JUDGMENT This application has been made by the wife, sons and daughter of one Ram Kripal Tewary who was a Constable attached to the East Traffic Police Guard, Traffic Department, Calcutta Police. The said Ram Kripal Tewary was a resident of Baikunthapur, District Chhapra in the State of Bihar. He was absorbed in the Calcutta Police and served for about 19 years till 11th February, 1968. 2. The case of the petitioners is that the said Ram Kripal Tewary, while on his duty on 11th February, 1968 posted some where in Park Circus Area, did not return from his duty when there was a roll-call at about 21 hrs. The widow of the Constable was informed that her husband was missing and she filed an application on 20th August, 1968 enquiring what happened to her husband. Efforts were made for tracing out her husband but without any success. After a lapse of several year a chargesheet was issued on the ground that he was found absent on night roll-call on 11th February, 1968 without any permission and he remained absent from his duty. The petitioner No. 1, the wife of the said Constable, could not take any steps earlier as the petitioner No.2 was about 3 years and 1 month, the petitioner No.4 was about 1 year, and petitioner No.3 was about 4 months on 11th February, 1968. Accordingly no application was made earlier by the petitioners for any relief for the missing husband or father as the case may be. 3. In this application the petitioners have asked for a direction upon the respondents for payment of pension to the wife of the said Ram Kripal Tewary and for setting aside the order passed in absence of Ram Kripal Tewary. 4. The records have been produced. This is a very unfortunate case. From the records it appears that the petitioner was appointed temporarily as Constable on 21st January, 1950. He was confirmed in the said post. 5. The following G. D. extract of East Traffic Police Guard is found in the file : "G. D. Extract from East T. P. Guard. 11. 2. 68 East T. P. Vide Night roll-call held at Guard Guard G. D. Entry compound by Guard H/C. J. No. 598 at 9 p.m. Singh who briefed them all necessary T. P.'s orders. 5. The following G. D. extract of East Traffic Police Guard is found in the file : "G. D. Extract from East T. P. Guard. 11. 2. 68 East T. P. Vide Night roll-call held at Guard Guard G. D. Entry compound by Guard H/C. J. No. 598 at 9 p.m. Singh who briefed them all necessary T. P.'s orders. All are present except T. P. 488 … who are on duty, C. C. E. L. M. L. etc. Sd/- C/W. P. Biswas 1. 3. 68 East T. P. Vide Night Roll-call was held at Guard G. D. Entry Guard compound by Guard No. 53 at 9 p.m. H/C. J. Singh who briefed Them all necessary T. P’s orders. All are present in the night roll-call except those are on duty leave. Hospital O/S, P.L.and T.P. 488, R.K. Tewary who was absent from 11.2.68 vide G.D. No. 598. sd/-C/W.B. Sinha” 6. On 30th July, 1969 a transfer order was made transferring the said Ram Kripal Tewary from East Traffic Police Guard to Jorabagan T. P. Guard. It is surprising that a man who did not turn up after 11th February, 1968 was sought to be transferred but it is not known upon whom the said transfer order was served. The file is significantly silent about the steps taken to find out the whereabout of the said Ram Kripal Tewary after 11th February, 1968. This is how the department proceeded and it is not only contrary to official norms and discipline but it is contrary to the normal human behaviour. Whether a constable is alive or dead did not make any difference to the superior officers. It is a common knowledge that in Calcutta in 1968 there was Naxalite movement and accordingly it should have struck the authorities why person who did not have any bad record since his date of appointment did not turn up for duty. The manner in which the department proceeded would be clear from the further facts narrated hereafter. 7. B. B. Chakraborty the then Deputy Commissioner of Police, Traffic Department made another transfer order on 16th April, 1970 transferring the said Ram Kripal Tewary to the Port Division. It is strange that a person who did not at all join after 1968 was transfered twice and nobody bothered to find out what happened to him. 8. 