Mobile View
Main Search Advanced Search Disclaimer
Cites 6 docs - [View All]
Section 108 in The Indian Evidence Act, 1872
Section 107 in The Indian Evidence Act, 1872
The Indian Evidence Act, 1872
Nazira Begum Lashkar & Ors vs State Of Assam & Ors on 7 November, 2000
State Of M.P vs L.P. Tiwari on 5 May, 1994

User Queries
Gauhati High Court
Gayatri Chakraborty vs Life Insurance Corporation Of ... on 11 September, 2006
Equivalent citations: (2007) 2 GLR 620, 2008 (1) GLT 290
Author: R Gogoi
Bench: R Gogoi

JUDGMENT

Ranjan Gogoi, J.

1. The details of the reliefs sought for in the writ petition would be self evident from the narration of the essential facts of the case, which is the first exercise that the court must perform.

2. The petitioner states that her husband Abani Chakraborty, who is a poet of repute, did not return home from his evening walk on 12.11.1994. On 13.11.2004, a FIE was lodged before the concerned police station by the son of the petitioner. As the petitioner's husband was at the relevant point of time, employed as an Assistant in the Life Insurance Corporation of India (hereinafter referred to LICI), on 15.11.1994, information was conveyed to the appropriate authority of the Corporation with regard to the fact that the petitioner's husband has been missing from the evening of 12.11.1994. Also available in the records of the writ petition is a letter of the petitioner to her husband's employer requesting for payment of salary for the month of December 1994 and also several letters written by the son of the petitioner in the year 1995 seeking compassionate appointment in the LICI. The materials on record do not indicate that any response was made by the LICI to the said requests of the petitioner's son. In this manner, the situation continued; the whereabouts of the petitioner's husband remained unknown; no benefits were afforded to the petitioner by the LICI. On 17.11.2001 the petitioner filed an application before the LICI seeking terminal benefits due in respect of her husband. The authority of the LICI by a letter dated 21.11.2001 requested the petitioner to obtain an order from a competent judicial authority certifying that a presumption could be drawn under the law that the husband of the petitioner is no more. The petitioner thereafter approached the court of the learned Civil Judge (Sr. Dyn.), Guwahati by instituting a Title Suit, which was registered and numbered as TS 290 of 2001. The said suit was decreed by the learned trial Court on 12.6.2002 by declaring that the husband of the petitioner Abani Chakraborty can be presumed to be dead on completion of 7 years from the date he had gone missing, i.e., 12.11.1994.

Armed with the judicial verdict, the petitioner-submitted representations before the LICI in the months of June and July 2002 requesting for settlement of the terminal benefits as well as pensionary dues payable in respect of her husband. In the said representation, the petitioner also requested for appointment of her son on compassionate ground. No material is available on record to hold that the LICI acted in the matter with any degree of promptitude and it is only on 20.11.2004 that the Senior Divisional Manager of the Guwahati Division of the LICI informed the petitioner that the LICI has decided not to revoke the order dated 23.5.1996 removing the petitioner's husband from service for which reason, the request for compassionate appointment of the petitioner's son cannot be granted. By the communication dated 20.11.2004 the petitioner was also informed that the LICI had taken a decision to settle the terminal benefits with reference to the date on which the petitioner's husband was removed from service, i.e., 23.5.1996.

On receipt of the communication dated 20.11.2004, the petitioner by letter dated 6.12.2004 informed the authority of the LICI that it is from the said letter of the LICI dated 20.11.2004 that the petitioner could come to know, for the first time, that her husband has been removed from service by the order dated 23.5.1996, Accordingly, the petitioner requested that she be furnished with a copy of the said order.

The LICI by communication dated 10.12.2004 forwarded to the petitioner a copy of the order dated 23.5.1996 by which the petitioner's husband was removed from service. It is evident from the order dated 23.5.1996 that such removal was on a charge of unauthorized absence from duty with effect from 13.11.1994. From the order dated 23.5.1996 made available to the petitioner, it transpires that an exparte departmental proceeding was drawn up against the petitioner for breach of Regulation 39(4)(iii) of the LICI (Staff) Regulations 1960, which concluded with the order of removal dated 23.5.1996. From the order dated 23.5.1996 it is also evident that the period from 13.11.1994 to 23.5.1996 was treated by the LICI as not spent on duty.

