CHENNAI: It was more of a riddle than a legal battle. Railway employee Abdul Saleem went missing in 2002, leaving behind his wife Nayeeda Begum and two young children. Begum lodged a complaint with police. After seven years, as Saleem remained untraced, Section 108 of the Evidence Act was invoked and he was declared as 'presumed dead'.
Begum was now eligible to be considered for a job in the railways on compassionate grounds, and she was recruited in 2009 as a cleaner. She also got benefits such as gratuity and leave salary due to Saleem.
In 2011, Saleem resurfaced and demanded his job back. He petitioned the railway authorities to allow him to rejoin duty. He said he was working as a coolie in Hubli and could not make a decent living. Realising that he is still alive, the railways issued a termination notice to Begum, prompting her to move the Central Administrative Tribunal. The tribunal ruled in her favour saying she had not cheated the railways and she got the job only after Saleem was declared 'presumed dead'. The railways moved the high court challenging the CAT ruling.
When the matter came up before a division bench comprising Justice N Paul Vasanthakumar and Justice P Devadass, there was neither law nor precedence to decide the case.
Begum neither cheated the railways nor misrepresented facts. But, the railways cannot legally allow her to continue in the job while its employee, who had been presumed dead, was alive. The court, on its part, cannot allow its sense of sympathy to undermine law.
To complicate the matter further, while Begum and her children were ready to reunite and live with Saleem, he was not willing to take them. They, however, unanimously left the matter to the wisdom of the court hoping it would do 'complete justice' to them.
The judges then came out with a suggestion which was acceptable to Saleem, Begum and the railways. It asked the railways to retire Saleem from service compulsorily as punishment for long absence. He would be entitled to receive his pension alone. Begum would then be appointed afresh as cleaner grade-III without any other claim for service rendered since 2009. The order protected the railways' interest as well, as it cannot be accused of any lenience or illegality.
Out of abundant caution, the judges made it clear that the order had been passed on the peculiar facts and circumstances of this case and should not be treated as a precedent in any other case.
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