Shri Phanjoubam Birahari Singh vs The State Of Manipur Represented ...
2023 Latest Caselaw 197 Mani

                                                     [1]
SHOUGRAK Digitally signed by
         SHOUGRAKPAM
PAM      DEVANANDA
DEVANAND SINGH
         Date: 2023.05.31
A SINGH  12:22:04 +05'30'           IN THE HIGH COURT OF MANIPUR
                                               AT IMPHAL
                                       W.P. (C) No. 1047 of 2015


       Shri Phanjoubam Birahari Singh, aged about 65 years, S/o (L) Ph.
       Tomal Singh of Andro Khuman Leikai, P.O. Yairipok, P.S. Andro Imphal
       East District, Manipur.
                                                                                ... Petitioner
                                          -Versus-

         1. The State of Manipur represented by the Principal Secretary
            (Home), Government of Manipur, Manipur Secretariat at Babupara.
         2. The Director General of Police, Manipur, Manipur Police Head
            Quarters at Imphal.
         3. The Commanding Officer, 2nd Indian Reserve Battalion, Manipur at
            Khuman Lampak, Imphal.
                                                              ... Respondents

B E F O R E HON'BLEMR. JUSTICE AHANTHEMBIMOL SINGH For the Petitioner :: Mr. Kh. Samarjit, Sr. Advocate asstd. by Mr. Armananda, Advocate For the respondents :: Mr. Niranjan Sanasam, GA Date of Hearing :: 27-04-2023 Date of Judgment & Order :: 31-05-2023

JUDGMENT & ORDER

[1] Heard Mr. Kh. Samarjit, learned senior counsel assisted by

Mr. Armananda, learned counsel appearing for the petitioner and Mr.

Niranjan Sanasam, learned GA appearing for the respondents.

[2] The petitioner filed the present writ petition with the prayer for

directing to pay the retiral and other benefits including family pension due

payable to his son, who was serving as Rifleman in the Manipur Police [2]

Department, by quashing the suspension order dated 18-08-2005 and

removal order dated 14-07-2006.

[3] The brief facts of the present case is that the petitioner's son, viz.,

Shri Ph. Premkumar Singh, was serving as a Rifleman in the 2nd Indian

Reserve Battalion and he was posted in the 'C'-Company of the 2nd IRB,

however, at the relevant point of time, he was attached to the Commando

Unit of the Moirang Police Station. On 28-04-2005, the Commandant, 2nd

IRB sent an official message to the petitioner through a special messenger

intimating that the petitioner's son along with one of his friends absented

from his post since 13-03-2005 and both of them did not returned back to

the post and that their whereabouts are not known till that date. The

petitioner was also requested to trace out his missing son and to hand him

over to the Unit at the earliest.

[4] It is the case of the petitioner that soon after receiving the

message dated 28-04-2005 about the missing of his son, the petitioner

promptly went to the office of the Commandant, 2nd IRB to enquire about

the whereabouts of his missing son as his son did not returned home and

the petitioner also requested the Commandant to trace out his missing son.

Subsequently, on several occasions the petitioner went to the office of the

Commandant, 2nd IRB and requested the Commandant to find out his

missing son as the petitioner could not trace out any whereabouts of his

missing son. The Commandant always assured the petitioner that the

authorities are trying their level best to trace out the whereabouts of the

petitioner's missing son by sending out hue and cry notice to all the forces/ [3]

guards of the Unit including all the Police Stations in Manipur directing them

to apprehend the missing personnel if found in their jurisdiction and to hand

him over to the unit. When the petitioner did not get any positive result

from the side of the respondents, he submitted a missing report dated

09-08-2007 to the Officer-in-Charge of Moirang Police Station with the

request for tracing out the whereabouts of his missing son by registering a

regular FIR case, however no positive response was forthcoming from the

side of the police also.

[5] Instead of making an all-out effort for tracing out the missing

personnel and despite having knowledge that the petitioner's son is

missing without any clue, the Commandant, 2nd IRB issued an order dated

18-08-2005 placing the missing son of the petitioner under suspension in

contemplation of a Departmental Enquiry. Thereafter, a Departmental

Enquiry was initiated against the missing son of the petitioner by issuing a

Memorandum dated 19-08-2005 and by framing charges against the

petitioner's son that he absented himself from his place of posting w.e.f.

01-08-2005 till 18-08-2005 without any leave or permission from the

competent authority.

On receiving the said Memorandum, the petitioner submitted a

written statement on behalf of his missing son giving a detailed account of

the facts and circumstances of the missing of his son and also requesting

the Commandant, 2nd IRB to carry out a thorough investigation to trace out

the petitioner's missing son by taking the assistance of the concerned

Police Stations.