7. B. B. Chakraborty the then Deputy Commissioner of Police, Traffic Department made another transfer order on 16th April, 1970 transferring the said Ram Kripal Tewary to the Port Division. It is strange that a person who did not at all join after 1968 was transfered twice and nobody bothered to find out what happened to him. 8. It appears that on 24th January, 1972 the Reserve Officer, Traffic Police, Calcutta asked the Officer-in-Charge, Port Police Traffic Guard to give the whereabout of the said Ram Kripal Tewary who was transferred to the Port Division from 1st April, 1970. 9. Thereafter, another letter dated 7th February, 1972 was written by the said Reserve Officer to the said Officer-in-Charge. On the said letter a note was given by the Officer-in-Charge, East Traffic Police Guard that on scrutiny of the office record it transpired that the said Constable was a deserter and he was transferred on 31st July, 1969 to Jorabagan T. P. Guard. 10. On 23rd November, 1972 a letter was written by the Deputy Commissioner of Police, Traffic Department, Calcutta to the Superintendent of Police, Chhapra District. The said letter is in the following terms ; "Constable/11456, Ram Kripal Tewary of Traffic Police, Calcutta and of Village Bankati, P. O. Reoti, P. S. Baikunthapur, T. O. Mosrak, Dist. Chhapra is absenting himself as absconder since 11.2.68 from his duty and barrak without any leave or permission from the competent authority. A departmental proceeding is going to be started against the Constable. You are, therefore, requested to cause a local enquiry about the present position of the constable and to verify his preceding activities to enable us to dispose of his case. An early reply is solicited. Sd/- Illegible". 11. On 13th July, 1973 another letter was written by the Dy. Commissioner of Police, Traffic Department to the Superintendent of Police, Chhapra. The said letter is as follows: "Constable 11456 Ram Kripal Tewary of Traffic Police, Calcutta Police and of Village : Bankati, P. O. Reoti, P. S. Baikunthapur, T.O. Mosrak, Dist. Chhapra, has been proceeded against departmentally, vide Proceeding No. 169 dt. 7.7.73. The copies of Charge and Statement of allegations in duplicate are being sent herewith. The said letter is as follows: "Constable 11456 Ram Kripal Tewary of Traffic Police, Calcutta Police and of Village : Bankati, P. O. Reoti, P. S. Baikunthapur, T.O. Mosrak, Dist. Chhapra, has been proceeded against departmentally, vide Proceeding No. 169 dt. 7.7.73. The copies of Charge and Statement of allegations in duplicate are being sent herewith. You are requested to make over the charge and statement of allegation to the delinquent constable after obtaining signature on the duplicate copies and sent the same to this office at an early date. Sd/- Illegible." 12. On 3rd November, 1973 another reminder was issued to the said Superintendent of Police by the Deputy Traffic of Police, Traffic Department. 13. On 4th July, 1973 a chargesheet was issued by the Assistant Commissioner of Police (I), Traffic Dept. Calcutta. The charge and the statement of allegations are as follows : "Statement of allegation" "Constable 11456 Ram Kripal Tewary (T.P. 488) attached to East T.P. Guard, Traffic Department, Calcutta police, was found absent in the night roll call at 21.00 hrs. without permission on 11.2.68 by Head Constable J. Singh. On 1.3.68, H.C. J. Singh again reported that Constable Ram Kripal Tewary T.P. 488 was absent without leave or permission since 11.2.68. The Constable thereafter, was not found in the Guard and was absent from his duties, without any authority. In pursuance of the Memo No. TRI 637 dated 23.11.72 from D.C T.P. the Superintendent of Police, District Chhapra, reported that Constable 11456 Ram Kripal Singh was not traced in his house at Village-Bankati, Police Station-Baikunthapur, District Chhapra. The said Constable as such is treated as a deserter from the Calcutta Police Force. Sd/- Illegible. Charge You Constable No. 11456 Ram Kripal Tewary (T.P. 488 ) attached to East Traffic Police Guard, Traffic Department, Calcutta Police, are charged with gross dereliction of duty and conduct unbecoming of a member of the Calcutta Police in that Pm 11-2-68, you were found absent in the night roll call at 21.00 hrs. without any permission and since then you were not found in the Guard and remained absent from your duties without any leave or permission uptil now. without any permission and since then you were not found in the Guard and remained absent from your duties without any leave or permission uptil now. You are hereby directed to state within 10 days from the receipt of this charge and statement of allegation whether you plead guilty to the charges or any part thereof and also to state if you desire to be heard in person." 