I am inclined to follow the view taken by the
learned Judges in the decisions quoted above. In Indira's
case (supra), a learned Judge of this Court has held as
follows:
". . . . . There may be cases where the missing person
may be dead or permanently disabled mentally or
physically which may not come to the notice of the Army or
the family. Even in such cases also, the Army may be
justified in declaring him a deserter but the position will
continue only until expiry of seven years from the date of
missing of the person when presumption of death is
available under Section 108 of the Evidence Act.
Therefore, as and when presumption of death is available
under Section 108 of the Evidence Act, the whole position
changes and the presumption of death supercedes the
declaration of the person a deserter under Section 106 of
the Army Act. Consequently the family members can claim
all benefits as if the man is dead on the date of his missing.
Since it is admitted that the petitioner's husband has not
surfaced and could not be traced after 5.10.1995 in spite of
effort to trace him by the Police at the request by the Army,
the presumption of his death as on 5.10.1995 is available
under Section 108 of the Evidence Act. Since petitioner's
husband was admittedly sick and had undergone major
surgery, the possibility of his death could not be ruled out.
It is regularly reported in newspapers and media that many
dead bodies surfacing here and there are all buried without
anybody identifying such bodies. Going by the statement of
the respondents, petitioner's husband should have been on
his way from Bangalore to Military Hospital on the date of
missing that is, 5.10.1995. Apart from the presumption of
death, the circumstances do not suggest any chance of
petitioner's husband deserting the Army towards the end of
his career."
Of course, that is a case where the person missing was
declared as a deserter by the Army. Another learned Judge
of this Court in W.P(C) No. 24613/2006 applied the ratio of
that decision for granting compassionate employment to
the dependent of a person who was missing similarly. Of
course, there also was a First Information Report. But, I do
not think that registration or non-registration of a First
Information Report will be fatal to the case of the
petitioner. The petitioner has reported the missing of her
husband to the police, the police had made investigation
pursuant thereto and the police have issued Ext.P1
certificate stating that despite investigation made in that
regard, the whereabouts of K.M. Samuel could not be
ascertained. Once a complaint relating to missing of a
person is filed before the police, it is for the police to file a
First Information Report and do whatever is necessary. The
petitioner does not have any control regarding the same.
Therefore, if a distinction is to be made in respect of
identical circumstances based on whether FIR has been
registered or not, it would result in injustice to the
petitioner for no fault of hers. I am of opinion that the ratio
of the decisions relied on by the petitioner would be equally
applicable to a case where a First Information Report has
not been registered also, if it is reasonably certain that the
person went missing and he has not been heard of for more
than seven years. So, the disciplinary proceedings against
the petitioner's husband would hold good only for seven
years prescribed in Section 106 of the Indian Evidence Act
and thereafter what would be applicable to the
circumstances is Section 108 of the Indian Evidence Act.
That means if an employee went missing he has not heard
of for seven years notwithstanding the disciplinary
proceedings, the consequences of presumption under
Section 108 of the Indian Evidence Act would follow,
meaning thereby that the legal heirs of the missing person
should be given all benefits presuming that that person is
dead and that the disciplinary proceedings were against a
dead person.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE S.SIRI JAGAN
22ND DAY OF MAY 2012
WP(C).No. 8107 of 2010 (K)
MARIMMA SAMUEL,
Vs
STATE OF KERALA,
The petitioner is a widow aged 73 years. Her husband,
K.M. Samuel, was a clerk in the 5th respondent's school, which is
an aided school. He was present in the school for duty on
30.11.1987. But, thereafter, he went missing. The 5th
respondent initiated disciplinary proceedings against the
petitioner's husband for unauthorized absence under Rule 74 of
Chapter XIV-A of KER. The notice of the disciplinary
proceedings could not be served on the petitioner's husband.
Therefore, the notice was published in Deepika daily on
5.8.1989. Subsequently, by Ext.P3 order, the 5th respondent
imposed on the petitioner's husband the punishment of removal
from service. The petitioner filed a complaint before the police
that her husband is missing. The Sub Inspector of Police, Adoor
issued Ext.P1 certificate to the petitioner stating that in spite of
enquiry regarding the whereabouts of K.M. Samuel, the
whereabouts could not be ascertained. The petitioner submits
that in view of the fact that more than 7 years have already
elapsed since the disappearance of her husband and he has not
been heard about since then, applying the provisions of Section
108 of the Evidence Act, it must be presumed that he is dead
from the date of his missing. The petitioner submits that if that
be so, it must be presumed that he died while in service.
