The Central Administrative Tribunal, Allahabad Bench, has held that when a government employee remains untraceable for over seven years, the presumption of civil death under Section 108 of the Indian Evidence Act applies, rendering prior disciplinary removal orders invalid and entitling the spouse to family pension and compassionate appointment. The Tribunal annulled the removal order against a missing railway employee and directed the payment of all terminal benefits.
The Verdict
The applicant, widow of a missing railway employee, won. The Central Administrative Tribunal held that where an employee has not been heard of for over seven years and police efforts have failed to trace him, the presumption of civil death under Section 108 of the Indian Evidence Act arises. The prior removal order based on unauthorized absence was annulled as based on invalid premises. The applicant is entitled to family pension, terminal benefits, and reconsideration of compassionate appointment for her son.
Background & Facts
The applicant is the widow of Onkar Kannaujiya, a Khalasi employed with the Northeastern Railway. He went missing on 12 January 2006 while seeking funds for her medical treatment. Despite repeated attempts, he was never located. The applicant informed the railway authorities immediately and lodged an FIR on 24 March 2007 after persistent efforts with the police. She submitted multiple representations seeking family pension and compassionate appointment for her son, but no action was taken.
In 2008, the railway department issued a charge-sheet alleging unauthorized absence from 17 December 2005 and passed a removal order on 18 December 2008. The order was served by publication in a newspaper since the employee could not be located. The applicant obtained the order through an RTI application and challenged it before the Central Administrative Tribunal.
The respondents claimed that letters allegedly written by the missing employee, stating he was alive and fleeing threats from his wife, invalidated the presumption of death. However, these letters were never verified, and no complaint was ever filed by the employee himself. The applicant filed a rejoinder affidavit and relied on Railway Board circulars and judicial precedents.
The Legal Issue
The central legal questions were: whether the prolonged untraceability of a government employee for over seven years triggers the presumption of civil death under Section 108 of the Indian Evidence Act, and whether a disciplinary removal order issued during such absence can be annulled if the employee is later presumed dead.
Arguments Presented
For the Petitioner
The petitioner’s counsel argued that the employee had been missing since 12 January 2006, with a verified police report lodged on 24 March 2007. More than 19 years had passed without any trace, satisfying the conditions of Section 108 of the Indian Evidence Act, which shifts the burden of proving life to those asserting it. The removal order was issued ex parte, after the employee had already gone missing, and was therefore based on false premises. The Railway Board’s RBE No. 150/1991 explicitly mandates annulment of such orders when the absence is later established as genuine missing. The petitioner cited multiple precedents from the Patna and Allahabad High Courts, and the Supreme Court, affirming that family pension and compassionate appointment must follow civil death presumption.
For the Respondent
The respondents contended that the letters allegedly written by the missing employee proved he was alive and had voluntarily absented himself. They argued that the disciplinary proceedings were conducted in accordance with rules and that compassionate appointment is not a right but a discretionary benefit, only available upon death or presumed death under law. They further claimed that the applicant had not exhausted internal remedies and that the removal order, though served by publication, was legally valid.
The Court's Analysis
The Tribunal undertook a detailed review of the statutory framework, Railway Board circulars, and binding precedents. It emphasized that Section 108 of the Indian Evidence Act creates a rebuttable presumption of death when a person has not been heard of for seven years by those likely to have heard from him. The burden then shifts to the party asserting the person is alive.
"The burden of proving that he is alive is shifted to the person who affirms it."
The Tribunal noted that the respondents had not produced any credible evidence - such as eyewitness accounts, verified signatures, or police verification - to substantiate the authenticity of the letters. The mere existence of unverified correspondence, especially when the alleged author never appeared before any authority, was insufficient to rebut the presumption.
The Tribunal further held that the Railway Board’s RBE No. 150/1991, RBE No. 8/1992, and RBE No. 3/1994 are binding on the department. These circulars explicitly state that when an employee is genuinely missing, disciplinary proceedings initiated on grounds of unauthorized absence must be annulled, as they are based on invalid premises. The Tribunal observed that the removal order was passed ex parte, after the employee had vanished, and that service by publication does not cure the fundamental defect of proceeding against a person whose status was already in doubt.
"No amount of enquiry would change this admitted fact."
The Tribunal distinguished the Supreme Court’s decision in Lalita (2025), where compassionate appointment was denied because the employee had retired before disappearance. Here, the employee was actively in service and disappeared without trace. The Tribunal also relied on Smt. Mithlesh (2025) and Ramakant Singh (2011), where similar facts led to annulment of removal orders and grant of benefits.
The Tribunal concluded that the applicant had discharged her burden by producing a police report, continuous representations, and the passage of nearly 29 years without any credible sighting. The respondents failed to rebut the presumption. Consequently, the removal order was declared illegal and void ab initio.
What This Means For Similar Cases
This judgment establishes a clear precedent for service law practitioners handling cases of missing government employees. It confirms that disciplinary proceedings initiated against an employee who has been untraceable for over seven years are legally unsustainable if the presumption of civil death under Section 108 is triggered. The burden of proof lies squarely on the employer to prove the employee is alive, not on the family to prove death.
Practitioners should now routinely invoke RBE No. 150/1991 and Section 108 in cases where removal orders are based on unauthorized absence, especially when police reports confirm prolonged untraceability. The judgment also clarifies that compassionate appointment is not discretionary when the employee is presumed dead; it becomes a statutory entitlement under Railway Board guidelines.
However, the ruling does not apply where there is credible evidence of fraud, criminal intent, or voluntary disappearance to evade liability. The key distinguishing factor remains the genuineness of the disappearance and the absence of any verifiable proof of life. Future litigants must ensure timely filing of police reports and preservation of all correspondence with the employer to strengthen their claim.