14. The letter came back unserved with the postal remark "left without address." 15. Upon receipt of the letter of the Deputy Commissioner of Police dated 23rd November, 1972 the Superintendent of Police, directed the Sub-Inspector, Baikunthapur P.S. to make an enquiry. An enquiry was made and it was reported that the said Constable is not in house. He has gone out since that date. No trace could be available. 16. It is not known who had made the note but there is another note of A.S.I. Police, Baikunthapur P.S. as follows : "I have the honour to report that the Constable is not at his house. He has since gone out since that date no trace could be available." 17. A note has been made on the copy of the letter of the Dy. Commissioner of Police, Traffic Department, Calcutta dated 13th July, 1973 but a part of the note is found torn and only the following could be deciphered : "Sir, I have searched the delinquent Constable in the village and learnt that he has not visited his native place nor he had written any letter to his family member......also in search of......could he bad......Mukhia of the Panchayaet Sri Jagat Narain Trivedi also stated that he has not visited his house since last 6 years. The father of the delinquent Constable prayed that his son may be vigorously searched there as he suspects that his son might be killed there. However the notices have been served to the father of the delinquent Constable. His petition regarding search of his son is also enclosed herewith. Yours faithfully Sd/- Amar Nath Chowdhury ASI of Police Baikunthapur P.S. 24.8.73.” 18. A letter was written by the father of the said Ram Kripal Tewary on 24th August, 1973 addressed to the Dy. Commissioner of Police, Traffic Department. His petition regarding search of his son is also enclosed herewith. Yours faithfully Sd/- Amar Nath Chowdhury ASI of Police Baikunthapur P.S. 24.8.73.” 18. A letter was written by the father of the said Ram Kripal Tewary on 24th August, 1973 addressed to the Dy. Commissioner of Police, Traffic Department. In the said letter be stated that Ram Kripal Tewary had been missing since 11th February, 1968 and he must have been killed and accordingly he requested that appropriate enquiry be made. 19. Inspite of that letter, enquiry proceedings were completed and the Enquiry Officer held the said Ram Kripal Tewary guilty. As a matter of fact the persons who were negligent, careless, callous and without any sentiment and feelings ought to have been proceeded with for not making any enquiry about his whereabouts. 20. The Enquiry Officer proceeded on the basis of the evidence of the prosecution witnesses who only deposed that the said Ram Kripal Tewary did not join his duty either on 11th February, 1968 or after he was transferred. The Enquiry Officer also took into account the fact that the father of the said Ram Kripal Tewary received the copy of the charge with the statement of allegations on behalf of the charged Constable. In his report he stated as follows : "The father of the delinquent Badan Tewary also sent a written letter to the Dy. Commissioner of Police, Traffic Department, stating that his son might be killed and requested to search for his son. 21. He then held as follows : "Under the above circumstances it is proved that the delinquent Constable was absenting from his duties without leave or permission since the night roll call at 21.00 hours on 11.2.68 and has been treated as deserter because he could not be traced at his country address nor his present whereabouts could be ascertained, after due enquiry. The suspicion of the father of the delinquent is that the delinquent had been murdered and his dead body had been secretly disposed of. Treating with proper respect the sentiments of the father, I may comment that the grounds of such suspicious had not been mentioned. According to the Service Book of the delinquent the delinquent has his wife, two sons and a daughter but none of them had made any such allegations. So the father's suspicion does not appear to be a reasonable one. According to the Service Book of the delinquent the delinquent has his wife, two sons and a daughter but none of them had made any such allegations. So the father's suspicion does not appear to be a reasonable one. In view of these facts and circumstances, I recommend for the dismissal of the delinquent, for gross dereliction of duty and unbecoming conduct, from the service, being treated as a deserter