Telangana High Court

Mada Prameela vs The Chairmen And Managing Director, on 13 December, 2023

THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

               WRIT PETITION No.16603 of 2017
ORDER:

This writ petition is filed seeking a writ of mandamus

declaring the action of respondent Nos.1 to 4 in not paying the

death monitory benefits of Mada Mallesh (General Mazdoor,

Employment Code No.2546348 in CFC of Singareni Collieries

Company Limited, Srirampur, in favour of the petitioner, and the

action of respondent Nos.5 and 6 in not paying the amount in

respect of Insurance Policy No.684026649 of Mada Mallesh to the

petitioner by taking into account the date of his death as

01.05.2008, as illegal and arbitrary and consequently, direct the

respondents to pay the death benefits and insurance policy

amount of Mada Mallesh in favour of the petitioner.

2. The facts leading to filing of this writ petition are that late

Mada Mallesh, the husband of the petitioner, worked as General

Mazdoor vide Employee Code No.2546348 in CFC of Singareni

Collieries Company Limited (hereinafter referred to as 'SCCL"),

Srirampur. It is stated that the said Mada Mallesh was missing

from 01.05.2008. The petitioner and her family members searched

for him, but they could not trace him. Therefore, they have given

wide publicity by affixing wall posters and distributing

pamphlets and also issued a publication in Andhra Jyothi Daily

Newspaper on 24.08.2008. The petitioner has filed a complaint

before the I Additional Judicial First Class Magistrate,

Mancherial, and the same was referred to the Police, CCC,

Naspur, who in turn, registered a case under the heading "Man

missing" vide Crime No.75 of 2010 on 26.06.2010. Though the

police searched for Mada Mallesh, they could not trace him.

Therefore, the police issued a letter dated 08.04.2012 stating that

all possible efforts were made to trace out the missing person, but

all their efforts went fruitless and no clues came forth till that

date.

3. It is further stated that the petitioner has submitted a

representation dated 12.07.2010 to the General Manager, SCCL,

Srirampur, requesting to settle the gratuity and other amounts

pertaining to her husband and to provide compassionate

appointment. Later, the petitioner submitted another

representation dated 08.03.2017 to the SCCL requesting to pay the

death benefits of her husband. It is stated that basing on the

representation dated 12.07.2010, the SCCL has paid gratuity and

F.B.I.S. amounts and issued a letter dated 15.03.2017 stating that

the husband of the petitioner was dismissed from service for

absenteeism and hence, the petitioner is not entitled to death

benefits as per the rules of the company.

4. It is further stated that dismissal order cannot be issued

against a dead person and that no notice was issued either to the

petitioner or in the name of her husband before taking

disciplinary action. Furthermore, the dismissal order was not

communicated to the petitioner. It is further stated that as per

Section 108 of Indian Evidence Act, 1872 (for short, 'the Evidence

Act'), if a person is unheard for more than seven years, the said

person is deemed to be dead. In the instant case, the petitioner's

husband is unheard since 01.05.2008 i.e., for more than 8 ½ years,

and therefore, the date of death of her husband can be treated as

01.05.2008, as per the presumption under Section 108 of Indian

Evidence Act, and as certified by the police vide letter dated

08.04.2012. Therefore, the respondents are duty bound to pay the

death benefits and insurance policy amounts of her husband to

the petitioner, duly taking into consideration the death of her

husband as 01.05.2008.

5. Respondent No.4 filed a counter affidavit denying the

allegations made in the writ affidavit and stating that

Employment Code No.2546348 of the Mada Mallesh, as referred

to by the petitioner in the writ affidavit, is incorrect; that as per

the records, the Employment Code Number of Mada Mallesh is

2503648; that based on the said code number, the office of the

Coal Mines Provident Fund has identified the CMPF Account

Number of Mada Mallesh as H/7/47/567 and traced out his

ledger card. It is further stated that the office of the Coal Mines

Provident Fund has not been informed about the death of Mada

Mallesh and that they have also not received the refund claim of

Mada Mallesh from the SCCL so far.

6. Heard Sri N. Indrasena Reddy, the learned counsel for the

petitioner, Sri P. Sri Harsha Reddy, the learned Standing Counsel

for SCCL for respondent Nos.1 to 3 and Sri K. Aravind Kumar,

learned Standing Counsel for Coal Mines Provident Fund for

respondent No.4. Perused the record.

7. Learned counsel for the petitioner has contended that the

husband of the petitioner is unheard since 01.05.2008; that the

police have issued the letter dated 08.04.2012 stating that despite

their best efforts, they could not trace out husband of the

petitioner; that as per Section 108 of the Evidence Act, if a person

is unheard for more than seven years, he is deemed to be dead.

He further contended that the dismissal order has been passed

without following the due procedure and therefore the petitioner

is entitled to the death benefits as well as the insurance policy

amount of her husband. In support of the said contentions, the

learned counsel for the petitioner relied upon the judgment of the

High Court of Gauhati in Bandita Sarkar v. State of Assam1.

8. The learned Standing Counsel for SCCL has placed on

record the written instructions received from the DGM

(Personnel), SCCL, Srirampur Area, wherein it is stated that

Mada Mallesh, General Mazdoor, Employment Code No.2503648,

2015 (2) GauLT 1042

had worked at CHP Srirampur and he was dismissed from

service w.e.f. 25.03.2010 for absenteeism, after following due

procedure. Subsequently, the petitioner approached the General

Manager, Srirampur Area and submitted an application dated

12.07.2010 stating that her husband Mada Mallesh disappeared

from 01.05.2008 onwards and a case was also filed before the

police, CCC, Naspur, who in turn, had registered a case under the

head "man missing" vide FIR No.75/2010 dated 26.06.2010, and

therefore, requested to settle the terminal benefits treating her

husband as missing.

