Calcutta High Court (Appellete Side)
Shipra Chatterjee vs Union Of India & Ors on 16 May, 2011
Author: Aniruddha Bose
Bench: Aniruddha Bose
1
03. 16.5.2011 W. P. No. 6640(W) of
2011
Shipra Chatterjee
Vs.
Union of India & Ors.
Mr. B.K. Panda
...For the Petitioner
Mr. Soumya Ghosh
Mr. Amitabha Roy
...For the Respondents
Mr. Abha Roy Mr. Amrita Sinha ...For the State The petitioner before me is the wife of one Sukhendu Chatterjee, an employee of Steel Authority of India Limited (SAIL). On 20 November 2006 it appears that he had left his residential house and did not return. He has been missing since then. At that point of time he was working in Section (Mail) of the Durgapur Steel Plant. In that regard, a missing diary was lodged with the Officer-in-Charge of Durgapur Police Station on 25 November 2006. It has been submitted by Mr. Panda, learned Advocate for the petitioner that she has been trying to trace her husband since then, but her efforts have not yet yielded any result. Apart from lodging the diary with the police authorities, she claims to have inserted several publications in the newspapers in the form of information and appeal to the general public as well as to her missing 2 husband. Such publication carrying photographs of her husband appears to have been published in Ananda Bazar Patrika on three occasions and once in a local daily. Photocopies of two newspaper publications in Ananda Bazar Patrika dated 31 October have been annexed to the petitioner collectively marked "P3".
It is the admitted position that during the period he has remained missing, a disciplinary proceeding was instituted against him by his employer, SAIL primarily on the ground of having committed misconduct. The misconduct attributed to the husband of the petitioner is habitual absence from duty without leave or permission of the employer. Notices of the said proceeding were sent to his home at different stages of the enquiry, which were received by the petitioner herself. She responded to these notices informing the concerned authority that her husband was missing and she had requested for permission to appear before the enquiry board.
The employer however had continued with the disciplinary proceeding and has imposed punishment of removal from service against him after concluding the enquiry in his absence. This has been brought to my notice by Mr. Ghosh, learned Advocate for the petitioner. He further submits that his punishment would not disentitle him from future employment if he reappears.
In this writ petition, the petitioner has primarily challenged the disciplinary proceeding as well as punishment imposed on her missing husband.
3Ordinarily, the wife of a delinquent employee cannot be permitted to represent her husband in course of a departmental proceeding. On the same logic, she would not be permitted to sue on behalf of her husband in a Court of law challenging the order by which punishment is imposed in pursuance of such disciplinary proceeding. Right of employment is a personal right, and has to be enforced by the employee himself. In the absence of any material evidence that the husband of the petitioner is no more alive, presumption contemplated in Section 108 of the Evidence Act, 1872 would not assist the petitioner at this stage, since her husband is missing for about four and half years. The petitioner at best can stake a claim on death benefits on lapse of seven years from the date her husband went missing, provided of course no further information on him is received. Provisions of Sections 107 and 108 of the Evidence Act are relevant in this regard, which stipulate:-
"107. Burden of proving death of person known to have been alive within thirty years.- When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
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 4 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."
In the facts of this case, however, in the event the order of dismissal is given effect to, the employer-employee relationship between SAIL and the husband of the petitioner shall cease to exist and even if the husband of the petitioner cannot be traced after the period contemplated in Section 108 of the said Act lapses, the petitioner would become disentitled to any death benefit as the widow of an employee who dies while in service and any connected reliefs like priority employment on compassionate ground, if the same is available under the applicable service regulation. Such disentitlement would result from the fact that before the petitioner could draw the presumption of death of her husband before the appropriate forum, his service would stand terminated.
In the event the petitioner is unable to claim such benefits after the said period because of the order of removal from service in the case of her husband becomes operational at this stage, she would lose her valuable right which could have otherwise accrued to her after lapse of seven years retrospectively also, in the event the petitioner is able to establish that her husband passed away before the disciplinary proceeding was started or before the order of punishment was issued. The provisions of Section 108 of the said Act does not contemplate presumption that the person missing was alive during the entire seven year period before 5 lapse of which burden of proving that he was alive shifts to the person who affirms it. In the given facts, it would be practically impossible on the part of the petitioner to prove that her husband is dead at this stage. It would be only after expiry of seven years from the date he went missing, in view of the aforesaid provisions of the Evidence Act, she would be able to assert so. And at that point of time, she could be in a position to assert that he was not alive when the order for removal of service was passed to become entitled to seek invalidation of such order on the ground that if such order is permitted to remain operational, that would deprive her of the benefits as the widow of a deceased employee who dies while in service.
Since SAIL comes within the ambit of the expression "State" under Article 12 of the Constitution of India, it has certain constitutional obligations towards their employees. Such obligation extends to the widows of a deceased employee as per the applicable service regulations. I am not dealing with the particulars of such obligations which may have been incorporated in the relevant service regulations, as at this stage the controversy is over the entitlement or eligibility of the petitioner to retain her right to claim such benefits. If because of the peculiar circumstances of this case the petitioner's right to stake a claim for benefits as the widow of a deceased employee who dies while in service is forfeited at this stage, she would be deprived of the means to sustain her life and livelihood.
6That would result in violation of her rights of livelihood implicit in Article 21 of our Constitution. In my opinion, the petitioner's legal right to maintain this petition would have to be recognised under these circumstances.
