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2022 DIGILAW 782 (RAJ)

Bholi Ram Saini v. State Of Rajasthan

2022-03-07

INDERJEET SINGH

body2022
ORDER 1. This writ petition has been filed by the petitioners with the following prayers; 'It is therefore, most respectfully and humbly prayed that your Lordships may graciously be pleased to allow this writ petition with cost and by an appropriate writ, order or direction: (i) Direct the respondents authorities to declare writ petitioner Bholi Ram Saini as dead in view of provisions of section 108 of the Indian Evidence Act, 1872 a she has not been heard and seen for more than 7 years and take necessary steps for release of payment of retiral benefits namely gratuity, encashment of earned leave, payment of State Insurance, Payment of G.P.F. etc., and pension to the petitioners who are legal heirs of writ petitioner Bholi Ram Sani. (ii) Pass any other appropriate writ, order or direction, which this Hon'ble court may deem just and proper in the facts and circumstances, in favour of the petitioner. (iii) Allow the writ petition with costs.' 2. From the material on record, it is transpired that the present petitioners are the legal representatives of Bholi Ram Saini (hereinafter to be referred as 'employee'). As alleged in the writ petition, the employee was initially appointed as Beldar on 14.07.1978 in the office of Executive Engineer, Irrigation Department, Bharatpur and after completion of ten years of regular service was confirmed on the said post w.e.f. 01.04.1994. After some time, on having been declared surplus, his services were transferred and he was absorbed in the office of Director, Samekit Bal Vikas Sewaye i.e. the respondents no.1 & 2 herein, under whose orders, the employee was transferred to Bal Vikas Pariyojana, Thanagaji, District, Alwar and as per the information of the present petitioners, the employee lastly went to join his duty at Thanagaji on 24.03.2011, where the petitioner no.1/2 Rakesh Kumar Saini (son of the employee), went to meet him but he did not find his father there. The date of attaining the age of superannuation of the employee has been determined by the department as 28.02.2017. The petitioenrs have also lodged an FIR No.141/2013 at Police Station Thanagaji, Alwar, which though contains certain allegations against official of the department but at the same time relates to missing of the employee also. The date of attaining the age of superannuation of the employee has been determined by the department as 28.02.2017. The petitioenrs have also lodged an FIR No.141/2013 at Police Station Thanagaji, Alwar, which though contains certain allegations against official of the department but at the same time relates to missing of the employee also. The present petitioners who are the legal representatives of the employee have approached this Court for release of retiral benefits including gratuity, encashment of earned leave, payment of State Insurance, GPF etc., and pension in their favour, on the strength of the provisions of Section 108 Evidence Act, which provides for a presumption to be drawn of a person of being dead, if he is unheard of for seven years. 3. Reply to the writ petition has been filed by the respondents, which in its entirety only raises objection to certain averments made in the writ petition with regard to corrections in the date of birth of the employee or certain other numerics but basically don't rebut about the factum of missing/unheard of the employee for seven years. 4. Counsel for the petitioners submits that as the employee is missing since 24.03.2011, a presumption needs to be drawn of he being dead in view of Section 108 of the Evidence Act, 1872 and, therefore, prayed that the respondents be directed to release the pension in favour of the wife of the employee and also the other retiral benefits in favour of the petitioners. Counsel further submits that an F.I.R. No. 141/2013 was also lodged by them before the Police Station, Thana Gazi, Alwar. 5. In support of his contentions, counsel for the petitioners relied on the judgment passed by the Co-ordinate Bench of this Court in the matter of Kumud Bhatt Vs. State of Rajasthan & Ors. reported in 2011(1)RLW 547 where in Paras-7, 12, 15 & 16 it has been held as under; '7.The issues raised in this writ petition in so far as the proposition of law on controversy involved is concerned, are no longer res interga. A Division Bench of this Court in Phooli Devi (supra) authoritatively held in somewhat similar circumstances as under:- '12. A Division Bench of this Court in Phooli Devi (supra) authoritatively held in somewhat similar circumstances as under:- '12. Rather action of the appellant State in initiating inquiry proceedings after seven years of disappearance of the Government servant and further holding such inquiry proceedings without service of pre and/or post initiation of proceedings in order to culminate into order of punishment of removal, both are against the constitutional mandate and principle of natural justice. That being so, the learned Single Judge has rightly condemned the action of the appellant State by holding that termination of a Government servant who has not been traced out or not heard of at all or his whereabouts were not known for more than seven years, is no meaning, inasmuch as no charge sheet could be issued to a dead person who by virtue of S. 108 of the Evidence Act is presumed to have died. 13. Once the decks are clear that admittedly Nanagram Meena was not heard of at all for more than seven years from the date of his disappearance of missing (3.4.1986), in support of which there is an uncontroverted pleadings of the writ petitions duly supported by an affidavit to the effect that she has not heard of her husband (Nanagram Meena) since 3.4.86 and for last more than seven years, a presumption would must arise in her favour by virtue of Section 108 of the Evidence Act that her husband has been dead. Thus viewed, the appellant State therefore have to grant relief to the writ petitioners on the presumption that her husband is dead and she is a widow of deceased government servant entitling to grant of relief as sought for in their writ petition. Having scanned the impugned judgment of the learned Single Judge assailed before us, we find no infirmity whatsoever in the said judgment and the learned Single Judge was justified in allowing the writ petition and in granting relief in favour of the writ petitioners as detailed above, which does not warrant any interference by this Court. In the said view of the matter, this appeal is dismissed. No Costs.' 