Gauhati High Court
Shrimati Indrani Devi vs The Union Of India & Ors on 9 February, 2015
Author: Michael Zothankhuma
Bench: Michael Zothankhuma
WP(C) 1561/2010
BEFORE
HON'BLE MR. JUSTICE MICHAEL ZOTHANKHUMA
09.02.2015
Heard Mr SS Sharma, learned senior counsel for the
petitioner assisted by Mr BJ Mukherjee and Mr J Sarma, learned
CGC for the respondents.
Petitioner's case is that her husband Lalit Singha had joined the Assam Rifles as a Sepoy (General Duty) on 18.12.80 and in the year 1993 he was posted at Kokokchung, Nagaland. On 2.4.94, during roll call the petitioner's husband was found absent. On checking, the respondents found his identity card along with service carbine and ammunition issued to him in his personal luggage at the place of his posting.
On 16.4.94, the respondent No.3 issued an apprehension order declaring the petitioner's husband as a deserter to the Superintendent of Police, Cachar District, Assam with a request to apprehend him. The said apprehension order was also forwarded to the respondent No.3 and all ranges of the Assam Rifles.
On 25.5.94, a Court of Inquiry was held by the respondents under Section 106 of the Army Act, 1950 and the Court of Inquiry after investigation, declared the petitioner's husband as deserter with effect from 2.4.94.
The petitioner's wife on coming to learn about the disappearance of her husband made enquiries with the authorities but to no avail. Thereafter, she approached this Court by filing Civil Rule No. 5632/96 praying for an enquiry to find out Page 1 of 7 the whereabouts of her husband and for payment of compensation. During the pendency of Civil Rule No. 5632/96, the CBI started enquiry proceedings regarding the disappearance of the petitioner's husband. The CBI thereafter submitted their enquiry report pursuant to the order dated 5.5.99 passed in Civil Rule No. 5632/96 pertaining to disappearance of LNK Lalit Singha, Sepoy of 10 Assam Rifles showing that all efforts to trace LNK Lalit Singha were to no avail and that no useful purpose would be served in keeping the enquiry pending. Para 15, 16 and the prayer of the enquiry report submitted by the CBI are reproduced hereinbelow:
"15. Discreet enquiries were also conducted to find out if the Assam Rifles Authorities were concealing any facts. However, no indication of the same was found. In fact, the Assam Rifles authorities suspected that LNK Lalit Singha might have joined People's Liberation Army of Manipur (PLA) against whom Assam Rifles has been fighting for a very long time. In their opinion, as Lalit Singha was working in the Intelligence unit of the Assam Rifles, People's Liberation Army of Manipur (PLA) might have found in him a good resource person for their oganisation. There is, however, no evidence to lend credence to his theory. If LNK Lalit Singha has wanted to join an underground organisation, he would certainly have taken the arms and ammunition issued to him rather than leave them behind with his luggage and he would also have kept in touch with his family.
16. In sum, all efforts have been to trace LNK Lalit Singha but to no avail. The matter is nearly six years old and it is felt that no useful purpose would be served in keeping the enquiry pending.
PRAYER In view of the facts and circumstances narrated above, it is humbly prayed that this Hon'ble Court may be gracious enough to permit the CBI to close this case and to grant leave to the CBI to reopen the same in the event of any fresh facts or clues coming to light.".
On receipt of the CBI report, this Court vide its judgment dated 7.1.2002 disposed of Civil Rule No. 5632/96 without deciding about the other prayer made by the petitioner. Being aggrieved by the order Page 2 of 7 dated 7.1.2002 passed by this Court, the petitioner preferred W.A. No. 212/2002. A Division Bench of this Court vide order dated 3.11.2006 disposed of the Writ Appeal by observing as under:
"In this writ appeal the learned counsel for the appellant submits that the appellant is entitled to payment of compensation since the appellant's husband was found missing while he was in the service of Assam Rifles. There is nothing on record to suggest that the Assam Rifles played any role whatsoever or could be held responsible for causing disappearance of the appellant's husband. In the circumstance, no relief could be granted to the appellant. The learned Single Judge did not commit any error in acceding to the request made by the CBI to close the enquiry.
However, if the appellant is entitled to payment of any family pension and other benefits in law, proper application may be filed before the authority concerned which shall be considered by the authority in accordance with law within a period of three months from the date of filing of such application.
The writ appeal shall stand dismissed.".
It may be stated herein that prior to the passing of the order dated 3.11.2006 by the Division Bench in W.A. No. 212/2002, as quoted above, the petitioner submitted a representation dated 22.5.2006 to the respondent No.2 praying for grant of family pension as per Rules.
The office of the respondent No.2 thereafter replied to the petitioner's representation stating that she was not entitled to get any pensionary benefit as her husband had been declared a deserter by holding a Court of Inquiry by the Commandant of 10 Assam Rifles with effect from 2.4.94 and that after a lien of five years desertion period, he was dismissed from service as per Rules.
It is pertinent to mention at this stage that the Officer-in-Charge of Kachudaram Police Outpost had submitted his report dated 17.1.2006 wherein it had been stated that during enquiry, the petitioner's husband was untraceable.
Page 3 of 7The petitioner thereafter submitted another representation to the respondents on 29.12.2008 in terms of the order dated 3.11.2006 passed by the Division Bench in W.A. No. 202/2012 praying for release of family pension at the earliest. The office of the respondent No.2 replied to the petitioner's representation vide order dated 29.3.2009 stating that the petitioner's husband had been declared as deserter and was dismissed from service and that as per his entitlements, IRLA credit and GPF balance amounting to Rs. 8,539/- and Rs. 26,786/- respectively and ARGIS dues amounting to Rs. 16,869/- had been released to the petitioner. The order also states that the petitioner's husband Lnk/GD Lalit Singha being a deserter, the petitioner is not entitled to the monthly family pension as per the Rules.
