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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ACHINTYA MALLA BUJOR BARUA, J.
Kanika Deka W/o Balabhadra Deka, And 2 Ors – Appellant
Versus
The State of Assam And 4 Ors – Respondents
WP(C) 7653 of 2022
Decided on : 19-12-2022
Assam Services (Pension) Rules, 1969 – Rule 143A – Petitioner No. 1 is wife and petitioners No. 2 and 3 are daughters, who was working as a Khalasi in respondent PHED Department – Balabhadra Deka was entrusted duty of working in Panbazar Water Supply Scheme – While performing his duty, employee Balabhadra Deka went missing and in this respect River PS UD Case was registered on information being lodged being brother – Held, In instant case, requirement of Rule 143A(3)(i) is satisfied to extent that there is a police report by river police of Assam that in spite of all efforts made, disappeared husband of the petitioner No. 1 could not be traced out and it is suspected that he was drowned while working on a barge on river Brahmaputra – In other words, it can be accepted that there is a report by police authorities that disappeared husband of the petitioner No. 1 had not been traced after all efforts had been made – Consequently, Court are of view that provisions of Rule 143A(1) and 143A(2) are applicable in case of petitioners – Accordingly, Chief Engineer, PHED is directed to process necessary papers for giving necessary benefits to petitioners as regards amount of salary due, leave encashment due and amount of GPF and thereupon after one year from date of disappearance, other benefit like death cum retirement gratuity/family pension etc be also paid to petitioners – Writ petition allowed.
JUDGMENT :
Heard Mr. C Goswami, learned counsel for the petitioners, Mr. D Gogoi, learned counsel for the respondents No. 1, 2 and 4 being the authorities in the PHED, Mr. A Chaliha, learned counsel for the respondent No. 3 being the authority in the Finance Department and Ms. S Barua, learned counsel for the respondent No. 5 being the authority in the Pension and Public Grievance Department.
2. The petitioner No. 1 is the wife and the petitioners No. 2 and 3 are the daughters of Balabhadra Deka, who was working as a Khalasi in the respondent PHED Department. On 11.09.2020 Balabhadra Deka was entrusted the duty of working in the Panbazar Water Supply Scheme (in short PWSS). While performing his duty, the employee Balabhadra Deka went missing and in this respect Suwalkuchi River PS UD Case No. 15/2020 was registered on the information being lodged by Kumud Deka being the brother of Balabhadra Deka. As the person concerned was missing while working over the river Brahmaputra, the investigation was also made by the Pandu river police out post resulting in Pandu RPOP GD No. 171 dated 11.09.2020 and 185 dated 12.09.2020. In this respect, there is a report submitted by the in-charge of Pandu RPOP dated 18.11.2020 which is available as Annexure-G page 26 to the writ petition. The report dated 18.11.2020 is extracted as below:-
After reaching the P.O. I along with my staff, SDRF and NDRF conducted search operation to trace out said Balabhadra Deka but could not able to trace him. In this regard, one Shri Kumud Deka, brother of Balabharda Deka submitted an FIR addressing to the O\C, Sualkuchi RPS, accordingly O/C registered an U.D. case vide Sualkuchi RPS U.D. case No. 15/2020 and endorsed the same to me this ref. Pandu RPOP GDE Nos. 171 dtd. 11-09-2020 and 185 dtd. 12-09-2020. I along with staff, SDRF and NDRF search the said areas as well as down stream of River Brahmaputra vide GDE Nos. 180 dtd. 12- 09-2020, 195 dtd. 13-09-2020 and 211 dtd. 14-019-2020 but could not success. During search operation statement of witnesses namely (i) Shri Bhaba Dev Sarma and (ii) Md. Akib Jabed Ali both are employees of PHED were recorded at the P.O. about the said missing person but they not seeing the drowning of the person but presumed that he may be drowned from the barge. In this regards, W.T. messages were also sent to the down stream P.Ss/ o.Ps/RPSs/RPOPs to trace out the said untraced person vide Sig. Nos. Pandu RPOP (1) Sig. No.PND/ Vol-I/ 65-67/ 2020 dtd. 11-09-2020 and (2) Sig. No. PND/Vol-I/82-92/2020 dtd. 17-09-2020 but not able to trace out by the PSs.
Further, it is mentioned here that the fact is requested to publish the Daily News Paper through CPRO after collecting his Photograph by this office as the victim not yet recovered and accordingly the information published on 12- 09-2020, 13-09-2020 and 19-19-2020 in the leading news paper through CPRO office as per our memo No. RP/Crime/UD/148/Vol-II/2019-2020/1189 dtd. 15- 09-2020 (paper cutting enclosed). This case is still pending for tracing out the victim Balabhadra Deka.”
3. A reading of the aforesaid
The legal principle of presumption of death under Section 108 of the Indian Evidence Act, 1872 applies, and the death certificate issued in 1977 confirms the death of the missing constable, entitling....
Legal presumption of death after a missing person remains untraceable for seven years entitles the family to benefits; disciplinary proceedings must not obstruct the release of pension and gratuity.
A missing government employee's family is entitled to pensions and benefits, even if disciplinary actions were taken during his absence, under certain statutory provisions.
The denial of family pension based on unreasonable deductions of service years violates legal principles of fairness; unmarried dependent daughters are entitled to pension as per amended Rule 143.
The findings of the Civil Court under Section 108 of the Evidence Act were binding on the respondents, and the Government Resolutions dated 5th July, 1991 and 7th October, 1993 were held to be applic....
Disciplinary action against a missing employee is invalid; presumption of civil death permits family pension and compassionate appointment.
The responsibility of maintaining and updating service book entries lies with the employer, and pension disbursement is a right governed by rules and regulations.
In the absence of credible evidence of remarriage, a legally married spouse is entitled to family pension and benefits under the Assam Services Pension Rules.
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