2014 Supreme(Raj) 1609
RAJASTHAN HIGH COURT AT JAIPUR BENCH
Mohammad Rafiq, J.
Smt. Kamla - Appellant
Versus
State of Rajasthan and Others - Respondent
S.B. Civil Writ Petition No. 2992 of 2012.
Decided On : 16-07-2014
Advocates:
For the Petitioner:Kamla, Advocate.
For the Respondent:Shailendra Kumar Gaur, Advocate.
The proviso to Rule 268B of the Rajasthan Service Rules, 1951, entitles the family of a government servant who is missing for more than one year to family pension, even if the government servant has not been declared dead by a court of law.
Headnote:
FAMILY PENSION - Rajasthan Service Rules, 1951 - Rule 268B - Proviso - Entitlement of family pension to the petitioner - Conditions - Interpretation of Rule 268B - Presumption of death under Section 108 of the Indian Evidence Act, 1872 - Applicability.
Fact of the Case:
Petitioner's husband, a constable in the Police Wireless Department, was dismissed from service for willful absence. The petitioner claimed family pension under the proviso to Rule 268B of the Rajasthan Service Rules, 1951, but it was denied by the respondents.
Finding of the Court:
The Court held that the petitioner was entitled to family pension under the proviso to Rule 268B of the Rajasthan Service Rules, 1951, as her husband was presumed dead under Section 108 of the Indian Evidence Act, 1872, since he had been missing for more than seven years.
Issues: 1. Whether the petitioner was entitled to family pension under the proviso to Rule 268B of the Rajasthan Service Rules, 1951? 2. Whether the petitioner's husband was presumed dead under Section 108 of the Indian Evidence Act, 1872?
Ratio Decidendi: 1. The Court interpreted the proviso to Rule 268B of the Rajasthan Service Rules, 1951, and held that it entitled the petitioner to family pension even though her husband had not been declared dead by a court of law. 2. The Court applied the presumption of death under Section 108 of the Indian Evidence Act, 1872, and held that the petitioner's husband was presumed dead since he had been missing for more than seven years.
Final Decision: The Court allowed the writ petition, quashed the order of dismissal of the petitioner's husband, and directed the respondents to grant family pension and all terminal benefits to the petitioner with effect from the date her husband was last heard of.
JUDGMENT
1. - This writ petition has been filed with prayer that respondents be directed to sanction family pension to petitioner in accordance with proviso to Rule 268B of the Rajasthan Service Rules, 1951, and release the amount of GPF, State Insurance, amount of Police Welfare funds and other consequential benefits which petitioner is entitled to.
2. Facts in brief as unfolded in the writ petition are that the petitioner's husband Shri Pooran lal was appointed on the post of Constable in Police Wireless Department on 19.02.1977. He was later on confirmed on the said pot vide order dated 01.10.1982. Vide order dated 02.11.1987 he was terminated from service by the Director, Police Wireless, Rajasthan, Jaipur, for willful absence. Therein it was mentioned that special messenger was sent at the house of Pooran Lal at Kaman but he was not available there, therefore, the special messenger recorded statements of Bishambar Dayal, Rameshwar Lal, Mool Chand and of the petitioner and all stated that for last one and a half year, the whereabouts of Pooran Lal are not known. Since he did not appear in the departmental proceedings under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, 'the CCA Rules'), ex-parte proceedings were drawn and he was terminated. Hence this writ petition.
3. I have heard the parties and perused the material available on record.
4. The petitioner argued that refusal by the respondents for family pension was contrary to proviso of Rule 268B of the Rajasthan Service Rules.
5. In this regard, reliance can be placed on judgments of this Court in State of Rajasthan & Ors. v. Phooli Devi & Ors., reported in 2003 (1) WLC (Raj.) 479 and further in the case of Smt. Shakuntala Kanwar v. Union of India & Ors., reported in 2002 (4) WLC (Raj.) 315 and Single Bench judgments of this Court in Kaushlendra Singh Naruka v. The State of Rajasthan & Anr. reported in 2000 (1) WLC (Raj.) 723 and Indira Devi (Smt.) v. State of Rajasthan & Anr., {2007(1) RLW 92} .
6. The petitioner has further argued that the petitioner had been regularly representing to the respondents for redressal of her grievances. The respondents have however technically refused to sanction family pension to her. The disciplinary proceedings against husband of the petitioner were conducted ex-parte and no notice of those proceedings was served either on the petitioner or any of her legal heirs. Such proceedings conducted in utter disregard of the principles of natural justice were void in law and consequently the order of dismissal passed on the basis of such proceedings was also illegal.
7. The representative of the respondents Department argued that present petition suffers from delay and latches. Husband of the petitioner was absenting from duty since 04.12.198 and earlier also he remained absent from 4/5.07.1985 to 31.10.1985. He was dismissed from service vide order dated 02.07.1987, therefore, no step was required to be taken as per notification of the Department of Finance dated 19.11.1993. He argued that husband of petitioner remained willfully absent for a very long time and therefore after holding disciplinary proceedings, he was dismissed from services. He argued that petitioner did not take any steps to lodge the First Information Report about missing of her husband for several years. In the circumstances, the writ petition is liable to be dismissed.
8. I have given my anxious consideration to the submissions aforesaid and perused the material on record.
9. The issues raised in this writ petition in so far as the proposition of law on the controversy involved herein is concerned, are no longer res interga. A Division Bench of this Court in Phooli Devi (supra) in somewhat similar circumstances authoritatively held as under:-
"12 Rather action of the appellant State in initiating inquiry proceedings after seven years of disappearance of the Government servant and further holding such inquiry proceedings with
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