# Kamlesh Yadav @ Kumari Kamlesh Yadav v. State of U.P. & Ors

- **Citation:** (2024) 6 ILRA 222
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-06-07
- **Case number:** Writ-A No. 8927 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-yadav-kumari-kamlesh-yadav-v-state-of-u-p-ors-52140
- **Pages:** 23

## Headnote

A. Civil Law - Indian Evidence Act, 1872 -
Section 108 - Service Law- - One-time
Peon's
services
terminated-
His
whereabout known to those who would
normally have heard of him- petitioner is
6 All. Kamlesh Yadav @ Kumari Kamlesh Yadav Vs. State of U.P. & Ors.
223
the wife of the peon- 60% permanently
disabled- unemployed woman with no
source of sustenance- her husband is
missing
since
13.04.2010-
services
terminated
in
2018-
claim
for
compassionate
appointment
on
the
ground of civil death- presumption under
Section 108 of The Indian Evidence Act-
Rule 18 of the UP Fundamental Rules- not
applicable in such cases- termination
order passed without jurisdiction-illegal-
quashed- petitioner's claim for pension
and
death-cum-retirement
benefits-
compassionate
appointment-
to
be
considered-
subject
to
production
of
Succession Certificate under Section 372
of the Indian Succession Act, 1925-
Petition allowed (Para 23, 24, 25, 26 and
28)

HELD: Now, in the present case, even if one were
to go by the respondents'stand taken in the
supplementary counter affidavit to the effect that
the presumption of civil death would not attach in
the absence of a missing complaint to the Police,
that complaint too has come to be lodged under
orders of this Court dated 12.07.2023 by the
petitioner, though, on 28.07.2023. Intensive efforts
were made by the Police to trace out the missing
man but to no avail. It is not just a complaint to
the Police or an FIR which is decisive. The missing
employee, whose services were terminated on
account of being absent from duty by the order
impugned dated 31.03.2021 was missing since
13.04.2010. During this period of time, the
respondents,
who
are
his
employers,
had
published notices in newspapers to seek him out,
but to no avail. The family members never came to
know about his whereabouts, and now, the Police
too have failed. Thus, the date on which the
impugned order terminating the petitioner's
services on the charge of long and unauthorised
absence was passed by the respondents, was
much after lapse of the period of seven years since
the employee went missing and never heard of by
those who would have naturally heard of him, if
alive. None of his family, friends, wife or employers
have mentioned in the slightest that they heard of
him after 13.04.2010. (Para 23)

In the circumstances, after a lapse of ten years
that
the
employee
went
missing,
the
respondents had no jurisdiction to pass the
impugned order, treating him to be absent from
duties for more than five years, invoking their
powers under Rule 18 of the U.P. Fundamental
Rules. Rule 18 aforesaid reads :"18. Unless the
Government,
in
view
of
the
special
circumstances of the case, shall otherwise
determine, after five years' continuous absence
from duty elsewhere than on foreign service in
India, whether with or without leave, no
government servant shall be granted leave of
any kind. Absence beyond five years will attract
the provisions of rules relating to disciplinary
proceedings."
[The earlier Rule 18 of the Uttar Pradesh
Fundamental Rules has been substituted by
Notification
No.
G-4-34/X-
89-4-83
dated
12.09.1989]. (Para 24)

A perusal of the said Rule shows that it is never
meant to apply to the case of a man who, on
the
date
the
question
comes
up
for
consideration, has not been heard of since
seven years past by those who would have
naturally heard of him, if alive. Rule 18 clearly is
meant to apply to a man who is known to be
around and yet absconding or wilfully remaining
absent from duty. It is to the case of the known
living
men
with
traceable
or
fleeting
whereabouts that fundamental Rule 18 would
apply. It would not apply to the case of persons
about whom a presumption of death can safely
be drawn on the analogy of Section 108 of the
Act of 1872, on the date the order of
termination from service is passed against them.
(Para 25).

Here, on the date of the impugned order, a
period far more than seven years of the
employee goin

## Text

_Characters 0–39,993 of 76,016. This is a partial read: ask again with offset=39993 for what follows._

222 INDIAN LAW REPORTS ALLAHABAD SERIES
64. In the present case, Lakhraji's
husband died on 14.10.1967 and she
remarried Phagoo in a customary form of
marriage, called Sagai, native to the
community to which she belonged, in the
month of April, 1968. By the time both
events happened, the Act of 1956 had come
into force. This, then being the position on
facts, Smt. Lakhraji must be held to have
inherited the suit property from her
deceased husband in the specified share as
her absolute estate, of which she could not
be divested, either by custom or by virtue
of Section 2 of the Act of 1856. The issue,
if she was in possession of the suit property
when succession opened out, is not
seriously or even slightly in issue in this
appeal, because it is not in dispute that in
whatever manner, she was duly recorded in
the revenue records to the exclusion of the
other heirs entitled. There is also evidence
that she was in possession of the suit
property and no one has disputed the said
fact.
Smt.
Lakhraji's
share
would,
therefore, vests in her absolutely, of which
she would not be divested upon remarriage
to Phagoo.

65. Substantial Question of Law
No.3 is, therefore, answered in the
affirmative and it is held that the Court
below erred in interpreting Section 14 of
the Act of 1956 regarding its effect on the
provisions of Section 2 of the Act of 1856.

66.

The
result
of
these
conclusions would be that the plaintiffrespondent, Gokaran, who has been held
entitled to a 1/3rd share and defendant
Nos.9 and 10 to a 2/3rds jointly by the
Lower Appellate Court, would each have
their
share
diminished
to
a
1/4th
individually together with a 1/4th in
favour of Smt. Lakhraji, now held by her
transferees and their LRs.
67. In view of the aforesaid
conclusions, this appeal succeeds and is
allowed in part. The impugned decree
passed by the Lower Appellate Court is
modified and it is ordered that the
appellants together will be entitled to a
1/4th share in the suit property, the plaintiff
a 1/4th share and defendant Nos.9 and 10,
each to a 1/4th share.

