Disciplinary Penalty Based on Unauthorized Absence Must Be Annulled Upon Proof of Employee Being Genuinely Missing

The husband of Applicant No. 1, Prem Narayan, was appointed to the North Central Railway in 1977.

He went missing from duty on January 16, 1998.

Consequently, the respondents initiated disciplinary proceedings for unauthorized absence, conducted an ex-parte inquiry, and removed him from service on January 19, 2001.

Although an FIR was eventually recorded and a police final report was issued on April 22, 2008, declaring the employee untraceable after over nine years, the respondents rejected claims for compassionate appointment on the grounds that the employee had been removed from service while alive.

While the respondents eventually sanctioned compassionate allowance and DCRG under Rule 65 of the Railway Services (Pension) Rules, 1993, they refused to treat the case as a "missing employee" death case.

1. Whether the disciplinary proceedings and the penalty of removal from service can be sustained when it is subsequently established that the employee was "genuinely missing" rather than unauthorizedly absent.

2. Whether the family of a missing employee is entitled to the annulment of past penalties and the grant of consequential benefits, including compassionate appointment, under Railway Board circulars.

Railway Board Circular RBE No. 150/1991, which mandates that where an employee is found to be "genuinely missing" and not merely absent, disciplinary actions based on unauthorized absence must be treated as initiated on invalid premises and annulled by the competent authority.

Section 108 of the Indian Evidence Act, 1872, regarding the presumption of death for persons not heard of for seven years.

RBE No. 164/1998, which provides a framework for granting compassionate appointments to dependents of missing employees after a lapse of two years from the date of disappearance, provided an FIR is lodged and the case is deemed genuine.

The Tribunal reasoned that the police final report dated April 22, 2008, which confirmed the employee was untraceable for over nine years, proved the case was one of a "genuinely missing" person rather than intentional unauthorized absence.

Consequently, the disciplinary proceedings initiated in 1999 and the removal order of 2001 were based on "invalid premises" as defined by RBE No. 150/1991.

The Tribunal found that the subsequent evidence of disappearance necessitated the annulment of the removal order.

Regarding compassionate appointment, the Tribunal noted that although the FIR was formalised later (2007), the fact of the employee being missing since 1998 was established; therefore, under RBE No. 164/1998, the case was eligible for consideration since the missing status predated the removal and the employee had not been heard of for a period exceeding the statutory requirement.

The respondents were directed to: (i) release all post-retiral/death benefits and arrears of family pension to Applicant No. 1 within four months, failing which 6% interest would apply; and (ii) consider the candidature of Applicant No. 2 (the son) for compassionate appointment in accordance with law.