Andhra HC (Pre-Telangana)
Union Of India, Represented By Its ... vs Polimetla Mary Sarojini And Another on 31 January, 2017
Author: G. Shyam Prasad
Bench: G. Shyam Prasad
THE HONBLE SRI JUSTICE V. RAMASUBRAMANIAN AND THE HONBLE SRI JUSTICE G. SHYAM PRASAD
WRIT PETITION No.34859 of 2016
31-01-2017
Union of India, represented by its Secretary, to the Government of India, Ministry of Finance, Department of Revenue, New De
Polimetla Mary Sarojini and another . Respondents
Counsel for petitioners: Sri B. Narayana Reddy, Asst. Solicitor General of India
Counsel for respondent: Sri S. Seshagiri,
<Gist:
>Head Note:
? Cases referred:
1) 2006 (3) MLJ 702
2) 2016 (1) CTC 698
HONBLE SRI JUSTICE V.RAMASUBRAMANIAN
AND
HONBLE SRI JUSTICE G.SHYAM PRASAD
Writ Petition No.34859 of 2016
Order: (per V.Ramasubramanian, J.)
The Union of India has come up with the above writ
petition challenging an order of the Central Administrative
Tribunal, Hyderabad Bench, directing the payment of
pensionary benefits and the family pension together with all
consequential benefits to the 1st respondent herein, whose
husband became untraceable and in respect of whom a
presumption of death in terms of Section 108 of the Evidence
Act was raised.
2. We have heard Mr. B.Narayana Reddy, learned
Assistant Solicitor General of India for the petitioners and
Mr. S.Seshagiri, learned counsel for the 1st respondent.
3. The 1st respondents husband was employed as
a Gestetner Operator in the office of the Assistant Collector of
Central Excise, Eluru Division, Eluru. It appears that from 07-
10-1992, he went on earned leave for 3 days. But upon the
expiry of the leave, he did not report for duty on 10-10-1992.
4. The 1st respondent lodged a police complaint on
04-9-1994 and a First Information Report was registered in
Crime No.104/1994 for man missing.
5. After nearly 3 years, the Sub Inspector of Police,
Eluru, filed a final report on 06-12-1997 declaring that the
1st respondents husband is not traceable. On the basis of the
said report and after the expiry of 7 years from the date he
went missing, the 1st respondent gave a representation dated
16-12-1999 for the sanction of family pension.
6. When the 1st respondent appeared with all necessary
documents before the concerned authority, the 1st respondent
was informed that her husband had already been imposed with
a penalty of removal from service, by an order dated 10-01-
1997 for unauthorised absence. After informing the 1st
respondent about the removal from service of her husband, the
competent authority rejected the claim of the 1st respondent for
payment of family pension by letters dated 06-10-2003 and
12-6-2014. By the order dated 12-6-2014, the Commissioner
of Customs, Central Excise and Service Tax informed the 1st
respondent that since her husband was removed from service
for unauthorised absence, the pensionary benefits were
forfeited in terms of Rule 41 of CCS (Pension) Rules, 1972.
7. Challenging the said order dated 12-6-2014 and
a consequential order dated 07-11-2014, the 1st respondent
filed O.A.No.1468 of 2014 on the file of the Central
Administrative Tribunal, Hyderabad. The Tribunal allowed the
application on the ground that under Section 108 of the
Evidence Act, the 1st respondents husband should be
presumed to be dead from the date he went missing and that
therefore the order of dismissal passed against a dead person
is a nullity. Aggrieved by the said order, the Union of India has
come up with the present writ petition.
8. The main contention of the Union of India is that till the
expiry of the period of 7 years from the date a person went
missing, no presumption of death would arise and that
if such an employee is dismissed or removed from service, even
before the statutory time limit for the raising of the
presumption, the question of payment of family pension or any
other pensionary benefit would not arise.
9. But the response of the learned counsel for the
1st respondent is that the issue is squarely covered by various
circulars of the Government of India and that therefore the
Union of India cannot shirk its responsibility to pay family
pension.