since 11.2.68 and the period of absence may be treated as absence without any authority of or permission. Sd/- Illegible 29.5.74 E.O: (I) T.P." 22. On 1st October, 1974 the then Dy. Commissioner passed a provisional order proposing his dismissal from service. He, inter alia, held as follows : "In summing up the evidence on record I have come to the conclusion that the charge framed against the delinquent constable has been proved beyond any shadow of doubt, and as such I observe that he has set a bad example to others which is highly prejudicial to the maintainance of the discipline of the force. Under the circumstances the delinquent constable is hereby directed to show cause within 7 days on receipt of the Provisional Order as to why he should not be dismissed from the Force. Sd/- R.A. Moore Deputy Commissioner of Police, Traffic Department Calcutta. 1.8.74" 23. On 18th September, 1974 he passed the final order as follows : "Provisional order was issued on 1.8.74 to Constable 11456 Ram Kripal Tewary of Traffic Police, and a copy of which was sent to his native address at village : Bankati, P.O. Reoti, Dist. Chhapra, under Registered post with A/D vide TRI-No. 645 dated 1.8.74 directing him to show cause within 7 days on receipt of the provisional order as to why he would not be dismissed from the force for his unauthorised absence since 11.2.68 without authority uptil now. The provisional order which was sent to him at his native address returned un-delivered with a remark of Post Man, "Left without address." It is very clear to understand that the delinquent constable wilfully concealed his whereabouts and I observed that he is not willing to serve this Department as constable for the reason best known to him. The provisional order which was sent to him at his native address returned un-delivered with a remark of Post Man, "Left without address." It is very clear to understand that the delinquent constable wilfully concealed his whereabouts and I observed that he is not willing to serve this Department as constable for the reason best known to him. I do not find any reason to alter my provisional order and as such it is ordered that he is dismissed from the force with effect from the afternoon of the 18th September, 1974. The period of his unauthorised absence from 11.2.68 to 18.9.74 is to be treated as Extra Ordinary Leave in terms of Rule 175(iii) of the West Bengal Service Rules, Part I. Sd/- Illegible Deputy Commissioner of Police Traffic Department, Calcutta 18.9.74." 24. The faces would amply demonstrate the manner in which the matter proceeded. The Deputy Commissioner in passing the final order observed that Ram Kripal Tewary concealed his whereabouts. It is not known why a person who was employed as a permanent constable and who did not have any bad record in his service career as is evident from his Service Book would suddenly disappear from the scheme. No one cared to find out the fact because no one bothered to shoulder any responsibility. It is glaring example how senior officers shirk even off their responsibility not even caring for a person who was a permanent employee of the police department. The proceedings cannot be sustained firstly because Ram Kripal Tawary was not served. It is not the case that he deliberately did not receive the notice or letter. Even if the father of the said Ram Kripal Tewary had received the chargesheet, he was not required to appear in the departmental proceedings for his missing son. Upon receipt of the said chargesheet he made an appeal to the Dy. Commissioner to trace out his son but no action was taken as would appear from the file produced before this Court. The order of dismissal passed against him in his absence is wholly without jurisdiction. The findings given in the final order by the Dy. Commissioner that he concealed his whereabouts deliberately is without any basis. It is based on his surmises, conjecture and assumption of fact not appearing from the records. The order of dismissal passed against him in his absence is wholly without jurisdiction. The findings given in the final order by the Dy. Commissioner that he concealed his whereabouts deliberately is without any basis. It is based on his surmises, conjecture and assumption of fact not appearing from the records. Since an issue of fact was raised by the father of the said Ram Kripal Tewary that Ram Kripal must have been murdered, before proceeding further with the case, the respondents must have first established that the said Ram Kripal Tewary was alive and living elsewhere. The proceedings are, therefore, liable to be quashed. If any proceedings were required to be initiated, the same ought to have been initiated against whose senior officers who did not care even to locate the missing constable having regard to the Naxalite movement in 1968. 