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2003 DIGILAW 594 (PAT)

Hira Mani Devi @ Hira Devi v. Union Of India

2003-05-23

RADHA MOHAN PRASAD

body2003
Judgment 1. When despite service of notice, there was no response from the Senior Record Officer, Electrical and Mechanical Engineering, E.M.E. Records, Secunderabad (respondent no. 4), this Court vide order dated 8.5.2003, issued bailable warrant of arrest of respondent no. 4 for his production before this Court on 19th May, 2003. Again on 19.5.2003, there was no response except that one Nayak Subedar Nagendra Singh, who claimed to be attached with the office of respondeat no. 4, appeared but without any show cause or affidavit from respondent no. 4. Under such circumstances, this Court directed for initiation of contempt proceeding and for issuance of non-bailable warrant of arrest for production of respondent no. 4 before this Court today. Meanwhile, respondent no. 4 was directed to file his show cause. 2. Pursuant to the said order, respondent no. 4 has personally appeared and filed his show cause. In paragraph 4 of the said show cause it is stated that the present Senior Record Officer (respondent no. 4) took over charge of the office on 19th May, 2003, before which one Major Lakhan Pal Singh was holding the post of respondent no. 4. 3. Mr. Shahi, learned Senior Standing Counsel appearing for respondent no. 4 has submitted that, in fact, there is no default on the part of the present respondent no. 4 and it appears that earlier due to some communication gap there was no response from respondent no. 4. However, respondent no. 4 has personally appeared and has tendered his unqualified apology and has also paid the amount of cost awarded by this Court vide order dated 23.4.2003. 4. Having heard Mr. Shahi, learned Senior Standing Counsel and in the facts and circumstances aforementioned, the apology tendered by respondent no. 4 is accepted and accordingly, the contempt proceeding initiated vide M.J.C. No. 829 of 2003 is dropped. The M.J.C. is, thus, dismissed. 5. It is stated that respondent no. 4 has appeared on his own and as such, as prayed, the non-bailable warrant of arrest issued, vide order dated 19.5.2003, is hereby recalled. 6. In the writ petition, the petitioner who claims to be the widow of Ex. No. 14503960 Cfn/Elect. The M.J.C. is, thus, dismissed. 5. It is stated that respondent no. 4 has appeared on his own and as such, as prayed, the non-bailable warrant of arrest issued, vide order dated 19.5.2003, is hereby recalled. 6. In the writ petition, the petitioner who claims to be the widow of Ex. No. 14503960 Cfn/Elect. Ram Kumar Sharma, has sought for direction to the respondents to provide her family pension, Army Group Insurance and other benefits with interest after revoking the desertion/dismissal order against her husband which has been made effective with effect from 25th December, 1978. Further, the petitioner has sought for direction to the respondents to cancel the P.O.R. regarding OSL/desertion and dismissal and to re-publish the same as missing/presumed dead with effect from 25th December, 1980 regarding her husband and also has prayed for quashing of the letter dated 2nd May, 1997 issued under the signature of Left. Assistant Record Officer, for Office-in-Charge Records, E.M.E. Records, Secunderabad whereby it has been decided that the petitioner is not entitled for family pension. 7. In short, the relevant facts are that the deceased Army personnel was granted 14 days casual leave with effect from 11th December, 1978 to 24th December, 1978. After the expiry of the said leave, the husband of the petitioner left his village for Secunderabad to report duty. The petitioner along with all other family members of her husband remained under the impression that her husband who was serving with 9 Dogra C/o 56 A.P.O. at Secunderabad must have reported. However, when she did not receive any communication from her husband for quite some time, i.e. for two and half years, she filed an application addressed to the Chief of Army Staff, Army Headquarters, New Delhi in the year 1981 to know the whereabouts of her husband. 8. It appears from the counter affidavit filed on behalf of the respondents that in the meanwhile, an enquiry was conducted by duly constituted Court of Enquiry which declared her husband deserter with effect from 25th December, 1978. Having learnt that her husband is missing since he left for reporting to his duty and also about the fact that he has been declared deserter, she lodged an F.I.R. in Mahandia Thana now under Arwal district in Bihar, on 26.4.1995. Having learnt that her husband is missing since he left for reporting to his duty and also about the fact that he has been declared deserter, she lodged an F.I.R. in Mahandia Thana now under Arwal district in Bihar, on 26.4.1995. The Officer-in-Charge of the said Thana after enquiry issued a certificate (Annexure 6) that the husband of the petitioner could not be traced out and he is missing. Accordingly, the petitioner approached the authority concerned for grant of family pension on which the Senior Record Officer, vide letter dated 2nd August, 1996 (Annexure 7), requested 9 Dogra C/o 56 A.P.O. for holding a fresh Court of Enquiry and declare the individual as missing/presumed dead and notify RO.R. in Part II orders and forward the same to his Office for further action. 9. From the counter affidavit it appears that 9 Dogra expressed their inability to take any action as prima facie evidence could not be. established to prove that the individual did not desert the Army intentionally. Later, the matter was again initiated at the instance of the Army Headquarters and according to the counter affidavit, the directions of the Army Headquarters are still awaited. 10. Prima facie, I am unable to appreciate as to how 9 Dogra found that prima facie evidence could not be established to prove that the individual did not desert the Army intentionally when the petitioner is claiming for revocation of the order of desertion/dismissal of her husband and to republish the same as missing/presumed dead under section 108 of the Indian Evidence Act, 1872 which 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 seven 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. 11. In the present case, the F.I.R. was lodged and the Officer-in-Charge in his report/certificate, contained in Annexure 6, certified about the requirement as provided in section 108 of the Indian Evidence Act. Under such circumstances, it was for the respondents to prove that the husband of the petitioner is still alive. 12. 11. In the present case, the F.I.R. was lodged and the Officer-in-Charge in his report/certificate, contained in Annexure 6, certified about the requirement as provided in section 108 of the Indian Evidence Act. Under such circumstances, it was for the respondents to prove that the husband of the petitioner is still alive. 12. However, be that as it may, as the matter still appears to be under consideration by the Army Headquarters and the directions of Army Headquarters are still awaited, the writ application is disposed of with the direction to the Secretary, Ministry of Defence, New Delhi (respondent no. 1) to ensure that the Army Headquarters take final decision with respect to the claim of the petitioner keeping in view the provisions contained in section 108 of the Indian Evidence Act and the certificate/report of the officer-in-charge, contained in Annexure 6, within two weeks of the receipt/production of a copy of this order. 13. Learned counsel for the petitioner has further submitted that the dues as is admitted by the Senior Record Officer (respondent no. 4), contained in Annexure 4, has not been paid uptill now. Respondent no. 4, who has personally appeared before this Court, has assured that he will ensure release of the amount as is found payable pursuant to Annexure 4 with statutory interest, if any, and the same shall be paid to the petitioner within three weeks. 14. As prayed, let a copy of this order be supplied to Mr. Shahi, learned Senior Standing Counsel for its strict compliance.