In the aforesaid facts and circumstances, this writ petition has been filed seeking interference of this Court with the order of removal dated 23.5.1996 and a further direction for payment of service, terminal and pensionary benefits treating 12.11.2001 (date of presumption of death) as the date of death of the petitioner's husband. In the writ petition, filed, compassionate appointment of the petitioner's son, who is claimed to be qualified and eligible for appointment in the post of Assistant, has also been prayed for. In support of the claim made for compassionate appointment, it has been pleaded by the petitioner that in two other instances, specific details of which have been stated in the writ petition, dependents of similarly situated persons like the petitioner's husband have been given the benefit of compassionate appointment by the authorities of the LICI.

3. The claims made in the writ petition have been resisted by the LICI by filing a counter affidavit. According to the LICI, the petitioner's husband did not attend office with effect from 13.11.1994. The LICI, after waiting for a reasonable period, decided to initiate a proceeding against the petitioner's husband for what was perceived to be unauthorized absence from duty amounting to misconduct under the relevant Staff Regulations in force. As notices of the said enquiry were not responded by the petitioner's husband, a decision was taken to proceed exparte and thereafter, the departmental proceeding was concluded by passing an order dated 23.5.1996 removing the petitioner's husband from service and by treating the period from 13.11.1994 to 23.5.1996 as not spent on duty. In the affidavit filed, the LICI has further stated that the petitioner's husband having been removed from service with effect from 23.5.1996, all terminal and other benefits due had been paid to the petitioner on that basis. In this regard the LICI claims that an amount of Rs. 1,11,829 has been paid to the petitioner on account of gratuity and leave encashment; an amount of Rs. 14,203 on account of arrear salary due because of revision of pay; Rs. 6,046 on account of Group Insurance and a sum of Rs. 2,00,628 on account of provident fund. Insofar as pension is concerned, the provisions of the pension scheme in force in the LICI has been referred to in the affidavit to contend that the petitioner will not be entitled to any pension. According to the respondents the pension scheme came into effect from 1.11.1993 and the nucleus of the pension fund has been created by optional transfer of the amount in the provident fund Account of the employees who had opted to be covered by the pension Scheme. In this regard it is also pointed out that the petitioner's husband, during his life time had not opted to be covered by the pension scheme enabling transfer conversion of his provident fund Account to the pension scheme for which reason provident fund as one has already been paid to the petitioner.

Insofar as compassionate appointment of the petitioner's son is concerned, in the affidavit filed, the LICI has stated in details that under Rule 21 of the Recruitment Rules in force, compassionate appointment is required to be offered in case of death or voluntary retirement when cessation of service on either count had occurred at a time when the employee had 5 years or more of service left to his credit. As the petitioner's husband had little over 2 years of service left on the date when presumption of death could be drawn under the law, the petitioner's son was not entitled to compassionate appointment. That apart, it has been contended that as the petitioner's husband was removed from service, compassionate appointment cannot be made. In the affidavit filed, it has also been stated that as the petitioner had received all the terminal benefits from the LICI, the family cannot be said to be living in penury so as to entitle the son of the petitioner to get an appointment on compassionate ground.

4. The arguments advanced by Shri N. Dutta, learned senior counsel for the petitioner and Shri B. Pathak, learned Counsel for the Respondents may now briefly be noticed.

