HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITION No.48069 of 2018

ORDER:

The petitioner is the wife of Mr. V. Francees, who joined Indian Bank in 1991 and was promoted to Assistant Manager in New Delhi on 17.02.2004 (Service Reg. No. 27015). He attended duties for seven months and went missing from 30.09.2004. The bank later issued a charge sheet and compulsorily retired him from service. Despite repeated efforts, Mr.Francees could not be traced. A missing person complaint was lodged on 27.05.2008 at Janakpuri Police Station, New Delhi, and a report dated 01.09.2010 confirmed that he remained untraceable. As per bank directions, the petitioner obtained a legal heir certificate through O.S. No. 590 of 2012, which was decreed on 14.12.2012, declaring the petitioner and her children as legal heirs. She thereafter applied for terminal benefits and compassionate appointment, submitting all required documents. However, no action has been taken by the bank authorities to date. Hence, this writ petition.

2. Heard Sri Ramesh Chilla, learned counsel for the petitioner. Despite service of notice, none appeared on behalf of respondents and no counter has been filed. Perused the record.

3. Learned counsel for the petitioner, while making submissions on lines of the writ affidavit, contended that petitioner is suffering from cancer and also enclosed copy of medical reports to that extent and it is further contended that if a person is not found for a period of seven years then it has to be assumed that he is declared dead. Therefore, the petitioner prayed this Court to release the terminal benefits of her husband and provide a suitable job to one of the petitioner’s children under compassionate appointment in the respondent Corporation according to their qualification.

4. Admittedly, the petitioner’s husband has been missing since 30.09.2004. A missing complaint was lodged with the police, and the Station House Officer subsequently issued a report confirming that the petitioner’s husband could not be traced. The petitioner thereafter applied for retirement (terminal) benefits and sought compassionate appointment for one of her children. At this juncture, it is relevant to refer Section 108 of the Indian Evidence Act, which reads as under:

" 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."

This statutory presumption of death after seven years of continuous disappearance is squarely applicable to the present case. The petitioner has established that her husband has remained untraceable since 30.09.2004, and no information regarding his whereabouts has been received by his family or the authorities. Therefore, in terms of Section 108 of the Indian Evidence Act, 1872, it is to be legally presumed that the petitioner's husband is deceased.

5. Having considered the respective submissions and upon perusal of the material on record, this Court is of the view that, in light of the petitioner's medical condition being a cancer patient, the case warrants sympathetic consideration for compassionate appointment. Accordingly, the respondents are directed to consider and pass appropriate orders for appointment of one eligible child of petitioner on compassionate grounds. The respondents are further directed to release the terminal benefits and all other consequential benefits, strictly in accordance with law, within a period of eight (8) weeks from the date of receipt of a copy of this order.

6. With the above said directions, this writ petition is allowed with costs of Rs.50,000/- to be paid by the respondents to the Director, Sainik Welfare, Hyderabad (Savings A/c.No.52188926279, State Bank of India, Shantinagar Branch (20070), IFSC Code:SBIN00