Before considering the prayers of the petitioner, I had directed the Superintendent of Police, Burdwan district to file a report indicating status of the investigation concerning whereabouts of the missing husband of the petitioner's husband. Such report, dated 15 may 2011 has been filed in Court today. In this report, it has been stated:
"On further enquiry it reveals that Sri Sukhendu Chatterjee used to run a 'Super Lotto Lottery' at Chandidas Market, Durgapur with his friend and incurred a huge amount of financial loss. During further investigation it was learnt that after the missing of Sukehendu Chatterjee extensive searches were made in all possible places, efforts were taken by police through examination of witnesses and his friends but all the efforts remained futile. It was presumed that he had been hiding himself due to his financial loans at different places. His wife Smt. Shipra Chatterjee (the petitioner) also presumed like this and ruled out of any mishap. Sincere efforts is still continuing to trace the missing Sri Sukhendu Chatterjee. The petitioner Smt. Shipra Chatterjee is now residing at 20/3, Mahiskapur Road, B-Zone, Durgapur-6 at his parent's house.7
With a view to tracing out the husband of Smt. Shipra Chatterjee the Officer-in Charge, Durgapur Police Station has been directed to take up the matter with the 'missing person squad', CID, Bhabani Bhavan, Kolkata and also the D.D. Cell of Lalbazar, Kolkata Police with required copies of photographs of Sri Sukhendu Chatterjee."
Until the police authorities come to a final conclusion in respect of whereabouts of the said individual, it would not be proper for me to speculate as to whether he is alive or not, or the reason for which he went missing. What can be presumed from this report is that concern of the petitioner is genuine and there is no material to show that the husband of the petitioner is alive but hiding. The possibility of him not being seen at all in future cannot be ruled out as he has been without any trace since 20 November 2006. Thus the petitioner's right to claim death benefit and other permissible benefits in the capacity of a widow of a serving employee at a later stage has to be protected, and appropriate order is necessary for this purpose. At the same time, the right of the employer to deal with a habitual absentee through a departmental proceeding also has to be recognised, and I do not think in this writ petition, the petitioner has made out any case for outright quashing the departmental proceeding and the order of punishment.
In the light of these facts, I am of the opinion that the writ petitioner's right to pursue the benefits provided under the service regulations in the event her husband does not reappear after seven years from the date he went missing 8 should be preserved. I accordingly direct the Steel Authority of India Limited to keep the order of removal from service of the petitioner in abeyance till 20 November 2014. In the event the petitioner returns or reappears in the meantime, the order of removal shall automatically revive and in such a situation in the event the concerned employee wants to take any step to challenge the order of punishment, he shall be entitled to do so as per law. If before 20 November 2014 investigation by the police authorities reveals or the petitioner otherwise comes to know conclusively of the fact that her husband is dead, in such a situation the writ petitioner shall be entitled to apply for death and other benefits as a widow of a serving employee who dies in harness upon obtaining order or direction if necessary from an appropriate legal forum. In such a situation, if the subsisting order of removal from service operates as an impediment for release of such benefits to her, then the writ petitioner shall be at liberty to challenge such order of removal in the manner as may be permissible in law, after establishing the fact that her husband has passed away. The third unfortunate possibility would be that the concerned employee would remain missing for a total period of seven years i.e. till 19 November 2013. In that event the petitioner shall be entitled to apply before a legal forum having jurisdiction on the issue for a declaration that her husband is not alive in the light of the provisions of Section 108 of the Evidence Act, 1872 and with appropriate order or decree from a forum of competent jurisdiction, she will be entitled to pursue the matter with the Steel Authority of India Limited for obtaining her benefits on account of employment of her deceased husband with the said organisation. In such a situation also, if the subsisting order of removal comes as an 9 impediment in getting such benefit, she shall be entitled to take such steps as may be permissible in law for revocation of the order of removal. If the petitioner is able to obtain an order or decree from a Court or any other forum of competent jurisdiction which would enable her to claim such benefits, the Steel Authority of India Limited shall remain bound by such order or decree provided they, i.e. Steel Authority of India Ltd. are impleaded as a party to such proceeding. The direction of this Court to keep the order of removal in abeyance shall stand modified as may be necessary because of such order or decree of a forum of competent jurisdiction.
Though the seven year period contemplated in Section 108 of the said Act lapses on 19 November 2013, I am directing the order of removal to be kept in abeyance till 19 November 2014 as I do not think it would be possible for the petitioner to obtain appropriate decree, order or direction from a forum of competent jurisdiction immediately on expiry of the seven year period. This order by which the order of removal is directed to be kept in abeyance is being passed mainly to preserve the right of the petitioner to bring an action at a later stage, and this order would be subject to modification in the manner directed in the preceding paragraph.
The writ petition stands disposed of in the above terms.
This matter had been listed today under the heading "To Be Mentioned" but since there are no factual issues involved for adjudication of this writ petition, I chose to hear out the writ petition itself at this stage only without calling for 10 any affidavit. In view of the same, the allegations made in the writ petition shall be deemed to have not been admitted.
There shall, however, be no order as to costs.
The report of the Superintendent of Police, Burdwan filed in Court today be kept with the records.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties, as expeditiously as possible.
NB/PCN (ANIRUDDHA BOSE, J.) 11