Consequently, the petitioner is entitled to terminal benefits of
her husband as also family pension. The petitioner therefore
seeks the following reliefs:
"1. Call for records relating to Ext.P1 to P17 and quash
Ext.P3 proceedings by a writ of certiorari or other
appropriate writ, order or direction and declare that
Ext.P3 proceedings are illegal.
2. Issue a writ of mandamus or any other appropriate writ,
order or direction, to the respondents to issue family
pension and other service benefits to the petitioner with
effect from 1.12.1987.
3. Call for records relating to Ext.P15 to P17 and quash
Ext.P15 order by a writ of certiorari or other appropriate
writ, order or direction and declare that Ext.P15 order is
illegal, unlawful and unsustainable in law.
4. To issue appropriate writ, order or direction to
respondents 1-4 to grant all the monetary benefits of K.M.
Samuel to the petitioner with an interest of 12% from the
date of missing of K.M. Samuel.
5. To issue appropriate writ, order or direction to
respondents 1-4 to give appointment to the legal heir of
K.M. Samuel on the ground of compassionate appointment
at the earliest."
2. In respect of the claim of the petitioner, the
petitioner relies on two decisions of this Court, viz, Indira,
K. v. Union of India and others, ILR 2005 (3) Ker. 801
and the judgment in W.P(C) No. 24613/2006, wherein two
learned Judges of this Court have held that notwithstanding
departmental proceedings against a person which ended in
removal from service, if that person is not heard of for more
than seven years, then, applying provisions of Section 108
of the Indian Evidence Act, he must be presumed to be
dead, in which case, despite the departmental proceedings,
the legal heirs should be given benefits as applicable to a
person who is no more on the presumption that he was no
more from the date of his missing.
3. A counter affidavit is filed by the 2nd respondent,
wherein the stand taken is that since the petitioner's
husband had been removed from service after disciplinary
proceedings, which has not been challenged, no terminal
benefits are due to the petitioner's husband and
consequently, the petitioner is not entitled to family pension
as well. The learned Government Pleader points out that
the decision in Indira's case (supra) is not applicable to the
facts of this case, insofar as that was a case where there
was a First Information Report registered in respect of the
missing of the person, unlike in this case where no FIR has
been registered.
4. I have considered the rival contentions in detail.
5. I am inclined to follow the view taken by the
learned Judges in the decisions quoted above. In Indira's
case (supra), a learned Judge of this Court has held as
follows:
". . . . . There may be cases where the missing person
may be dead or permanently disabled mentally or
physically which may not come to the notice of the Army or
the family. Even in such cases also, the Army may be
justified in declaring him a deserter but the position will
continue only until expiry of seven years from the date of
missing of the person when presumption of death is
available under Section 108 of the Evidence Act.
Therefore, as and when presumption of death is available
under Section 108 of the Evidence Act, the whole position
changes and the presumption of death supercedes the
declaration of the person a deserter under Section 106 of
the Army Act. Consequently the family members can claim
all benefits as if the man is dead on the date of his missing.
Since it is admitted that the petitioner's husband has not
surfaced and could not be traced after 5.10.1995 in spite of
effort to trace him by the Police at the request by the Army,
the presumption of his death as on 5.10.1995 is available
under Section 108 of the Evidence Act. Since petitioner's
husband was admittedly sick and had undergone major
surgery, the possibility of his death could not be ruled out.
It is regularly reported in newspapers and media that many
dead bodies surfacing here and there are all buried without
anybody identifying such bodies. Going by the statement of
the respondents, petitioner's husband should have been on
his way from Bangalore to Military Hospital on the date of
missing that is, 5.10.1995. Apart from the presumption of
death, the circumstances do not suggest any chance of
petitioner's husband deserting the Army towards the end of
his career."