10. We have carefully considered the above submissions.
The controversy that arises for resolution in this case is as to
whether a penalty of removal from service, imposed within a
couple of years for unauthorised absence, would get annulled,
by a presumption of death that arises later in point of time by
virtue of section 108. If the first respondents husband is
presumed to be dead from the date he went missing, then the
penalty of removal from service would have no effect as it was
passed as against a dead person. But if the date of death
cannot be presumed and if section 108 raises only a
presumption of death and not a presumption of date of death,
then the penalty does not get annulled.
11. In order to appreciate this issue, it is necessary to
understand the scheme of sections 107 and 108 the Indian
Evidence Act, 1872. These sections are found in Part-III of the
Act which deals with burden of proof. Interestingly, the
expression presumption is not used in either of these 2
sections, though it is used in other sections that form part of
the same Chapter. The Evidence Act itself is divided into three
parts with 11 Chapters. Part-I containing Chapters I and II,
comprises of provisions relating to interpretation of words and
phrases and provisions relating to relevancy of facts. Part-II
contains Chapters III to VI, which contain provisions relating to
oral evidence, documentary evidence etc. Sections 101 to 114A
form part of Chapter VII, which is contained in Part-III of the
Act. They speak mainly of the burden of proof. Sections 101 to
111 speak only about burden of proof. Sections 112 and 113
speak about proof of legitimacy about birth during marriage
and proof of cession of territory respectively. It is only Sections
111A, 113A, 113B, 114 and 114A which contain the
expression presumption. Sections 107 and 108 read as
follows:
Section 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.
Section 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.
12. If we have a careful look at Sections 107 and 108, it
could be seen that both are something like mirror images of
each other. Under Section 107, the burden of proving that a
person is dead, when it is shown that he was alive within 30
years, is on the person who affirms it. But the burden of proof
so cast under Section 107 upon the person affirming death, is
whittled down under Section 108 by enabling the person who
affirms the death of another to prove that such a person has
not been heard of for seven years by those who would naturally
have heard of him. Once a person affirming the death of
another is able to prove that the other person has not been
heard of for seven years, then the burden of proving that the
other person is alive, shifts to the person who affirms it. In
simple terms, section 107 raises a presumption of life while
section 108 raises the presumption of death.
13. The burden of proof oscillates like a pendulum
from the person, who asserts death, to the person who
asserts life. To put it differently, the burden of proof cast
under Section 107 upon the person asserting death of another
becomes lighter under Section 108. While a person asserting
death of another is obliged to prove positively under Section
107 that the other person is dead, he is given an option or
gateway under Section 108 to prove instead, that the other
person has not been heard of for seven years. In other words,
the requirement under Section 107 is to prove the
factum of death. The requirement under Section 108 is
to prove a fact that would lead to a presumption of such
a fact. The presumption under Section 108, as in the case of
every other presumption, is rebuttable, since a person
asserting life is entitled under Section 108 to show that the
person presumed to be dead was actually alive.
14. Though the provisions of sections 107 and 108 are
very clear as to the rising of presumption, these sections do not
throw any light upon the date on which a person can be
presumed to be dead. In other words, the doubt or dilemma
that arises in cases of this nature is as to the date of
death of the person in respect of whom the presumption
is raised. The moment it is established that a person has not
been heard of for 7 years, the presumption of death arises. But
the presumption under the Act is confined only to the
factum of death and not to the actual date of death.
15. Since the Statute confines itself only to the factum of
death and leaves it largely to the imagination of the courts to
find out from the evidence on record, the actual date of death,
some courts have taken the view that the person must be taken
to be dead with effect from the date on which he is not heard of.
But some courts have taken the view that in the absence of any
evidence to the contrary, the date of death could be fixed only
from the expiry of the period of 7 years.