68. Looking to the partial success
that the appeal has met with, costs
throughout shall be proportionate to the
success and failure of parties.

69. Let a decree be drawn up
accordingly.

70. Let the Lower Courts' record
be sent down at once.
----------
(2024) 6 ILRA 222
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.06.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 8927 of 2023

Kamlesh Yadav @ Kumari Kamlesh Yadav
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Nitin Sharma

Counsel for the Respondents:
Monika Arya, A.C.S.C.

A. Civil Law - Indian Evidence Act, 1872 -
Section 108 - Service Law- - One-time
Peon's
services
terminated-
His
whereabout known to those who would
normally have heard of him- petitioner is
6 All. Kamlesh Yadav @ Kumari Kamlesh Yadav Vs. State of U.P. & Ors.
223
the wife of the peon- 60% permanently
disabled- unemployed woman with no
source of sustenance- her husband is
missing
since
13.04.2010-
services
terminated
in
2018-
claim
for
compassionate
appointment
on
the
ground of civil death- presumption under
Section 108 of The Indian Evidence Act-
Rule 18 of the UP Fundamental Rules- not
applicable in such cases- termination
order passed without jurisdiction-illegal-
quashed- petitioner's claim for pension
and
death-cum-retirement
benefits-
compassionate
appointment-
to
be
considered-
subject
to
production
of
Succession Certificate under Section 372
of the Indian Succession Act, 1925-
Petition allowed (Para 23, 24, 25, 26 and
28)

HELD: Now, in the present case, even if one were
to go by the respondents'stand taken in the
supplementary counter affidavit to the effect that
the presumption of civil death would not attach in
the absence of a missing complaint to the Police,
that complaint too has come to be lodged under
orders of this Court dated 12.07.2023 by the
petitioner, though, on 28.07.2023. Intensive efforts
were made by the Police to trace out the missing
man but to no avail. It is not just a complaint to
the Police or an FIR which is decisive. The missing
employee, whose services were terminated on
account of being absent from duty by the order
impugned dated 31.03.2021 was missing since
13.04.2010. During this period of time, the
respondents,
who
are
his
employers,
had
published notices in newspapers to seek him out,
but to no avail. The family members never came to
know about his whereabouts, and now, the Police
too have failed. Thus, the date on which the
impugned order terminating the petitioner's
services on the charge of long and unauthorised
absence was passed by the respondents, was
much after lapse of the period of seven years since
the employee went missing and never heard of by
those who would have naturally heard of him, if
alive. None of his family, friends, wife or employers
have mentioned in the slightest that they heard of
him after 13.04.2010. (Para 23)

In the circumstances, after a lapse of ten years
that
the
employee
went
missing,
the
respondents had no jurisdiction to pass the
impugned order, treating him to be absent from
duties for more than five years, invoking their
powers under Rule 18 of the U.P. Fundamental
Rules. Rule 18 aforesaid reads :"18. Unless the
Government,
in
view
of
the
special
circumstances of the case, shall otherwise
determine, after five years' continuous absence
from duty elsewhere than on foreign service in
India, whether with or without leave, no
government servant shall be granted leave of
any kind. Absence beyond five years will attract
the provisions of rules relating to disciplinary
proceedings."
[The earlier Rule 18 of the Uttar Pradesh
Fundamental Rules has been substituted by
Notification
No.
G-4-34/X-
89-4-83
dated
12.09.1989]. (Para 24)

A perusal of the said Rule shows that it is never
meant to apply to the case of a man who, on
the
date
the
question
comes
up
for
consideration, has not been heard of since
seven years past by those who would have
naturally heard of him, if alive. Rule 18 clearly is
meant to apply to a man who is known to be
around and yet absconding or wilfully remaining
absent from duty. It is to the case of the known
living
men
with
traceable
or
fleeting
whereabouts that fundamental Rule 18 would
apply. It would not apply to the case of persons
about whom a presumption of death can safely
be drawn on the analogy of Section 108 of the
Act of 1872, on the date the order of
termination from service is passed against them.
(Para 25).

Here, on the date of the impugned order, a
period far more than seven years of the
employee going missing had elapsed, with
none of those who would have naturally
heard
of
him
if
alive,
knowing
his
whereabouts, including the employers. The
additional abortive attempts of the Police,
vigorously made under orders of this Court
to trace out the missing man, lend credibility
to the fact that perhaps the presumption
under Section 108 of the Act has turned into
a reality. Be that as it may, this Court is of
considered opinion that on the date the
order
impugned
was
passed,
the
respondents could not have made it. It is
absolutely without jurisdiction and manifestly
illegal. (Para 26).
224 INDIAN LAW REPORTS ALLAHABAD SERIES
So far as the petitioner's claim for pension and
death-cum retirement benefits on account of
services rendered by Avinash Yadav or her
further
claim
to
seek
compassionate
appointment is concerned, the respondents will
be obliged to consider it, subject to the
petitioner producing a succession certificate
under Section 372 of the Indian Succession Act,
1925 granted by the Court of competent
jurisdiction. The Court, wherever the petitioner
makes a petition for the grant of a succession
certificate,
shall
expedite
proceedings,
considering the peculiar facts and circumstances
obtaining in this case. (Para 28)

Petition allowed. (E-14)

List of cases cited:

1. Banarasi Vs Government of NCT of Delhi &
ors., ILR (2008) Supp. 2 Delhi 1

2. Smt. K. Lakshmi v. The A.P.S.R.T.C. & ors.,
2013 SCC OnLine AP 815

3. The Managing Director, State Express
Transport Corporation Tamil Nadu Ltd., Pallavan
Salai, Chennai & ors. Vs E. Tamilarasi, 2016-3L.W. 139 : 2015 SCC OnLine Mad 11975 : 2016
Lab IC 2699

(Delivered by Hon'ble J.J. Munir, J.)

