Calcutta High Court (Appellete Side)
Manimala Bag vs The State Of West Bengal & Ors on 25 February, 2011
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas
W.P. No.15633 (W) of 2006
Manimala Bag
v.
The State of West Bengal & Ors.
Ms Munmun Tewari, advocate, for the petitioner. Mr Monotosh Chakraborty, advocate, for the State.
Heard on: February 25, 2011.
Judgment on: February 25, 2011.
The Court: - The petitioner in this art.226 petition dated June 28, 2006 is
seeking two orders: (i) an order directing the respondents to pay her all benefits
that became payable on her husband going missing; and (ii) an order directing
the respondents to offer one of her sons an appointment to a suitable post on
compassionate ground.
Facts revealed by the pleadings filed by the parties are these. The
petitioner's husband (Sristidhar Bag) was appointed as a Chowkidar in Deypara Gram Panchayat in the district Nadia on April 1, 1970. He received salary the last time for the month of August 1987. He went missing on October 3, 1987. The petitioner submitted a representation to the District Magistrate, Nadia whose office received it on July 30, 1997. She prayed for an employment on compassionate ground for a member of her family.
By a letter dated August 7, 1997 the Block Development Officer, Krishnanagar-I directed the Pradhan of the Gram Panchayat to submit necessary particulars of the missing employee for considering the question of sanctioning the benefits, if any, payable to the petitioner. By a letter dated November 20, 1997 the Pradhan submitted the required information and particulars. Thereafter the respondents became silent. They did not respond to representations made by 2 the petitioner from time to time. Feeling aggrieved, the petitioner brought this petition.
Relying on an unreported Single Bench decision of this Court dated June 29, 2001 in W.P. No. 6795 (W) of 2001 (Smt. Shila Biswas v. State of West Bengal & Ors.), counsel for the petitioner has argued that in view of the provisions of s.108 of the Indian Evidence Act, 1872 the respondents ought to have paid the petitioner the benefits and considered the question of offering an employment to one of her sons on compassionate ground proceeding on the presumption that her husband was dead.
Relying on the Supreme Court decisions in Darshan Singh & Ors. v. Gujjar Singh & Ors., (2002)2 SCC 62 and Saroop Singh v. Banto & Ors., (2005)8 SCC 330, counsel for the respondents has argued that there was no scope for presuming that the missing employee was dead, because no Court of competent jurisdiction gave a declaration to that effect in the light of the provisions of s.108 of the Indian Evidence Act, 1872 and evidence adduced by the petitioner.
I find that the two issues involved in this case are: (i) whether the respondents are under an obligation to pay the heirs and legal representatives of the missing employee any service benefit; and (ii) whether they are under any obligation to consider the question of offering a member of the missing employee's family an employment on compassionate ground.
The petitioner's husband going missing on October 3, 1987, on reaching the age of superannuation, would have retired only in September 2001, for he was born on September 17, 1941 and was to retire on reaching the age of 60. Hence unless all concerned proceeded on the basis that he was dead there was no scope for considering the questions of granting death-cum-retirement benefits and offering an employment on compassionate ground.
I think in such a case as this an employer should not ask the heirs and legal representatives of the missing employee to go to the Civil Court for getting a 3 declaration that the employee should be considered dead. A suit in such a case as this virtually will not involve any lis between the heirs and legal representatives of the missing employee and the missing employee's employer who needs the declaration only as a shield.
The provisions of s.108 of the Indian Evidence Act, 1872 provide 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.
Here neither the heirs and legal representatives of the missing employee nor his employer heard of the missing employee from October 3, 1987 till July 30, 1997 when the petitioner filed the first application seeking benefit, though they all were the persons who would naturally have heard of the missing person, if he had been alive. As a matter of fact none of them has heard of the missing person from 1987 till today--a period of around 24 years.
In my opinion, the employer of the missing employee not affirming in 1997 that the missing employee was alive (and not affirming it even now) ought to have proceeded on the basis that the missing employee died at the date the period of seven years mentioned in s.108 of the Indian Evidence Act, 1872 expired. The Single Bench decision relied on supports this proposition and the Supreme Court decisions relied on do not say anything contrary to this proposition.
The provisions of the Death-cum-Retirement Benefit Scheme, 1985 for Chowkidars and Dafadars of Gram Panchayats/Anchal Panchayats were applicable to the missing employee; and in terms thereof on his death while in service the members of his family would have been entitled to certain benefits.
As to the question of employment on compassionate ground, I agree with counsel for the petitioner that in view of a letter No.1995/PN10/III/2A-21/95 dated October 20, 1995 written by the Principal Secretary to the Government of 4 West Bengal to the Director of Panchayats, West Bengal the respondents were under an obligation to consider the question of offering an employment to a member of the family of the missing employee proceeding on the basis that the employee died in harness at the date the period of seven years from October 3, 1987 expired.
Under the circumstances, I hold that the respondents have failed in the discharge of their statutory obligations to pay the benefits that became payable to the members of the family of the missing employee and acted unfairly by not considering the question of offering an employment to a member of the family of the missing employee on compassionate ground. In my opinion, it will be appropriate to direct them to take steps for both the purposes.
For these reasons, I dispose of the petition ordering as follows. The respondents shall decide: i) the question of benefits treating the employee as in employment until expiration of seven years from October 3, 1987 and treating this period as on leave to the extent leave was available and on extra ordinary leave to the extent no leave was available; and ii) the question of offering an employment to a member of the family of the employee in terms of the things stated in the Principal Secretary's letter dated October 20, 1995.
The reasoned decisions on both the questions shall be communicated to the petitioner within six weeks from the date of communication of this order. If benefits are payable, then payment shall be made with statutory interest, and if no statutory interest is payable, then with interest at the rate of 6 per cent per annum from October 4, 1994 till the date of actual payment; and if employment is to be offered, then it shall be offered putting the conditions that the respondents may think appropriate. No costs. Certified xerox.
(Jayanta Kumar Biswas, J.)