9. The DGM (Personnel) has referred to the Circular vide

No.CRP/PER/WEL/ATB/02/595 dated 05.02.2004, as per which,

if any employee is found missing, the dependants of the said

employee are entitled to receive the Gratuity, Family Benefit-

cum-Insurance Scheme and CMPF. It is further stated that there

is no provision to provide compassionate employment insofar as

man missing cases. Therefore, the terminal benefits payable to

the nominee of Mada Mallesh were settled and accordingly, the

gratuity amount of Rs.2,14,274.92 Paise and FBIS amount of

Rs.6,239.40 paise were paid to the petitioner, whose name was

recorded as wife in the company records. It is further stated that

the amount payable towards accumulated CMPF was not settled

by the Regional Commissioner, Coal Mines Provident Fund,

Ramagundam, for want of declaration as Legal Heir of Mada

Mallesh by the Court of Law.

10. Now, the point for consideration is whether the petitioner

is entitled to the death benefits of Mada Mallesh and also the

insurance policy amount in respect of Policy No.684026649 ?

Consideration:

11. A perusal of the record discloses that late Mada Mallesh,

the husband of the petitioner, worked as General Mazdoor in

SCCL, Srirampur. He is missing since 01.05.2008. The petitioner

filed a complaint, on the basis of which, FIR No.75 of 2010 was

registered on 26.06.2010. The police after due search issued a

letter dated 08.04.2012 stating that despite their best effort, the

missing person could not be traced. The record further discloses

that the petitioner gave a representation dated 12.07.2010 to the

General Manager, SCCL, Srirampur, to settle the gratuity and

other amounts pertaining to her husband. Thereafter, she

submitted another representation dated 12.07.2010 seeking

compassionate appointment. However, the authorities of SCCL

have paid only gratuity and FBIS amounts to the petitioner, but

the death benefits and insurance policy amount were not paid to

her.

12. According to the respondent - SCCL, the amount to be paid

towards accumulated CMPF was not settled by the Regional

Commissioner, Coal Mines Provident Fund, Ramagundam, for

want of declaration as legal heir of the employee-Mada Mallesh.

13. There is no dispute that the husband of the petitioner is

missing since 01.05.2008 and the police issued the letter dated

08.04.2012 stating that despite their best efforts, the husband of

the petitioner could not be traced. As per the presumption under

Section 108 of Indian Evidence Act, if a person is unheard for

more than seven years, the said person is deemed to be dead. In

view of the same and since the petitioner is found missing since

01.05.2008, the respondent authorities ought to have considered

the request of the petitioner and paid the death benefits as well as

insurance policy amount. Even as per the written instructions of

the DGM (Personnel), SCCL, placed on record, gratuity and FBIS

amounts were paid to the petitioner.

14. Furthermore, in Bandita Sarkar v. State of Assam (supra),

which was relied upon by the learned counsel for the petitioner,

the High Court of Gauhati, after due consideration and analysis

of Section 108 of Indian Evidence Act, 1872, and relying on the

judgment of the High Court of Kerala in Indira K. v. Union of

India (OP No.18590 of 1999 (K), held that if the police report has

stated that if a missing person/employee is untraceable for seven

years, and as the presumption of death of such person is available

under Section 108 of the Evidence Act, the family members of the

missing person can claim all the benefits, as if he is dead on the

date of his disappearance.

15. In Smt. K.Lakshmi v. The A.P.S.R.T.C 2 , the petitioner's

husband, who was working as Driver in respondent-Corporation

(APSRTC) went missing on 03.04.1992. Disciplinary proceedings

2013 SCC OnLine AP 815

were initiated against the husband of the petitioner therein after

his disappearance and he was removed from service. The wife of

the driver filed a suit vide O.S.No.267 of 2006 for a declaration

that her husband shall be deemed to have been dead. The Civil

Court, eventually, allowed the suit through judgment and decree

dated 11.07.2006.

(i) The learned Single Judge of this Court held that once a

legal fiction is employed, it should run its full course. Ipso facto,

as the workman was deemed to have been dead on the date of his

disappearance, the disciplinary proceedings are deemed to have

been initiated against the dead person. Those proceedings are a

nullity. A fortiori, the workman is deemed to have died in

harness, since by the date of his presumptive death, the workman

was not removed from service.

(ii) By referring to the judgment of the Division Bench of

this Court in Chief Engineer, APSEB v. K. Naga Hema 3 , the

learned Single Judge held that the husband of the petitioner

therein shall be treated to have died in harness and accordingly,

1996 (1) ALD 304 (DB)

set aside the order impugned therein and directed the respondent

Corporation to pay the balance of terminal benefits to the

petitioner treating the workman to have died in harness.

The above judgment squarely applies to the facts of the

present case, as the facts in both the cases are similar.

Conclusion:

16. In the light of the above discussion, the ratio laid down in

the above judgments and also in view of the fact that the name of

the petitioner is recorded as wife of Mada Mallesh in the records

of the SCCL, and further gratuity and FBIS amounts of Mada

Mallesh were already paid to the petitioner treating her as

nominee of the said Mada Mallesh, this Court is of the considered

opinion that there is no impediment for the respondents to pay

the death benefits and insurance policy amount of Mada Mallesh

to the petitioner.