Indrakala Devi vs The State Of Assam And 6 Ors
2021 Latest Caselaw 1370 Gua

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GAHC010049432018




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/1681/2018

         INDRAKALA DEVI
         W/O. LT. LOKNATH SARMA, R/O. JAIL ROAD, NAGAON, P.S. SADAR, DIST.
         NAGAON, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 6 ORS.
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, EDUCATION
         (ELEMENTARY) DEPTT., DISPUR, GHY.

         2:THE DIRECTOR

          ELEMENTARY EDUCATION DEPTT.
          ASSAM
          KAHILIPARA
          GHY.

         3:THE PRINCIPAL ACCOUNTANT GENERAL (A AND E)

          MAIDAMGAON
          BELTOLA
          GUWAHATI

         4:THE SECRETARY
         TO THE GOVT. OF ASSAM
          PENSION AND PUBLIC GRIEVANCES DEPTT.
          DISPUR
          GHY.

         5:THE DIST. ELEMENTARY EDUCATION OFFICER

          NAGAON
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             ASSAM

             6:THE INSPECTOR OF SCHOOLS

             NAGAON DISTRICT CIRCLE
             NAGAON
             ASSAM

             7:THE DY. INSPECTOR OF SCHOOLS

             NAGAON
             ASSA

Advocate for the Petitioner    : MS. P BARMAN

Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 08-04-2021

JUDGMENT & ORDER (ORAL)

Heard Ms. P Barman, learned counsel for the petitioner. Also heard Mr. J Abedin, learned Amicus Curiae in the matter, Mr. PN Sarma, learned counsel for the authorities under the Elementary Education Department, Government of Assam and Mr. B Deori, learned counsel for the Pension and Public Grievance Department, Government of Assam. None appears for the respondent No.3 being the Accountant General (A&E), Assam.

2. The husband of the petitioner namely Loknath Sarma was a Grade IV employee in the Office of the Deputy Commissioner, Nagaon having been appointed as per Order No.2947-48 dated 28.03.1967. Although initially the appointment of the petitioner was on a temporary basis, but subsequently as per letter No.FEG152/58/167 dated 23.03.1980 of the Finance Department of the Government of Assam and the letter No.AAPO 1/61/71/16239-44 dated 16.06.1978 of the Deputy Inspector of Schools, his services were regularized and subsequently confirmed as per the order bearing Memo No.C- 13/85/7886-06 dated 23.11.1987 of the District Elementary Education Officer, Nagaon.

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3. Admittedly, the petitioner was in a pensionable service as can be inferred from the service particulars narrated above. While the petitioner was in service, he went missing from the afternoon of 12.04.1993, while he was on duty. For the purpose, an FIR was lodged by the Deputy Inspector of Schools on 13.04.1993 at Nagaon Sadar Police Station resulting in Nagaon PS GDE No.535 dated 17.04.1993. The petitioner being the wife also lodged an FIR dated 16.04.1993. It is stated that the fact that the husband of the petitioner was missing was also published in some of the local dailies, namely, 'Dainik Janambhumi' and 'Ajir Batori' and the Doordarshan at the relevant point of time also had telecast the news that the husband of the petitioner was missing.

4. In the circumstance, the petitioner has instituted this writ petition for payment of family pension w.e.f. 12.04.1993 i.e. the date on which the husband of the petitioner went missing.

5. In course of hearing, certain objections have been raised by the respondent authorities by referring to the provisions of Rule 143-A of the Assam Services (Pension) Rules, 1969 that as required under Rule 143-A(3)(i), no report of the concerned Police Station is available and, therefore, the petitioner would not be entitled to the family pension under Rule 143-A.