Of course, that is a case where the person missing was
declared as a deserter by the Army. Another learned Judge
of this Court in W.P(C) No. 24613/2006 applied the ratio of
that decision for granting compassionate employment to
the dependent of a person who was missing similarly. Of
course, there also was a First Information Report. But, I do
not think that registration or non-registration of a First
Information Report will be fatal to the case of the
petitioner. The petitioner has reported the missing of her
husband to the police, the police had made investigation
pursuant thereto and the police have issued Ext.P1
certificate stating that despite investigation made in that
regard, the whereabouts of K.M. Samuel could not be
ascertained. Once a complaint relating to missing of a
person is filed before the police, it is for the police to file a
First Information Report and do whatever is necessary. The
petitioner does not have any control regarding the same.
Therefore, if a distinction is to be made in respect of
identical circumstances based on whether FIR has been
registered or not, it would result in injustice to the
petitioner for no fault of hers. I am of opinion that the ratio
of the decisions relied on by the petitioner would be equally
applicable to a case where a First Information Report has
not been registered also, if it is reasonably certain that the
person went missing and he has not been heard of for more
than seven years. So, the disciplinary proceedings against
the petitioner's husband would hold good only for seven
years prescribed in Section 106 of the Indian Evidence Act
and thereafter what would be applicable to the
circumstances is Section 108 of the Indian Evidence Act.
That means if an employee went missing he has not heard
of for seven years notwithstanding the disciplinary
proceedings, the consequences of presumption under
Section 108 of the Indian Evidence Act would follow,
meaning thereby that the legal heirs of the missing person
should be given all benefits presuming that that person is
dead and that the disciplinary proceedings were against a
dead person.
6. In view of the above finding, the petitioner has
become entitled to payment of terminal benefits in respect
of the service of her husband with the 5th respondent.
Accordingly, the writ petition is allowed. Respondents 1
to 4 are directed to pay to the petitioner terminal benefits
due to her husband K.M. Sanuel and the family pension due
to the petitioner with arrears, as expeditiously as possible,
at any rate, within two months from the date of receipt of a
copy of this judgment. Respondents 5 and 6 shall do
everything necessary to enable the petitioner to get the
above said benefits, within one month from the date of
receipt of a copy of this judgment.
The petitioner presses for payment of interest. In the
facts and circumstances of the case, I do not think that this
is a fit case for award of interest. The prayer for interest is
declined.
learned Judges in the decisions quoted above. In Indira's
case (supra), a learned Judge of this Court has held as
follows:
". . . . . There may be cases where the missing person
may be dead or permanently disabled mentally or
physically which may not come to the notice of the Army or
the family. Even in such cases also, the Army may be
justified in declaring him a deserter but the position will
continue only until expiry of seven years from the date of
missing of the person when presumption of death is
available under Section 108 of the Evidence Act.
Therefore, as and when presumption of death is available
under Section 108 of the Evidence Act, the whole position
changes and the presumption of death supercedes the
declaration of the person a deserter under Section 106 of
the Army Act. Consequently the family members can claim
all benefits as if the man is dead on the date of his missing.
Since it is admitted that the petitioner's husband has not
surfaced and could not be traced after 5.10.1995 in spite of
effort to trace him by the Police at the request by the Army,
the presumption of his death as on 5.10.1995 is available
under Section 108 of the Evidence Act. Since petitioner's
husband was admittedly sick and had undergone major
surgery, the possibility of his death could not be ruled out.
It is regularly reported in newspapers and media that many
dead bodies surfacing here and there are all buried without
anybody identifying such bodies. Going by the statement of
the respondents, petitioner's husband should have been on
his way from Bangalore to Military Hospital on the date of
missing that is, 5.10.1995. Apart from the presumption of
death, the circumstances do not suggest any chance of
petitioner's husband deserting the Army towards the end of
his career."
Of course, that is a case where the person missing was
declared as a deserter by the Army. Another learned Judge
of this Court in W.P(C) No. 24613/2006 applied the ratio of
that decision for granting compassionate employment to
the dependent of a person who was missing similarly. Of
course, there also was a First Information Report. But, I do
not think that registration or non-registration of a First
Information Report will be fatal to the case of the
petitioner. The petitioner has reported the missing of her
husband to the police, the police had made investigation
pursuant thereto and the police have issued Ext.P1
certificate stating that despite investigation made in that
regard, the whereabouts of K.M. Samuel could not be
ascertained. Once a complaint relating to missing of a
person is filed before the police, it is for the police to file a
First Information Report and do whatever is necessary. The
petitioner does not have any control regarding the same.