Shri Dutta, learned senior counsel for the petitioner has argued that the manner in which the petitioner has been treated by the authorities of the LICI does not indicate a fair approach on the part of the said authority as a public body. When the disappearance of the petitioner's husband was a known fact and was duly informed to the LICI, according to Shri Dutta, the initiation of a departmental proceeding on the ground of unauthorized absence from duty is wholly untenable and sustainable in law. Shri Dutta has submitted that though the said proceeding was initiated in the year 1996, at no point of time, the petitioner was informed of the pendency of the said proceeding and the order of removal passed on 23.5.1996. In fact, when the petitioner had filed the application dated 17.11.2001 seeking terminal benefits and compassionate appointment of her son, the LICI instead of informing the petitioner about the removal of her husband from service, required her to obtain a declaration from a competent judicial authority that a presumption of her husband's death can be drawn in law. The petitioner approached the civil court and by expending her limited resources and energy, obtained a decree on 12.6.2002. When she re-approached the LICI with the decree by submitting representations in the months of June and July 2002, the LICI did not act with any degree of promptitude in the matter. Instead, it is only on 20.11.2004 that the LICI informed the petitioner that her husband had been removed from service on 23.5.1996 and all terminal benefits would be calculated with reference to the said date. Shri Dutta has submitted that a proceeding for alleged unauthorized from duty under the regulations in force, has necessarily to be in respect of willful absence from duty. When disappearance of the petitioner's husband was known to the authorities of the LICI coupled with the fact that his whereabouts remained unknown all along, the actions of the LICI in initiating a departmental enquiry against the petitioner's husband for his unauthorized absence and the conclusion of the said proceeding exparte by passing the order dated 23.5.1996 are not bona fide actions on the part of the respondents. Shri Dutta has further submitted that under Section 107 read with Section 108 of the Indian Evidence Act as well as the decree dated 12.6.2002 presumption! of the death of the petitioner's husband could be made on 12.11.2001. Though, 12.11.2001 is not the date of death of the petitioner's husband, yet, with effect from the said date the petitioner's husband could be presumed to be dead. If the order of removal of the petitioner's husband is set aside by the court, according to Shri Dutta, he must be deemed to have been in service till 12.11.200 1. Therefore, the petitioner will be entitled to all the benefits, i.e., service, pension and terminal benefits with reference to the said date, i.e., 12.11.2001 In so far as compassionate appointment to be offered to the son of the petitioner's husband is concerned, Shri Dutta has argued that the interpretation of Rule 21 of the Recruitment Rules as made by the LICI is not correct. The requirement for an employee to have 5 years or more service left at his credit will apply only to such employees who voluntarily retire and not to employees who have died while in service. Shri Dutta has further argued, by referring to the pleadings, that as in similarly situated cases relatives of deceaseds have been granted compassionate appointment/the denial thereof in the case of the present petitioner is liable to be interfered with by the court.

5. The arguments advanced by Shri B. Pathak, learned Counsel for the Respondents are a virtual reiteration of the stand taken in the affidavit filed by the LICI. Shri Pathak has reiterated that once the petitioner's husband had gone missing the LICI as the employer could not have remained inactive in the matter; after lapse of a reasonable period of time, a proceeding was initiated and the same had to be concluded ex parte as the petitioner's husband continued to remain missing. The petitioner's husband having been removed from service with effect from 23.5.1996, all entitlements have been worked out with reference to the said date. All such benefits, as due, having been paid to the petitioner, the petitioner cannot have any further claims in this regard. In so far as the pension is concerned, learned Counsel has argued that prior to 1.11.1993, there was no pension scheme in the LICI. Provident fund deducted from the employees were supplemented by employer's contribution. After the pension scheme came into force, existing employees were given the option to be covered by the pension scheme. The amount in the Provident Fund Account was required to be transferred to the pension fund. This was not done by the petitioner's husband and accordingly the provident fund due to the petitioner's husband including the employer's contribution has been paid to the petitioner. In such a situation, the petitioner will not be entitled to any pension. Insofar as the compassionate appointment is concerned, Shri B. Pathak, learned Counsel for the respondents has submitted that the cases of the persons referred to by the petitioner in her pleadings are distinguishable; Shri Pathak has reiterated that Rule 21 of the Recruitment Rules requires 5 years of service to the credit of the employee, who may have died in harness or may have gone on voluntary retirement. The petitioner's husband did not have 5 years of service as on 12.11.2001. That apart, Shri Pathak has submitted that a substantial amount having been paid to the petitioner on account of terminal and other benefits, the son of the petitioner is not entitled to be appointed on compassionate ground.

6. Having noticed the pleadings of the respective parties and the arguments advanced by the learned Counsels, the court may now proceed to deal with the entitlement of the petitioner to the various claims made in the writ petition.

