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2011 Supreme(Cal) 666
High Court Of Calcutta
Aniruddha Bose, J.
Shipra Chatterjee - Appellant
Versus
Union Of India - Respondent
W. P. No. 6640(W) of 2011
Decided On : May 16,2011
B.K.Panda, Soumya Ghosh, Amitabha Roy, Abha Roy, Amrita Sinha
The right to claim benefits as the widow of a deceased employee who dies in service cannot be forfeited due to a disciplinary proceeding and punishment imposed on the employee during his absence, as it would violate the wife's right to livelihood under Article 21 of the Constitution.
Headnote:
DISCIPLINARY PROCEEDING - SUSPENSION - SERVICE - EVIDENCE ACT, 1872 - SECTIONS 107, 108 - CONSTITUTION OF INDIA, 1950 - ARTICLE 21 - Petitioner challenged disciplinary proceeding and punishment imposed on her missing husband. Court held that wife cannot represent her husband in departmental proceeding and cannot sue on his behalf. Presumption of death under Section 108 of Evidence Act not available as husband missing for about four and half years. Petitioner can stake a claim on death benefits on lapse of seven years from the date her husband went missing. Order of dismissal would result in termination of employer-employee relationship and disentitlement to death benefits. Petitioner's right to claim benefits as widow of deceased employee who dies in service would be forfeited, violating her right to livelihood under Article 21. Court directed Steel Authority of India Limited to keep the order of removal from service of the petitioner in abeyance till 20 November, 2014.
Fact of the Case:
Petitioner's husband, an employee of Steel Authority of India Limited (SAIL), went missing on 20th November, 2006. A missing diary was lodged with the police. During his absence, a disciplinary proceeding was instituted against him by SAIL for habitual absence from duty. Notices were sent to his home and received by the petitioner. Despite her informing the authority about her husband's missing status, the proceeding continued, and punishment of removal from service was imposed.
Finding of the Court:
The court found that the petitioner, as the wife of the delinquent employee, could not represent him in the departmental proceeding or sue on his behalf in court. The presumption of death under Section 108 of the Evidence Act was not available as the husband had been missing for about four and a half years. The petitioner could stake a claim on death benefits only after the lapse of seven years from the date her husband went missing.
Issues: 1. Whether the petitioner, as the wife of the delinquent employee, could represent him in the departmental proceeding or sue on his behalf in court? 2. Whether the presumption of death under Section 108 of the Evidence Act was available in the present case? 3. Whether the petitioner could stake a claim on death benefits before the lapse of seven years from the date her husband went missing?
Ratio Decidendi: 1. The court held that ordinarily, the wife of a delinquent employee cannot be permitted to represent her husband in a departmental proceeding or sue on his behalf in court. The right of employment is a personal right and has to be enforced by the employee himself. 2. The court held that the presumption of death under Section 108 of the Evidence Act was not available in the present case as the husband had been missing for about four and a half years. The petitioner could only stake a claim on death benefits after the lapse of seven years from the date her husband went missing. 3. The court held that the petitioner's right to claim benefits as the widow of a deceased employee who dies in service would be forfeited if the order of dismissal was given effect to, violating her right to livelihood under Article 21 of the Constitution.
Final Decision: The court directed Steel Authority of India Limited to keep the order of removal from service of the petitioner in abeyance till 20 November, 2014. The court also directed that if the petitioner's husband returned or reappeared in the meantime, the order of removal would automatically revive. If the petitioner obtained an order or decree from a court or any other forum of competent jurisdiction enabling her to claim such benefits, the Steel Authority of India Limited would remain bound by such order or decree.
1. THE petitioner before me is the wife of one Sukhendu Chatterjee, an employee of Steel Authority of India Limited (SAIL). On 20th 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 25th 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 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 31st October have been annexed to the petitioner collectively marked "p3".
2. 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 respondents. He further submits that his punishment would not disentitle him from future employment if he reappears.
3. IN this writ petition, the petitioner has primarily challenged the disciplinary proceeding as well as punishment imposed on her missing husband.
4. ORDINARILY, 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 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
