Alok Sharma, J. - (1.) This petition has been filed with a prayer that the order dated 29.07.2005 dismissing one Lalu, father of the petitioner for un-authorized absence be quashed and set aside. Further relief in the petition prayed is that the respondents be directed to pay all the legal dues i.e. gratuity, GPF, encasement of leave and pensionary benefits of late Lalu to the eligible family members of the petitioner. It is also prayed that the petitioner be considered for compassionate appointment in view of the presumption of death of his father under Section 108 of the Evidence Act and declaration by the court of Civil Judge (Junior Division), Banswara in Civil Suit No.13/2009 decided on 29.06.2009.
(2.) The facts of the case are that the petitioner's father Lalu son of Hakru was appointed on the post of Helper Grade-II in the office of Assistant Engineer (Operation/Power House-I) in the erstwhile Rajasthan Rajya Vidhyut Mandal, Banswara on 01.12.1985. Thereafter, Lalu went missing on or about 05.07.1999. In view of his will-full and un-authorized absence, departmental proceedings were initiated against Lalu, charge sheet issued on 04.03.2002 and in Lalu's absence, he was found guilty of the misconduct of unauthorized absence and was terminated from service vide order dated 29.07.2005.
(3.) Learned counsel submits the a FIR with regard to Lalu going missing was filed on 18.07.1999 at Police Station Kotwali Banswara prior to the DE and termination. The SHO, Police Station Kotwali, Banswara vide letter dated 03.10.2002 informed the concerned Assistant Engineer that on investigation on the report with regard to Lalu missing, Lalu was not traceable and could not be found inspite of best efforts. 4-5. Learned counsel submits that since the petitioner's father Lalu was missing and not found for a period of more than seven years, an application under Section 108 of the Evidence Act for declaration of Lalu being a dead person from the date he was missing was filed before the court of Civil Judge (Junior Division), Banswara, who vide his judgment and decree dated 29.06.2009 has issued a declaration that Lalu, the husband of Smt.Hakki and the father of the petitioner was presumed to be a dead person. A copy of the judgment and decree dated 29.06.2009 has been annexed to the writ petition. Learned counsel submits that following the judgment and decree of the Civil Judge (Junior Division), Banswara dated 29.06.2009, whereby, Lalu has been presumed to be a dead person and declaration made, petitioner's mother submitted an application for being paid all legal retrial dues of Late Shri Lalu and on his part, the petitioner submitted an application to be employed under the provisions of the Compassionate Appointment Rules to the Rajasthan State Vidhyut Utpadan Nigam Limited, Circle Banswara. Learned counsel submits that despite several months having elapsed, the respondents neither paid the due retiral amounts of the deceased employee nor the petitioner's application for compassionate appointment was considered. The inaction of the respondents entailed a notice for demand of justice dated 16.08.2010. Learned counsel submits that the respondent No.1 - the Superintending Engineer (Generation), Rajasthan State Vidhyut Utpadan Nigam Limited Circle Banswara vide reply dated 21.08.2010 to the notice for demand of justice dated 16.08.2010 informed about the termination of Lalu on account of his absence under order dated 29.07.2005 and stated that this entailed non consideration both of the payment of pensionary benefits due in law to the family of Lalu and non consideration of the petitioner for compassionate appointment. 6. On notices being served, the respondents have filed reply. It has been stated in the reply that Lalu was engaged on muster roll basis on 01.08.1979 and thereafter he was fixed in the regular pay scale of Helper-II with effect from 01.04.1982 and was working with the Executive Engineer (O&M/PH-I) of the then Rs.B, Banswara. Thereafter, on or about 05.07.1999, Lalu went missing without any intimation to his controlling officer. It is submitted that the un-authorized absence of Lalu entailed commencing of disciplinary proceedings and after consideration of the matter and on Lalu not reporting, order of termination dated 29.07.2005 came to be passed under the provisions of Rule 9H of Technical Workman Service Regulations, 1975. It has been further stated that the declaration by the Civil Court that Lalu was a dead person in terms of judgment and decree dated 29.06.2009 was not binding on the respondents as the Rajasthan State Vidhyut Utpadan Nigam Limited was not a party before the civil court. 