RAFIQ, J. - (1.) UNDER challenge in this petition is the order dated 04th March, 1991 whereby the petitioner's husband was dismissed from service. It has been prayed that the said order be quashed and set aside and consequently directions may be issued to the respondents to consider her case for appointment on compassionate ground and the respondents be further directed to grant family pension to the petitioner in accordance with the proviso to Rule 268-B of the Rajasthan Service Rules.
(2.) FACTS in brief as unfolded in the writ petition are that the petitioner's husband was appointed in the service of respondents as LDC vide order dated 04th September, 1979 on temporary basis and he was subsequently made permanent by order dated 19th June, 1981. The petitioner's husband was some time in the year 1985 transferred from the office of District Collector, Pali to the office of District Collector, Pali to the office of District Collector, Jodhpur. In the aforesaid manner the petitioner's husband continued to serve the respondents till 1988. It has been stated that the petitioner's husband left his office on 06th February, 1988. He thereafter never returned back home. Nothing was heard about him by the petitioner or any one of the her family members nor were his whereabouts known. It has been asserted that on account of illiteracy and the things having happened so fast, the petitioner did not retain copy of application submitted by her to the respondents. It has been stated that on efforts being made by colleagues of the petitioner's husband, the District Collector, Jodhpur started paying to petitioner an ex gratia payment of Rs. 100/- per month which continued for about five months. The petitioner submitted an application in the year 1990 requesting that she be given appointment on compassionate ground in place of her husband whose whereabouts were not known. The application was however, rejected by order dated 14th September, 1990. When the petitioner prayed for family pension, the District Collector, Jodhpur by order dated 31st July, 1995 required her to submit copy of the First Information Report lodged regarding missing of her husband. The petitioner however stated that refusal by the respondents for family pension was contrary to proviso of Rule 268-B of the Rajasthan Service rules which is reproduced as under:- " Provided further that if a Government servant is unheard of for more than a period of one year the family pension at the rate prescribed under Rule 268-C shall be sanctioned and authorized to the member of his/her family as defined under Rule 268-D on submission of an application along with Indemnity Bond and Affidavit in the prescribed form and also a copy of F. I. R. lodged with the Police about the dis-appearance of the Government servant. If in any case, the Government servant subsequently re- appears the family pension shall immediately cease to be admissible and payable. The amount of family pension already paid to the family, shall be recoverable from the salary of the Government servant. " The respondents for the first time informed the petitioner by letter dated 18th June, 1996 that her husband has already been dismissed from service by order dated 04th March, 1991. The petitioner was conveyed by letter dated 23rd April, 2001 that no relief could be granted to her because her husband has already been dismissed from service. On completion of seven years from the date of missing her husband, the petitioner submitted a complaint on 09th September, 1995 to S. H. O. Police Station, Pratapnagar, Jodhpur. Even then no relief was granted by the respondents to the petitioner. In these circumstances, she has filed the present writ petition. The respondents have contested the matter and filed the reply to the writ petition. In the reply, it has been asserted that the present petition suffers from delay and latches. Husband of the petitioner was missing from 06th February, 1988 and she was refused family pension vide order dated 18th September, 1996 because her husband had been dismissed from service vide order dated 04th March, 1991. Inspite of this, the petitioner has filed the writ petition enormously delayed in the year 2002. On merits, it has been submitted that even though the husband of the petitioner was said to be missing from 06th February, 1988 but no report thereof was lodged for about seven years. The respondents have pleaded that it is "absolutely unbelievable that the husband of the petitioner is missing since 06. 02. 88. " The respondents however, averred nothing about the merits of the case in their reply. I have heard Mr. R. S. Saluja, learned counsel for the petitioner as well as Mr. Rameshwar Dave, learned Dy. Government, Advocate and perused the record. Learned counsel for the petitioner has placed reliance on a judgment of this Court in State of Rajasthan & Ors. vs. Phooli Devi & Ors. , reported in 2003 (1) WLC (Raj.) 479 and further in the case of Smt. Shakuntala Kanwar vs. Union of India & Ors. , reported in 2002 (4) WLC (Raj.) 315 = (RLW 2003 (2) Raj. 1401) and a Single Bench judgment of this Court in Kaushlendra Singh Naruka vs. The State of Rajasthan & Anr. , reported in 2000 (1) WLC (Raj.) 723.
(3.) LEARNED counsel for the petitioner has further argued that the petitioner being illiterate could not earlier approach this Court inasmuch as she had been regularly representing to the respondents for redressal of her grievances. The respondents however, on technical grounds refused to either sanction family pension to her or consider her case for appointment on compassionate ground. 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. On the other hand, learned Dy. Government Advocate argued that the husband of the 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 seven years. The writ petition has also been filed erroneously delayed. In the circumstances, the writ petition is therefore, liable to be dismissed. The issues raised in this writ petition in so far as the proposition of law on the controversy involved in concerned, are no longer res integra. A Division Bench of this Court in Phooli Devi (supra) authoritatively held in somewhat similar circumstances 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 without service of pre and/or post initiation of proceedings in order to culminate into order of punishment of removal, both are against the constitutional mandate and principle of natural justice. That being so, the learned Single Judge has rightly condemned the action of the appellate State by holding that termination of a Government servant who has not been traced out or not heard of at all or his whereabouts were not known for more than seven years, is no meaning, inasmuch as no charge sheet could be issued to a dead person who by virtue of Sec. 108 of the Evidence act is presumed to have died. 13. Once the decks are clear that admittedly Nanagram Meena was not heard of at all for more than seven years from the date of his disappearance of missing (3. 4. 1986), in support of which there is an uncontroverted pleadings of the writ petitions duly supported by an affidavit to the effect that she has not heard of her husband (Nanagram Meena) since 3. 4. 86 and for last more than seven years, a presumption would must arise in her favour by virtue of Section 108 of the Evidence Act that her husband has been dead. Thus viewed, the appellant State therefore, have to grant relief to the writ petitioners on the presumption that her husband is dead and she is a widow of deceased government servant entitling to grant of relief as sought for in their writ petition. Having scanned the impugned judgment of the learned Single Judge assailed before us, we find no infirmity whatsoever in the said judgment and the learned Single Judge was justified in allowing the writ petition and in granting relief in favour of the writ petitioners s detailed above, which does not warrant any interference by this Court. In the said view of the matter, this appeal is dismissed. No Costs. " ;