6. Rule 143-A(1) provides that when an employee disappears leaving behind his family, the family may be paid at the first instance an amount of salary due, leave encashment due and amount of GPF having regard to the nomination made by the employee. Rule 143-A(2) provides that after a lapse of a period of one year other benefits like death-cum-retirement gratuity/family pension etc., may also be granted to the family subject to fulfillment of the conditions prescribed therein. Rule 143-A(3) provides that in order to have the benefits of Rule 143-A(1) and (2), the family of the employee who had disappeared must lodge a report with the concerned Police Station and also obtain a report that the employee had not been traced out after all the efforts that had been made. Rule 143-A(5) provides that the date of disappearance of the employee shall be reckoned from the date of issue of the report of the concerned Police Station stating that the employee has not been traced out after all efforts being made and further the period of one year for the purpose of sanction of the death-cum- retirement gratuity shall be on the basis of the date of the report of the Police.

Provisions of Rule 143-A is extracted as below:

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"143-A- The family pension and death-cum-retirement gratuity to the families of Government servant who suddenly disappears leaving their families and whose whereabouts are not known shall be granted after observing the following formalities-

(1) When an employee disappears leaving his family, the family may be paid in the first instance the amount of salary due, leave encashment due and the amount of G.P.F. having regard to the nomination made by the employee.

(2) After the elapse of a period one year as provided under sub-rule(5) below, other benefits like death-cum-retirement gratuity/family pension may also be granted to the family subject to the fulfilment of conditions prescribed in the following sub-rules.

(3) The above benefits may be sanctioned by the Head Offices after observing the following formalities-

(i) The family of disappeared employee must lodge a report with the concerned police station and obtain a report that the employee has not been traced after all efforts had been made.

(ii) An Indemnity Bond as per Annexure-I shall be taken from the nominees/dependents of the employee that all payments shall be adjusted against the payment due to the employee in case he appears on the scene and makes any claim.

(4) The head of Offices shall assess all Government dues outstanding against the Government servant and effect their recovery in accordance with the provisions laid down in clause 7(seven) of the Office Memorandum No.FMP.14/86/23, dated 26.5.87 and other instructions in force for effecting recovery of the Government dues.

(5) The date of disappearance of the employee shall be reckoned from the date of issue of the report by the concerned police station stating that the employee has not been traced out after all efforts had been made and the period of 1(one) year from which the benefits of family pension and Death-cum-Retirement Gratuity are to be sanctioned shall also be reckoned from this date.

(6) The family should apply to the Head of Office of the Government servant for grant of family pension and Death-cum-Retirement gratuity after 1(one) year from the date of disappearance of the Government servant in accordance with the prescribed procedure for Page No.# 5/8

sanction of family pension and death-cum retirement gratuity as contained in OM No.FMP.14/86/23 dt. 26.4.87.

Note - In case the disbursement of death-cum-retirement gratuity is not affected within 3(three) months from the date of application received from the applicant along with necessary documents the interest shall be paid at the rates applicable and responsibility for the delay shall be fixed.

(7) Other rules and procedures of the Assam Services (Pension) Rules, 1969 shall apply in setting the cases under this rule wherever necessary."

7. A reading of the provisions of Rule 143-A goes to show that the same is a provision within the Assam Services (Pension) Rules for immediate payment of the salary due, leave encashment due and GPF to the family of an employee who had disappeared leaving behind his family members and further for the death-cum-retirement gratuity after a period of one year of such disappearance. The benefits of Rule 143-A(1), and (2), is a special benefit for the family of a disappeared employee, over and above, the regular retirement benefit provided under the Assam Services (Pension) Rules 1969, and for availing the special benefit, the conditions prescribed under Rule 143-A would have to be satisfied.

8. In the instant case, we have taken note of that a period of seven years had already elapsed since the husband of the petitioner Loknath Sarma went missing and there are also two FIRs on record to indicate that both the office where the husband of the petitioner worked as well as the petitioner, who is the wife of the disappeared employee have lodged their respective FIRs. From the said point of view, we can prima facie conclude that, in fact, the husband of the petitioner went missing from the given date i.e. 12.04.1993. If the stage of the petitioner for claiming the special benefit under Rule 143-A is already over by lapse of time, we find it unacceptable for the respondent authorities to deny the family pensionery benefits to the petitioner, pursuant to such other provisions of the Assam Services (Pension) Rules 1969 and other related law inasmuch as, the appropriate period of time during which the benefit under Rule 143-A(1) and (2) could have been given is already over.