The penalty of removal from service has been imposed on the petitioner's husband at the conclusion of an exparte departmental proceeding against the petitioner's husband for his alleged unauthorized absence from duties. The relevant provisions of the Regulations in this regard that has to be noticed by the court is Regulation 30. Regulation 30(1) contemplates that an employee shall not absent himself from duty without permission from the competent authority; nor an employee shall be absent in case of sickness or accident without submitting a medical certificate to that effect. Section 30(1) which prescribes the expected code of conduct in an employee necessarily contemplates willful or conscious absence from duty by the employee which is what has made amenable to disciplinary control and imposition of penalty under Regulation 39. In the present case, the petitioner's husband went missing from the evening of 12.11.1994. The said fact was informed to the LICI immediately and, thereafter, in the representation of the petitioner for salary filed in the month of November 1994 and also in the representations of the petitioner's son seeking compassionate appointment filed in the year 1995. The whereabouts of the husband of the petitioner were not-known even subsequently and same was the position on the date of the initiation and conclusion of the departmental proceeding. In such a situation, the absence of the petitioner's husband from work, cannot be reasonably understood to be a willful act on his part so as to attract Clauses 30 and 39 of the Regulations. The basis on which the aforesaid two clauses of the Regulations would be attracted being non-existent in the present case not much persuasion is required to enable the court to hold that the departmental proceedings against the petitioner culminating in the removal order dated 23.5.1996 are not legally sustainable.

7. The respondents have worked out the entitlements of the petitioner to all benefits including terminal benefits by taking into account the date of removal of the petitioner's husband, i.e., 23.5.1996 and by treating the period between 30.11.1994 (the date of disappearance) and 23.5.1996 (date of removal) as not spent on duty. If the removal order of the petitioner has to be set aside, which this Court does, the aforesaid basis for computation of benefits to the petitioner will cease to exist. The question that will confront the court, in such a situation is with reference to what date such benefits should now be calculated?

8. Much argument have been advanced before the court with regard to the purport and effect of Section 108 of the Evidence Act, which permits a presumption to be drawn that a person whose whereabouts are not known for a period of 7 years, to those who would have normally heard of him, he may be presumed to be dead.

To understand the meaning of Section 108 of the Evidence Act, the provision contained in Section 107 must first be noticed. Section 107 of the Act contemplates that when a question whether a person is alive or dead is raised and if such person was alive within 30 years of the question being raised, the burden of proving that he is dead is on the person, who affirms it. The burden cast by Section 107 is, however, subject to the provisions of Section 108, which contemplate that in cases where the whereabouts of a person is not known to such persons who would have heard of him for a period of 7 years, the burden of proving that such person is alive is shifted to the person who affirms it. Section 108, therefore, has been understood to be an exception to the Rule laid down in Section 107 and permitting a presumption of death to be drawn if for a period of 7 years the whereabouts of a person is not known to those who would have naturally heard of him. In a decision rendered by this Court in the case of Amrana Begum Mazumdar v. State of Assam and Ors. 2006 (1) GLT 604, the provisions contained in Sections 107 and 108 of the Indian Evidence Act have been exhaustively considered by this Court in the light of the several pronouncements of the Apex-Court specifically referred to in the said judgment. This Court in the case of Amrana Begum Maziimdar (supra) had held, following the decisions of the Apex Court, that the presumption that is permissible to be drawn under Section 108 is that on the expiry of 7 years from the date when the whereabouts of a person are not known to such person(s) who would have normally known about such whereabouts, the person may be presumed to be dead. No further presumption particularly with regard to the date of death is possible or permissible under Section 108 of the Evidence Act. In Amrana Begum Mazumdar (supra), this court, however, acting on the presumption permissible to be drawn under Section 108 of the Act on the expiry of 7 years, had held that the petitioner therein would be entitled to family pension at least from the date on which such presumption can.be drawn.

