The central legal point established is the application of Rule 49-A of the Tamil Nadu Pension Rules, 1978, in cases of missing government servants and the legal presumption of death under Section 108 of the Indian Evidence Act.

JUDGMENT :

P.N. Prakash, J.

(Prayer: Appeal filed under Clause 15 of the Letters Patent against the order dated 10.09.2018 passed in W.P(MD)No.12181 of 2018.)

This writ appeal is directed against the order dated 10.09.2018 passed in W.P(MD)No.12181 of 2018.

2. For the sake of convenience, the parties will be referred to either by name or by designation, as the case may be.

3. One S.Natarajan was working as Health Inspector Gr.I, Primary Health Centre, T.Pudupatti, Thirumangalam Taluk, Madurai District, under the control of the Office of the Deputy Director of Health Services, Madurai, Public Health Department, Madurai. He went missing from 02.05.2003 and therefore, his wife - N.Ponni gave a complaint at Thirumangalam Town Police Station vide Reference No.GDP/689/SPMD/03 for 'Man Missing'. Since S.Natarajan did not report for duty, the Deputy Director of Health Services, Madurai, issued a Memo, dated 31.01.2006 calling upon S.Natarajan to report for duty. On the complaint of N.Ponni that her husband was missing from 02.05.2003, the Inspector of Police, Thirumangalam Town Circle, Madurai District, registered an F.I.R., in Cr.No.480 of 2012 on 27.07.2012 for 'Man Missing'.

4. Since S.Natarajan was missing from 2003, he did not report to the office and therefore, disciplinary proceedings under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, was initiated by the Director of Public Health and Preventive Medicine against S.Natarajan vide order dated 21.02.2013, appointing one Mr.E.Janakiraman as Inquiry Officer.

5. N.Ponni gave a representation dated 01.03.2013 to the Director of Public Health and Preventive Medicine, seeking disbursement of terminal benefits and family pension for her.

6. Mr.E.Janakiraman, Inquiry Officer sent inquiry notice to the residence of S.Natarajan and the same was received by N.Ponni and not by S.Natarajan. Since S.Natarajan did not appear, an exparte inquiry was conducted and by report, dated 01.03.2013, the charge of unauthorised absence from 31.05.2003 was held to be proved. Based on the inquiry report, the Director of Public Health and Preventive Medicine, by order dated 18.03.2013, removed S.Natarajan from service. Since N.Ponni did not get the terminal benefits and family pension, she filed W.P(MD)No. 12181 of 2018 for a Mandamus to disburse the family pension and other benefits of her husband - S.Natarajan on the premise that he had gone missing from 02.05.2003 and that he was presumed to have died.

7. When the matter came up for hearing before the learned Single Judge, recording the submission of the learned Special Government Pleader, final order was passed on 10.09.2018, which is as follows:

"9. The learned Special Government Pleader appearing for the respondents submitted that as the petitioner's husband could not be traced, appropriate orders may be passed to settle the terminal benefits due to the petitioner's husband by safeguarding the interest of the respondents.

10. Taking into consideration of the fact that the petitioner's husband has worked from 08.02.1982 to 31.03.2003 in the respondents/Department and he is found missing from 2003 and that the presumption is he dead, the terminal benefits due to him have to be paid to the petitioner. Accordingly, the respondents are directed to settle the terminal benefits due to the petitioner's husband within a period of 3 months from the date of receipt of a copy of this order. In case the petitioner's husband appears, then the property of the petitioner will be attached apart from initiation of criminal and other proceedings against the petitioner. The Writ Petition is disposed of accordingly."

8. Aggrieved by the order dated 10.09.2018 passed by the learned Single Judge, the present Writ Appeal has been filed.

9. We have heard Mr.VR.Shanmuganathan, learned Special Government Pleader for the appellants and Mr.P.Murugadasan, learned counsel for the respondent.

10. The issue relating to the settlement of the terminal benefits of a missin