The District Cane Officer, Meerut, by
his order dated 31st March, 2021, has
terminated the services of Avinash Yadav,
a one-time Peon in the Office of the Senior
Cane Development Inspector, Meerut, a
man missing since 13.04.2010, with his
whereabouts not known to those who
would normally have heard of him, if alive,
retrospectively from the date he went
missing.

2. It appears that Avinash Yadav
disappeared from the lives of his family
members as well as his employers on
13.04.2010. He has not been heard of
eversince. While the family, particularly,
the petitioner, his wife, a handicapped
woman with 60% disability in her lower
limb, has been destituted, waiting in vain
for her missing husband, the respondents,
who are Avinash's employers, think that he
is guilty of absenteeism from duty. They
have punished him on those charges by the
order impugned, with retrospective effect,
after holding a departmental inquiry, as
already said, more than ten years after he
went missing.

3. The facts giving rise to this
petition are these :

 The petitioner, Kamlesh Yadav
alias Kumari Kamlesh Yadav's husband,
Avinash Yadav, was a Class IV employee,
a Peon in the Office of the Senior Cane
Development
Officer,
Meerut.
The
petitioner is 60% permanently disabled in
the right lower limb, suffering this
handicap as a non-progressive condition.
She is an unemployed woman, with no
source of sustenance. The petitioner says
that since 13.04.2010, Avinash Yadav went
missing and has not been found eversince.
He has remained absent from his duties,
without sanctioned leave or permission of
the respondents. He has not been heard of
by the petitioner as well as other members
of the family, who would have normally
heard of him, if alive. Avinash's family
members did their best to trace him out, but
with no success. The petitioner says that
looking to the duration of his whereabouts
remaining unknown both by his employers
and the members of his family, including
the petitioner, his wife, all of whom would
have heard of him, if alive, must lead to
raising a presumption of his civil death.
After 13.04.2010, when Avinash failed to
resume duties, various notices were sent in
his name by the respondents, asking for an
explanation regarding his unauthorized
6 All. Kamlesh Yadav @ Kumari Kamlesh Yadav Vs. State of U.P. & Ors.
225
absence from duty and directing him to join
upon pain of departmental action. The
earliest on record is a notice dated
30.06.2010 issued by the District Cane
Officer, Meerut. Avinash failed to turn up
and report for duty. The Office of the
Senior
Cane
Development
Inspector,
Daurala, Meerut got a press note published
in the Hindi daily 'Dainik Jagran' issue
dated 18.01.2011, asking Avinash to rejoin
duty within one week, again upon pain of
disciplinary
action.
His
whereabouts
remained
unknown
and
the
man
untraceable. He failed to rejoin duties.

4. On 28.02.2018, almost eight
years after Avinash's disappearance, the
Senior Cane Development Officer initiated
departmental proceedings against him and
issued a charge-sheet, asking him to answer
charges carried there. These charges read :

 आरोप संख्या एि - आप भबना भिसी
अविाश प्राथथना पत्र िे भदनांि 13-04-2010 से
लिातार अपनी ड्यूटी से अनाभििृत रूप से
अनुपस्स्थत चल रहे है, भिसिे भलए आप दोषी
प्रतीत होते हैं।

 साक्ष्यः 1- िेष्ठ िन्ना भविास भनरीक्षि
दौराला िा पत्रांि 1811/सी/भदनांि 15-042010,
1825/सी/भदनांि
20-04-2010,
1868/सी/भदनांि 11-5-2010, 1881/सी/भदनांि
15-5-2010,
1900/सी/भदनांि
26-5-2010,
1930/सी/07-06-2010, 01/सी/भदनांि 02-072010, 84 भदनांि 18-08-2010, 265 भदनांि
13-12-2010, 504 भदनांि 28-3-2011, 413
भदनांि 03-02-2011

 2- भिला िन्ना अभििारी महोदय
मेरठ िा पत्रांि 817-18 भदनांि 30-06-2010,
568-69 भदनांि 18-025-2011, 985-86 15-062011, 3671-72 भदनांि 18-01-2012, 3116-17
23-11-2012 3305-06 08-11-2013, 2360-61
01-09-2014, एवं पत्रांि 4524-25-09-01-2015

 आरोप सं० दो- दैभनि समाचार पत्रों
में सूचना प्रिाभशत िराने िे उपरान्त िी आप
अपनी डयूटी पर उपस्स्थत नहीं हुए है, भिसिे
भलए आप दोषी प्रतीत होते है।

 आरोप संख्या तीन- आप अपने
मनमाने ढंि से िायथ िरने, भबना भिसी सूचना
आभद िे अनाभििृत रूप से लिातार अपनी
ड्यूटी से अनुपस्स्थत रहने िे आदी हो िये हैं,
भिसिे भलए आप दोषी प्रतीत होते हैं। साक्ष्यः
आरोप संख्या एि व दो में अंभित।

 आरोप संख्या चार-आपिो पूवथ में
िई बार दी ियी चेतावनी िे बाविूद िी भबना
भिसी अविाश प्राथथना पत्र िे लिातार
अनुपस्स्थत रहने िी पुनरावृभि िरने व अपनी
िायथ प्रणाली में िोई सुिार न लाने िे भलए दोषी
प्रतीत होते है।

 साक्ष्य- आरोप संख्या एि, दो, तीन में
अंभित।

 आरोप संख्या पााँच- आप अपने
उच्चाभििाररयों िे आदेशों एवं भनदेशों िी
अवहेलना िरने तथा िमथचारी सेवा भनयमावली
व िमथचारी आचार संभहता िा उल्लंघन िरने िे
भलये दोषी प्रतीत होती है।