[4]

[6] Without at all considering the written statement submitted by the

petitioner and without making any investigation to trace out the petitioner's

missing son, the authorities proceeded and completed the Departmental

Enquiry initiated against the missing son of the petitioner in his absence

and thereafter, the Commandant, 2nd IRB issued an order dated 14-07-2006

ordering the removal of the petitioner's son from service w.e.f. the date of

issue of the said order. It is the case of the petitioner that the said removal

order has not yet been officially communicated till today.

After about ten years from the date of missing of his son, the

petitioner submitted a representation dated 07-10-2015 to the respondents

requesting for paying Death-cum-Retirement Gratuity, admissible GPF,

admissible GIS, Leave Encashment and family pension due payable to the

petitioner 's son, however without any positive result. Having been

aggrieved, the petitioner approached this court by filing the present writ

petition to redress his grievances.

[7] Mr. Kh. Samarjit, learned senior counsel appearing for the

petitioner submitted that the petitioner's son had been missing since

13-03-2005 without any trace or clue and nothing has been heard about his

whereabouts for the last more than 18 years and accordingly, by operation

of law as provided under the provisions of Section 108 of the Indian

Evidence Act, 1872, It can be reasonably presumed that the petitioner's

missing son is dead. In support of his contention, the learned senior counsel

cited the judgment rendered by the Hon'ble Apex Court in the case of "LIC [5]

of India Vs. Anuradha", reported in (2004) 10 SCC 131, wherein it has

been held as under:-

"14. On the basis of the abovesaid 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 the common law of d England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, l872. In the scheme of the 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 whose 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."

[8] It has been submitted on behalf of the petitioner that the manner

in which the authorities proceeded with the Departmental Enquiry against

the petitioner's son and removing him from service by issuing the impugned

removal order dated 14-07-2006 is very much arbitrary and illegal, [6]

inasmuch as, the authorities knew all along that the petitioner's son was

missing since 13-03-2005 without any trace or clue despite the best efforts

to trace out the whereabouts of the petitioner's missing son. According to

the learned senior counsel, the Departmental Enquiry was proceeded

against a missing person in his absence and without affording him any

chance or opportunity to defend himself and in complete violation of the

principle of natural justice. It has also been submitted that the Departmental

Enquiry was conducted against a missing person, who can be reasonably

presumed to be dead and as such, the whole proceedings of the

Departmental Enquiry as well as the impugned removal order are not

sustainable in eyes of law and accordingly, the same are liable to be quash

and set aside. The learned counsel further submitted that the impugned

removal order dated 14-07-2006 has not yet been communicated officially

to the concerned persons till today and accordingly, the said order cannot

be regarded as anything more than provisional in character and it does not

become effective till it is communicated. In support of his contention, the

learned counsel cited the judgment of the Hon'ble Apex Court in the case

of "Greater Mohali Area Development Authority & ors. Vs. Manju Jain

& ors." reported in (2010) 9 SCC 157, wherein it has been held as under:-

"22. The Constitution Benches of this Court in Bachhittar Singh v.

State of Punjab and State of Punjab v. Amar Singh Harika, have held that an order does not become effective unless it is published and communicated to the person concerned. Before the communication, the order cannot be regarded as anything more than provisional in character. A similar view has been reiterated in Union of India v. Dinanath Shantaram Karekar and State of W.B. v. M.R. Mondal."

"23. In Laxminarayan R. Bhattad v. State of Maharashtra this Court held that the order of the authority must be communicated for [7]

conferring an enforceable right and in case the order has been passed and not communicated, it does not create any legal right in favour of the party.

"24. Thus, in view of the above, it can be held that if an order is passed but not communicated to the party concerned, it does not create any legal right which can be enforced through the court of law, as it does not become effective till it is communicated."

The learned senior counsel submitted that the petitioner is entitled

to the reliefs sought for in the present writ petition and accordingly, prays

for directing the respondents to release the retiral and other service benefits

including family pension due payable to the family of the missing personnel

after quashing and setting aside the impugned suspension order as well as

the impugned removal order.

[9] At the outset, Mr. Niranjan Sanasam, learned GA appearing for

the respondents raised an objection regarding the maintainability of the

present writ petition. It has been submitted by the learned GA that there is

an effective and alternative statutory remedies for filing appeals against the

impugned order and without availing such statutory remedies, the petitioner

cannot approach this court directly by filing the present writ petition.

Accordingly, the learned GA submitted that on this count alone, the present

writ petition is liable to be rejected.

