High Court
Case Details
WP(C) 2065/2010 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Both the writ petitions by and between the same parties, more or less raising th e same issue have been heard together and are being disposed of by this common o rder. The first writ petition being WP(C) No. 3372/2004 was filed by the petitioner pr aying for a CBI enquiry to find out the whereabouts of her husband, who was a Ra ilway employee in the RPF. Further prayer made in the writ petition is to pay sa lary from the month of August, 2002 when her husband went missing and also to se t aside and quash the order dated 27.1.2004, by which, her husband was removed f rom service pursuant to a departmental proceeding. In the second writ petition being WP(C) No. 2065/2010 also prayer made is to set aside and quash the said order of removal dated 27.1.2004 and to pay all servic e benefits, which otherwise would have accrued to the husband of the petitioner, if was in service.
Legal Reasoning
Heard Mr. T.C. Chutia, learned counsel for the petitioner. Also heard Mrs. B. De vi, learned counsel, representing the Railways. I have also perused the entire m aterials on record. Mr. Chutia, learned counsel for the petitioner submits that since the petitioner ’s husband was missing and his whereabouts were not known, the petitioner had fi led an FIR on 8.8.2002 with the Lumding Police Station. However, the police coul d not trace him out, but, in the meantime, the respondent Railway without consid ering that aspect of the matter initiated a departmental proceeding on the charg e of unauthorized absence of her husband from duty. As noted above, on conclusion of the enquiry proceeding, the husband of the peti tioner was removed from service by the impugned order dated 27.1.2004. According to Mr. Chutia, learned counsel for the petitioner, the proceeding is liable to be interfered with, with a further declaration that the husband of the petitione r is died on expiry of 7 years from the date when he went missing in 2002 entitl ing the petitioner all benefits including the pensionary benefits pertaining to the services rendered by her husband. Countering the above argument Mrs. B. Devi, learned counsel representing the Rai lways submits that the charge against the petitioner’s husband was not only that of unauthorized absence from duty only, but was also of being in drunken state while on duty. She submits that the charge leveled against the petitioner’s husb and having been established in the enquiry proceeding, the disciplinary authorit y rightly imposed the penalty of removal from service and consequently the petit ioner is not entitled to any relief. From the materials on record it appears that while the husband of the petitioner was working as constable in RPF was sent for periodical medical examination on 1.8.2002. As stated in the charge, he was found in a drunken state. However, as stated in the writ petition, he did not return home thereafter. Situated thus, t he petitioner lodged an FIR on 8.8.2002 with the Lumding Police Station. When no thing followed thereafter, the petitioner submitted an application before the In spector of RPF and also appeared before him on 9.9.2002 to know the whereabouts of the petitioner’s husband. Her application was sent to the Divisional Security Commissioner, Lumding with the request to take necessary action in the matter. Thereafter the petitioner submitted another application on 6.10.2002 before the Chief Security Commissioner praying for taking necessary action in the matter. When the petitioner was pursuing her remedies with the departmental authorities, she was served with the copy of the impugned order dated 27.1.2004, by which, p ursuant to a departmental enquiry conducted ex-parte against her husband, he was removed from service on the charges of being intoxicated while on duty on 1.8.2 002 and thereafter remaining absent from duty. In the counter affidavit filed by the respondents, it has been stated that there was no correspondences between the petitioner and the Railway authority. Howeve r, it has been admitted that the particular application dated 15.11.2002 made by the petitioner for release of salary was forwarded to the authority. The affida vit further states that since the petitioner’s husband was absent from duty a de partmental proceeding was initiated against him and on conclusion of the same (e x-parte), he was removed from service as indicated above. In both the writ petitions, the specific plea of the petitioner is that her husb and went missing from 1.8.2002, the date on which he had appeared for medical ex amination at Lumding. It is the definite case of the petitioner that after such medical examination on 1.8.2002, her husband did not come back and since then hi s whereabouts are not known. It is on record that the petitioner made certain co rrespondences with the respondent Railways intimating the said position. However , the Railway conducted the enquiry against her husband on the charge of unautho rized absence coupled with being intoxicated on duty while he was medically exam ined on 1.8.2002. It is in the above circumstances, the matter will have to be re-considered by th e Railways, more particularly, by the appellate authority to find out the sustai nability or otherwise of the impugned order of removal dated 27.1.2004. The said authority will have to consider as to whether the departmental proceeding could have been initiated in view of the fact that the petitioner’s husband was missi ng with effect from 1.8.2002, a fact, which was made known to the railways by th e petitioner. As submitted by Mr. Chutia, learned counsel for the petitioner tha t in case of a employee is missing for 7 years then he is required to be deemed to have expired entitling his family members the service benefits including the pensionary benefits etc. In this connection he has placed reliance on the decisi on dated 21.9.2006 passed by this Court in WP(C) No. 8343/2003. He has also plac ed reliance on the decision reported in 2006 (1) GLT 604 (Amrana Begum Majumdar Vs. State of Assam & Ors.). By the said judgment, presumption of death was drawn in the context of employer employees relationship and entitlement of the legal
Decision
heirs to the service benefits of the employee. Mrs. B. Devi, learned counsel representing the Railways submits that the said de cisions are not applicable in the instant case as the petitioner’s husband was r emoved from service because of his unauthorized absence from duty. She submits t hat he was also found under intoxication when he was examined medically. Her fur ther submission is that it could be a case of willful absconding to avoid the fa ll out of the departmental proceeding. All the above aspects of the matter will have to be considered by the appellate authority. In view of the above, both the writ petitions are disposed of providing that the appellate authority shall re-consider the case of the petitioner’s husband. Let the entire exercise be carried out as expeditiously as possible, but at any rat e, not later than 31.8.2013, facilitating, which the petitioner shall make an ap peal to the appellate authority along with a copy of this order.