Maitreyee Goswami vs The State Of Assam And 8 Ors
2021 Latest Caselaw 3126 Gua

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GAHC010155202017




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

                        Case No. : WP(C)/8064/2017

         MAITREYEE GOSWAMI
         W/O NITYA NARAYAN GOSWAMI R/O FLAT NO. A-1102, SAI VISION,
         PIMPLE SAUDAGAR, PUNE-411027



         VERSUS

         THE STATE OF ASSAM and 8 ORS.
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT.OF ASSAM,
         AGRICULTURE DEPARTMENT, DISPUR, GUWAHATI-6.

         2:THE DIRECTOR OF AGRICULTURE
         ASSAM, KHANAPARA, GUWAHATI-22

         3:THE AGRICULTURE OFFICER, DHUBRI

         4:THE SUB-DIVISIONAL AGRICULTURAL OFFICER
          SOUTH SALMARA, HATSINGIMARI, DHUBRI
         ASSAM

         5:THE DEPUTY COMMISSIONER
          DHUBRI, ASSAM
         6:THE JOINT-DIRECTOR OF AGRICULTURE
          DHUBRI, ASSAM,
         7:THE SUPERINTENDENT OF POLICE
          DHUBRI, ASSAM

         8:THE SUPERINTENDENT OF POLICE
          SONITPUR
         ASSAM

         9:THE DIRECTOR OF PENSION
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             ASSAM
             NAHARONI PATH
             HOUSEFED
             DISPUR
             GUWAHATI
             ASSAM-781006

            10:PRINCIPAL ACCOUNTANT

             GENERAL (A ANDE) ASSAM
             MAIDAMGAON
             BELTOLA
             GUWAHATI-2

Advocate for the Petitioner   : MR.M DUTTA

Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

Date : 26-11-2021

Date of hearing : 16.11.2021

JUDGMENT & ORDER(CAV) The case of the petitioner, as projected are as under:

(i) The petitioner is the wife of one Nitya Narayan Goswami, former sub Divisional Agricultural Officer, South Salmara who has been missing since 24.10.1997. According to the petitioner such missing information was duly intimated to the departmental authority and according to the petitioner, the departmental authority lodged required information before the jurisdictional police station.

(ii) According to the petitioner though the husband of the petitioner is Page No.# 3/11

missing, no pensionary benefits (family Pension) were granted to the petitioner and having no alternative, after a long wait, the petitioner approached this court by way of WP(C) 721 /2009 for granting her family pension. The said writ petition was disposed of vide order dated 9.12.2009, directing the respondents to complete the entire process of granting the family pension and other service benefits including fixation benefit as expeditiously as possible, but not later than in the end of February, 2010. Accordingly, the learned counsel for the petitioner submits that this Court came into a conclusion that the petitioner was entitled for family pension for the reason that the husband of the petitioner has been missing since 1997.

(iii) Learned counsel Mr. Dutta also submits that in the earlier writ proceeding the respondent Superintendent of Police, Dhubri, took a stand that the petitioner's husband could not be traced out in spite of best efforts and vigorous enquiry, though such search was started immediately, with a W.T. message addressed to all Officers-in-charge of police stations in Assam. Therefore, according to Mr. Dutta, it is admitted position that search was started immediately but husband of the petitioner could not be traced out.

(iv) According to Mr. Dutta though family pension was paid vide Pension Payment Order (PPO) No. 903703038783 dated 9.10.2014 ( annexure 13 to this writ petition ) but the same was given w.e.f. 6.9.2014

(v) While taking this court to the PPO dated 9.4.2019, the learned counsel submits that, in the said PPO, the date of death has been presumed as 24.10.1997 by the respondent authorities. Therefore according to the learned counsel for the petitioner by stretch no imagination the pension could have been granted w.e.f. 6.9.2014 ignoring the date of death as presumed by the respondent authorities themselves i.e. from 24.10.1997.

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(vi) Mr. Dutta submits that, such action is illegal, arbitrary and liable to be interfered with more so in view of the provision of Section 107 and 108 of the Indian Evidence Act, 1872. According to Mr. Dutta, there is a presumption under 108 of the Indian Evidence Act, 1872 that when a question is involved, whether a man is alive or dead and it is proved that, he has not been heard for seven years, who would naturally have heard him, if he had been alive, the burden of proving that he is dead is on the person who affirms it. Therefore since the respondent themselves has admitted in the PPO and treated the date of death of the husband of the petitioner to be 24.10.1997, the petitioner is entitled to have family pension from the said date and not from the death as granted i.e. 6.9.2014.

