Calcutta High Court (Appellete Side)
Secretary vs Smt. Rinku Majumder & Ors on 4 September, 2024
Author: Debangsu Basak
Bench: Debangsu Basak
Form No. J (2)
Item No.52 ML
Court No.26
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Debangsu Basak
And
The Hon'ble Justice Md. Shabbar Rashidi
M.A.T. 1672 of 2024
IA NO: CAN/1/2024
The West Bengal Board of Secondary Education, represented by its
Secretary
VS.
Smt. Rinku Majumder & ors.
For the Appellant : Ms. Koyeli Bhattacharyya, Advocate
Mr. Bibek Dutta, Advocate
For the Writ petitioner/
Respondent : Mr. Raghunath Das, Advocate
Ms. Monalisa Das, Advocate
Heard on : 04.09.2024
Judgment on : 04.09.2024
DEBANGSU BASAK, J.:-
1. Appeal is taken up for final hearing by the consent of the parties.
2. Appeal is directed against an order dated July 29, 2024 passed in
WPA 10793 of 2020.
3. By the impugned order, learned Single Judge allowed the writ
Signed By :
CHINMOY
CHAKRABORTY
petition and directed payment of death cum retiral benefits to the heirs and
High Court of
Calcutta
4 th of September
2024 05:48:48 PM
legal representatives of the employee concerned upon the writ petitioner
furnishing indemnity bond with regard thereto and furnishing the particulars
of the heirs and legal representatives of the employee concerned.
4. Learned advocate appearing for the appellant submits that, the
employee concerned last reported for his duties on April 4, 2003. Learned
Single Judge proceeded on the basis of May 7, 2003 as the death of date of
the employee concerned. She submits that, the writ petitioner lodged a
missing diary with the police authorities on July 11, 2007 prescribing the
date of the employee to be missing as May 7, 2003.
5. Learned advocate appearing for the appellant points out that, the
writ petitioner made a publication in the newspaper with regard to the
concerned employee being missing in 2014. She points out that relationship
between the writ petitioner and the employee concerned is husband and wife.
She refers to the order of the Civil Court where, in a suit filed by the writ
petitioner, the learned Civil Court refused to grant a decree of declaration as
prayed for in respect of the missing employee.
6. Learned advocate appearing for the appellant draws the attention of
the Court to the fact that, the missing employee applied on October 4, 2004
for voluntary retirement. However, the same was not considered. A
disciplinary proceeding was initiated as against the concerned employee.
Again such disciplinary proceeding was not concluded. Due to passage of
time, concerned employee superannuated in 2014.
Signed By :
CHINMOY
CHAKRABORTY
High Court of
Calcutta
4 th of September
2024 05:48:48 PM
7. Learned advocate appearing for the appellant draws the attention of
the Court to an exercise undertaken by the authorities pursuant to an order
dated October 5, 2003, passed in the writ petition. She submits that, effort to
reconcile the disputes and differences between the appellant and the writ
petitioner failed. She refers to the minutes of the meeting dated November 9,
2023.
8. Learned advocate appearing for the appellant refers to the Memo
No.84-F(Pen) of the Finance Department dated February 22, 2012. She
submits that, before sanction of family pension it must be considered that
missing employee was declared dead in terms of the Evidence Act, 1872.
9. Relying upon (2004) 10 Supreme Court Cases 131 (LIC of India
versus Anuradha), learned advocate appearing for the appellant submits
that, no date of death can be fixed in terms of Section 108 of the Evidence
Act, 1872. According to her, learned Single Judge erred in declaring the
missing employee to be dead as on May 7, 2003 by the impugned order.
10. Writ petitioner is the wife of missing employee. Missing employee
last reported for his duty with the appellant on April 4, 2003. Appellant heard
about the missing employee lastly on October 4, 2004 when the appellant
claims that it received a request for voluntary retirement made by the missing
employee.
