Dependent Can Challenge Termination & Claim Service Benefits Of Missing Employee Who Is Presumed Dead After Seven Years: Chhattisgarh HC

Background Facts

The husband of Respondent was employed as a Senior Technician (Electrical) at the Rajhara Mines of the Bhilai Steel Plant (BSP). He was suffering from a mental illness and subsequently went missing. Therefore he was absent from his duties for a prolonged period. His wife lodged a First Information Report (FIR) regarding his disappearance on 14.01.2010. A public notice was published in a local newspaper on 18.02.2010. The local police station formally informed the BSP management about the employee's missing status.

However, the BSP authorities issued a charge-sheet against him on 11.12.2010. Notices were sent to his local and permanent addresses, but were returned unserved. Further the notices were also affixed on the company notice board. A departmental enquiry was conducted ex-parte. The disciplinary authority passed an order on 17.09.2011 and removed the husband from service. It directed the family to vacate the company quarter.

Aggrieved, Respondent wife challenged the order of termination before the Central Administrative Tribunal (CAT), Jabalpur Bench. The Tribunal set aside the removal order. It was held by the Tribunal that the BSP was not justified in conducting a departmental enquiry against a missing employee. It directed the SAIL/BSP to grant all consequential benefits to the wife.

Aggrieved by the same, the petitioners (SAIL) filed the writ petition.

It was submitted by the petitioners that the wife of the missing employee has no locus standi to file the writ petition in the absence of a formal declaration from a competent authority presuming her husband to be dead. It was further submitted that the Central Administrative Tribunal was unjustified in allowing the application and setting aside the removal order.

On the other hand, it was submitted by the respondent that the wife of the missing BSP employee was entitled to file the subject application before the Tribunal. The respondent argued that a formal declaration from a civil court was not mandatory, as there was no dispute that her husband has not been heard of for more than seven years. It was further submitted that the wife of the missing BSP servant has locus standi to file application before the CAT and the it has rightly been entertained by the CAT.

Findings of the Court

The central question for consideration by the court was whether a declaration by a civil court was necessary to presume a person dead in light of Section 108 of the Indian Evidence Act, 1872. It was observed by the court that Section 108 provides for a legal presumption of death once it is proven that a person has not been heard of for seven years by those who would naturally have heard from them.

The Supreme Court's decision in Ramrati Kuer v. Dwarika Prasad Singh and others was relied upon by the court wherein it was held that since the person had not been heard of for more than seven years after he disappeared from the village, he must be presumed to be dead and the plaintiffs would in the circumstances be entitled to the property of which he was the last male-holder.

It was further observed that a formal declaration under Section 34 of the Specific Relief Act is not mandatory when the facts leading to the presumption are undisputed. It was noted by the court that the employee had been missing and unheard of for over seven years was an undisputed fact.

The judgment of the Calcutta High Court in Tara Devi v. Bank of India was relied upon wherein it was held that when the particular fact are uncertain or disputed then the question of determination of the point of time of the death of the person would arise, otherwise not. Further it was held that death of the person shall be presumed when admittedly for more than seven years, no whereabouts of the missing person could be traced.

It was further observed by the court that that Respondent wife being dependent of the missing employee, had the legal standing to challenge the termination. The court found that the termination directly affected her livelihood. It was emphasized by the court that the master-servant relationship cannot be severed arbitrarily through an ex-parte enquiry against a missing employee. The proceedings can be finalised only after serving charge-sheet, if at all there is any instance of misconduct, and after affording an opportunity of hearing to prove the innocence.

Further regarding the grant of consequential benefits, it was observed by the court that Office Memorandum dated 28-04-2022 issued by the Government of India provides for the payment of benefits like family pension, gratuity, and leave encashment to the families of missing government employees. It was held by the court that the Memorandum was applicable to the BSP. It was held that the Central Administrative Tribunal committed no error in directing the payment of all consequential service benefits to the wife.

With the aforesaid observations, the writ petition filed by the petitioners (SAIL) was dismissed by the court.

Case Name : Steel Authority of India Limited & Anr. vs. Vikash Kothe & Ors.

Case No. : WPS No. 10215 of 2019

Counsel for the Petitioner : P.R. Patankar, Advocate.

Counsel for the Respondents : Dhiraj Kumar Wankhede and Aishley Shrivastava, Advocates, H.A.P.S. Bhatia, Panel Lawyer