7. On the issue of payment of retrial benefits to Lalu's wife, it has been stated by the respondents that as the services of Lalu were terminated, the question of relief other than the amount of GPF Final Payment No.4662 dated 22.02.2011 already paid to his wife, did not arise. Learned counsel for the respondents has stated that the petitioner cannot be given compassionate appointment in view of the fact that in the records, their ex employee Lalu did not die while in service but Lalu's services stood terminated vide order dated 29.07.2005. 8. I have perused the record and heard learned counsel for the parties. 9. The issue raised in the writ petition pertains to the right of the legal representatives of deceased Lalu to receive retrial benefits under the Regulations of RSEB and further the right of the petitioner, as son of Lalu, to be considered for compassionate appointment. 10. From the facts of the case, it is established that Lalu who went missing on 05.07.1999 was at the relevant time in the service of the respondents having then worked for about 20 years in the aggregate as work charge and regular employee. His absence from Rajasthan State Vidhyut Utpadan Nigam Limited Circle Banswara entailed departmental proceedings and the order of termination dated 29.07.2005. Admittedly, Lalu during the tenure of the departmental proceedings and passing of the termination order dated 29.07.2005 was missing and the entire proceedings against him have been taken ex-party without service of notice. 11. This Court in the case of Santosh Devi Upadhyay v. State of Rajasthan & Ors., reported in 2007 (2) DNJ (Raj.) 1143 has held that termination order on account of departmental proceedings based on un-authorized absence is null and void in cases where the missing person is ultimately presumed to be dead with reference to Section 108 of the Evidence Act. It has been held that such an order of termination without notice to the delinquent employee who was not available at the relevant time shall be of no consequence being null and void. 12. No contrary decision has been cited by learned counsel for the respondents. 13. In this view of the matter, it is apparent that so far as the order of termination of services of the petitioner's father vide order dated 29.07.2005 is concerned, on the face of it, it is void as the same has been passed against the person, who could have been dead during the departmental proceedings and obviously could not have and did not receive any notice thereon. 14. The issue which now remains for consideration by this Court is with regard to the retrial benefits to the family of Lalu and the petitioner's right for consideration for compassionate appointment. 15. This Court in Santosh Devi v. State of Rajasthan & Ors., reported in 2007 (2) DNJ (Raj.) 925 has held that in case of employees going missing and not found for over seven years in spite of best efforts, presumption of such person being dead under Section 108 of the Evidence Act followed and dependent of such an employee is entitled for consideration for compassionate appointment. I am of the view that the petitioner shall be entitled to be considered for the compassionate appointment under the provisions of Rajasthan Recruitment of Dependents of Government Servants (Dying While in Service) Rules, 1996 adopted by the Nigam as the presumption of Lalu being dead is within the period in which he was in the service of the respondent - Rajasthan State Vidhyut Utpadan Nigam Limited. 16. In this view of the matter, an application under the provisions of Rajasthan Recruitment of Dependents of Government Servants (Dying While in Service) Rules, 1996 be made by the petitioner and the respondents are directed to consider the said application strictly in accordance with the said Rules taking note of relevant factors for determining the question as to whether the petitioner at this point of time and in the context of the financial conditions of the family now prevailing is entitled for compassionate appointment under the said Rules. Further as enunciated by this Court in the case of Santosh Devi Upadhyay (supra), the wife of Lalu - the mother of the petitioner is entitled to all retrial benefits of a deceased employee of the respondent Nigam including to family pension if she satisfies the requirement of the then extant regulations in this regard. 17. For the reasons aforesaid, consequently, this writ petition is allowed. The order of termination of service of Lalu passed by the Executive Engineer (O&MPH-I) RVVUN, Banswara (Raj.) dated 29.07.2005 is declared to be null and void. It is directed that the wife of deceased Lalu is entitled to be considered for grant of family pension and payment of Lalu's retral benefits in view of Lalu being presumed to be dead and further that the petitioner as son of Lalu is entitled to be considered for compassionate appointment in accordance with the Rajasthan Recruitment of Dependents of Government Servants (Dying While in Service) Rules, 1996. Petition Allowed.;