Presumption of death under Section 108 of the Evidence Act can be used to establish entitlement to service benefits and compassionate appointment under the National Coal Wage Agreement-III.

This is an unfortunate case where an employee of the respondents fought at the cost of his life and also gave heavy resistance to the miscreants who came to steal the valuable of the company but failing to do the same they kidnapped the deceased employee and murdered him and concealed the body on the bank of river Damodar, as it appears from the report of the Superintendent of Police, Purulia. Since the deceased employee was not traceable for more than seven years, the widow of the deceased employee have come before this Hon'ble Court with a prayer to release the dues which the employee was entitled to get and for compassionate appointment on the basis of National Coal Wage Agreement-III as per clause 9.4.2. The wife of the deceased have filed this writ petition against the respondents Coal India Limited, having its office at 10, R. N. Mukherjee Road, Kolkata and Bharat Coking Coal Ltd., having its office at 6, Lyons Range, Kolkata and against the General Manager and Chief Personnel Manager of Bharat Coking Coat Ltd., whose office is at Kulti, Burdwan.

2. This writ petition was moved before this Hon'ble Court. Directions for filing affidavits were given. Affidavits were exchanged. At the time of moving this application the respondents did not take any objection on the jurisdictional point on the alleged plea that the registered office of the company is situated at Dhanbad. However, in their affidavit-in-opposition they had taken a point that the registered office of the company is at Dhanbad. Therefore, this Court has no jurisdiction to entertain this writ petition.

3. Mr. Gauguly appearing for the writ petitioners submits that the concerned employee, who is missing since 27th June, 1999, was kidnapped and murdered. However, the body was not traceable. On 3rd July, 1999 an F.I.R. was lodged. The police authorities carried out the investigation and the Superintendent of Police, Purulia, by his report dated. 28th October, 1999 informed the General Manager, Bharat Coking Coal Limited, C.V. Area 12, Barakar, Dist. Burdwan that the principal accused and his other associates are absconding and evading police arrest. In course of investigation the wearing apparel of Gopal Paswan has also been seized thereby giving evidence to the allegation of murder after kidnapping. The dead body could not be recovered till that date since it appears to have been concealed somewhere on the river bed of Damodar or has been thrown away in the river. It was specifically mentioned by the said Superintendent of Police that although the dead body has not been recovered as per criminal law the presence of substantial evidence to corroborate the commission of kidnapping and murder is sufficient even for conviction of the accused persons. According to him, in absence of dead body and post mortem/death certificate processing of the application of the dependent of the family member of the deceased worker of BCCL for employment and processing of preliminary benefits like gratuity, encashment of leave salary etc. and any requirement in the form of furnishing of any kind of certificate by the District Police Administration may kindly be intimated for taking further action. Mr. Ganguly submitted that the police authorities after investigation came to a conclusion that the deceased employee was kidnapped and murdered and the dead body was not traceable but that should not stand in the way of releasing service benefits to the successors of the deceased employee and also should not stand in the way of giving an employment to any of the successor in terms of the National Coal Wage Agreement III under clause 9.4.2. According to Mr. Ganguly, the prayers made in this writ petition should be allowed. Mr. Ganguly produced a judgment of a learned Single Judge of this Court delivered on January 1, 2002 in W.P. No. 2528 of 2001 (Narayan Nayak v. State Bank of India and Others) wherein the Court held that the rule in Section 108 of the Evidence Act supersedes the tim