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2013 DIGILAW 230 (CAL)

Ruda Devi v. Coal India Ltd.

2013-05-03

ASHOKE KUMAR DASADHIKARI

body2013
Judgment : This is an unfortunate case where an employee of the respondents fought at the cost of his life and also gave heavy resistance to the miscreants who came to steal the valuable of the company but failing to do the same they kidnapped the deceased employee and murdered him and concealed the body on the bank of river Damodar, as it appears from the report of the Superintendent of Police, Purulia. Since the deceased employee was not traceable for more than seven years, the widow of the deceased employee have come before this Hon'ble Court with a prayer to release the dues which the employee was entitled to get and for compassionate appointment on the basis of National Coal Wage Agreement-III as per clause 9.4.2. The wife of the deceased have filed this writ petition against the respondents Coal India Limited, having its office at 10, R. N. Mukherjee Road, Kolkata and Bharat Coking Coal Ltd., having its office at 6, Lyons Range, Kolkata and against the General Manager and Chief Personnel Manager of Bharat Coking Coat Ltd., whose office is at Kulti, Burdwan. 2. This writ petition was moved before this Hon'ble Court. Directions for filing affidavits were given. Affidavits were exchanged. At the time of moving this application the respondents did not take any objection on the jurisdictional point on the alleged plea that the registered office of the company is situated at Dhanbad. However, in their affidavit-in-opposition they had taken a point that the registered office of the company is at Dhanbad. Therefore, this Court has no jurisdiction to entertain this writ petition. 3. Mr. Gauguly appearing for the writ petitioners submits that the concerned employee, who is missing since 27th June, 1999, was kidnapped and murdered. However, the body was not traceable. On 3rd July, 1999 an F.I.R. was lodged. The police authorities carried out the investigation and the Superintendent of Police, Purulia, by his report dated. 28th October, 1999 informed the General Manager, Bharat Coking Coal Limited, C.V. Area 12, Barakar, Dist. Burdwan that the principal accused and his other associates are absconding and evading police arrest. In course of investigation the wearing apparel of Gopal Paswan has also been seized thereby giving evidence to the allegation of murder after kidnapping. 28th October, 1999 informed the General Manager, Bharat Coking Coal Limited, C.V. Area 12, Barakar, Dist. Burdwan that the principal accused and his other associates are absconding and evading police arrest. In course of investigation the wearing apparel of Gopal Paswan has also been seized thereby giving evidence to the allegation of murder after kidnapping. The dead body could not be recovered till that date since it appears to have been concealed somewhere on the river bed of Damodar or has been thrown away in the river. It was specifically mentioned by the said Superintendent of Police that although the dead body has not been recovered as per criminal law the presence of substantial evidence to corroborate the commission of kidnapping and murder is sufficient even for conviction of the accused persons. According to him, in absence of dead body and post mortem/death certificate processing of the application of the dependent of the family member of the deceased worker of BCCL for employment and processing of preliminary benefits like gratuity, encashment of leave salary etc. and any requirement in the form of furnishing of any kind of certificate by the District Police Administration may kindly be intimated for taking further action. Mr. Ganguly submitted that the police authorities after investigation came to a conclusion that the deceased employee was kidnapped and murdered and the dead body was not traceable but that should not stand in the way of releasing service benefits to the successors of the deceased employee and also should not stand in the way of giving an employment to any of the successor in terms of the National Coal Wage Agreement III under clause 9.4.2. According to Mr. Ganguly, the prayers made in this writ petition should be allowed. Mr. Ganguly produced a judgment of a learned Single Judge of this Court delivered on January 1, 2002 in W.P. No. 2528 of 2001 (Narayan Nayak v. State Bank of India and Others) wherein the Court held that the rule in Section 108 of the Evidence Act supersedes the time for presumption provided in the Hindu Law as well as Hanifa Law which are 12 years and 30 years respectively. Reference may be had to a decision reported in 43 MLJ 725 (Penduri v. Jaladhi). It is a rule of presumption. Reference may be had to a decision reported in 43 MLJ 725 (Penduri v. Jaladhi). It is a rule of presumption. By reason of the language applied in Section 108 of the Evidence Act, the burden to prove that such person is alive, lies on the person who affirms it, despite the person having not been heard of for 7 years by persons who would have heard of him if he were alive. The presumption of civil death or fictional death by reason of Section 108 of Evidence Act tantamounts to physical death in the eye of law. On this proposition the learned Judge was supported by a decision reported in AIR 1967 Orissa 70 (Parikhit v. Champa). Thus the presumption is a rule of evidence. By fiction the death is presumed in such circumstances unless otherwise proved by him who controverts it. Accordingly, there cannot be any question of obtaining a decree or declaration of civil death by the near relatives who have not heard of him. If some one insists that he is not dead then it is him who has to prove it. The learned Judge found support from the judgrnent reported, in 49 CWN 52 (Agha Mir v. Mir Mudasir). Therefore, no suit lies for a declaration that a person not having been heard of for seven years was deemed to be dead, unless the suitor seeks to establish that he is entitled to any legal character or to any right as to any property. Mr. Ganguly submits that in the instant case no declaration was sought for nor there is any necessity to have such declaration in view of the judgment delivered by the learned Single Judge of this Hon'ble Court based on several other decisions. 4. Mr. Alok Banerjee appearing on behalf of the respondents submits that in the affidavit-in-opposition his clients have disclosed the office address of the respondents. It was also mentioned in that affidavit that the registered office of the respondent is situated at Dhanbad. Therefore, this Court has no jurisdiction and this point has been taken in the affidavit-in-opposition but not at the time of moving this writ petition. According to Mr. Banerjee, this Court should not entertain this writ petition since this Court has no territorial jurisdiction in this matter. Mr. Therefore, this Court has no jurisdiction and this point has been taken in the affidavit-in-opposition but not at the time of moving this writ petition. According to Mr. Banerjee, this Court should not entertain this writ petition since this Court has no territorial jurisdiction in this matter. Mr. Banerjee refers to Section 108 of the Evidence Act and submitted that unless there is a declaration by the Civil Court there should not be any presumption nor the benefits could be given to the successors without such declaration, nor even employment, as claimed by the wife of the deceased employee. According to Mr. Banerjee, there must be a Civil Court's declaration otherwise the writ petitioners are not entitled to have any relief before this Hon'ble Court and the presumption could not be given only on the basis of the police report and any other supporting report given by any authority. Mr. Banerjee, accordingly, submitted that the writ petition should be dismissed. 