16. In Ram Singh Vs. Board of Revenue, U.P. Allahabad,
AIR 1964 All. 310, a Single judge of the Allahabad High Court
held that all that one can presume under Section 108 is that
the person concerned is dead but one cannot fix the time of his
death under the provisions of said section. The court further
held that Section 108 is not exhaustive on the question of
presumption as regards the death of a person and hence the
Court may in the circumstances of each case make suitable
presumption even regarding the time of death. The court said:
"Section 108, however, is not exhaustive on the question
of presumption as regards death of a person. The Court
may make a suitable presumption in accordance with the
circumstances of each case :-
(1) Suppose a man sails in a ship, and the ship sinks.
Thereafter the man is never seen alive. Under such
circumstances, it is reasonable to assume that the
person died in the ship wreck.
(2) When a person goes for pilgrimage he or she ordinarily
returns home in six months or in a year. In the present
case, Smt. Rukmini left for Gangasagar Yatra 17 years
ago. Since then she has not been heard of. It is
reasonable to assume that, she died in some accident or
of some disease during the journey or at Gangasagar."
17. The aforesaid view was followed by the Bombay High
Court in Subhash Ramchandra Wadekar Vs. Union of India, AIR
1993 Bombay 64, in which a Single Judge of the Bombay High
Court held that if section 108 of Indian Evidence Act is to be
interpreted literally, it would have to be held that law presumes
the death of a person unheard of for seven years but is silent in
respect of the date of presumed death. It was further held that
the date of presumed death must be proved by the party
concerned as a fact by leading reliable evidence. The Court
formulated two propositions viz. (1) Ordinarily a person
unheard of for the statutory period shall be presumed to be
dead on expiry of seven years and not earlier. (2) Section 108
of 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 upon the
attendant circumstances and other reliable material on record.
In other words no rule of universal applicability can be spelt
out regarding presumed date of death. The court indicated that
proposition No.1 must operate subject to proposition No. 2.
18. In Indira vs- Union of India 2005 (3) KLT 1071, a
Single judge of the Kerala High Court held that even though
under the Army Act, a person can be said to be a deserter
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 within seven years, then Section 108 of the Evidence Act
takes over and all consequences would follow. In other
words, presumption of death was held to supersede the finding
of desertion.
19. The aforesaid view was reiterated by the division
bench of the Bombay High Court in Smt. Bhanumati Dayaram
Mhatre V. Life Insurance Corporation of India, AIR 2008
Bombay 196, wherein the question for consideration before the
court was as to whether a person would be presumed to have
died on the date he went missing or on the date when the
period of 7 years expired from the date of his missing. While
interpreting the provisions of Sections 3, 107 and 108 of
Evidence Act in para 4 and 5 of its decision, the High Court
observed as under:-
"4. . . . . . .. Section 108 of the Act is in the nature of
exception to the rule contained in Section 107 of the Act
and states that when a person has not been heard of for 7
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 asserts that the person is alive.
In other words, if a person has not been heard of for a
period of more than 7 years by the persons who would
naturally have heard of him if he had been alive, then a
presumption arises of his death. Though Section 108 of
the Act raises a presumption of death of a person if he has
not been heard of for a period of 7 years by the persons
who would naturally have heard of him, it raises no
presumption as to the date of his death. The date of his
death, if disputed, must be proved as any other fact.
5. Section 3 of the Evidence Act prescribes the
standard of proof by defining the word "proved" as follows:
"Proved-- A fact is said to be proved when, after
considering the matters before it, the Court either believes
it to exist, or considers its existence so probable that a
prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it
exists."
If the test of preponderance of probability laid down by
Section 3 of the Act is applied, that is to say a fact is said
to be proved if the court considers its existence to be so
probable that a prudent man ought, under the
circumstances of the particular case, to act upon certain
supposition that it exists, then it would have to be held
that Kushal has died on 13th November 1995 or soon
thereafter. If he was alive after 13th November 1995, there
was no reason for him not to contact his immediate family
members. It is not the case that Kushal left the house in
distress or he was under some disability which prevented
him from returning home or even contacting his family
members. Nor is it shown that Kushal was missing in such
circumstances or could be at such place wherefrom he could
not even contact his parents or close family members.
