HYDERABAD: An employer may be entitled to dismiss an employee from service for unauthorised absence but such disciplinary action will become a nullity in case the ‘missing’ employee is presumed to be dead during that period, the Hyderabad High Court has ruled.
Dealing with a case filed by the Union of India, a division bench of the High Court has directed the central government to grant all the pensionary benefits and family pension to the respondent woman whose husband became untraceable and in respect of whom a presumption of death in terms of Section 108 of the Evidence Act, 1872 was raised.
Though the provisions of Sections 107 and 108 of the Act are very clear as to the rising of presumption, these sections do not throw any light upon the date on which a person can be presumed to be dead, the bench said. Under Section 107, the burden of proving that a person is dead is on the person who affirms it. Under Section 108, the burden of proving that he is alive is shifted to the person who affirms it.
As for the case, the respondent’s husband was employed in central excise and he went on earned leave for three days but did not report back for duty after the expiry of the leave period. After several months, she lodged a police complaint and an FIR on “man missing” was registered. After a few years, police filed a final report declaring that the said person was not traceable.
On the basis of the said report and after the expiry of seven years from the date he went missing, she gave a representation for sanction of family pension. When she appeared before the authority concerned, she was informed that her husband had already been imposed with a penalty of removal from service for unauthorised absence, and rejected her claim for payment of family pension. Further, the pensionary benefits were forfeited.
She then moved the Central Administrative Tribunal which allowed her application by declaring that the order of dismissal passed against a dead person was a nullity. Aggrieved by the same, the Union of India approached the High Court contending that till the expiry of the period of seven years from the date a person went missing, no presumption of death would arise and that if such an employee was dismissed or removed from service, the question of payment of family pension or any other pensionary benefit would not arise.
On the other hand, the counsel for the respondent woman submitted that the issue was squarely covered by various circulars of the central government and that the Centre, therefore, cannot shirk its responsibility of paying family pension.
The bench of Justice V Ramasubramanian and Justice G Shyam Prasad observed, “If the respondent’s husband was presumed to be dead from the date he went missing, then the penalty of removal from service would have no effect as it was passed against a dead person. But if the date of death cannot be presumed and if Section 108 raises only a presumption of death and not a presumption of date of death, then the penalty does not get annulled.” While disposing the petition, the bench directed the Centre to grant the pensionary benefits applicable to the respondent woman as per the circular issued earlier by the government.