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2017 DIGILAW 254 (ORI)

Tulasi Naik v. State of Orissa

2017-03-08

B.MOHANTY, I.MAHANTY

body2017
ORDER 08.03.2017 None appears on behalf of the petitioner when the matter is called though this case was filed 18 years back. Heard Mr. L. Samantaray learned Standing Counsel for the State. In this writ application the petitioner has prayed for issuance of a writ of habeas corpus for causing production of her husband in Court. She has also prayed for payment of compensation to her for mental agony and suffering. Direction for grant of all back wages and service benefits of her husband after quashing the order of dismissal is her last prayer. As per the averments made in the writ petition husband of the petitioner is stated to be missing since 23.4.1980 from the campus of Orissa Special Armed Police 7th Battalion Bhubaneswar while working as Assistant Sub-Inspector (W.T.) and ultimately he was dismissed from services with effect from 2.8.1983 on the basis of an ex-parte Departmental Proceeding initiated on the charge of desertion. It is further case of the petitioner that though her husband was found to be missing since 23.4.1980 however at no point of time his family members were intimated about such missing. Further on account of dismissal order passed against the husband of the petitioner the Accountant General Odisha refused to grant Family Pension. Her further apprehension is that her husband might have lost his life due to physical torture by the authorities and in order to escape from the liabilities his dead body was disposed of or the husband was allowed to escape due to callousness of the authority from the campus. Mr. Samantaray learned Standing Counsel relying on the counter affidavit filed on behalf of the opposite parties submits that the husband of the petitioner deserted the campus of Orissa Special Armed Police 7th Battalion Bhubaneswar with effect from 23.4.1980 without any intimation to the authority. Hence Departmental Proceeding No.15 dated 5.6.1980 was drawn up against him for his failure to report for duty as per the P.M. Rule 843. The proceeding was conducted allowing all possible opportunities to the charged officer. Since the husband of the petitioner did not respond to the notice sent to him in his home address nor attended the enquiry a paper publication in the daily The Samaja was made directing him to report to the authorities to defend himself against the charges leveled against him. Since the husband of the petitioner did not respond to the notice sent to him in his home address nor attended the enquiry a paper publication in the daily The Samaja was made directing him to report to the authorities to defend himself against the charges leveled against him. But in spite of above publication the husband of the petitioner neither attended the proceeding nor submitted his written defence against the alleged charge. Thus the enquiry proceeding was conducted ex-parte and the husband of the petitioner was found guilty of the charge of desertion. Thereafter another publication was made in the Samaja newspaper published on 25.7.1983 indicating that the husband of the petitioner had been found guilty of desertion and he was liable for dismissal from service. It was further indicated therein that if the husband of the petitioner failed to appear before the authority or to give any written defence within seven days of publication proper steps as warranted under the law would be taken. As the husband of the petitioner failed to comply with the instruction published in the daily news paper within the stipulated period he was removed from service with effect from 2.8.1983. Further relying on the counter Mr. Samantaray refutes the allegations relating to physical torture by the authorities in Battalion campus. Moreover he submits that as is evident from the Medical Certificate furnished by Dr. B. Das Assistant Superintendent Mental Health Institute S.C.B. Medical College & Hospital Cuttack the husband of the petitioner was a mental patient and frequently proceeded on leave and overstayed the same for his treatment. When the father-in-law of the petitioner appeared before the I.G. of Police S.A.P. Orissa Cuttack with a request to locate his son the Commandant Orissa Special Armed Police 7th Battalion Bhubaneswar was instructed in State Police Headquarters Letter No.30131W dated 26.8.1980 to take action to trace out the husband of the petitioner. Accordingly all the Police Stations of the State as well as missing persons Squads of Crime Branch were instructed to locate the missing A.S.I. who happens to be the husband of the petitioner but he could not be traced out. Accordingly report was submitted on 30.5.1997 by the O.I.C. Parjang Police Station about untraceability of the husband of the petitioner. Accordingly all the Police Stations of the State as well as missing persons Squads of Crime Branch were instructed to locate the missing A.S.I. who happens to be the husband of the petitioner but he could not be traced out. Accordingly report was submitted on 30.5.1997 by the O.I.C. Parjang Police Station about untraceability of the husband of the petitioner. As the husband of the petitioner could not be traced despite all efforts a sum of Rs.5000- was sanctioned from the Battalion Welfare Fund as monetary relief and paid to the petitioner on 19.10.1987. The G.P.F. amount of Rs.12239- was also drawn and paid to the petitioner on 8.4.1991. The G.I.S. deposit amount was also drawn and paid to the family members. Further Mr. Samantaray states that the final order passed by the Commandant Orissa Special Armed Police 7th Battalion Bhubaneswar on 2.8.1983 removing the husband of the petitioner from service was reviewed by the Additional D.G. & I.G. of Police Orissa Special Armed Police Cuttack and was modified to that of discharge from service with effect from 2.8.1983. Accordingly the family pension and D.C.R.G. share of the petitioner have already been sanction by the Accountant General Orissa vide F.P.P.O. No.31899 S(F). Further the petitioner has also been paid the arrear pensionary benefits. He further submits that though a copy of the counter was served on 17.7.2003 however no rejoinder has been filed disputing the stand taken by the opposite parties. He also submits that present being a case of missing person no writ of habeas corpus is maintainable. Relying on the letter dated 7.9.2015 of the I.I.C. Parjang Police Station he further submits that the said IIC has personally enquired about the status of the missing person i.e. husband of the petitioner on 7.9.2015 in the village-Kadapada to which the missing person originally belongs. He conducted the enquiry in presence of village gentries namely Gangadhar Naik Narahari Naik of village Kadapada and Smt. Mamata Biswal local Sarpanch Manikamara Gram Panchayat. On being asked no one was able to say about the present whereabouts of the husband of the petitioner. The IIC also made local and confidential enquiry in the locality of Kadapada village and adjacent villages but could not get any satisfactory reply from anybody regarding the present life status of the husband of the petitioner. In such background he prays that writ petition ought to be dismissed. The IIC also made local and confidential enquiry in the locality of Kadapada village and adjacent villages but could not get any satisfactory reply from anybody regarding the present life status of the husband of the petitioner. In such background he prays that writ petition ought to be dismissed. Perused the writ petition. The undisputed fact is though the husband of the petitioner has been missing since 23.04.1980 the petitioner approached this Court in 1998 only. In the meantime the punishment of removal imposed on husband has been modified to that of discharge and accordingly G.P.F. G.I.S. and Family Pension have been paid to the petitioner. Taking into account the date of missing by now more than 36 years have elapsed. Despite all efforts the husband has not been traced out. Further from the undisputed stand of the opposite parties one thing is clear that the present one is not a case of illegal detention. Had there been any illegal detention the authorities would not have issued paper publication twice in course of departmental proceeding in order to enable husband of the petitioner to participate in the same. Law is well settled that a writ of habeas corpus can only be issued in case illegal detention wrongful confinement not otherwise. In this context one can profitably refer to the Division Bench decision of the Madhya Pradesh High Court as rendered in Sulochana Bai v- State of Madhya Pradesh and others reported in 2008(1) M.P.L.J. 339 . Considering all these things we are not inclined to interfere in the matter. Accordingly the writ petition is dismissed. Free copy of the order be handed over to the Standing Counsel. Petition dismissed.