12. In the said view of the matter, this appeal is dismissed. No Costs.' 12. Division Bench of this Court in Phooli Devi (supra) was dealing with case wherein also husband of petitioner absented from his duties with effect from 03.04.1986 and did not report back despite publication of notice in newspaper on 11th October, 1987 and 22nd March, 1988. Finally a charge sheet was issued to him on 28th May, 1993 followed by an order of his removal from service on 23rd April, 2001. The Division Bench held that whatever pre and/or post inquiry proceedings initiated against Nanagram, were totally against constitutional mandate so also principles of natural justice. None of communications issued prior to or after initiation of inquiry upon charge sheet dated 28.5.93 were got served upon him as they all returned back duly unserved as is established from the statements of memo of the charge-sheet itself or published notices obviously because Nanagram has been missing; his whereabouts were neither known nor heard of for seven years from 3.4.86 the date of disappearance of Nanagram. Thus observing, Division Bench upheld view taken by learned Single Judge wherein action of respondents was condemned as illegal and unconstitutional. 15. There was no justification for respondents not to have made payment of family pension to petitioner on expiry of period of one year from date her husband disappeared with effect from 02.03.1988. Respondents informed petitioner that she was not entitled to receive family pension because her husband was dismissed from service. Since a period of more than twenty- two long years has now passed since late husband of petitioner disappeared and she has now been held entitled to family pension. I do not deem it appropriate to direct respondents to consider her case at this stage for grant of compassionate appointment. 16. In result, writ petition is partly allowed. The order dated 13.01.1995 is quashed and set aside. On expiry of period of seven years from 02.03.1988 a presumption should arise with regard to death of petitioner's husband with effect from 02.03.1995. 16. In result, writ petition is partly allowed. The order dated 13.01.1995 is quashed and set aside. On expiry of period of seven years from 02.03.1988 a presumption should arise with regard to death of petitioner's husband with effect from 02.03.1995. Petitioner is however declared entitled to receive family pension with effect from 02.03.1989, after expiry of period of one year from date her husband was last heard of, in accordance with proviso to Rule 268B of R.S.R. Consequent upon declaration of dismissal order of petitioner's husband as illegal, respondents are directed to grant all terminal benefits to petitioner treating her to be a widow of deceased government servant though taking 02.03.1988 as basis for calculating terminal benefits and make payment of all terminal benefits and arrears of family pension together with interest @ 6% per annum within a period of three months from the date of service of copy of this order.' 6. Counsel for the respondent(s) submits that the matter is under consideration with the Government with regard to payment of family pension and other retiral benefits to the legal representatives of the employee. 7. Heard counsel for the parties and perused the record. 8. Before adverting to the submissions made by the counsel for the parties, it would be appropriate to first consider the provision of Section 108 of the Evidence Act, which reads as under :- '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.' 9. A plain reading of the above provision makes it clear that a person is dead, if he has been unheard of for seven years, it is for those to prove who affirms it that he is alive. A plain reading of the above provision makes it clear that a person is dead, if he has been unheard of for seven years, it is for those to prove who affirms it that he is alive. The legal representatives of the employee have claimed that a presumption needs to be drawn that the employee is dead as he is unheard of for seven years and the respondents neither in their reply to the writ petition nor during the course of arguments argued in rebuttal and on the contrary it was submitted by the counsel for the respondents that the matter with regard to release of retiral benefits of the employee in favour of his legal representatives is pending consideration with the government. Therefore, in this fact situation where there is claim of drawing presumption of the employee being dead as he is unheard of for seven years and in reply to the writ petition nothing contrary came out in rebuttal thereto, therefore in the facts and circumstances of the present case, while considering the judgment passed by the Co-ordinate Bench of this Court in the matter of Kumud Bhatt (supra), invoking the jurisdiction under Article 226 of the Constitution of India, in the entirety of the facts and circumstances and looking to the fact that there is no rebuttal so far as the legal obligation is concerned, a presumption is drawn in terms of the provisions of Section 108 of the Evidence Act of the employee being not alive and that being the conclusion, the present petitioners who are the legal representatives of the employee are thus held entitled for the relief prayed for by them in the present writ petition. 10. In that view of the matter, this writ petition is allowed. The respondent(s) are directed to pay the family pension in favour of the wife of the employee as well as all other retiral benefits in favour of the petitioners who are legal representatives of the employee, including the gratuity, encashment of earned leave, payment of State Insurance & GPF, along with interest @ 6% per annum, within a period of two months.