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2015 DIGILAW 416 (CAL)

Shipra Chatterjee v. Union of India

2015-05-11

ISHAN CHANDRA DAS, PRANAB KUMAR CHATTOPADHYAY

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JUDGMENT : This writ petition has been filed challenging the judgment and order dated 3rd February, 2015 passed by the Central Administrative Tribunal, Calcutta Bench in O.A. 350/01529/2014 whereby the said learned Tribunal dismissed the Original Application on merits. 2. The petitioner herein is the wife of an employee of Steel Authority of India Limited. It appears from the records that on 20th November, 2006, said employee left his residence and did not return. The petitioner herein namely, the wife of the employee concerned claims that the said employee has been missing since then. A missing diary was also lodged in this regard with the Officer-in-chare, Durgapur Police Station on 25th November, 2006. 3. It also appears from the records that the authorities concerned initiated disciplinary proceedings against the employee concerned namely, the husband of the petitioner herein on account of unauthorised absence ignoring the fact that the petitioner herein already claimed that the said employee has been missing w.e.f. 20th November, 2006 and a missing diary was also lodged with the Officer-in-charge, Durgapur Police Station on 25th November, 2006. 4. The Disciplinary Authority upon initiating the alleged disciplinary proceedings ultimately sought to impose a penalty of removal from service on the missing husband of the petitioner herein. 5. The learned Advocate of the petitioner submits that no notice in relation to the disciplinary proceedings could be served upon the missing husband of the petitioner herein and therefore, no punishment could be imposed on the said missing husband of the petitioner specially when the said husband should be presumed to be dead upon considering the total missing period. The learned Advocate of the petitioner further submits that the order of punishment cannot be effective until and unless the same can be served upon the employee concerned and as a matter of fact, the said punishment order could not be served even today by the Disciplinary Authority. 6. In any event, from the records we find that the final order inflicting punishment of removal from service issued to the employee concerned namely, the husband of the petitioner herein was kept in abeyance till 20th November, 2014 pursuant to the direction of a learned Judge of this court. The aforesaid direction was issued by the learned Single Judge upon considering the provisions of Sections 107 and 108 of the Evidence Act. 7. The aforesaid direction was issued by the learned Single Judge upon considering the provisions of Sections 107 and 108 of the Evidence Act. 7. The petitioner herein being the wife of the missing employee prays for liberty to challenge the disciplinary proceedings as well as the punishment imposed on her missing husband. The disciplinary proceedings, in our opinion, could not be conducted against a dead person if in the eye of law, the person concerned namely, the husband of the petitioner herein is presumed to be dead by operation of law specially under Section 108 of the Evidence Act. 8. From the records we find that the employee concerned namely, the husband of the petitioner herein left his residence on 20th November, 2006 and since then he has been missing and nobody has heard of him till today. A missing diary was also lodged on 25th November, 2006 with the Durgapur Police Station. Therefore, the missing husband of the petitioner herein should be presumed to be dead since the said husband of the petitioner has not been heard of for more then seven years after he disappeared from his residence. 9. The learned Advocate representing the respondent authorities, however, submits that the employee concerned namely, the husband of the petitioner herein was hiding on account of loan and therefore, he should not be presumed to be dead in terms of Section 108 of the Evidence Act. 10. In the event, the respondent authorities are of the opinion that the missing husband of the petitioner herein is alive then burden of proving the same is shifted to the said respondent authorities who are claiming that the said person is alive in view of Section 108 of the Evidence Act. The provisions of Section 108 of the Evidence Act are set out hereunder: “S.108. Burden of proving that person is alive who has not been heard of for seven years. – Provided 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. – Provided 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. The respondent authorities could not produce anything before us wherefrom it would appear that the missing husband of the petitioner herein was heard alive by anybody after the date of his missing i.e. after 20th November, 2006 till today. 12. The learned Counsel of the respondents relies on a decision of the Hon’ble Supreme Court in the case of LIC of India vs. Anuradha reported in (2004) 10 SCC 131, which, in our opinion, clearly goes in favour of the petitioner herein. In Paragraph 12 of the aforesaid decision, Hon’ble Apex Court held: “12. Neither Section 108 of the Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years’ absence and being unheard of having elapsed before that time. The presumption sands unrebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death.” 13. Another decision cited by the learned Counsel of the respondents in the case of Oriental Insurance Co. Ltd. vs. Sorumai Gogoi & Ors. Another decision cited by the learned Counsel of the respondents in the case of Oriental Insurance Co. Ltd. vs. Sorumai Gogoi & Ors. reported in (2008) 4 SCC 572 is however, not applicable in the facts of the present case since in the aforesaid decision, Hon’ble Supreme Court held that Section 108 of the Evidence Act does not apply in respect of a person who absconds from justice or evades trial. 14. In the present case, it is not the fact that the employee concerned namely, the husband of the petitioner herein is absconding from justice or evading trial as there is no pending criminal case against the said missing husband of the petitioner. 15. The learned Single Judge by the judgment and order dated 16th May, 2011 in W.P. 6640(W) of 2011 admittedly, kept the order of removal from service passed by the Disciplinary Authority against the missing husband of the petitioner in abeyance till 20th November, 2014. 16. The husband of the petitioner had left his residence on 20th November, 2006 and thereafter, missing till today. Therefore, after lapse of a period of seven years i.e. after 19th November, 2013, said missing husband of the petitioner should be presumed to be dead. 17. Since the order of removal was kept in abeyance upto 20th November, 2014 and the missing husband of the petitioner should be presumed to be dead after November, 2013 as the said missing husband had not been heard of for more than seven years after he disappeared from his residence on 20th November, 2006, there is no scope to serve the order of removal passed against the missing husband of the said petitioner as the said missing husband should now be presumed to be dead. 18. In the aforesaid circumstances, question of allowing the petitioner herein to participate in the disciplinary proceedings cannot and does not arise since the said disciplinary proceedings had become infructuous on the ground that the final order cannot be passed on a dead person and the missing husband of the petitioner should now be presumed to be dead. 19. For the aforementioned reasons, the petitioner herein will be entitled to receive all admissible service benefits of her husband who should be presumed to be dead after November, 2013 i.e. after expiry of more than seven years from the date he left his residence on 20th November, 2006. 20. 19. For the aforementioned reasons, the petitioner herein will be entitled to receive all admissible service benefits of her husband who should be presumed to be dead after November, 2013 i.e. after expiry of more than seven years from the date he left his residence on 20th November, 2006. 20. With the aforesaid observations and directions, we set aside the impugned order passed by the learned Tribunal and dispose of this writ petition without awarding any costs. In the facts of the present case, there will be no order as to costs. 21. Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocate of the parties on usual undertaking.