 साक्ष्य- आरोप संख्या एि से चार में
अंभित।

5. The petitioner says that the fact
that the Inquiry Officer issued a chargesheet to Avinash on 28.02.2018, is an
acknowledgement of the fact that the
respondents considered Avinash still to be
in their employ and it is the said fact which
led
them
to
initiate
departmental
226 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings against him. On 06.11.2019,
the Senior Cane Development Officer sent
a
communication
to
Avinash
Yadav
through the petitioner, asking him for an
explanation and seeking his cooperation in
the departmental proceedings. For the first
time ever, the petitioner says it was
inquired of her if Avinash is alive or dead,
so that the fact may be reported to the
Senior Cane Development Officer. In this
regard, there is on record a copy of the
communication dated 06.11.2019 from the
Senior
Cane
Development
Officer,
Daurala, Meerut addressed to Avinash
through the petitioner, as already said.

6. Since a period of more than nine
years had elapsed, with no clue about
Avinash's
whereabouts,
the
petitioner
asserts that a presumption about his death
has to be drawn and acted upon. She
applied on 02.06.2020 to the Senior Cane
Development Inspector, Daurala, Meerut,
where Avinash served, to grant her
compassionate appointment, in order to
enable her to survive and live with dignity.
The petitioner says that at the time she
made her application for compassionate
appointment, the respondents regarded
Avinash alive and in their employ. A
period of ten years having come to pass
from the date when the man went missing,
the respondents had to raise a presumption
on the principles of Section 108 of the
Indian Evidence Act, 18721 and grant
death-cum-retirement
benefits
to
the
petitioner, including a consideration for
compassionate appointment.

7. On 04.07.2022, the petitioner
sent a letter to the Commissioner, Meerut
Division, Meerut, requesting release of
death-cum-retirement benefits due to her on
account of Avinash's services with the
Cane Department. She also canvassed her
case
for
grant
of
compassionate
appointment in order to enable her family
to survive. The Commissioner, Meerut
Division, Meerut asked for a report from
the District Cane Officer, Meerut with
regard to the petitioner's claim. The
District Cane Officer, in his reply, apprised
the Divisional Commissioner that Avinash
was absent from duty without leave since
13.04.2010 and failed to rejoin, despite a
number
of
notices.
Accordingly, his
services had been dispensed with vide
order dated 31.03.2021 retrospectively with
effect from 13.04.2010.

8. Aggrieved by the order dated
31.03.2021, terminating Avinash Yadav's
service retrospectively with effect from
13.04.2010, the petitioner has instituted the
present writ petition.

9. When this petition came up for
admission for the first time on 05.07.2023,
the following order was made :

 The District Cane Officer, Meerut
has passed an order dated 31.03.2021,
terminating the services of the petitioner's
husband Avinash Yadav, on account of his
long absence and closing the departmental
proceedings initiated against him. He has
done so, on the principle of abandonment
of employment.

 Let a personal affidavit be filed
by the District Cane Officer, Meerut within
a week, bringing on record a copy of his
order dated 31.03.2021 and specifically
indicating the provision in the service rules
entitling him to treat an employee to have
abandoned service on account of long
absence. It will also be indicated in the
affidavit, if there is any evidence to show
that Avinash Yadav is alive and yet staying
away from his duties.
6 All. Kamlesh Yadav @ Kumari Kamlesh Yadav Vs. State of U.P. & Ors.
227
 Lay as fresh on 12.07.2023.

 Let this order be communicated
to the District Cane Officer, Meerut by the
Registrar (Compliance) within 48 hours.

10. Again, on 12.07.2023, the
following order was passed by this Court:

 The personal affidavit filed today
is taken on record. Let it be numbered by
the Office. This affidavit will also be
regarded as a counter affidavit and the
learned Counsel for the petitioner shall be
at liberty to file a rejoinder affidavit to the
affidavit filed today.

 Looking to the personal affidavit
filed by respondent no. 5, prima facie it
appears that the respondents have acted too
much on presumption to terminate the
services of an employee, who claims to
have gone missing since 13.04.2010. The
petitioner, who is the missing employee's
wife, seeks to quash the order terminating
the employee's services. There is an
allegation that his whereabouts are not
known for past more than seven years by
those who should have normally heard of
him.

 To
the
Court's
mind,
proceedings to punish a man whose
whereabouts are not known, without
properly inquiring into the fact whether
he is missing, may not be a lawful course
to adopt prima facie. A perusal of the
order terminating the petitioner's services
shows that the foundation to proceed
against the missing employee, treating
him to be an absentee and not a missing
man whose whereabouts are not known,
is the fact that his wife or other family
members have not produced any evidence
like a missing report lodged with the
Police. The missing employee's wife, that
is to say the petitioner, is a physically
handicapped person with 60% permanent
impairment in her right lower limbs. This
fact is evident from the perusal of the
certificate dated 24.09.2018 issued by the
Medial Board in the office of the Chief
Medical Officer, Bulandshahr.

 In such circumstances, it is
ordered
that
upon
the
petitioner
conveying a written information to the
Senior Superintendent of Police, Meerut
about the fact of her husband Avinash
Yadav going missing, an appropriate case
shall be registered forthwith by the Police
and whereabouts of the missing man
ascertained.

 A report with regard to the
whereabouts and the circumstances in
which he went missing or whatever is
gathered by the Police, apart from the
follow up action as the law warrants, be
reported to this Court by the Senior
Superintendent of Police, Meerut on or
before 26.07.2023 positively.

 In addition, it is directed that
the information required to be sent by the
petitioner to the Senior Superintendent of
Police, Meerut shall be sent within 48
hours by speed post. A copy of the speed
post dispatch receipt shall also be brought
on record by learned Counsel for the
petitioner.