11. Since October 4, 2004, taking that as the last date when the
appellant was aware of the missing employee, nothing is placed on record
Signed By :
CHINMOY
CHAKRABORTY
High Court of
Calcutta
4 th of September
2024 05:48:48 PM
before us to suggest let alone establish that the appellant is aware that the
missing employee is alive.
12. Writ petitioner as the wife lodged a missing diary, in respect of the
missing employee on June 11, 2007 stating that her husband went missing
on May 7, 2003. She also made a paper publication in 2014. She filed a Civil
Suit in the First Court of the Learned Civil Judge (Junior Division), Barasat
being Title Suit No.484 of 2014, where, she claimed that, her husband, the
missing person to be declared dead in terms of Section 108 of the Indian
Evidence Act, 1872. Such suit was dismissed on July 10, 2018. Nothing is
placed on record to suggest that any appeal was preferred against the Civil
Court's order.
13. Appellant initiated disciplinary proceeding against the missing
employee. Disciplinary proceeding is yet to attain its finality. Court is
informed that, missing employee in normal course superannuated in 2014.
14. Situation with regard to employees of Article 12 authorities
suddenly disappearing and grant of family pension and the other benefits to
the eligible family members of such employees was dealt with by the
Memorandum bearing No.84-F(Pen) dated February 22, 2012 issued by the
Finance Department. Appellant is bound by such Memorandum.
15. Memorandum dated February 22, 2012 requires satisfaction of two
conditions. First one being lodgment of a report with the concerned police
station by the family and second is an indemnity bond as per Annexure I and
Signed By :
II thereof. Writ petitioner as the family member of the missing employee
CHINMOY
CHAKRABORTY
High Court of
Calcutta
4 th of September
2024 05:48:48 PM
lodged a police complaint. First condition of the Memorandum dated
February 22, 2012 was satisfied by the writ petitioner. The second condition
will be fulfilled immediately on the decision by the employer to disburse the
death cum retiral benefit of the missing employee as also the family pension.
16. Clause 6 of the Memorandum dated February 22, 2012 prescribes
that, before sanction of family pension it may also be confirmed that missing
employee was declared dead in terms of Evidence Act, 1872.
17. In the facts and circumstances of the present case, learned Single
Judge, noted the result of the Civil Suit filed by the writ petitioner.
Nonetheless, taking into consideration the fact that the missing employee is
not being heard of since April 4, 2003 or at least since October 4, 2004,
proceeded to pronounce a declaration in terms of Section 108 of the Indian
Evidence Act, 1872. Learned Single Judge prescribed a date of May 7, 2003
to be the date on which the missing employee is required to be considered as
dead.
18. Without entering into the controversy as to whether the learned
Single Judge was correct prescribing a date of death suffice it to say that,
adate is required for the purpose of commencement of family pension. The
date prescribed by the learned Single Judge should be taken as such.
19. Learned Single Judge ascribed reasons as to why he arrived at the
date of May 7, 2003. We find no reason to interfere with such finding of the
learned Single Judge.
Signed By :
CHINMOY
CHAKRABORTY
High Court of
Calcutta
4 th of September
2024 05:48:48 PM
20. Anuradha (supra) deals with the scope of presumption under
Section 108 of the Evidence Act, 1872. It states that although Section 108 of
the Evidence Act, 1872 allows a person to be presumed dead, there is no
presumption as to the date and time of death. The employee of the appellant
is missing at least since October 4, 2004 if not earlier. Conditions prescribed
by the Memorandum dated February 22, 2012 of the Finance Department
stands satisfied.
21. In such circumstances, we find no merit in the instant appeal.
22. MAT 1672 of 2024, along with connected application being
CAN/1/2024, is dismissed without any order as to costs.
23. Urgent photostat certified copy of this order, if applied for, be given
to the parties on priority basis on compliance of all formalities.
(Debangsu Basak, J.)
24. I agree.
(Md. Shabbar Rashidi, J.)
CHC
Signed By :
CHINMOY
CHAKRABORTY
High Court of
Calcutta
4 th of September
2024 05:48:48 PM