Therefore, if a distinction is to be made in respect of
identical circumstances based on whether FIR has been
registered or not, it would result in injustice to the
petitioner for no fault of hers. I am of opinion that the ratio
of the decisions relied on by the petitioner would be equally
applicable to a case where a First Information Report has
not been registered also, if it is reasonably certain that the
person went missing and he has not been heard of for more
than seven years. So, the disciplinary proceedings against
the petitioner's husband would hold good only for seven
years prescribed in Section 106 of the Indian Evidence Act
and thereafter what would be applicable to the
circumstances is Section 108 of the Indian Evidence Act.
That means if an employee went missing he has not heard
of for seven years notwithstanding the disciplinary
proceedings, the consequences of presumption under
Section 108 of the Indian Evidence Act would follow,
meaning thereby that the legal heirs of the missing person
should be given all benefits presuming that that person is
dead and that the disciplinary proceedings were against a
dead person.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE S.SIRI JAGAN
22ND DAY OF MAY 2012
WP(C).No. 8107 of 2010 (K)
MARIMMA SAMUEL,
Vs
STATE OF KERALA,
The petitioner is a widow aged 73 years. Her husband,
K.M. Samuel, was a clerk in the 5th respondent's school, which is
an aided school. He was present in the school for duty on
30.11.1987. But, thereafter, he went missing. The 5th
respondent initiated disciplinary proceedings against the
petitioner's husband for unauthorized absence under Rule 74 of
Chapter XIV-A of KER. The notice of the disciplinary
proceedings could not be served on the petitioner's husband.
Therefore, the notice was published in Deepika daily on
5.8.1989. Subsequently, by Ext.P3 order, the 5th respondent
imposed on the petitioner's husband the punishment of removal
from service. The petitioner filed a complaint before the police
that her husband is missing. The Sub Inspector of Police, Adoor
issued Ext.P1 certificate to the petitioner stating that in spite of
enquiry regarding the whereabouts of K.M. Samuel, the
whereabouts could not be ascertained. The petitioner submits
that in view of the fact that more than 7 years have already
elapsed since the disappearance of her husband and he has not
been heard about since then, applying the provisions of Section
108 of the Evidence Act, it must be presumed that he is dead
from the date of his missing. The petitioner submits that if that
be so, it must be presumed that he died while in service.
Consequently, the petitioner is entitled to terminal benefits of
her husband as also family pension. The petitioner therefore
seeks the following reliefs:
"1. Call for records relating to Ext.P1 to P17 and quash
Ext.P3 proceedings by a writ of certiorari or other
appropriate writ, order or direction and declare that
Ext.P3 proceedings are illegal.
2. Issue a writ of mandamus or any other appropriate writ,
order or direction, to the respondents to issue family
pension and other service benefits to the petitioner with
effect from 1.12.1987.
3. Call for records relating to Ext.P15 to P17 and quash
Ext.P15 order by a writ of certiorari or other appropriate
writ, order or direction and declare that Ext.P15 order is
illegal, unlawful and unsustainable in law.
4. To issue appropriate writ, order or direction to
respondents 1-4 to grant all the monetary benefits of K.M.
Samuel to the petitioner with an interest of 12% from the
date of missing of K.M. Samuel.
5. To issue appropriate writ, order or direction to
respondents 1-4 to give appointment to the legal heir of
K.M. Samuel on the ground of compassionate appointment
at the earliest."
2. In respect of the claim of the petitioner, the
petitioner relies on two decisions of this Court, viz, Indira,
K. v. Union of India and others, ILR 2005 (3) Ker. 801
and the judgment in W.P(C) No. 24613/2006, wherein two
learned Judges of this Court have held that notwithstanding
departmental proceedings against a person which ended in
removal from service, if that person is not heard of for more
than seven years, then, applying provisions of Section 108
of the Indian Evidence Act, he must be presumed to be
dead, in which case, despite the departmental proceedings,
the legal heirs should be given benefits as applicable to a
person who is no more on the presumption that he was no
more from the date of his missing.
