OA is allowed. The impugned punishment order dated 18/28.12.2008, as well as the entire enquiry proceedings are annulled and declared illegal and the removal of the applicant's husband from service is set aside. The case of the applicant's husband, namely Onkar Kannaujiya is treated as one of civil death. The respondents are directed to grant family pension and terminal benefits treating the applicant as the dependent of the missing employee as there is no dispute that she is the legally wedded wife of the missing employee Onkar Kannaujiya. The entire exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order. If an application for compassionate appointment has been moved or is moved by the applicant, the same shall also be considered in accordance with law. No order as to costs. All pending MAs stand disposed of.
(Mohan Pyare) (Justice Om Prakash VII)
Member (A) Member (J)
Manish/-
MANISH
KUMAR
SRIVASTAVA