Considering the fact that Kushal was not under any distress
or disability nor was he in the situation wherefrom he could
not contact his family members coupled with the fact that he
has not contacted his family members at all since 13th
November 1995 and has been declared to be dead by the
declaratory decree of the competent court makes us, as men
of ordinary prudence, believe that Kushal must have died on
13th November 1995 or soon thereafter."
20. In Zishan Khan vs- District Inspector of Schools,
Varanasi & Ors., 2012 (92) ALR 154, a Single judge of the
Allahabad High Court held as follows:
(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 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.
21. Thus various courts have come to the conclusion that
depending upon the circumstances of each case, it would be
open to the court to fix the date of death. But the reasoning
given by many courts to come to such a conclusion appear to
be one sided and made without reference to the perspectives of
persons upon whom claims may be lodged on the basis of
presumed date of death.
22. Take for instance the case on hand, where a person
was removed from service for unauthorised absence. If such a
person is presumed to be dead due to the operation of Section
108 of the Evidence Act, with retrospective effect from the date
he went missing, then any order of removal from service
passed after the date of his presumed death would be a nullity.
But if he is taken to be dead only with effect from the date on
which a valid presumption could arise i.e. after the expiry of 7
years from the date he went missing, then the order of removal
from service cannot be treated as a nullity.
23. When a person is not seen for quite some time,
it may be a case of man missing for people at home.
But for the office where he is working, it will only be a
case of unauthorised absence. The employer is entitled to
take disciplinary action against every employee who absents
himself unauthorisedly. At that stage, the employer cannot be
expected to anticipate that the employee will not come back for
7 years so as to arrest the raising of the presumption under
Section 108.
24. The employers right to take disciplinary action and
impose a penalty of removal or dismissal, within the period of 7
years is not taken away by Section 108. Therefore, an order of
removal or dismissal passed before the date on which the
presumption under Section 108 arises, cannot become a
nullity post facto.
25. In N.Pankajam Vs. State of Tamil Nadu on which the
Central Administrative Tribunal placed reliance, a learned
Judge of the Madras High Court held that by virtue of the
presumption under Section 108 of the Evidence Act, a
person who is not heard of for 7 years should be treated
as dead, from the date he became untraceable. But a
Division Bench of the Madras High Court disagreed with the
said view, in The Managing Director, State Express Transport
Corporation Tamil Nadu Limited Vs. E.Tamilarasi . The
distinction between Sections 107 and 108 of the Evidence Act
were brought out in the said decision of the Division Bench, to
which one of us (VRS, J.) was a party. Paragraphs 11 to 16 of
the said decision read as follows:
11. While there can be no dispute about the presumption
available under Section 108 of the Indian Evidence Act,
1872, what is important is to see the date on which such
presumption arises. As per Section 108 of the Indian
Evidence Act, 1872, whenever a question arises 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, burden of proving that he is
alive, is shifted to the person, who affirms it.
12. What is provided in Section 108 of the Indian
Evidence Act, 1872, is only a presumption. Section 108 of
the Indian Evidence Act, 1872 cannot be read in
isolation. It should be read along with Section 107 of the
Indian Evidence Act, 1872. Under Section 107 of the
Indian Evidence Act, 1872, whenever a question arises as
to whether a man is alive or dead and it shown that he
was alive within thirty years, the burden of proving that
he is dead is on the person, who affirms it.
13. Thus, Section 108 is an exception to Section
107. If Section 107, provides the rule, Section 108,
provides the exception. Once it is established that a
person was alive within 30 years, the burden of proving
that he is dead is on the person, who affirms it. This is
the rule under Section 107. But, if it is proved that such
a person, despite being alive within 30 years, 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 that he is alive.
14. Therefore, it follows as a corollary that for the
application of Section 107, the outer limit of the period of
prescription is 30 years. Similarly, for the Application of
Section 108, the minimum period of time limit statutorily
prescribed for the presumption to arise is seven years.
