Disciplinary action against a missing employee is invalid; presumption of civil death permits family pension and compassionate appointment.

(ORDER)

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 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 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 t