25. The respondents, therefore, have failed to establish that the said Ram Kripal Tewary had deserted or absented himself without any lawful excuse. If he has been murdered or killed while on duty and there is a strong presumption for such findings in that event there could not be any question of desertion or unauthorised absence. If the death is a cause of absence and for that the punishment is inflicted then one day or the other such a tragedy has to be staged for every officer who may be killed or who may die in harness without leaving behind any trace. 26. Section 108 of the Evidence Act provides that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. It deals with the presumption of death. Thus there was a presumption as to the fact of death after the expiry of 7 years that is after February, 1975. It has to be presumed that the said Ram Kripal Tewary was dead. If Ram Kripal Tewary was alive he would probably have communicated with his friends and relatives. The presumption of Civil death or fictional death under section 108 tantamounts to physical death in the eye of law for giving the widow the benefits. It has to be presumed that the said Ram Kripal Tewary was dead. If Ram Kripal Tewary was alive he would probably have communicated with his friends and relatives. The presumption of Civil death or fictional death under section 108 tantamounts to physical death in the eye of law for giving the widow the benefits. If the respondents contended that he is alive and deliberately concealing his whereabouts, they should prove such fact asserted by them. As indicated there is no evidence before the respondents to hold that the said Ram Kripal Tewary was alive at the material time. 27. For the reasons aforesaid this application succeeds. 28. All the proceedings initiated against Ram Kripal Tewari including the chargesheet, Enquiry Report and the order dismissing him from service are set aside and quashed. He shall be presumed to be dead at the expiration of seven years i. e. 11th February, 1975. Since there is no presumption as to the time of death, whether the death took place on 11th May 1968 or after the end of the period of seven years or any other particular time within that period, the following directions are given : a) The said Ram Kripal Tewary shall be deemed to have died in harness on the expiry of 11th February, 1975. b) The period between 11th February, 1968 and 11th February, 1975 shall be regularised by granting Earned Leave, Half Pay Leave, Commuted Leave, Medical Leave and Extra Ordinary Leave as due to the said Ram Kripal Tewary but there would be no break or service. c) All leave salaries due to the said Ram Kripal Tewary shall be paid to the petitioner No.1 within eight weeks from the date of communication of this order. d) The respondents shall also pay Provident Fund dues with accrued interest, gratuity, and Widow Pension to the Petitioner No. 1, wife of the said Ram Kripal Tewary. Such Gratuity, Provident Fund and other benefits if any shall also be paid within eight weeks from the date of communication of this order. e) If any application is made by any of the sons of the said Ram Kripal Tewary for appointment as a constable or in any other suitable post the respondents shall consider such application sympathitically having regard to the fact that the said Ram Kripal Tewary is deemed to have died in harness. e) If any application is made by any of the sons of the said Ram Kripal Tewary for appointment as a constable or in any other suitable post the respondents shall consider such application sympathitically having regard to the fact that the said Ram Kripal Tewary is deemed to have died in harness. Such consideration shall be made within eight weeks after the application is made by any of the sons of the said Ram Kripal Tewary. f) Having regard to the facts and circumstances of this case the respondents shall pay a sum of Rs. 2,000/- as ex gratia to the first petitioner from the Benevolent Fund for the Police Personnel. Parties shall act on a signed copy of the operative part of this judgment upon the undertaking of the Advocate-on-Record to apply for and obtain certified copy.