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2017 Supreme(AP) 21
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
V. RAMASUBRAMANIAN & G. SHYAM PRASAD, JJ.
Union of India, Represented by its Secretary, to the Government of India, Ministry of Finance, Department of Revenue & Others – Appellants
Versus
Polimetla Mary Sarojini & Another – Respondents
Writ Petition No. 34859 of 2016
Decided On : 31-01-2017
For the Petitioner: B. Narayana Reddy.
For the Respondent: S. Seshagiri.
Important—Expiry of the full period of seven years is essential to raise the presumption under Section 108 of Evidence Act, 1872.
Headnote:(A) Evidence Act, 1872—Section 108—CCS (Pension) Rules, 1972—Rule 41—Presumption of death—Claim for payment of pensionary benefits and family pension together with all consequential benefits—Unless a period of 7 years has elapsed since date of disappearance of employee, he cannot be deemed to be dead and retirement benefits cannot be paid to family— Occasion for raising presumption would arise only when 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 dispute is not raised before any forum and in any legal proceedings, occasion for raising presumption does not arise.
(B) CCS (Pension) Rules, 1972—Rule 41—Evidence Act, 1872—Section 108—Presumption of death—Claim for payment of pensionary benefits and family pension together with all consequential benefits—Expiry of the full period of seven years is essential to raise the presumption under Section 108—Tribunal was wrong in presuming death of respondent’s husband to have taken place from the time he went missing—Once this presumption goes, it follows as a corollary that penalty of removal from service passed by petitioners cannot be stated to be illegal—Respondent is entitled to all benefits as per decision of Government of India under Circular Letter No. 4-52/86-Pen., dated 3-3-1989.
Result—Writ Petition disposed of with observations.
V. Ramasubramanian, J.
1. 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 respondent’s 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 respondent’s 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 respondent’s 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 respondent’s 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 p