15. This is why the presumption as to death
cannot be raised before the expiry of seven years. It
cannot be raised even if the period of seven years falls
short by one or two days. In LIC of India v. Anuradha,
MANU/SC/0285/2004 : 2004 (3) CTC 281 (SC) : AIR 2004
SC 2070, the Supreme Court held that the presumption
as to death by reference to Section 108 would arise only
on the expiry of seven years and would not by applying
any logic or reasoning be permitted to be raised on the
expiry of 6 years and 364 days or at any time short of it.
More over, the Court pointed out that an occasion for
raising the presumption would arise only when the
question is raised in a Court, Tribunal or before an
Authority, who is called upon to decide as to whether the
person is alive or dead. So long as the dispute is not
raised before any forum and in any legal proceedings, the
occasion for raising the presumption does not arise.
16. Therefore, the expiry of the full period of seven
years is essential to raise the presumption under Section
108. This takes us to the next question as to what exactly
could be taken as the date of death.
26. After pointing out the distinction between Sections
107 and 108 of the Evidence Act, the Division Bench of the
Madras High Court then took up for consideration in The
Managing Director, State Express Transport Corporation Tamil
Nadu Limited Vs. E.Tamilarasi, the next question as to what
exactly could be taken to be the date of death. Inviting a
reference to the decision of the Supreme Court in
N.Jayalakshmi Ammal v. Gopala Pathar (AIR 1995 SC 995),
wherein the Supreme Court quoted a passage from Sarkar on
Evidence to the effect that though a presumption of death
arises after 7 years, the exact time of death is not
a matter of presumption, it was pointed out by the Division
Bench of the Madras High Court that the burden lies upon
the person who asserts a particular date as the date of
death, to prove the same. In paragraphs 19 to 21 of its
decision, the Division Bench of the Madras High Court held as
follows:
19. As a matter of fact, there is an inherent danger in
presuming that the date from which a person went
missing could be taken to be the date of death. If it is so
taken, many claims that could be made by his Legal
Heirs would become barred by time, despite the fact that
the very presumption of death could be raised only after
seven years from the date on which he was last heard of.
20. In LIC of India v. Anuradha, MANU/ SC/ 0285/2004 :
2004 (3) CTC 281 (SC), which we have cited earlier, the
Supreme Court extracted the following passage from
Halsburys Laws of England, after pointing out that there
is no difference between the English Law and the Indian
Law on the subject. Where the presumption of death after
seven years absence applies, the person will be
presumed to have died by the end of that period, where
the presumption does not apply, or is displaced by
evidence, the issue will be decided on the facts of the
particular case. In some old cases, where neither the
evidence nor the incidence of the burden of proof was
decisive, the Court made the best order it could in the
circumstances. Where the question to be decided, for the
purposes affecting the title to property, is which of two
persons died first, a Statutory Rule may apply. The
question whether a person was alive or dead at a given
date will be decided on all the evidence available at the
date of the hearing.
21. Therefore, it is impossible to think that a
person can be presumed to be dead from the date on
which he went missing. Unless a period of seven years
expire from the date of his missing, the very occasion for
the raising of the presumption does not arise. Therefore,
the learned Judge was not correct in thinking that the
Respondents husband should be presumed to be dead
from May 1999 onwards.
27. Therefore, the consequences of holding a person to be
deemed to be dead from the date on which he went missing, are
disastrous. The Statute merely raises a presumption and
indicates the circumstances under which the presumption
would arise. Such a presumption cannot relate back. Even
historically, the presumption was never considered to relate
back, in any of the legal regimes including the common law
regime. This can be demonstrated by tracing the origin of this
rule of evidence both from the common law regime and from
the statutory regime of India and the other parts of the world.
ORIGIN OF THE RULE IN OTHER COUNTRIES (England,
Ireland, Scotland, Australia and U.S.A.)
28. The precise origin of this rule in the western
world is difficult to predict. It appears that the necessity
for this rule was felt for the first time, when sailors who
went on long voyages on the seas, returned home after
several years, only to find their wives remarried to other
men. This led to complaints of bigamy. Therefore, this rule was
first set out in statutory form in Section 1 of the (English)
Bigamy Act of 1603, which provided a defence to a charge of
bigamy if either of those who were charged, marry a second
time when the first spouse had been beyond the seas for seven
years or those whose spouse had been absent for seven years
although not beyond the seas.