 A copy of the report shall also be
forwarded to the District Cane Officer,
Meerut by the Senior Superintendent of
Police, Meerut.

 Ms.
Monika
Arya,
learned
Additional Chief Standing Counsel shall
file a detailed counter affidavit on behalf of
228 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent nos. 1 to 6 on or before the date
fixed.

 List on 26.07.2023 at 2.00 p.m.

 Let this order be communicated
to the Senior Superintendent of Police,
Meerut by the Registrar (Compliance)
within 48 hours.

11. Under orders of this Court, a
personal affidavit was filed by Rohit Singh
Sajwan, Senior Superintendent of Police,
Meerut on 03.08.2023 and he also appeared
in Court, in compliance with our earlier
orders. The following order was passed on
03.08.2023 :

 A personal affidavit has been
filed by Rohit Singh Sajwan, Senior
Superintendent of Police, Meerut,. It is
taken on record. In paragraph nos. 9, 10
and 11 of the affidavit, it is averred thus:

 "9. That it is further noteworthy
to mention here that the husband of the
petitioner was gone missing in the year
2010 while the petitioner lodged the FIR
after 13 years which on 28.07.2023.

 10. That thereafter, RT massage
issued by the deponent to the all
SHO's/SO's of District Meerut. Moreover, a
letter was sent to the Branch Manager
Punjab National Bank Daurala, Meerut to
provide photograph of the missing person
i.e. husband of petitioner. True copy of RT
Message issued to all SHO's/SO's of
District Meerut dated 28.07.2023 is being
annexed herewith and marked as Annexure
No. 1 to this counter affidavit.

 11. That thereafter, in pursuance
of RT letters, all the SHO's/SO's vide
provided their report informing that no
such missing report has never been lodged
in their respective police stations. True
copy of information/reports provided by all
the SHO's/SO's are being collectively
annexed herewith and marked as Annexure
No.-1 to this Counter affidavit."

 Let a further affidavit be filed by
the Senior Superintendent of Police,
Meerut after three weeks with regard to the
whereabouts of the missing man.

 Counter affidavit shall be filed
within the same period of time i.e. three
weeks.

 List on 25.08.2023 at 02:00 p.m.

 Personal presence of Rohit Singh
Sajwan, Senior Superintendent of Police,
Meerut, who is present in Court today, is
exempted.

12. On 25.08.2023, another
affidavit was filed before the Court by the
Senior Superintendent of Police, Meerut,
where, it is averred in paragraphs Nos. 5 to
13 :

 5. That now the deponent is
bringing on record the steps which are
being taken for tracking out the missing
Avinash Yadav.

 6. That the petitioner moved a
missing complaint of her husband Avinash
Yadav on 28.07.2003, based on which
missing report was recorded at G.D. Rapat
No. 31 at 14.16 hours on 28.07.2023,
subsequently copy of which was given to
the petitioner/applicant.

 7. That in pursuance of the
application of the petitioner, Kamlesh
Yadav was instructed to forthwith provide
6 All. Kamlesh Yadav @ Kumari Kamlesh Yadav Vs. State of U.P. & Ors.
229
the photograph of missing Avinash Yadav.
Thereafter, investigation of matter was
entrusted to Sub-Inspector Mahesh Kumar
and also for assistance of investigation
officer, a team was also constituted
comprising of Sub-Inspector Sri Navratan
Rastogi, Head Constable Deepak Kumar
and Constable No. 154 Ajeet Kumar for
searching the missing husband of the
petitioner
(Avinash
Yadav).
8. That during the course of investigation,
the investigation officer sent a letter dated
28.07.2023 to Manager, Sugar Cane
Development Board, Daurala, Meerut and
Manager, Punjab National Bank, Daurala
for obtaining the salary account and
photographs of Missing Avinash Yadav S/o
Raghvan Yadav, R/o House No. 629
Jawahar Colony Patel Nagar, Muzaffar
Nagar. Subsequently, after obtaining the
photograph of the missing person, on
28.07.2023, the investigation officer by
preparing the photo patrolling search
(Photo Gashti Talash Gumshuda) of
missing, sent the report to In charge
D.R.C.B-
Meerut,
Bagpath
Station
Baghpat, G.R.P. City Stations of District
Shamli, Muzaffar Nagar, Saharanpur and
Meerut and circulated the R.T. Massage to
all the In Charge Inspectors/S.H.Os of all
the police station in respect of missing
person.

 9. That on 11.08.2023 the Sub
Inspector Mr. Vinesh Kumar- Police
Station Mutaina Daurala was sent to Delhi,
District Ghaziabad, Aligarh to search the
missing
Avinash
Yadav
and
paste
pamphlets.
Subsequently,
the
I.O.
conducted the search in respect of missing
person by roaming around the Police
Station GRP Ghaziabad, Railway Station
Ghaziabad and Police Station GRP Aligarh,
railway station Aligarh, Roadways Bus
Stand Aligarh and DCRB Office Aligarh
and
pasted
patrol
search
pamphlets.
Thereafter, on 12.08.2023, the search for
the missing was done by roaming around
the Roadways Bus Stand, Kashmiri Gate
Delhi and P.S. Kashmiri Gate Delhi and
pasted patrol search pamphlets.

