Calcutta High Court (Appellete Side)
Smt. Dulali Mejhian vs The Eastern Coalfields Limited & Ors on 3 June, 2013
Author: I. P. Mukerji
Bench: I. P. Mukerji
1
W. P. No. 16259 (W) of 2004
Smt. Dulali Mejhian
Versus
The Eastern Coalfields Limited & Ors.
03.06.2013
Sl. No. 1
Mr. Amitava Mukherjee
Ms. Arpita Saha
--- for the petitioner.
Mr. Alok Kumar Banerjee
Ms. Sanchita Barman Roy
--- for the respondents.
The writ petitioner's husband was born on 27th September, 1968. He was working as an underground wagon loader with the Eastern Coalfield Limited, the first respondent.
Nobody has seen him on or after 17th June, 1997. According to his wife, the writ petitioner, since nobody who would have normally heard about him has done so for a period above seven years, he is to be presumed to be dead. Reliance was placed by learned counsel for the petitioner upon two judgments of the Supreme Court (LIC of India -vs.- Anuradha) reported at (2004)10 SCC 131 para. 12 and (Saroop Singh -vs.- Banto & Ors.) reported at (2005)8 SCC 330 paras. 21 and 22.
According to Mr. Banerjee for the respondent authorities this case of the petitioner is not to be believed at all. Her husband has deliberately stayed away from duty, absconded, departmental proceedings were started, a charge-sheet drawn up and an order of dismissal passed against him on 30th July, 1998.
Now let me give some more facts.
According to paragraph 3 of the writ petition the incident was reported by the family to the police and recorded in the general diary of missing persons maintained by the Kenda Police Fari, on 2oth June 1997. Furthermore on 1st July, 1997 the respondent authorities were informed by the family that the writ petitioner's husband was missing. An enquiry proceeding was started by the respondent authorities, as would appear from a notice dated 19th April, 1998 being annexure P-3 to the petition. This resulted in an ex parte order of dismissal of the writ petitioner's husband made on 30th July, 1998.
According to the writ petitioner the family had no notice of this departmental proceeding.
2According to this departmental decision the absence of the writ petitioner's husband was deliberate and hence he was being dismissed from service.
Thereafter on 25th January, 2000 the CID, West Bengal in a communication to the writ petitioner stated that although her husband's absence was widely publicized in television, radio and newspaper advertisements, there was no "trace on him."
Meanwhile in 2002 the writ petitioner filed a writ application in this High Court (W. P. No. 1522 of 2002, Dulali Mejhian -vs.- Coal India & Ors.). This writ application was disposed on 5th September, 2002 by M. H. S. Ansari, J. asking the respondent authorities to make a sympathetic consideration of the case of the writ petitioner.
At this point Mr. Banerjee submitted that this Court had held that a compassionate appointment could not be given to the petitioner. Hence an order was passed directing the respondent authorities to give some kind of a sympathetic consideration, other than granting a compassionate appointment.
A consideration was made by the respondent authorities on 16th September, 2003. They arrived at the decision that the order of dismissal was rightly passed against the writ petitioner's husband.
Now I give my findings.
There is no dispute that nobody has heard about the writ petitioner's husband after 17th June, 1997. His family treated him as missing, from that point of time. It is not uncommon for a family to wait for two or three days for a family member to return to them. Hence the complaint made with the police on 20th June, 1997 which was entered in the general diary of missing persons by the Kenda Police Fari, was quite bona fide.
Moreover the family informed the employer by their letter dated 1st July, 1997 which is annexure P-1.
The family also must have pursued the matter before the police. That is why they wrote the letter dated 25th January, 2000 telling them that the writ petitioner's husband could not be found.
In my opinion a missing person's family could not have done anything more to locate him. I form an opinion that they acted bona fide.
At the point of time the earlier writ application was disposed of on 5th September, 2002, the period of seven years had not elapsed. But at the time of filing of the instant writ application, the period of seven years had elapsed.
3Therefore, when His lordship disposed of the first writ application, he was unable to come to a finding that the writ petitioner's husband was to be presumed dead.
Since this writ application has been filed after seven years, I am of the opinion that there would be such a presumption. This is so because in my opinion the family acted quickly and bona fide. I have no doubt in my mind that this is not a case where an absconding person was trying to claim benefits. Therefore, it was squarely up to the Easter Coalfield authorities to rebut the presumption which they have failed to do.
I am prepared to give them one more opportunity. I grant the respondent no.1 more than six months time, upto st 31 December, 2013, to trace out the writ petitioner's husband by whatever lawful means available to them to enable them to rebut the presumption. If they are unable to trace out the writ petitioner's husband they will record so in a decision to be made by them by 30th January, 2014 and in that case the petitioner's husband would be treated to have died-in-harness. In that event the respondent authorities will extend all benefits including compassionate appointment to the writ petitioner as per the Memorandum of Agreement - National Coal Wage Agreement-VI.
If the respondent authorities are able to trace out writ petitioner's husband within the aforesaid period, they will be entitled to pass a decision affirming the order of dismissal.
The benefits, if any, including compassionate appointment should be provided if the facts so warrant by 31st March, 2014.
This writ application is allowed to the above extent.
Urgent certified photocopies of this order, if applied for, will be made available to the parties subject to compliance with all requisite formalities.
(I. P. Mukerji, J.) rnr.