29. This seven year rule under the Englsih Bigamy Act
of 1603 was later incorporated in the English Cestui Que Vie
Act, 1666. It was later adopted in the Life Estates Act, 1695
by the Irish Parliament.
30. As could be seen from history of this Rule in England
and Ireland, the rule was primarily intended to address
questions relating to family life and properties of sailors, who
are not heard of for a continuous period of time.
31. In Australia there is no generally applicable
legislation for missing persons, but the Courts apply the
common law presumption of death. In a leading decision in
Axon v. Axon (1937 (59) CLLAW 395) the High Court of
Australia held if, at the time when the issue of whether a man
is alive or dead must be judicially determined, at least seven
years have elapsed since he was last seen or heard of by those
who in the circumstances of the case would according to the
common course of affairs be likely to have received
communication from him or to have learnt of his whereabouts,
were he living, then in the absence of evidence to the contrary it
should be found that he was dead.
32. Scotland enacted its own law under the title
Presumption of Death (Scotland) Act, 1977 which provides
for a declaration of presumed death, if a person who is missing
has not been known to be alive for a period of at least seven
years. In Ireland, a law was enacted under the Presumption of
Death (Ireland) Act, 2009 almost on similar lines as in
Scotland.
33. In England, the Presumption of Death Act, 2013
was passed providing under Section 2 that when an
application is made, the Court must make a declaration of
death, if it is satisfied that a missing person has died or has not
been known to be alive for a period of at least 7 years.
Interestingly under Section 2(2) of the Presumption of
Death Act, 2013 (England), the declaration issued by the
Court should include a finding as to the date and time of
the missing persons death. Section 2 of the English Act
could be usefully extracted as follows:
Section 2 of the Presumption of Death Act, 2013
(England):
Making declaration;
(1) On an application under section 1, the court must
make the declaration if it is satisfied that the missing
person
(a) has died, or
(b) has not been known to be alive for a period of at least
7 years.
(2) It must include in the declaration a finding as to
the date and time of the missing persons death.
(3) Where the court
(a) is satisfied that the missing person has died, but
(b) is uncertain at which moment during a period the
missing person died, the finding must be that the
missing person is presumed to have died at the end of
that period.
(4) Where the court
(a) is satisfied that the missing person has not been
known to be alive for a period of at least 7 years, but
(b) is not satisfied that the missing person has died, the
finding must be that the missing person is presumed to
have died at the end of the period of 7 years beginning
with the day after the day on which he or she was last
known to be alive.
34. In U.S.A., 38 Code deals with the rule relating to
presumption of death. It reads as follows:
38 U.S. Code S. 108: Seven year absence- presumption of
death.
(a) No State law providing for presumption of death shall
be applicable to claims for benefits under laws
administered by the Secretary.
(b) If evidence satisfactory to the Secretary is submitted
establishing the continued and unexplained absence of
any individual from that individuals home and family for
seven or more years, and establishing that after diligent
search no evidence of that individuals existence after the
date of disappearance has been found or received, the
death of such individual as of the date of the
expiration of such period shall be considered as
sufficiently proved.
ORIGIN OF THE RULE IN ANCIENT INDIA:
35. It is interesting to note that while the western world
realised a necessity for this rule of presumption only in the
early 17th century when its sailors set on long voyages, the
Indian Law Makers appears to have adopted this presumption
at least a 1000 years before the Western Law makers could
conceive of the same. References to this presumption could be
found in the Smritis of Manu, Narada, Gautama and Vasistha.