5. Heard the learned Counsel appearing for the respective parties. Considered their submissions as well as the materials disclosed. I take the point of jurisdiction first. 6. It appears from the writ petition that the cause of action has taken place in Burdwan and the offices of the General Manager and the Chief Personnel Manager, who were the persons to take action in this regard, are having their offices at Barakar, P. S. Kulti, Burdwan. The service benefit of the deceased employee is to be paid by the General Manager and the recommendation for giving compassionate appointment is to be given by the General Manager only whose office is within jurisdiction. Therefore, in my opinion, this Court has got jurisdiction since the cause of action has arisen within the territorial jurisdiction of this Hon'ble Court. Moreover, the respondent Nos. 3 and 4, who are the authorities to take steps in this regard, are having their offices at Kulti, Burdwan. Moreover, the point of jurisdiction was not taken by the respondents at the time of moving this writ petition. After a gap of five years or at the time of filing opposition although they have taken this point but in my view for ends of justice the same should not be entertained also. 7. Moreover, the point of jurisdiction was not taken by the respondents at the time of moving this writ petition. After a gap of five years or at the time of filing opposition although they have taken this point but in my view for ends of justice the same should not be entertained also. 7. Now, the prayers in this writ petition for getting service benefits of, the deceased employee and also for getting compassionate appointment would be considered by this Court on the basis of the facts disclosed in this matter. It is undisputed that the concerned employee who fought for the benefit of the company was kidnapped and murdered on 27th June, 1999 and an F.I.R. was lodged being FIR No. 21 of 1999 on 3rd July, 1999. On police investigation it was found that the deceased employee was kidnapped and murdered. His dead body was not found. Either the dead body was concealed under the river bed of Damodar or it was thrown away in the river. The Superintendent of Police, Purulia, by his letter dated 28th October, 1999 informed the General Manager, Bharat Coking Coal Limited, C.V. Area 12, Barakar, Dist: Burdwan, that the principal accused and other associates were absconding and evading police arrest. In course of investigation the wearing apparel of Gopal Paswan, the deceased employee, have been seized thereby giving evidence to the allegation of murder after kidnapping. The dead body could not be recovered till then. According to them, it may be concealed in the river bed of Damodar or it may be floated in the river. It appears that since the date of missing till date the employee concerned was not heard. 8. Now, the question as raised by Mr. Banerjee whether to come to a conclusion and/or to arrive at a presumption Civil Court's decree is must or after the period of seven years, having not heard the concerned person, would there be a presumption of legal death. It appears from the decision cited by Mr. 8. Now, the question as raised by Mr. Banerjee whether to come to a conclusion and/or to arrive at a presumption Civil Court's decree is must or after the period of seven years, having not heard the concerned person, would there be a presumption of legal death. It appears from the decision cited by Mr. Ganguly that this point was considered by a learned Single Judge of this Hon'ble Court and this Hon'ble Court after due consideration of the relevant provisions of the Evidence Act and also the judgments delivered on it have come to a conclusion that as per the provisions of Section 108 of the Evidence Act death is presumed when a person has not been heard for seven years by those who have naturally heard of him if he had been alive. It is a rule of presumption. By reason of the language applied in the said section, the burden to prove that such person is alive, lies on the person who affirms it, despite the person having not been heard for seven years. According to the learned Single Judge, in view of the decision reported in AIR 1944 PC 100 there is no necessity to file any such suit. According to the learned Single Judge, no suit lies for a declaration that a person not having been heard for seven years was deemed to be dead. It is really necessary when a person claiming a legal right or a right to any legal character, i.e. status, or to any property, may bring a declaratory action against anyone who actually denies or has some interest on behalf of other to deny his title to such character or his right to any such property. 9. In my view, there is no necessity of filing a civil suit and to have a declaration since there is no such situation. It is admitted position that the deceased employee was not heard for seven years. Accordingly, it should be presumed that he is dead as per the police report. Accordingly, the respondents are to pay the dues to the successors of the deceased, employee. I also direct the respondents to pay the dues to the successors of the deceased employee including his wife. 10. Accordingly, it should be presumed that he is dead as per the police report. Accordingly, the respondents are to pay the dues to the successors of the deceased, employee. I also direct the respondents to pay the dues to the successors of the deceased employee including his wife. 10. So far giving compassionate appointment is concerned, the respondents are obliged to follow their own agreement which is National Coal Wage Agreement-III and the clause 9.4.2 is the relevant clause. The respondents are to consider the case of the petitioner No.1, being the widow of the deceased employee, for a suitable employment. I, accordingly, direct the respondents to give compassionate appointment to the widow of the deceased employee and in case the son of the deceased employee have become major, he can be considered also by the respondents for giving employment in place and stead of the widow. However, one of the successors either the widow or the major son of the deceased employee should be given employment. The respondent authorities are also directed to act in terms of this order within a period of six weeks from the date of receipt of this order. 11. The writ petition is, therefore, allowed. There would be no order as to costs. Urgent photostat certified copy of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.