9. In the present case the petitioner's husband went missing with effect from 13.11.1994. He was removed from service with effect from 23.5,1996. The order of removal is being set aside by this Court by the present order on the grounds and reasons assigned. Under Sections 107 read with Section 108 of the Indian Evidence Act, the husband of the petitioner can be presumed to be alive till 12.11.2001, i.e., expiry of 7 years from the date he went missing. In the absence of anything to the contrary, the relationship of employee and employer between the LICI and the petitioner's husband can be reasonably understood to have subsisted till the petitioner's husband can be presumed to be alive, i.e., 12.11.2001. Thereafter, such relationship must be understood to have snapped on account the legal/fictional death of the petitioner's husband. As the petitioner's husband admittedly had not worked during the aforesaid period, as decided by this Court in a similar situation [in the case of Amrana Begum Mazumdar (supra)], it will not be correct on the part of the court to pass any order for payment of salary to the petitioner's husband up to 12.11.2001. However, as the service of the petitioner's husband notionally can be taken to have continued up to the said date, the calculation of other benefits in respect of the petitioner's husband can reasonably be made with reference to the said date, i.e., 12.11.2001. As the Respondents have calculated such benefits with reference to the date of removal, they will now be under an obligation to re-compute the said benefits once again with reference to the date 12.11.2001.

10. Insofar as the pension is concerned, the provisions of the pension scheme have already been noted. The affidavit of the LICI does not spell out several facts which would have enabled the court to conclusively determine the entitlement of the petitioner to pension. In the affidavit, filed apart from a narration of the relevant part of the pension scheme, no other facts are stated. The facts noted in the earlier part of this order are what had been submitted at the hearing. In such a situation, the court is of the view that the entitlement of the petitioner to pension shall be decided by the Respondents in accordance with the provisions of the scheme.

11. This will bring the court for a consideration of the entitlement of the petitioner's son to appointment on compassionate ground. In G.M. v. Kunti Tiwari the Apex Court has laid down that. the quantum of terminal benefits received by a family of the deceased must be taken into account in determining the financial hardships faced by the family of the claimant seeking compassionate appointment. The further view of the Apex Court is that compassionate appointment cannot be claimed as a matter of right. Such appointment cannot be granted merely because the father/mother of the claimant was a Government servant or employee of a public body. Penury has been identified by the Apex Court to be the only adequate justification for making compassionate appointment. In the present case, the affidavit of the Respondents has made it clear that the petitioner has received an amount of nearly Rs. 3.5 lakh on account of terminal benefits. Sufficiency of the said amount to enable the petitioner and her family to gain a new foothold in life can be a matter of subjective speculation. On an objective plane, the amount received cannot be considered to be inadequate or that notwithstanding the same, the family is still in a state of penury. It is my considered view that having regard to the above facts, the claim for compassionate appointment as made in the writ petition must be refused by the court. The above view will render any discussion of the correct meaning of Rule 21 of the Recruitment Rules wholly unnecessary.

12. Before parting with the record, there is one aspect of the matter which the court must mention in the present order. The LICI is a statutory body dealing with matters that are fundamental to social good. It is, therefore, expected that as a statutory authority, the LICI would exercise its powers and perform its duties with utmost fairness, expedition and keeping in mind the public good. The facts of the present case are capable of being construed in a contrary manner. There are many questions that have remained unanswered in the present case. If the petitioner's husband had been removed from service in the year 1996 why was the petitioner not informed? When the petitioner approached the LICI on 17.11.2001 for grant of terminal benefits why was the petitioner told to obtain a certificate from the competent judicial authority in spite of the fact that her husband had been removed from service. Why was it necessary for the LICI to ask the petitioner to approach the judicial authority for a declaration that her husband can be presumed to be dead? The provisions of Sections 107 and 108 of the Indian Evidence Act are capable of being interpreted and acted upon by any employer particularly the LICI with its huge force of legal experts. Why did the LICI take more than two years, i.e., between June 2002 and November 2004 (when the petitioner submitted her representations dated 24/25.6.2002 after receipt of the decree dated 12.6.2002 and 20.11.2004 when the petitioner was informed by the LICI that her husband has been removed from service) to inform the petitioner that her husband was removed from service on 23.5.1996. A citizen may not be entitled to all the benefits that are claimed. But what a citizen can legitimately expect is a fair consideration of his case a fair and transparent decision making process and early resolution of the claims made. Though this Court by the present order has largely negated the claims made by the petitioner yet the actions of the LICI in dealing with the claims of the petitioner has caused deep anguish to the court in so far as performance of the duties by the LICI is concerned. Beyond that the court would like to say no more.

13. In view of the discussions that have preceded, this writ petition is partly allowed to the extent indicated above.