The Rules found in these smritis are as follows:
Naradasmriti Chapter 12 - Relations between men and women
[98-102]
A brahmana woman should wait eight years for a husband who has
gone away; but if she has no children, she should wait only four
years before going to another man. A ksatriya woman should wait
for six years, three years if she has no children. A vaisya woman
should wait four years if she has children, two years is she does
not. There is no waiting period for a sudra woman. She commits no
breach of righteousness, especially if she has no children. The
normal thing, however, is to wait a year. These rules to women
whose husbands have gone away and not been seen. If the
husband is still alive and has been heard of, these waiting periods
should be doubled. Prajapati creatures so that they might have
offspring; therefore if a woman goes to another man under these
circumstances there is no sin entailed.
Manusmriti; Chapter 9 [76]
If the man has gone away on a journey to fulfil some duty, (she)
should wait for him for eight years; (if he has gone) for learning or
fame, six; for pleasure, three years.
Gautama Chapter 18 [15 and 17]
15. (A wife must) wait for 6 years, if her husband has disappeared.
If he is heard of, she shall go to him.
17. (The wife) of a brahmana (who has gone to a foreign country)
for the purpose of studying (must wait) twelve years.
Vasistha Chapter 17 [78]
78. In this manner a wife of the Brahmana caste who has issue
(shall wait) five years, and one who has no issue, four years; a wife
of the ksatriya caste who has issue, five years, and one who has no
issue, three years; a wife of the vaisya caste who has issue, four
years, and one who has no issue two years; a wife of the shudra
caste who has issue, three years and one who has no issue, one
year.
Though the above rules found in various smritis appear to be
discriminatory and may not be acceptable in an egalitarian
society governed by Constitutional values and morality, the fact
remains that these law makers could perceive of a
presumption of death several centuries ago.
PRESUMPTION AND INFERENCE:
36. Thus it is clear that both in England and elsewhere,
the date of expiry of 7 years from the time a person went
missing, is taken to be the date of death also, unless any other
date is proved by the party asserting, to be the date of death.
But the moment a party is able to prove a particular
date as the date of death, then the question of
presumption itself would not arise. The decisions of various
Courts holding that in certain circumstances a person must be
presumed to be dead from the date he went missing or within a
few days thereafter, are based upon a flawed logic. The
Evidence Act allows of only one presumption. But by
holding that a person must be presumed to be dead from
the time he went missing, some Courts have raised a
second presumption, which is not traceable to the
Evidence Act. A distinction exists between a presumed fact
and an inferred one. Many times the confusion occurs due
to the use of the presumption as a synonym for
inference.
37. As we have pointed out earlier, there is a distinction
between a presumption of fact and an inference. Section 108 of
the Evidence Act admits of only one presumption namely the
presumption of death of a person not heard of for 7 years by
those who would normally have heard of him. Since it is a
rebuttable presumption and the rebuttal can take place at any
time, the law does not stipulate any date as the date on which a
person may be presumed to be dead. There is huge difference
between the presumption as to death and presumption as to
date of death. Since the law does not prescribe any
presumption as to date of death, the same may have to be
proved. An inference cannot take the place on proof or
presumption.
38. As a matter of fact an interesting case came up before
the Succession Court in Hancock, of the State of OHIO in the
U.S.A. A person by name Donald Eugene Miller went missing
from August 1986, leaving his wife and two children in the
lurch. His wife Robin Miller filed a petition in the Succession
Court in 1994 for a declaration that her husband should be
presumed to be dead. After ordering the publication of notices
in the local newspapers for 4 consecutive weeks, the Court
issued a decree on 31-05-1994 declaring that Donald Eugene
Miller should be presumed to be dead and that his minor
children should be granted benefits under the Social Security
Scheme of the Government. After 19 years of such a
declaration, Donald Eugene Miller surfaced and applied for a
driving licence. But the Transport Department rejected the
application on the ground that no driving licence could be
issued to a person who is dead as per law. Therefore, he filed a
petition on 15-07-2013 in the very same Succession Court
seeking to set aside the decree of the declaration of presumed
death. But unfortunately his wife opposed the petition on the
ground that the same was barred by limitation as it was not
filed within a period of 3 years from the date of decree. The
Court accepted the defence taken by the wife and dismissed
the petition filed by Mr. Miller.
