Patna High Court
Arti Devi @ Arti Pandey vs The Union Of India (Uoi) And Ors. on 25 June, 2003
Equivalent citations: 2003(2)BLJR1277
JUDGMENT R.M. Prasad, J.
1. In this writ petition, the petitioner, who claims to be the widow of Shyam Kishore Pandey, who was a Constable in F/36th Battalion, Central Reserve Police Force and had proceeded on 60 days' leave with effect from 7-6-1995 to 5-8-1995 and became traceless since then, has claimed for payment of death-cum-retiral dues, including family pension, treating her husband dead after expiry of seven years in view of the provisions contained in Section 108 of the Indian Evidence Act, 1872.
2. It appears that earlier the petitioner had filed Cr.W.J.C. No. 625 of 1996, which was held to be not maintainable and hence dismissed, vide order dated 20-9-2000, contained in Annexure-4. It was however, observed that the petitioner is free to file a civil writ or suit, if any monetary benefit accrued to her.
3. After expiry of seven years since her husband became traceless, the present writ petition has been filed by the petitioner.
4. A counter-affidavit has been filed on behalf of the Officer Commanding, F/36th BN, Central Reserve Police Force, Mokama, Patna (respondent No. 5) and a reply thereto has also been filed on behalf of the petitioner.
5. From the counter-affidavit it appears that the said Constable proceeded on 60 days' leave with effect from 7-6-1995 to 5-8-1995 and did not report thereafter. He was, thus, declared deserter and later, a disciplinary enquiry was also conducted against him and on receipt of the enquiry report penalty of dismissal from service with effect from 26-12-1996 under Section (11)(1) of CRPF, Act, 1949 read with Rule 27 of CRPF. Rules, 1955 was passed.
6. According to the respondents, the petitioner is entitled for the benefits only if her husband was declared missing/dead earlier by the competent authority. It is alleged that the letters were sent about the absence of Constable Shyam Kishore Pandey, who proceeded on leave, to the petitioner as well as to her other family members, for which there was no response.
7. In reply affidavit filed on behalf of the petitioner it is stated that under the provisions of the Indian Evidence Act any person becomes traceless or his whereabouts is not known for seven years shall be deemed to have been declared as dead and there is no necessity under the law to his having been declared missing or dead by the competent authority. It is further contended that any member of the Central Reserve Police Force, who has been declared deserter under the CRPF Act, 1949, cannot be dismissed from service. Moreover, no such dismissal order has been served upon the family members of Ex. Constable Shyam Kishore Pandey nor the order of desertion has been served. It is thus contended that both the orders are illegal, bad in law and are only eye-wash.
8. After hearing learned Counsel for the parties and going through various provisions of the Central Reserve Police Force Act and Rules, prima facie, I am not satisfied with the stand taken by the petitioner. However, in view of the statement made in paragraph 15 of the counter-affidavit that efforts are being made to find out the factual position of this case and that if it is established that the petitioner's husband is missing since August, 1995, then she will get all the benefits as admissible under the rules, as prayed, this Court without going into the merit of the contentions directs that the petitioner may produce evidence and satisfy the authority with respect to discharge of her onus under the provisions contained in Section 108 of the Indian Evidence Act, 1872, whereupon the respondent-authorities concerned shall discharge their onus under the said provisions and proceed and conclude the matter accordingly afresh within two months thereafter.
9. The writ application is, accordingly, disposed of.