[10] It has also been submitted on behalf of the respondents that a

Departmental Enquiry was proceeded against the petitioner's son on

account of his unauthorised absence and the said Departmental Enquiry

was proceeded strictly in terms of the relevant rules and on the basis of

the enquiry report, the petitioner's son was imposed the major penalty of [8]

removal from service. It has also been submitted on behalf of the

respondents that as the petitioner's son was imposed the major penalty of

removal from service on account of his misconduct, the delinquent or any

of his family members including the petitioner is not entitled to any service

benefits. The learned counsel accordingly submitted that the present writ

petition deserves to be dismissed as being devoid of merit.

[11] I have heard the submissions advanced by the learned counsel

appearing for the parties at length and also carefully examined the materials

available on record. In the present case, as per the message dated

28-04-2005 of the Commandant, 2nd IRB, the petitioner's son went missing

since 13-03-2005 without any trace or clue. It is also an undisputed fact that

the petitioner's son is missing for the last more than 18 years and nobody

has heard anything about his whereabouts despite the best efforts to trace

him out. Faced with such undisputed facts, this court find merit and

substance in the submissions advanced by the learned counsel appearing

for the petitioner that by operation of law as provided under Section 108 of

the Indian Evidence Act, 1872, it can be reasonably presumed that the

petitioner's son has expired.

[12] This court also found force and merit in the submission advanced

by the learned counsel appearing for the petitioner that the manner in

which the authorities proceeded with the Departmental Enquiry against the

missing son of the petitioner is arbitrary and illegal for the simple reason

that the authorities knew all along that the petitioner's son went missing

since 13-03-2005 without any trace or clue and nobody know anything [9]

about his whereabouts. In my considered view, in such a situation, the

authorities ought to have proceeded for payment of retirement gratuity and

family pension to the family of the missing personnel as provided under the

Government of India's Office Memorandum dated 29-08-1986 read with

subsequent O.M. dated 02-07-2010 issued by the Government of India in

connection with Rule 54 of the CCS (Pension) Rules, 1972 for payment of

family pension, which are adopted by the Government of Manipur, instead

of initiating the Department Enquiry against the missing personnel. It

may be pointed out here that in the said O.Ms. dated 29-08-1986 and

02-07-2010, it is, inter alia, provided that when an employee disappears

leaving his family, the family can be paid in the first instance the amount of

salary due, Leave Encashment due and the amount of GPF having regard

to the nomination made by the employee and after the lapse of a period of

six months, other benefits like retirement or death gratuity/ family pension

may also be granted to the family after observing the following formalities:-

(i) The family 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 by the police;

(ii) An Indemnity bond should be taken from the nominee/

dependants of the employee that all payments will be adjusted

against the payments due to the employee in case he appears

on the scene and makes any claim.

[13] In the present case, it is found on record that the petitioner

made a missing report on 09-04-2017 to the Officer-in-Charge, Moirang [10]

Police Station about his missing son and making a request for tracing

out the whereabouts of the missing son by registering a regular FIR

case. It is also found on record that the Superintendent of Police,

Bishnupur District, Manipur wrote a letter dated 02-11-2017 to the

petitioner informing him that as per a missing report made by the

petitioner, the then O.C. of Moirang Police Station made all possible

measures to trace out the missing Rifleman to the best level but the

missing Rifleman remain untraced.

Taking into consideration the above facts and the provisions

of the Government of India's O.Ms. dated 29-08-2016 and 02-07-2010,

this court is of the considered view that the petitioner is entitled to get

the reliefs sought for in the present writ petition.

[14] Taking into consideration the facts and circumstances of the

present case and by operation of law, this court can reasonably

presumed that the petitioner's son had expired as the petitioner's son

remain missing for the last more than 18 years without anyone knowing

about his whereabouts, especially when this fact is not controverted by

the respondents. As the petitioner's son is presumed to have died and

as this court is of the considered view that the Departmental Enquiry

was proceeded against the petitioner's missing son and a major penalty

of removal from service was imposed upon the missing son of the

petitioner arbitrarily and illegally, this court is not inclined to accept the

submission advanced by the learned GA appearing for the respondents.

In the result, the wit petition is allowed with the following directions:-

[11]

(i) The impugned order of suspension dated 18-08-2005 as well as

the impugned removal order dated 14-07-2006 issued by the

Commandant, 2nd IRB, Imphal are hereby quashed and set

aside.

(ii) The respondents are directed to release all the service benefits

and retiral benefits due payable to Rifleman (Late) Ph.

Premkumar Singh to the present petitioner within a period of

three months from the date of receipt of a certified copy of this

order.

With the aforesaid directions, the present writ petition is disposed

of. There will be no order as to cost.

JUDGE

FR / NFR

Devananda