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.

JUDGMENT :

BISWANATH RATH, J.

1. This Petition was originally filed before the Odisha Administrative Tribunal, Bhubaneswar registered as O.A. No.1550/2017. On the Tribunal being abolished, the matter was transferred to this Court for disposal. The Petition involves the following prayer:-

“The applicant humbly prays that this Hon’ble Tribunal be graciously pleased to –

i) Admit and allow this O.A.

ii) Direct respondents to sanction and disburse Family Pension and Death Gratuity in favour of the applicant within a period of one month along with arrear.

And

iii) Pass such other order/direction as may be deemed appropriate in the interest of justice.”

2. Background involving the case is the Petitioner being the legally married wife of the employee, Arjun Kumar Pattanaik approached the Competent Authority for release of benefit including pensionary benefit to the applicant on the premises that her husband was a Government Servant entered into service on 13.3.1996 and posted as Excise Constable. This fact has been established through Annexure-1 appearing to be the extract of the employee’s Service Book. It is pleaded by the wife of the employee involved that her husband while working as Excise Constable at Ujalpur in the district of Sundargarh under the administrative control of Respondent No.2 herein disappeared from his working place without any information to anyone including the present Petitioner. Finding no trace of her husband, the Petitioner appears to have lodged a missing F.I.R. on her husband on 24.2.2013, vide Annexure-2. It further reveals from the pleading that on the basis of such F.I.R., Lephripada P.S. Case No.S.D.E. No.456 dated 24.2.2013 got registered. Pleading further reveals, finding no development through such F.I.R., there has been drawing of attention of the Inspector and finally the O.I.C., Lephripada Police Station after investigation reported that the husband of the Petitioner remained untraceable as appearing from Annexure-8. The Petitioner while bringing this fact to the notice of O.P.2 requested it for considering her case for sanction of family pension as well as death gratuity involving her husband. On the premises that the Petitioner finding no respite from the Employer in the matter of release of gratuity as well as family pension approached the Tribunal for appropriate relief.

3. Mr.Mohapatra, learned counsel for the Petitioner for the factual background of the case and reading through the report of the concerned Police Station communicated to the Superintendent of Police, Sundargarh, vide Annexure-8 reading together through the provisions at Rule 56(19) & (20), particularly the provision at Rule 56(19)(II) and the provision at Sub-Rule (20) therein of the ORISSA PENSION RULES attempted to establish the entitlement of the Petitioner and in the circumstance, Mr. Mohapatra alleged, first of all there has been no proper attention to the claim of the Petitioner at least release of pension and retiral dues in terms of the above legal provisions and secondly, even in filing counter here, there has been illegal attempt to block the benefits already flowing to the Petitioner for no legal grounds. Mr.Mohapatra, learned counsel for the Petitioner in addition to the above submission also brought to the notice of this Court that for the provision in the Evidence Act, once a person is missing for nearly seven years, there is civil declaration of death. Thus, Mr.Mohapatra alleged, the missing of the person involved having taken place in 2012 from the Office premises, thus there is sufficient presumption of declaration of death of