 10. That on 11.08.2023 S.I. Mr.
Vinod Kumar Goswami was sent to search
the missing Avinash Yadav, who pasted
pamphlets
to
Police
Station
Balaini,
District Baghpat. On making enquiry, one
Suresh Chand S/o Vishal Singh, R/o
Village Balani had informed as follows:

 "अभवनाश यादव उर्थ आशु पुत्र स्व० श्री
राघवन यादव पूवथ में इसी िांव बालैनी भिला
बािपत िे रहने वाले थे व मेरे पररवार िे ही थे।
राघवन यादव लििि 60 वषथ पहले िांव छोड़िर
मुिफ्फरनिर चले िये थे। राघवन यादव ने
मुिफ्फरनिर में रहिर िन्ना भविाि में नौिरी िी
नौिरी िे दौरान ही इनिी मृत्यु हो ियी थी। इसिे
उपरान्त राघवन यादव िी ििह पर अभवनाश
यादव नौिरी पर लि िया था। अभवनाश यादव व
भवशाल ने अपनी िांव िी पैत्रि सम्पभि बेच दी िो
मैने खरीद ली। अभवनाश िी शादी िमलेश यादव
पुत्री मनवीर भसंह भनवासी ग्राम ईस्माईलपुर थाना
भसिन्दराबाद, िनपद बुलन्दशहर िे साथ वषथ
2000 में हुई थी। िमलेश यादव अपने पभत
अभवनाश िे साथ एि वषथ ति साथ रही उसिे
बाद वह अपने मायिे चली ियी। िई वार िमलेश
िा पभत िमलेश िो लेने अपनी ससुराल िया
लेभिन वह नहीं आयी, िई बार दोनों िे
पररवारिनों िी मीभटंि िी हुई लेभिन िमलेश
अपनी ससुराल वापस नहीं आयी। इसी समय
अभवनाश यादव शराब पीने लिा तथा लापता िी हो
िया। हमें नहीं पता भि िमलेश यादव िे पररिनों
ने िमलेश िी िहीं शादी िी है अथवा नहीं।"

 Copy of Written Statement Given
by Suresh Chand is being annexed herewith
230 INDIAN LAW REPORTS ALLAHABAD SERIES
and marked as ANNEXURE NO.-1 to this
affidavit.

 11. That on 12.08.2013, S.I. Mr.
Vinod Kumar Goswami searched the
missing at his residence i.e. House No. 629
Jawahar
Colony
Patelnagar,
Muzaffar
Nagar but the missing person was not
found
at
his
residence.
Thereafter,
pamphlets were pasted at P.S. Nai Mandi
Muzaffar Nagar. Thereafter interrogation
was made from uncle and aunty of missing
person namely Sanjeev Yadav and Smt.
Anuradha. Subsequently, Sanjeev Yadav
by entrusting a letter informed as under:

 "मेरे बड़े िाई राघवन यादव िे दो
पुत्र िमशः अभवनाश यादव एवं भवशाल यादव
पैदा हुए। राघवन यादव िी मृत्यु उपरान्त उनिे
बड़े पुत्र अभवनाश यादव िो भिला िन्ना सभमभत
दौराला, मेरठ में चपरासी िे पद पर नौिरी
प्राप्त हुयी। अभवनाश यादव िी शादी श्रीमभत
िमलेश यादव व पुत्री पुत्री मनवीर मनवीर भसंह
भनवासी इस्माइलपुर थाना भसिन्द्राबाद, से वषथ
2000 में हुयी थी। शादी िे उपरान्त िमलेश
िरीब 01 वषथ अभवनाश यादव िे बुलन्दशहर
साथ मुिफ्फरनिर रही और एि भदन बािार
िाने िी बात िहिर िमलेश यादव अपने िाई
और बहन िे साथ िो यहां आये हुए थे, सारा
िेवर लेिर चली ियी थी। अभवनाश यादव 2-3
बार िमलेश िो लेने उसिे मायिे िया लेभिन
िमलेश नहीं आयी। उसिे बाद सिे-सम्बस्ियों
िी पंचायत हुयी, उसिे उपरान्त िी िमलेश
यादव ने आने से मना िर भदया भिस िारण
अभवनाश यादव अिेला होने िे िारण परेशान
रहने लिा और शराब पीने लिा और आभर्स से
िी िायब रहने लिा। िेवल तन्ख्वाह भमलने वाले
भदन िाता था तथा अपना सिी सामान (घरेलू)
शराब पीने िे भलए बेच भदया था और िहिर
चला िया भि मैं अपने मामा िे यहां िा रहा हाँ।
अभवनाश िी नभनहाल सम्मल िे आसपास है।
िरीब
10-11
साल
पहले
िी०आर०पी०
िाभियाबाद से मेरे मो० नम्बर - 9719599308
पर िॉल आयी भि अभवनाश यादव िा
एक्सीडेन्ट हुआ है और उसिी टरेन दुघथटना में
मृत्यु हुयी है, हमने उसिा अस्न्तम संस्कार िर
भदया है तो हमने िहा भि हम तो वैचाररि
मतिेद होने िे िारण अलि रहते हैं भर्र हम
लोि िाभियाबाद नहीं िये थे और यह बात
िमलेश यादव िे देवर भवशाल यादव िो िी
बतायी थी, भिसने अभवनाश यादव िी टरेन
दुघथटना में मृत्यु होने िी बात िमलेश यादव िो
िी बतायी थी। िमलेश यादव वहां पर ियी
अथवा नही ियी इसिी िोई िानिारी हमें नहीं
है। भवशाल यादव िी अभिि शराब पीता था,
बीमार रहने िे िारण भदनांि 10.04.2023 िो
मुिफ्फरनिर रेलवे स्टेशन पर उसिी मृत्यु हो
ियी है, भिसिा अंभतम संस्कार मैने अपने हाथों
से भिया है।

 Sri Sanjeev Yadav also provided
the photocopy of death certification of
younger brother of Avinash Yadav. True
copy of death certificate of younger brother
of Avinash Yadav and relevant part of the
GD
revealing
the
information
about
missing Avinash Yadav by the Uncle and
Aunt of the missing Avinash Yadav are
being annexed herewith and marked as
ANNEXURE NO.-2 and 3 to this affidavit.

