Evidence Act, 1872 – S. 108 – Presumption of – 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.
2012 (4) KHC 799 : 2012 (3) KLT 152
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S. Siri Jagan, J.
W.P(C) No. 8107 of 2010 (K)
Dated this, the 22nd day of May, 2012
Mariamma Samuel v. State of Kerala
FOR PETITIONER: BY ADVS.SRI.V.SETHUNATH, SRI.V.VINAY; FOR RESPONDENT(S): BY ADV. SRI.M.V.THAMBAN, BY ADV. SRI.R.REJI, BY ADV. SMT.C.K.SHERIN, GOVERNMENT PLEADER
J U D G M E N T
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.