Smt. Geeta Devi vs The Union Of India
2008 Latest Caselaw 1993 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI


+                         WP (C) No.5496 of 2005


%                                       Date of decision: 11.11.2008


SMT. GEETA DEVI                                    ...PETITIONER
                            Through:    Mr. C.M. Khanna, Advocate.


                                    Versus


THE UNION OF INDIA                                 ...RESPONDENTS
                            Through:    Mr. Jaswinder Singh, Advocate.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?           No

2.        To be referred to Reporter or not?            No

3.        Whether the judgment should be
          reported in the Digest?                       No

SANJAY KISHAN KAUL, J. (Oral)

1. Rule DB.

2. At the request of the learned counsels for the parties, the

petition is taken up for final disposal.

3. The son of the petitioner, Rajendra Kumar, was recruited

for service in the Navy on 31.1.1996 and sent to INS

Chilka for basic training. Rajendra Kumar on completion

of his basic training is stated to have been given twenty-

eight (28) days leave in August 1996 and he again

reported back in September 1996 to join the INS Shivaji

at Lonavala. Rajendra Kumar is reported to have

disappeared on 1.1.1997 and it is the case of the

petitioner (mother of Rajendra Kumar) that Rajendra

Kumar has neither come back home nor heard of

thereafter.

4. The respondents presumed that Rajendra Kumar is a

deserter even though he has not been arrested or

located. The respondents state that they issued warrants

for apprehension but Rajendra Kumar could not be

apprehended.

5. A submission was advanced before us by learned counsel

for the petitioner that Rajendra Kumar must be presumed

to be dead and not a deserter in which case she would be

entitled to Dependant Family Pension with even only one

(1) year service rendered by Rajendra Kumar. Learned

counsel sought to rely upon the provisions of Section 108

of the Indian Evidence Act, 1872 (hereinafter referred to

as the said 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."

6. At the stage when learned counsel for the petitioner

advanced the said plea on 16.5.2008, learned counsel for

the respondents relied upon the judgement of the

Supreme Court in LIC of India Vs. Anuradha AIR 2004 SC

2070 to contend that the occasion for raising the

presumption would arise only when the question is raised

in a Court, Tribunal or before an authority who is called

upon to decide as to whether a person is alive or dead.

Learned counsel for the respondents, thus, expressed his

willingness to hold an inquiry in that behalf and submit a

report in this Court.

7. The report of the inquiry held has been produced before

us today. The report shows that the petitioner and the

family members have co-operated in the inquiry and

statements of other persons serving along with Rajendra

Kumar have been recorded. It emerges from the

proceedings filed before us of the inquiry that the

persons who were the colleagues of Rajendra Kumar and

whose statements were recorded have only stated that

they came to know that Rajender Kumar had run away

from the establishment. Nobody affirmed to any

personal knowledge of the same. There appears to be no

attempt to determine the activities first before Rajendra

Kumar was found missing or from any person who had

last seen him. Interestingly a reference has been made

to a letter alleged to have been received by INS

Vendhuruthy to the effect that Rajendra Kumar had

informed him that he was not interested in service and

wanted to be relieved. A copy of this letter is, however,

not available and is stated to be mentioned in an inter-

departmental communication dated 10.4.1997.

8. We must express our displeasure in respect of the

manner in which endeavour was made to trace out the

missing sailor. There appears to have been no serious

attempt and it was presumed that he had run away. Not

only that if such a letter came to be received, prudence

would have required that from the postal stamps or the

address on the envelope of the letter endeavour should

have been made to locate the sailor. Admittedly, no such

endeavour was made and care was not even taken to

preserve the letter.

9. The conclusions drawn by the inquiry, which is held are

as under:

"Conclusion

12. Based on the analysis of findings, available records, interview of 09 sailors of DEME Course No.60.672 and interview of parents of Rajendra Kumar, Ex-DEME, No.118692-F, the conclusions drawn are appended below:-

(a) The individual went missing on 01 Jan 1997.