 12. That on 14.08.2023, Sub
Inspector Mahesh Kumar was sent at office
of S.P. G.R.P., Moradabad for pasting the
missing photo pamphlets of missing person
but no such record or any substantial break
through could be found from the office of
S.P.
G.R.P.,
Moradabad.
Meanwhile,
G.R.P.
Ghaziabad
vide
letter
dated
16.08.2023 informed that there is no record
available
at
P.S.
GRP,
Ghaziabad.
Moreover, records of the year 2010 are also
weeded out in Police Line Ghaziabad.
6 All. Kamlesh Yadav @ Kumari Kamlesh Yadav Vs. State of U.P. & Ors.
231
 13. That in view of the aforesaid
factum, it is submitted that best possible
efforts are being made by the answering
respondent for tracking the whereabouts of
missing Avinash Yadav but despite of best
efforts no such substantial information
could be collected. However, the team
constituted for the said purpose, are
continuously trying their level best in
respect of tracing out the missing person.

13. On 12.10.2023, an affidavit
dated 11.09.2023 was filed in Court,
because the matter could not be taken up on
12.09.2023 and 25.09.2023. The stand of
the Senior Superintendent of Police,
Meerut in the affidavit dated 11.09.2023 is
recorded in the Court's order dated
12.10.2023, which reads :

 An affidavit has been filed today
in
Court
on
behalf
of
the
Senior
Superintendent of Police, Meerut, by Ms.
Monika Arya, learned Additional Chief
Standing Counsel. It is taken on record. Let
it be numbered by the Office.

 In paragraph nos. 4, 5 and 6 of
the said affidavit, it is averred:

 "4. That it is noteworthy to
mention here that the husband of the
petitioner was gone missing in the year
2010 while the petitioner lodged the FIR
after 13 years on 28.07.2023.

 5. That in compliance of the
aforesaid direction of this Hon'ble Court,
deponent craves indulgence of this Hon'ble
Court to bring on record copy of letter
dated 31.08.2023 sent by Inspector InCharge
Daurala,
District
Meerut
to
Inspector In-Charge R.P.F. & G.R.P.
Ghaziabad and Inspector In-Charge R.P.F.
& G.R.P. Moradabad in respect of
providing the post-mortem related details
of dead/missing Avinash S/o Raghavan R/o
House No. 629 Jawahar Colony, Patel
Nagar, P.S. Nai Mandi, District Muzaffar
Nagar.

 6. That in response to the
aforesaid communication, In-Charge R.P.F.
and G.R.P. Ghaziabad District Ghaziabad
vide his endorsement on the letter sent by
the Inspector In-Charge Daurala, District
Meerut, informed that as per records, no
accident with respect to person namely
Avinash S/o Raghavan is recorded in the
year 2010 in R.P.F. Post Ghaziabad and
also no record is available in G.R.P. Police
Station Haza, Ghaziabad. In-Charge R.P.F.
Moradabad vide his endorsement on the
letter sent by the Inspector In-Charge
Daurala, District Meerut, informed that no
case is registered with regard to missing
Avinash S/O Raghavan and In-Charge
G.R.P. Moradabad has informed that no
information is mentioned as per the records
available in Police Station in relation to the
missing Avinash S/O Raghavan. True copy
of letter dated 31.08.2023 which bears the
endorsement report of In-Charge R.P.F.&
G.R.P. Ghaziabad and In-Charge R.P.F. &
G.R.P. Moradabad are being filed herewith
and
marked
as
ANNEXURE
NO.-1
respectively to this affidavit."

 Apparently, the whereabouts of
the petitioner's husband are not known by
those who would have normally heard of
him had he been alive.

 Let a supplementary counter
affidavit be filed within ten days by the
Commissioner Cane and Sugar, U.P.
Lucknow, the Deputy Cane Commissioner,
Meerut, U.P, the Senior Cane Development
Inspector, Meerut and the District Cane
Officer, Meerut indicating what is the
232 INDIAN LAW REPORTS ALLAHABAD SERIES
position
under
the
rules
regarding
presuming the civil death of an employee,
who is absent for a long period of time with
his whereabouts not being heard of by
those who would have normally heard of
him, of (sic) alive. The respondents shall
bear in mind that abandonment of service
postulates the fact that the employee is
alive and has an animus to abandon
employment. It requires, if the respondents
say that the petitioner's husband has
abandoned service, that he is or was alive at
the relevant period of time and consciously
committed acts of absenteeism entitling the
respondents to hold him as having
abandoned service. It would require the
respondents to produce evidence showing
that the petitioner's husband was alive at
the time when he abstained form duties or
that he is still alive.

 The affidavit shall make due
reference to the rules and the law on the
subject and the manner in which such
issues are dealt with by the respondents.

 Since
this
matter
has
been
sufficiently heard and substantial affidavits
already
exchanged,
this
petition
is
admitted.

 List
for
further
hearing
on
02.11.2023.

 Let this order be communicated
to the Commissioner Cane and Sugar, U.P.
Lucknow, the Deputy Cane Commissioner,
Meerut, U.P, the Senior Cane Development
Inspector, Meerut and the District Cane
Officer,
Meerut
by
the
Registrar
(Compliance) by Tuesday.

