Telangana High Court
Mada Prameela vs The Chairmen And Managing Director, on 13 December, 2023
THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION No.16603 of 2017
ORDER:
This writ petition is filed seeking a writ of mandamus declaring the action of respondent Nos.1 to 4 in not paying the death monitory benefits of Mada Mallesh (General Mazdoor, Employment Code No.2546348 in CFC of Singareni Collieries Company Limited, Srirampur, in favour of the petitioner, and the action of respondent Nos.5 and 6 in not paying the amount in respect of Insurance Policy No.684026649 of Mada Mallesh to the petitioner by taking into account the date of his death as 01.05.2008, as illegal and arbitrary and consequently, direct the respondents to pay the death benefits and insurance policy amount of Mada Mallesh in favour of the petitioner.
2. The facts leading to filing of this writ petition are that late Mada Mallesh, the husband of the petitioner, worked as General Mazdoor vide Employee Code No.2546348 in CFC of Singareni Collieries Company Limited (hereinafter referred to as 'SCCL"), Srirampur. It is stated that the said Mada Mallesh was missing 2 from 01.05.2008. The petitioner and her family members searched for him, but they could not trace him. Therefore, they have given wide publicity by affixing wall posters and distributing pamphlets and also issued a publication in Andhra Jyothi Daily Newspaper on 24.08.2008. The petitioner has filed a complaint before the I Additional Judicial First Class Magistrate, Mancherial, and the same was referred to the Police, CCC, Naspur, who in turn, registered a case under the heading "Man missing" vide Crime No.75 of 2010 on 26.06.2010. Though the police searched for Mada Mallesh, they could not trace him. Therefore, the police issued a letter dated 08.04.2012 stating that all possible efforts were made to trace out the missing person, but all their efforts went fruitless and no clues came forth till that date.
3. It is further stated that the petitioner has submitted a representation dated 12.07.2010 to the General Manager, SCCL, Srirampur, requesting to settle the gratuity and other amounts pertaining to her husband and to provide compassionate appointment. Later, the petitioner submitted another 3 representation dated 08.03.2017 to the SCCL requesting to pay the death benefits of her husband. It is stated that basing on the representation dated 12.07.2010, the SCCL has paid gratuity and F.B.I.S. amounts and issued a letter dated 15.03.2017 stating that the husband of the petitioner was dismissed from service for absenteeism and hence, the petitioner is not entitled to death benefits as per the rules of the company.
4. It is further stated that dismissal order cannot be issued against a dead person and that no notice was issued either to the petitioner or in the name of her husband before taking disciplinary action. Furthermore, the dismissal order was not communicated to the petitioner. It is further stated that as per Section 108 of Indian Evidence Act, 1872 (for short, 'the Evidence Act'), if a person is unheard for more than seven years, the said person is deemed to be dead. In the instant case, the petitioner's husband is unheard since 01.05.2008 i.e., for more than 8 ½ years, and therefore, the date of death of her husband can be treated as 01.05.2008, as per the presumption under Section 108 of Indian Evidence Act, and as certified by the police vide letter dated 4 08.04.2012. Therefore, the respondents are duty bound to pay the death benefits and insurance policy amounts of her husband to the petitioner, duly taking into consideration the death of her husband as 01.05.2008.
5. Respondent No.4 filed a counter affidavit denying the allegations made in the writ affidavit and stating that Employment Code No.2546348 of the Mada Mallesh, as referred to by the petitioner in the writ affidavit, is incorrect; that as per the records, the Employment Code Number of Mada Mallesh is 2503648; that based on the said code number, the office of the Coal Mines Provident Fund has identified the CMPF Account Number of Mada Mallesh as H/7/47/567 and traced out his ledger card. It is further stated that the office of the Coal Mines Provident Fund has not been informed about the death of Mada Mallesh and that they have also not received the refund claim of Mada Mallesh from the SCCL so far.
6. Heard Sri N. Indrasena Reddy, the learned counsel for the petitioner, Sri P. Sri Harsha Reddy, the learned Standing Counsel for SCCL for respondent Nos.1 to 3 and Sri K. Aravind Kumar, 5 learned Standing Counsel for Coal Mines Provident Fund for respondent No.4. Perused the record.
7. Learned counsel for the petitioner has contended that the husband of the petitioner is unheard since 01.05.2008; that the police have issued the letter dated 08.04.2012 stating that despite their best efforts, they could not trace out husband of the petitioner; that as per Section 108 of the Evidence Act, if a person is unheard for more than seven years, he is deemed to be dead. He further contended that the dismissal order has been passed without following the due procedure and therefore the petitioner is entitled to the death benefits as well as the insurance policy amount of her husband. In support of the said contentions, the learned counsel for the petitioner relied upon the judgment of the High Court of Gauhati in Bandita Sarkar v. State of Assam1.
8. The learned Standing Counsel for SCCL has placed on record the written instructions received from the DGM (Personnel), SCCL, Srirampur Area, wherein it is stated that Mada Mallesh, General Mazdoor, Employment Code No.2503648, 1 2015 (2) GauLT 1042 6 had worked at CHP Srirampur and he was dismissed from service w.e.f. 25.03.2010 for absenteeism, after following due procedure. Subsequently, the petitioner approached the General Manager, Srirampur Area and submitted an application dated 12.07.2010 stating that her husband Mada Mallesh disappeared from 01.05.2008 onwards and a case was also filed before the police, CCC, Naspur, who in turn, had registered a case under the head "man missing" vide FIR No.75/2010 dated 26.06.2010, and therefore, requested to settle the terminal benefits treating her husband as missing.