Mr SS Sharma, learned senior counsel has submitted that the petitioner is entitled to pension as per Section 108 of the Indian Evidence Act, 1872 and in terms of the report submitted by the CBI and the concerned P.S. to the effect that the petitioner's husband is untraceable, the petitioner is to be presumed to be dead and the family pension should be related back to the date of disappearance of the petitioner's husband. It is also submitted that petitioner's husband if he were alive would have contacted the petitioner, his relatives or friends. However, till date even they have not heard anything about the petitioner's husband.
Mr J Sarma, learned CGC has submitted that the petitioner's husband having been declared a deserter by the Court of Inquiry dated 25.5.94 with effect from 2.4.94, he was dismissed from service vide order dated 5.5.2003. Mr Sarma also submits that as per Rule 24 of the CCS (Pension) Rules, 1972, dismissal or removal of a Government servant from service or post entitles forfeiture of his past service and the petitioner is not entitled to any pensionary benefit. For better understanding of the question as to whether the petitioner's husband Page 4 of 7 should be presumed to be dead, Section 108 of the Evidence Act is quoted below:
"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.".
There is no conflict between Section 106 of the Army Act and Section 108 of the Evidence Act. While the Army Act entitles to declare a person who absents from service a deserter, Section 108 of the Evidence Act entitles to draw a presumption of death for all purposes after seven years from the date a person is not heard of or missing. The petitioner's husband has been missing since 2.4.94. The CBI report which is reflected in the order dated 7.1.2002 passed in Civil Rule No. 5632/96, shows that the petitioner's husband was missing even in the year 2002. The report dated 17.1.2006 issued by the Kachudaram Police Outpost also shows that more than 12 years had elapsed from the date of disappearance of the petitioner's husband. The police also have not till date i.e. even in the year 2015 been able to apprehend the petitioner's husband even though an apprehension order was issued by the respondent no.2 on 16.4.94. Thus, presumption of death under Section 108 of the Evidence Act now comes into play.
It has been held in Indira K. -vs- Union of India & Ors., reported in OP No. 18590 of 1999 (K) that even though under the Army Act a person can be said to be a deserter under Section 106 when he is found missing and can also be dismissed for desertion, the situation changes when the presumption of death of such a person becomes available under Section 108 of the Evidence Act. In other words, if a person is declared a deserter and dismissed from service and is not traced out in seven years, then Section 108 of the Evidence Act takes over and all consequential actions would follow. In other words, Page 5 of 7 presumption of death thereafter supercedes the finding of the petitioner's husband being a deserter and the consequential order of dismissal from service.
Another aspect that has to be born in mind is that the petitioner's husband having been missing from 2.4.94 and the presumption of death of the petitioner's husband having come into play seven years thereafter, the date of giving pensionary benefits to the petitioner will have to relate back to the date from which the petitioner's husband was missing.
In Ram Singh -vs- Board of Revenue, U.P., Allahabad, AIR 1964 All 310, while dealing with the content and scope of provisions of Section 108 of the Indian Evidence Act, it was held that all that one can presume under Section 108 is that the person concerned is dead but one cannot fix the time of person's death under the provisions of the said Section. Section 108 however, is not exhaustive on the question of presumption as regards the death of a person. The Court may in the circumstances of each case make suitable presumption even regarding the time of death of the person concerned.
In Subhash Ramchandra Wadekar -vs- Union of India, AIR 1993 Bom 64, it was held "Where the presumption of death after seven years absence applies, the person will be presumed to have died by the end of that period. Section 108 of the Indian Evidence Act enacts law of rebuttable presumption in case of a person who has not been heard of more than 7 years.".
In Zishan Khan -vs- District Inspector of Schools, Varanasi & Ors., 2012 (92) ALR 154, it was held that (1) Ordinarily, a person not heard of for the statutory period shall be presumed to be dead on expiry of seven years and not earlier; (ii) Section 108 of the Indian Evidence Act, 1872 is not exhaustive. It is permissible for the Court to raise a suitable presumption regarding the date of presumed death depending Page 6 of 7 upon the attending circumstances and other reliable material son record. In other words, no Rule of universal applicability can be spelt out regarding presumption of death.
From the decisions quoted above, it is apparently clear that on the expiry of seven years the person missing shall be presumed to be dead though the date on which he actually died cannot be ascertained. In the light of the fact that there has been no word of the petitioner's husband since 2.4.94 till today and due to the fact that presumption of death of the petitioner's husband has come into play, the finding of the Court of Inquiry that the petitioner's husband is a deserter and his order of dismissal is found to be supeceded by the presumption of law laid down under Section 108 of the Evidence Act as there can be no question of a dead person being a deserter or being dismissed from service.
Though the exact date of death of the petitioner's husband cannot be ascertained, the family pension can be given from the date the petitioner's husband was missing i.e. 2.4.94. However, in view of the fact that the petitioner's husband has not been heard of for more than seven years and as ordinarily a person unheard of shall be presumed to be dead on expiry of seven years as held in Zishan Khan (supra), I am of the considered opinion that the petitioner is entitled to family pension in respect of her deceased husband with effect from 2.4.2001 i.e. seven years after her husband went missing. The said family pension shall accordingly be paid to the petitioner within a period of three months from the date of receipt of a certified copy of this order.
The petition is accordingly allowed.
No cost.
JUDGE skd Page 7 of 7