(b) At INS Shivaji, he was in a comfortable state and he had no problems associated with his training. In his last communication, with his parents vide letters on 23 and 26 Dec 1996, the individual has mentioned that he was all right and his training was going on well.

(c) After the individual went missing, all efforts were made to search the sailor, in and around the establishment as per standard procedure. Local Police Station (Lonavla City Police Station), was also approached to locate the individual, but he was not found, nor was there any abnormal incident reported.

(d) From the available records, there is a mention in INS Shivaji letter No.2039/2 dated 10 Apr 97, addressed to INS Vendhuruthy, that a letter had been received from the individual, stating that he is not interested in service and he wants to be relieved. However, a copy of the same is not held with the establishment, view the long passage of time.

(e) Shri Hariram, in his letter to INS Shivaji dated 10 Jan 1997, has mentioned about his son joining Navy, despite his opposition. Upon asking him the reason, he replied that he had opposed because age of his son was less at the time of joining Navy.

(f) The parents of the individual, did not visit INS Shivaji, Lonavla, even once in the past 12 years to enquire about their son, after Rajendra Kumar was reported missing on 01 Jan 1997.

(g) The whereabouts of the individual, as also whether he is dead or alive could not be established after interviewing some of his batchmates and his parents.

(h) The parents of the individual, are in satisfactory financial condition."

10. The conclusions show that the sailor was comfortable and

had no problems associated with his training. In fact, he

had communicated so to his parents. A reference has

been made to the missing letter addressed to INS

Vendhuruthy. The mere fact that the parents of the

sailor did not visit Lonavala cannot result in drawing of

adverse inference when it was found that the parents of

the sailor had co-operated with the local police in the

inquiry. In fact the conclusion in sub-para (g) is that no

firm conclusion could be arrived at whether the sailor is

dead or alive.

11. A period of seven (7) years has elapsed and we, thus, see

no reason why a presumption should not be drawn in

favour of the sailor being dead in terms of Section 108 of

the said Act.

12. We may note at this stage that a Division Bench of the

Orissa High Court in Smt. Puspa Gurang Vs. Joint

Assistant Director (Welfare), CRPF, Lodhi Road, New Delhi

& Ors. 86 (1998) CLT 379 had occasion to adversely

comment upon such procedure where a jawan is

presumed as a deserter by taking disciplinary steps in his

absence and the same is brandished against his relatives

while considering the grant of pensionary benefits.

13. We fail to appreciate as to how the respondents could

have declared the sailor a deserter without taking

adequate steps in this behalf as noticed above. If the

sailor was missing and could not be located and there

was sufficient material in that behalf, the respondents

were required to wait for the requisite period of seven (7)

years before they could draw any conclusion.

14. Insofar as the grant of pensionary benefits to the

petitioner are concerned, the same are naturally

dependent on the norms applicable for grant of such

pension including the dependency. The respondents

would have to look into that aspect and come to a

conclusion to determine the entitlement of the petitioner

but of course on the presumption that the sailor is dead.

15. The respondents to take necessary steps within a period

of three (3) months from today and in case the petitioner

is found eligible for such dependent pension, the amount

be paid to the petitioner including the arrears {for the

period starting from the completion of seven (7) years

from the date the sailor was found missing} within a

period of two (2) months thereafter.

16. The petitioner would also furnish appropriate indemnity

for restitution of the amounts paid in case at any

subsequent stage of time it is found that the sailor (son

of the petitioner) was or is alive after he went missing.

An affidavit/undertaking should also be furnished to the

effect that the sailor has never contacted the petitioner

or any family member nor are they in the know of his

existence.

17. In case of any adverse finding on the issue of

dependency, a reasoned order should be communicated

to the petitioner within a period of three (3) months.

18. The petition accordingly stands disposed of.

19. Dasti to learned counsels for the parties.

SANJAY KISHAN KAUL, J.

NOVEMBER 11, 2008 SUDERSHAN KUMAR MISRA, J. b'nesh