3. A counter affidavit is filed by the 2nd respondent,
wherein the stand taken is that since the petitioner's
husband had been removed from service after disciplinary
proceedings, which has not been challenged, no terminal
benefits are due to the petitioner's husband and
consequently, the petitioner is not entitled to family pension
as well. The learned Government Pleader points out that
the decision in Indira's case (supra) is not applicable to the
facts of this case, insofar as that was a case where there
was a First Information Report registered in respect of the
missing of the person, unlike in this case where no FIR has
been registered.
4. I have considered the rival contentions in detail.
5. I am inclined to follow the view taken by the
learned Judges in the decisions quoted above. In Indira's
case (supra), a learned Judge of this Court has held as
follows:
". . . . . There may be cases where the missing person
may be dead or permanently disabled mentally or
physically which may not come to the notice of the Army or
the family. Even in such cases also, the Army may be
justified in declaring him a deserter but the position will
continue only until expiry of seven years from the date of
missing of the person when presumption of death is
available under Section 108 of the Evidence Act.
Therefore, as and when presumption of death is available
under Section 108 of the Evidence Act, the whole position
changes and the presumption of death supercedes the
declaration of the person a deserter under Section 106 of
the Army Act. Consequently the family members can claim
all benefits as if the man is dead on the date of his missing.
Since it is admitted that the petitioner's husband has not
surfaced and could not be traced after 5.10.1995 in spite of
effort to trace him by the Police at the request by the Army,
the presumption of his death as on 5.10.1995 is available
under Section 108 of the Evidence Act. Since petitioner's
husband was admittedly sick and had undergone major
surgery, the possibility of his death could not be ruled out.
It is regularly reported in newspapers and media that many
dead bodies surfacing here and there are all buried without
anybody identifying such bodies. Going by the statement of
the respondents, petitioner's husband should have been on
his way from Bangalore to Military Hospital on the date of
missing that is, 5.10.1995. Apart from the presumption of
death, the circumstances do not suggest any chance of
petitioner's husband deserting the Army towards the end of
his career."
Of course, that is a case where the person missing was
declared as a deserter by the Army. Another learned Judge
of this Court in W.P(C) No. 24613/2006 applied the ratio of
that decision for granting compassionate employment to
the dependent of a person who was missing similarly. Of
course, there also was a First Information Report. But, I do
not think that registration or non-registration of a First
Information Report will be fatal to the case of the
petitioner. The petitioner has reported the missing of her
husband to the police, the police had made investigation
pursuant thereto and the police have issued Ext.P1
certificate stating that despite investigation made in that
regard, the whereabouts of K.M. Samuel could not be
ascertained. Once a complaint relating to missing of a
person is filed before the police, it is for the police to file a
First Information Report and do whatever is necessary. The
petitioner does not have any control regarding the same.
Therefore, if a distinction is to be made in respect of
identical circumstances based on whether FIR has been
registered or not, it would result in injustice to the
petitioner for no fault of hers. I am of opinion that the ratio
of the decisions relied on by the petitioner would be equally
applicable to a case where a First Information Report has
not been registered also, if it is reasonably certain that the
person went missing and he has not been heard of for more
than seven years. So, the disciplinary proceedings against
the petitioner's husband would hold good only for seven
years prescribed in Section 106 of the Indian Evidence Act
and thereafter what would be applicable to the
circumstances is Section 108 of the Indian Evidence Act.
That means if an employee went missing he has not heard
of for seven years notwithstanding the disciplinary
proceedings, the consequences of presumption under
Section 108 of the Indian Evidence Act would follow,
meaning thereby that the legal heirs of the missing person
should be given all benefits presuming that that person is
dead and that the disciplinary proceedings were against a
dead person.
6. In view of the above finding, the petitioner has
become entitled to payment of terminal benefits in respect
of the service of her husband with the 5th respondent.
Accordingly, the writ petition is allowed. Respondents 1
to 4 are directed to pay to the petitioner terminal benefits
due to her husband K.M. Sanuel and the family pension due
to the petitioner with arrears, as expeditiously as possible,
at any rate, within two months from the date of receipt of a
copy of this judgment. Respondents 5 and 6 shall do
everything necessary to enable the petitioner to get the
above said benefits, within one month from the date of
receipt of a copy of this judgment.
The petitioner presses for payment of interest. In the
facts and circumstances of the case, I do not think that this
is a fit case for award of interest. The prayer for interest is
declined.
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