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9. If the benefits of family pension to be given to the petitioner would now not be governed by Rule 143-A(1) and (2), we are of the view that the respondent cannot continue to insist upon the condition precedents of Rule 143-A i.e. 143-A(3) and (5) that the date of disappearance of the employee would have to be reckoned from the date of police report which in the present case is stated to have been made after a period of 16 years from the date of lodging of the FIR. The absurd act on the part of the police authorities in not giving the report at the appropriate point of time cannot be a reason to deprive the petitioner of her legal right to which she may be otherwise, entitled under the other provisions of the Assam Pension Services (Pension) Rules, 1969.

10. In this respect, we are of the view that the provisions of Section 108 of the Evidence Act would be applicable. Section 108 of the Evidence Act is extracted below:

"108. Burden of proving that person is alive who has not been heard of for seven years.-- 1[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 2[shifted to] the person who affirms it.

--1[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 2[shifted to] the person who affirms it."

11. A reading of Section 108 of the Evidence Act goes to show that the question whether a man is alive or dead would be proved, if he has not been heard of for seven years by those who would naturally have heard of him, if he had been alive and the burden of proving that he is still alive is shifted to the person who affirms it. If the respondents are of the view that the petitioner would not be entitled to family pension as because her missing husband is still alive, such burden would be on the respondent authorities to show from the records that he is still alive, but the materials on record show that such burden has not been discharged. Secondly, the petitioner who is the wife would be the natural person to have heard of her husband being alive and in the absence of any material to show the petitioner and her husband were not living separately, it has to be understood that the petitioner is the natural person to have heard of her husband being still alive. Further, there is nothing on record to arrive at any conclusion that the petitioner had filed any false FIR regarding the missing of her husband, more so, in view of the fact that the office where the husband of the petitioner was working had also filed a similar FIR.

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12. Consequently, it is pre-emptly a fit case where Section 108 of the Evidence Act can be invoked and it can be accepted that the husband of the petitioner is deemed to be not alive since on the expiry of seven years from 12.04.1993 i.e., the date on which he went missing.

13. As the husband of the petitioner was holding a pensionable service as concluded above and secondly, under the law he is to be understood to have been dead on and from 12.04.2000, we are of the view that the petitioner would be entitled to family pension under Rule 143 and not 143-A from the said date. Consequently, the respondents are directed to work out the entitlement of the petitioner for family pension from 12.04.2000 i.e. the date from which under the law, the husband of the petitioner is no more.

14. It is stated that in the meantime, the family pension is being paid to the petitioner from 15.02.2010. In view of the above, the respondents to work out the entitlement of the petitioner for family pension under Rule 143 of the Assam Services (Pension) Rules 1969 for the period between from 12.04.2000 to 15.02.2010.

15. The above requirement be done within a period of three months from the date of receipt of a certified copy of this order and the same be done conjointly by all the respondents.

16. Secondly, we further provide that although Rule 143-A (3)(i) provides that the family of the deceased employee must lodge a report with the concerned police station and obtain a report that the employee has not been traced after all efforts had been made, we are constraint to observe that although the onus is on the family of the disappeared employee to obtain a report and it also cannot be denied that the police station concerned had not provided the report for a period up to 16 years.

17. The respondents to also take note of the aforesaid circumstance and pass an order as to whether in the facts and circumstance of the present case, the petitioner would be entitled to any further benefit under Rule 143-A, as it is not a case where it cannot be said the petitioner had not obtained the report of missing of her husband, but it is a case where the police had not provided for a Page No.# 8/8

report of the missing. A dereliction of duty by one authority cannot be a reason for another authority to act against the entitlement of the legal rights of a person. For the purpose the pronouncement of this Court rendered in Min Bahadur Thapa Vs. State of Assam and Ors . reported in 1999 (1) GLT 124 may also be taken into account.

18. It is further stated that a third FIR on the issue has also been lodged by the Deputy Commissioner, Morigaon on 07.07.1995.

19. Writ petition stands disposed of in the above terms.

JUDGE

Comparing Assistant