2. Contention of the respondents

Though no affidavit has been filed, it is contended by the respondent authorities that such kind of family pension of missing of Government employee is regulated by Rule 143 A of the Assam Services (Pension) Rules, 1969 ( the Pension Rule for short). The learned counsel submits that, Under Secretary to the Govt. of Assam, Agricultural Department vide its communication dated 17.9.2014 intimated the Accountant General (A&E), Assam that the final police report was issued on 6.9.2013 and therefore the family pension needs to be allowed to the family of the missing person after completion of one year from the date of issue of final police report as per Rule 143 B of the Rules.

According to the respondent counsel Rule 143 A mandates the following :

(i) When an employee disappeared living his family, family shall be paid in the first instance the salary due , leave Page No.# 5/11

encashment and the GPF amount.

(ii) After elapse of a period of one year all other benefits like DCRG/ family pension, may also been granted as per sub Rule 5 of the Rule subject to fulfillment of certain condition.

(iii) The said sub Rule 5 provides that the date of disappearance should be reckoned from the date of issuance of the report by the concerned police station and the period of one year after which the benefits of family pension and DCRG are to be sanctioned shall also been reckoned from his death. In the case in hand, such report was given on 6.9.2013 and therefore the pension has been granted w.e.f. one year thereafter on 6.9.2014. Therefore, no illegalities have been committed and the pension has been calculated as per mandate of Section 143A.

3. Reply Argument of the Petitioner:

(I) Rule 143 A of the Rules and its requirement for a police report, is to confirm the factum of disappearance of the person, so that benefits under Rule 143-A can be granted to the family. And such application of Rule 143 A will become redundant, after seven years of the date of disappearance and after elapse of seven years, the provision of Section 108 of the Evidence Act,1872 will come into play and the requirement of police report will have no relevance.

(II) According to Mr. Dutta, the procedure as laid down in Rule 143A of the Rules for determination of the date of disappearance is necessary within a period of one year from the Page No.# 6/11

date disappearance, as family pension, as per the Mandate of the Said Rule 143A, needs to given after one year of payment of Salary due/ GPF/ leave encashment. In this regard Mr. Dutta relies upon the judgment and order dated 6.9.2021, passed in WP(C) No. 5665/2020 (Rekhamani Deka Das vs. State of Assam). The relevant paragraph-14 as relied by Mr. Dutta is restated herein below:

"In the instant case, when more than seven years have elapsed and Section 108 of the Evidence Act, 1872 is applicable, we are of the view that the requirement of Rule 143 A of the Assam Services(Pension) Rules 1969 for a police report in order to confirm the disappearance of the person for providing the benefits under the Rule 143-A has in the meantime become redundant. The presumption of law under Section 108 of Evidence Act, 1872 would now be the basis to arrive at the conclusion of the disappearance of the government employee . After the passage of seven years when the provision of Section 108 of the Evidence Act, 1872 is already attracted in the matter, the requirement of Rule 143 A of the Assam Services(Pension) Rules, 1969 to have a police report to initiate the process under the said Rule is not no longer relevant."

4. Findings of the Court:

I have given anxious considerations to the submissions made by the learned counsels for the Parties.

A bare reading of Rule 143 A(1) of the Rules,1969 will make it clear that, the same has been incorporated to provide for immediate relief to the family of the disappeared employee by paying salary due, leave encashment due and the GPF. There is no condition precedent for such grant that the person missing needs to be either presumed to be dead or any need of police report. The said amount mandated to be paid immediately.

Sub Rule 2 of Rule 143A of the Rules mandates for payment of benefits like DCRG / family pension etc subject to the condition as envisaged in Sub Rule 3 and 5.

The Sub Rule 2 of the Rule 143A mandates for a procedure regarding action to be taken after elapse of one year from the date of disappearance i.e. after Page No.# 7/11

compliance of Sub Rule 1 of Rule 143A. It is clear from the said Sub Rule 2 of the Rule 143A that Family pension needs to be paid after one year of disappearance of the Government Servant. However, such procedure is subject to the compliance of Sub Rule 3 and Sub Rule 5 of the said Rule 143A.

5. The Sub-Rule 5 provides for reckoning of date of disappearance of the employee. According to the said Rule, the date of disappearance shall be reckoned from the date of issue of the report by the jurisdictional police to the effect that the employee has not been traced out after all efforts had been made. The said Sub-Rule 5 also mandates that the period of one year, after which the benefits of family pension and DCRG are to be sanctioned, shall also be reckoned from the said date.

If a literal meaning of "submission of Police Report" is given, to the effect that until and unless Police Report is submitted as provided, the respondent authority cannot grant family pension, then a situation will arise, where the family is to wait till the police report as mandated is given and the same may create a situation, where the object of the beneficial intent and emergent relief sought to be given by the mandate of Rule 143A will be defeated.