39. Therefore, what lies in the realm of presumption,
which can be rebutted at any time, cannot be enlarged by way
of interpretations, however well intended they are. Hence, we
hold that the Tribunal was wrong in presuming the death of the
respondents husband to have taken place from the time he
went missing. Once this presumption goes, it follows as a
corollary that the penalty of removal from service passed by the
petitioners cannot be stated to be illegal.
GOVERNMENT ORDERS ON THE SUBJECT:
40. But the conclusion that we have come to in the
preceding paragraph would not take us to our destination.
Admittedly, there are executive instructions in the form of
Government of Indias decisions issued under Rule 54 of the
CCS (Pension) Rules. Since these decisions are issued under
the statutory rules, they are binding upon the Departments.
One of the decisions of the Government of India could be found
in Circular Letter No.4-52/86-Pen., dated 3-3-1989. The
circular reads as follows:
Payment of retirement gratuity and family pension to
the family, in case an officials whereabouts are not
known:-
1. A number of cases are referred to this Department for
grant of family pension to the eligible family members of
employees who have suddenly disappeared and whose
whereabouts are not known. At present, all such cases
are considered on merits in this department. In the
normal course, unless a period of 7 years has elapsed
since the date of disappearance of the employee, he
cannot be deemed to be dead and the retirement benefits
cannot be paid to the family. This principle is based on
Section 108 of the Indian Evidence Act which provides
that when the question is whether the main is alive or
dead and it is proved that he has not been heard of for 7
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.
2. The matter has been under consideration of the
Government for some time as withholding of the benefits
due to the family has been causing a great deal of
hardship. It has been decided that (i) when an employee
disappears leaving his family, the family can be paid in
the first instance the amount of salary due, leave
encashment due and the amount of GPF having regard to
the nomination made by the employee, (ii) after the elapse
of a period of one year, other benefits like retirement or
death gratuity/family pension may also be granted to the
family subject to the fulfilment of conditions prescribed in
the succeeding paragraphs.
3. The above benefits may be sanctioned by the
Administrative Ministry Department after observing the
following formalities:-
(i) The family must lodge a report with the concerned
Police Station and obtain a report that the employee
has not been traced after all efforts had been made by
the Police.
(ii) An Indemnity Bond should be taken from the
nominee/dependents of the employee that all payments
will be adjusted against the payments due to the
employee in case he appears on the scene and makes
any claim.
4. The Head of Office will assess all Government dues
outstanding against the Government servant and effect
their recovery in accordance with Rule 71 of CCS
(Pension) Rules, 1972, and other instructions in force for
effecting recovery of Government dues.
5. The family can apply to the Head of the Office of the
Government servant for grant of family pension and
death/retirement gratuity, after one year from the date of
disappearance of the Government servant in accordance
with the prescribed procedure for sanction of family
pension and death/retirement gratuity. In case the
disbursement of death/retirement gratuity is not effected
within three months of the date of application, the
interest shall be paid at the rates applicable and
responsibility for the delay fixed.
NOTE:- The above orders regulate genuine cases of
disappearance under normal circumstances and not the
cases in which officials disappear after committing
frauds, etc. In latter type of cases, the family pension
needs to be sanctioned only on the Government employee
being acquired by the Court of Law or after the conclusion
of the disciplinary proceedings, etc., as the case may be.
41. The above circular clinches the issue with respect to
the claim of the respondent. Therefore, irrespective of our
decision on the purport of Section 108 of the Evidence Act,
1872, the respondent is entitled to all the benefits as per the
aforesaid decision of the Government of India under the
Circular Letter No.4-52/86-Pen., dated 3-3-1989.
42. Hence, the writ petition is disposed of modifying the
order of the Tribunal and directing the petitioners to grant all
the benefits applicable to the respondent under the Circular
Letter No.4-52/86-Pen., dated 3-3-1989 within a period of four
(4) weeks.
43. As a sequel thereto, miscellaneous petitions, if any,
pending shall stand closed. No costs.
___________________________
V.RAMASUBRAMANIAN, J
______________________ G.SHYAM PRASAD, J Date: 31st January, 2017