9. The DGM (Personnel) has referred to the Circular vide No.CRP/PER/WEL/ATB/02/595 dated 05.02.2004, as per which, if any employee is found missing, the dependants of the said employee are entitled to receive the Gratuity, Family Benefit- cum-Insurance Scheme and CMPF. It is further stated that there is no provision to provide compassionate employment insofar as man missing cases. Therefore, the terminal benefits payable to the nominee of Mada Mallesh were settled and accordingly, the gratuity amount of Rs.2,14,274.92 Paise and FBIS amount of 7 Rs.6,239.40 paise were paid to the petitioner, whose name was recorded as wife in the company records. It is further stated that the amount payable towards accumulated CMPF was not settled by the Regional Commissioner, Coal Mines Provident Fund, Ramagundam, for want of declaration as Legal Heir of Mada Mallesh by the Court of Law.
10. Now, the point for consideration is whether the petitioner is entitled to the death benefits of Mada Mallesh and also the insurance policy amount in respect of Policy No.684026649 ? Consideration:
11. A perusal of the record discloses that late Mada Mallesh, the husband of the petitioner, worked as General Mazdoor in SCCL, Srirampur. He is missing since 01.05.2008. The petitioner filed a complaint, on the basis of which, FIR No.75 of 2010 was registered on 26.06.2010. The police after due search issued a letter dated 08.04.2012 stating that despite their best effort, the missing person could not be traced. The record further discloses that the petitioner gave a representation dated 12.07.2010 to the 8 General Manager, SCCL, Srirampur, to settle the gratuity and other amounts pertaining to her husband. Thereafter, she submitted another representation dated 12.07.2010 seeking compassionate appointment. However, the authorities of SCCL have paid only gratuity and FBIS amounts to the petitioner, but the death benefits and insurance policy amount were not paid to her.
12. According to the respondent - SCCL, the amount to be paid towards accumulated CMPF was not settled by the Regional Commissioner, Coal Mines Provident Fund, Ramagundam, for want of declaration as legal heir of the employee-Mada Mallesh.
13. There is no dispute that the husband of the petitioner is missing since 01.05.2008 and the police issued the letter dated 08.04.2012 stating that despite their best efforts, the husband of the petitioner could not be traced. As per the presumption under Section 108 of Indian Evidence Act, if a person is unheard for more than seven years, the said person is deemed to be dead. In view of the same and since the petitioner is found missing since 01.05.2008, the respondent authorities ought to have considered 9 the request of the petitioner and paid the death benefits as well as insurance policy amount. Even as per the written instructions of the DGM (Personnel), SCCL, placed on record, gratuity and FBIS amounts were paid to the petitioner.
14. Furthermore, in Bandita Sarkar v. State of Assam (supra), which was relied upon by the learned counsel for the petitioner, the High Court of Gauhati, after due consideration and analysis of Section 108 of Indian Evidence Act, 1872, and relying on the judgment of the High Court of Kerala in Indira K. v. Union of India (OP No.18590 of 1999 (K), held that if the police report has stated that if a missing person/employee is untraceable for seven years, and as the presumption of death of such person is available under Section 108 of the Evidence Act, the family members of the missing person can claim all the benefits, as if he is dead on the date of his disappearance.
15. In Smt. K.Lakshmi v. The A.P.S.R.T.C 2 , the petitioner's husband, who was working as Driver in respondent-Corporation (APSRTC) went missing on 03.04.1992. Disciplinary proceedings 2 2013 SCC OnLine AP 815 10 were initiated against the husband of the petitioner therein after his disappearance and he was removed from service. The wife of the driver filed a suit vide O.S.No.267 of 2006 for a declaration that her husband shall be deemed to have been dead. The Civil Court, eventually, allowed the suit through judgment and decree dated 11.07.2006.
(i) The learned Single Judge of this Court held that once a legal fiction is employed, it should run its full course. Ipso facto, as the workman was deemed to have been dead on the date of his disappearance, the disciplinary proceedings are deemed to have been initiated against the dead person. Those proceedings are a nullity. A fortiori, the workman is deemed to have died in harness, since by the date of his presumptive death, the workman was not removed from service.
(ii) By referring to the judgment of the Division Bench of this Court in Chief Engineer, APSEB v. K. Naga Hema 3 , the learned Single Judge held that the husband of the petitioner therein shall be treated to have died in harness and accordingly, 3 1996 (1) ALD 304 (DB) 11 set aside the order impugned therein and directed the respondent Corporation to pay the balance of terminal benefits to the petitioner treating the workman to have died in harness.
The above judgment squarely applies to the facts of the present case, as the facts in both the cases are similar. Conclusion:
16. In the light of the above discussion, the ratio laid down in the above judgments and also in view of the fact that the name of the petitioner is recorded as wife of Mada Mallesh in the records of the SCCL, and further gratuity and FBIS amounts of Mada Mallesh were already paid to the petitioner treating her as nominee of the said Mada Mallesh, this Court is of the considered opinion that there is no impediment for the respondents to pay the death benefits and insurance policy amount of Mada Mallesh to the petitioner.
17. Accordingly, the writ petition is disposed of directing respondent Nos.1 to 4 to pay the death monitory benefits of late Mada Mallesh to the petitioner. Respondent Nos.5 and 6 are also 12 directed to pay the insurance amount of Mada Mallesh vide Policy No.684026649 to the petitioner within a period of eight weeks from the date of receipt of a copy of this order.
Pending Miscellaneous Applications, if any, shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 13.12.2023 va