Calcutta High Court (Appellete Side)
Purnima Banerjee vs State Of West Bengal & Ors on 7 February, 2023
07.02.2023 IN THE HIGH COURT AT CALCUTTA
DL-50 CONSTITUTIONAL WRIT JURISDICTION
(PP) APPELLATE SIDE
Ct.21
WPA 13003 of 2022
Purnima Banerjee
Vs.
State of West Bengal & Ors.
Mr. Nilanjan Bhattacharjee,
Mr. Abhilash Chatterjee,
Mr. Saikat Dey
....for the petitioner.
Mr. Subrata Kumar Sinha
....for the respondent nos.2 to 4/SBI.
The petitioner prays for retiral benefits on the
ground that her husband went missing on and from
the last week of December, 2009. The petitioner
states that since her husband went missing from the
last week of December 2009, she rushed to the police
station on January 2, 2010 to lodge General Diary No.
65 of 2010 with the Officer-in-Charge, Chatterjeehat
Police Station. The petitioner's husband was an
employee of the State Bank of Indore, which was
amalgamated with the State Bank of India on
February 22, 2015 and, therefore, the petitioner has
made the present claim against the State Bank of
India.
Mr. Bhattacharjee, learned counsel, appearing
on behalf of the petitioner submits that no proof is
required for declaration of death under Section 108 of
the Indian Evidence Act, 1872. He relies on a
judgment reported in 2002 (2) CLR 639 (Narayan
Nayek Vs. State Bank of India & Ors.).
Furthermore, reliance is placed on a Division Bench
judgment reported in (2015) 3 CLJ 23 (Smt. Shipra
Chatterjee Vs. Union of India & Ors.).
Mr. Sinha, learned counsel, appears on behalf of
State Bank of India and submits that the office
circular dated March 12, 2010 states that only claims
up to a threshold limit of Rs.1,00,000/- can be
entertained by the bank without a valid death
certificate. A copy of the circular dated March 12,
2010 is retained with the records. Furthermore, he
relies on a circular dated May 20, 1988 to show that
after a passage of period of one year, benefits like
compassionate gratuity or the gratuity under service
rules or pension fund dues may be paid to the family
in the event the bread earner of the family disappears
in order to mitigate the financial hardship to the
family members. But the said circular has to be read
in the light of the circular dated March 12, 2010
where a capping of Rs.1,00,000/- has been made. He
refers to a judgment reported in (2004) 10 SCC 131
(L. I. C. of India Vs. Anuradha) in support of his
contention that under Section 108 of the Evidence
Act, the presumption of death will only arise if the
same is raised in a court, tribunal or an authority
which is called upon to decide whether a person is
dead or alive. So long as the dispute is not raised
before any forum or in any legal proceedings, the
presumption does not arise. The burden of proof
would lay on the person who makes assertion of
death having taken place at a given date or time in
order to succeed in his claim.
Having considered the rival submissions of the
parties and the materials placed on record, this Court
is of the view:
(a) In paragraph 7 of the writ petition, the
petitioner has stated that her husband has
disappeared since the last week of
December, 2009.
(b) In paragraph 8 of the writ petition, she has
stated that she has rushed to the local
police station on January 2, 2010. Both
the paragraphs 7 and 8 of the writ petition
have been affirmed true to the knowledge
and belief of the petition.
(c) From the missing diary dated January 2,
2010, it appears that the petitioner has
stated that her husband has gone missing
since March 1, 2009.
(d) From the representation made by the
petitioner before the Chief Managing
Director/General Manager, State Bank of
India on August 1, 2016, it appears that
the petitioner has stated that her husband
has gone missing since last week of
February, 2009.
(e) It seems to this Court that the petitioner is
claiming the benefits on account of
disappearance of her husband, but she is
not aware of the date and time from which
her husband has gone missing.
(f) In the complaint annexed at page 35 of the
writ petition made to the Officer-in-Charge,
the petitioner has stated that her husband
has gone missing from January 2, 2009.
(g) The petitioner has not brought on record
any proof from a competent court of law
declaring that her husband has gone
missing from a particular date and should
be presumed to be dead, 7 years thereafter.
(h) It is expected that since the retiral benefits
of her missing husband is claimed by the
petitioner, she should at least be aware of
the date on which her husband has gone
missing.
(i) The facts of the case in Shipra Chatterjee
(supra) is not applicable to the facts of the
present case. In that case, the Hon'ble
Division Bench held that since neither the
notice of initiation of the disciplinary
proceedings nor the penalty of removal
could be served upon the delinquent
employee, the petitioner, being the wife of
the delinquent employee, should not bear
the brunt of the punishment given in a
purported disciplinary proceedings and
should be entitled to service benefits of her
husband who is presumed to be dead.
(j) In Narayan Nayek (supra), it was held by
an Hon'ble Coordinate Bench that since the
bank has not denied the factum of
disappearance of the employee as his
superannuation benefits have been
disbursed presuming the father of the
petitioner as dead, the prayer for
compassionate appointment should be
considered by the bank in accordance with
law.
(k) This Court places reliance on Anuradha
(supra) passed by the Apex Court for the
purpose of holding that the burden of proof
would lay on the person who makes
assertion of death having taken place at a
given date or time in order to succeed in his
claim.
(l) This Court is of the view that the petitioner
has not been able to discharge the burden
of proof in respect of the date and time of
death since the petitioner has claimed that
her husband has gone missing on different
dates in different documents/
representations. The petitioner has also
affirmed wrong statements on oath in order
to get sympathy of this Court.
For the reasons aforesaid, WPA 13003 of 2022
is dismissed without any order as to costs.
Since no affidavits have been called for in the
writ petition, the allegations contained therein be
deemed not to have been admitted by the
respondents.
All parties shall act on the server copies of this
order duly downloaded from the official website of
this Hon'ble Court.
Urgent photostat certified copies of this order, if
applied for, be supplied to the parties upon
compliance of all necessary formalities.
(Lapita Banerji, J.)