14. This Court must remark that in
response to the order dated 12.10.2023, two
Government Orders dated 20.03.1987 and
21.07.1991 were quoted extensively in a
subsequent counter affidavit filed on behalf
of respondents Nos. 2 to 5 about the
benefits admissible to the dependants and
heirs
of
government
servants
going
missing. The respondents, in a most
insensitive stand, did not acknowledge the
position that indeed, Avinash Yadav had
gone missing. In the supplementary counter
affidavit that they filed in compliance with
our order dated 12.10.2023, it was averred :

 In
the
instant
matter,
the
petitioner failed to submit any documentary
evidence i.e., Missing complaint, death
certificate from any court of law with
regard to Mr. Avinash Yadav, succession
certificate etc. in her favour. It is further
submitted that the alleged husband of the
petitioner, Mr. Avinash Yadav absconded
from his duties without any sanctioned
leave and despite of several notices on his
residential address, he failed to present
himself
on
duties
to
explain
the
unauthorized
absence.
Thereafter,
considering the unauthorized absence of
Mr. Avinash Yadav, through order dated
31.03.2021, the disciplinary authority /
opposite party no. 5 terminated the services
of Avinash Yadav w.e.f. 13.04.2010 and
concluded the disciplinary proceedings
initiated against him. More so, as per
service book and service records of Mr.
Avinash Yadav, the petitioner is not
included amongst his family members.
Therefore, the petitioner is not liable to
receive the retiral dues of Mr. Avinash
Yadav as alleged by her in the writ petition.
The True and typed copies of the
Government Order No. 369-88/10-909-87
dated 20.3.1987 and Government Order
No. Bima - 1905 / Ten 91-4687 dated
21.7.1991 are being annexed herewith
collectively and marked as ANNEXURE
No. SCA - 1 of this affidavit.
6 All. Kamlesh Yadav @ Kumari Kamlesh Yadav Vs. State of U.P. & Ors.
233
 5. That as specified in Rule 35
and 36 of the Uttar Pradesh Subsidiary
Rules or in the notes under Rule 66 of the
Uttar Pradesh Fundamental Rules; any
leave,
other
than
disability
leave,
admissible under the Fundamental Rules,
may
be
granted
to
a
non-gazetted
government servant by the authority whose
duty it would be to fill up his post if it were
vacant, or such other competent authority
to grant such leave or extension thereof.
Mr. Avinash Yadav working on the post of
'Peon' in the office of Senior Cane
Development Inspector, Daurala, Meerut
was continuously absent from duties w.e.f.
13.04.2010 without any permission or
sanctioned leave; therefore, through several
letters, the office of deponent and the
Senior
Cane
Development
Inspector,
Daurala, Meerut directed to Mr. Avinash
Yadav to join his duties immediately. The
aforesaid letters sent at the residential
address of Mr. Avinash Yadav at '629,
Jawahar Nagar Colony, Patel Nagar,
District - Muzaffarnagar' had been returned
by the Postal Department of Government of
India as unserved at the address of the Mr.
Avinash Yadav (address as provided by Mr
Avinash Yadav in his Service Book).

15. In this affidavit, a stand has
also been taken that in Avinash's service
book at Page No. 25 carrying the details of
his family members, the name of his
brother, Vishal Yadav, alone is mentioned,
who is also the nominee entitled to receive
Avinash's general provident fund. There is
no mention of Avinash's wife. The
respondents have virtually disowned the
fact that the petitioner is his wife and said
that if Avinash is missing, the burden to
prove his presumed civil death under
Section 108 of the Act of 1872 would lie
upon the petitioner. The insistence is on the
fact that since there is no missing report
lodged regarding Avinash by the petitioner,
the fact of his death cannot be presumed.
The respondents say that since there is no
missing complaint by the petitioner or a
death certificate from a Court of law with
regard to Avinash Yadav or a succession
certificate
in
the
petitioner's
favour
produced by her, it has to be presumed that
Avinash Yadav has absconded without
sanctioned leave. The stand taken in the
supplementary counter affidavit is, indeed,
not only very insensitive and nonchalant,
but also very illegal. No one in the world of
law would perhaps have heard of a party
bearing
the
burden
of
proving
a
presumption, a stand the respondents have
had the audacity to put on affidavit in the
following words :

 8. That it is significant to submit
that Section 108 of the Indian Evidence
Act, 1872 provides that when the question
is whether a man is alive or dead, and it is
proved that he has not been heard of for
seven years by those who would naturally
have heard of him if he had been alive, the
burden of proving that he is alive is shifted
to the person who affirms it.

 Therefore, the petitioner is having
the burden of proving her presumption that
her husband Mr. Avinash Yadav is missing
dead as per rule of law and settled
propositions of law. The observations made
by the Hon'ble Apex Court in the case of
LIC of India Vs. Anuradha, reported in
(2004) 10 SCC 131, in para-12, 13, 14 and
15 are relevant in the present context. The
true copy of the Judgment and Order
passed by the Hon'ble Apex Court in the
case of LIC of India Vs. Anuradha,
reported in (2004) 10 SCC 131 is being
filed herewith and marked as Annexure
No.
SCA-3
to
this
supplementary
affidavit.
234 INDIAN LAW REPORTS ALLAHABAD SERIES
(emphasis by Court)

16. Upon hearing learned Counsel
for parties and perusing the record, apart
from the remarks that we have already
made above, it must be said that the
respondents' stand, as it were, casting a
doubt about the petitioner's status as
Avinash's wife, goes against their own
stand earlier taken. There is on record of
the writ petition Memo No. 427 of 2019
स्था०/िांच dated 06.11.2019 addressed by
Sauveer Singh, Senior Cane Development
Inspector, Daurala, Meerut addressed to
Avinash Yadav through the petitioner,
describing her as Avinash's wife in the
following terms :

 श्री अभवनाश यादव पुत्र स्व०श्री
राघवन िुमार यादव,
 राििीय
चपरासी
(ि०भव०परर०,
दौराला)।
 द्वारा श्रीमती िमलेश पत्नी श्री
अभवनाश यादव
पुत्री श्री मनवीर भसंह ग्राम
इस्माईलपुर डा० खास
 भसिंदराबाद भिला-बुलन्दशहर।

17. This letter would show that the
petitioner was reputed to be Avinash's
wife, not only that she was.