VERMA, J. - (1.) THE present writ petition has been filed by the petitioner Phooli Devi Wife of Nanga Ram Meena and Roshan Lal Meena son of Shri nanga Ram Meena with the prayer that the petitioners are entitled to all pensionary benefits including GPF, Insurance etc. payable to Nanag Ram Meena with the further prayer that the petitioner No. 2 is also entitled to appointment on compassionate ground because of the death of Nanag Ram Meena while in service.
(2.) THE facts are that one Nanag Ram Meena was working as Chowkidar on temporary basis since 1. 5. 1970 and was made permanent in the year 1972. He continued to work with the respondent till 2. 4. 1986 but vanished w. e. f. 3. 4. 1986. He had put in about 15 years of service. A public notice was issued in the news paper `daily Navjyoti' no 11. 10. 1987 asking the said Nanag Ram meena to present himself in the office and again further notice were issued on 22. 3. 1988 for the same direction. According to the petitioner said nanag Ram Meena is un-traceable since April 1986 and he has not been heard or traced ever since. After about 10 years of such dis-appearance of this husband of the petitioner No. 1, she applied to the department that said Nanag Ram Meena is presumed to be dead and that she be given the appointment in place of her husband on compassionate ground under the Recruitment to the Government Servants (Dying While in Service) Rules. Even a demand notice was issued for granting the family pension, arrears of salary of the husband etc. etc. Her son has also become major on 24. 7. 2000. Ultimately, finding no response the present petition has been filed for the reliefs mentioned therein. In the reply filed by the respondent, it is not denied that nanag Ram Meena was employed with the respondent but according to the respondent he had dis-appeared from 2. 4. 1986 and despite notices having been published for his attending the office in the year 1986 and 1987, he has not been heard of nor her has joined the service. It is the case of the respondent that the petitioners have not initiated any proceedings before any competent court for the presumptive finding that Nanag Ram Meena is presumed to be dead. It is further submitted by the respondent that because of the absence of Nanag Ram Meena right from 1986 and also of the fact that he had never reported for duty; he was charge-sheeted on 28. 5. 1993 along with statement of allegations which was returned back as unserved and ultimately the service of said Nanag Ram Meena are said to be terminated on 23. 4. 2001 vide Annexures R/3 and R/4. Even though it is not denied that Nanag Ram Meena had not been heard of right from 1986, but it is submitted that the petitioners are not entitled to any service benefits of Nanag Ram Meena. Counsel for the petitioner relies on the judgment of this court in the case of Smt. Chaya Nandini vs. State & Ors. (1), wherein presumption is to be drawn u/sec. 108 of the Evidence Act about the death of a person if he is not heard of by the persons who would have naturally heard of him if he had been alive; it was held that the widow was entitled to all benefits treating her husband to be dead. Almost in similar circumstances as the present case and in the case of Smt. Chaya Nandini (supra), it was observed as under:- "having heard the learned counsel, I am of the opinion that since there is a uncontroverted affidavit of the petitioner that she has not heard of her husband for the last seven years, a presumption would arise under Sec. 108 of Evidence Act that he is dead. The respondents, therefore, have to grant relief to the petitioner on the basis that her husband is dead and she is a widow of deceased Govt. servant. " This petition is, therefore, allowed and it is directed that the respondents shall grant all the benefits to the petitioner to which she is entitled on the basis that she is widow of a deceased Govt. servant. The petitioner or any member of family of the deceased Govt. servant shall be entitled to employment under the relevant Rules as a dependent of the petitioner's husband and the rightful claimants of family pension and pensionary benefits or arrears of salary and pension etc. , of petitioner's husband shall also be entitled to these benefits. All these will be determined and paid within a period of four months from today. The employment of a dependent of deceased Govt. servant shall also be decided within three months. There shall be no order as to costs. ' To the similar effect is the Single Bench judgment of Bombay High Court in the case of Subhash Ramchandra Wadekar vs. Union of India (2), wherein it was held as under:- `sec. 108 of Indian Evidence Act enacts law of rebuttable presumption in case of a person who has not been heard of more than 7 years. The relevant provisions of Indian Law and English Law are identical. To my mind, the above referred proposition of law formulated in Halsbury's Laws of England cannot be considered as an absolute proposition of law applicable in all situations irrespective of facts although ordinarily the presumed date of presumed death can be fixed on expiry of statutory period of seven years. It must be clarified that the presumption of law concerning death of a person raised from continuous absence of a person for 7 years as more particularly set out in Sec. 108 of the Act is merely a rebuttable presumption of law and not a conclusive presumption. ' The petitioner has filed an affidavit that he husband had left home on 3. 4. 1986 and had not been heard of the respondent has been issuing public notices for appearance of the husband of the petitioner No. 1 with the direction to resume duty otherwise his services could be dispensed with. It is the common case of the parties that the husband of petitioner No. 1 was not heard of at all and, therefore, in my opinion, presumption is to be drawn u/sec. 108 of the Indian Evidence Act that Nanag Ram Meena is presumed to be dead having not been heard of more than 7 years i. e. there is a legal presumed death so far as Nanag Ram Meena is concerned and in my opinion respondent was not justified in denying the family pension, provident fund and other benefits which may be otherwise available to the petitioners if Nanag Ram Meena had actually died. It is not the case of the respondent that any fraud is being played on the State and even otherwise if at any time in future, any such information comes to the respondent of the fact that nanag Ram Meena had come back, or was not dead, a proper civil and criminal action can always be taken.
(3.) THE action of the respondent cannot be appreciated to terminate the services of Nanag Ram Meena in 2001 when the petitioner had started giving demand notices for employment of her son when he had attained the age of majority. Such termination of a person who is presumed to be dead after 7 years from April 1986 has no meaning what-so-ever. No charge-sheet can be issued to a dead person, nor his services can be terminated. Any order passed of termination of services of said Nanag Ram Meena had no relevancy in the present circumstances as the date to be taken for awarding the retiral benefits is April 1986. For the above-said discussion and reason, I allow the writ petition with the direction to the respondent to grant family pension and all retiral benefits within a period of four months to the widow of Nanag Ram Meena who is presumed to be legally dead under the presumptive clause of Sec. 108 of the Evidence Act for having not been heard of right from April 1986 along with arrears and interest thereon which interest shall start commencing from 1. 1. 1994 i. e. after 7 years of the presumption of death @ 10% p. a. and in case the compliance is not made within the stipulated period, the interest rate shall stand enhanced to 12% p. a. The respondent shall be liable for any other action as well for not complying with the order of this Court. The case of respondent No. 2 shall be considered for appointment on compassionate ground in accordance with law within six months. ;