6. This Court is of the view that to achieve the object and intent of the Rule 143A and to redress the distress of the family, a responsibility is also caste upon the jurisdictional police, that within a reasonable time, it needs to submit the report. The Employer as well as the Family of the disappeared employee cannot be allowed to helplessly wait and suffer for want of a police report to give/get benefit of family pension. Therefore, the Police needs to submit the Report as mandated in the Rule 143A of the Rules within a reasonable period of time, so that benefit of an emergent and beneficial Rule meant for granting family Pension to a family in distress can be granted.

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Having held so, now the question comes, what will be such reasonable time. The Sub Rule 2 of Rule143A itself provides that Family pension and DCRG be granted after one year from the date of disappearance subject to the Police Report. Therefore, reasonable period for police to give such report, in such a situation, should preferably be, the said period of one year, however, subject to any reason beyond the Control of the jurisdictional police. Otherwise, a serious difficulty will arise in implementing the mandate of sub Rule 2 of the Rule 143 A, as has happened in the case in hand. The respondent authority by taking the literal meaning of Rule 5 granted family pension to the petitioner after 17 years of the husband of the petitioner gone missing and the police has submitted its report after 16 years of the petitioner's husband gone missing, that too on an admitted fact that immediately, after disappearance of the husband of the petitioner, search was started.

So, far relating to Argument of the learned Counsel for the petitioner, regarding the presumption of death and the date, this court needs to first take into consideration Section 107 of the Indian Evidence Act. Section 107 of the said Act provides that when a question arises whether a person is dead or alive, and if such person was alive within 30 years of the question being raised, the burden of proof that he is dead is on the person who affirms it. However, such burden under Section 107 of the Act is subject to the mandate of Section 108 of the Act. Section 108 contemplate that when the whereabouts of a person is not known to such person who would have heard of him for a period of 7 years, the burden of proving that the said person is alive, shifts to the person who affirms it .

While concurring with the view taken in Rekhamoni Deka (Supra), this Court is of the view that the need of police report to confirm the disappearance Page No.# 9/11

of the person for providing the benefits under the Rule 143-A may not be necessary when police fails to submit Report for more than seven years from date of disappearance elapse and in such a situation, recourse to the provision of Section 108 needs to be taken so as to determine entitlement of grant family Pension under Rule143A of the Pension Rules.

In Amrana Begum Mazumdar Vs State of Assam and others reported in 2006 (1) GLT 604, the provision of Sections 107 and 108 of the Evident Act have been

discussed. In the aforesaid decision, this court took note of different pronouncement on this point, of the Hon'ble Apex Court and came to a conclusion that under Section 108, the presumption can be drawn after elapse of 7 years regarding the death of the person as aforesaid but no presumption regarding the date of death can be taken. It was also conclusion in the said judgment that the family pension can be granted at least from the date, from which the presumption can be made.

In yet another case of Bandita Sarkar Vs. State of Assam and others reported in 2015 (2) GLT 1042 it was held that the effective date of payment of family pension

will have to be counted from a date, which is 7 years after the date of disappearance.

In view of the aforesaid legal proposition, this court is of the view that though presumption of death can be taken under Section 108, no further presumption regarding the date of the death can be taken under the said Provision nor a presumption is permitted to the effect that the person has died on the date of the disappearance. Such view of this Court is supported by the decision of the Hon'ble Apex Court in LIC of India vs Anuradha reported in (2004) 10 SCC 131. In para 14 the Hon'ble Apex Court held as under Page No.# 10/11

"14. On the basis of the above said authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words. The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years, the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who s life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An 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. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise."

7. In view of the aforesaid findings of this Court and judicial pronouncements, this Court holds that petitioner is entitled for pension with effect from 9.7.2004 i.e. 7 years from the date of the husband of the petitioner went missing i.e (24.10.1997).

8. Accordingly, the impugned decision to grant family pension to the petitioner w.e.f. 6.9.2014 is interfered with and the respondent authorities are directed to calculate and pay family pension to the petitioner w. e. f. 24.10.2004 with arrear due, within a period of two months.

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Rule 197A of the Pension Rules provides for interest on delayed payment of Pension and Gratuity. The procedure for determination of such interest is clearly stipulated in the said Rule. The jurisdiction and responsibility to determine such entitlement of interest is vested upon the Secretary of the Department. This Court has interfered with impugned decision and held that the petitioner is entitled for family pension w.e.f. 9.7.2004. Therefore, the Departmental Secretary i.e. Secretary to the Department of Agriculture is directed to exercise his power under Rule 197A(2) of the Pension Rules 1969 and pass a speaking order taking note of relevant materials including the findings and observations made in the present order. Such exercise should be done within a period of two months from receipt of this order.

With the above observations, findings and directions, this writ petition is allowed.

The Parties shall bear their own Costs.

JUDGE

Comparing Assistant