MARIAMMA SAMUEL Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is a widow aged 73 years. Her husband, K.M. Samuel, was a clerk in the 5th respondent's school, which is an aided school. He was present in the school for duty on 30.11.1987. But, thereafter, he went missing. The 5th respondent initiated disciplinary proceedings against the petitioner's husband for unauthorized absence under Rule 74 of Chapter XIV-A of KER. The notice of the disciplinary proceedings could not be served on the petitioner's husband. Therefore, the notice was published in Deepika daily on 5.8.1989. Subsequently, by Ext.P3 order, the 5th respondent imposed on the petitioner's husband the punishment of removal from service. The petitioner filed a complaint before the police that her husband is missing. The Sub Inspector of Police, Adoor issued Ext.P1 certificate to the petitioner stating that in spite of enquiry regarding the whereabouts of K.M. Samuel, the whereabouts could not be ascertained. The petitioner submits that in view of the fact that more than 7 years have already elapsed since the disappearance of her husband and he has not been heard about since then, applying the provisions of Section 108 of the Evidence Act, it must be presumed that he is dead from the date of his missing. The petitioner submits that if that be so, it must be presumed that he died while in service. Consequently, the petitioner is entitled to terminal benefits of her husband as also family pension. The petitioner therefore seeks the following reliefs:

(2.) IN respect of the claim of the petitioner, the petitioner relies on two decisions of this Court, viz, Indira, K. v. Union of India and others, ILR 2005 (3) Ker. 801 and the judgment in W.P(C) No. 24613/2006, wherein two learned Judges of this Court have held that notwithstanding departmental proceedings against a person which ended in removal from service, if that person is not heard of for more than seven years, then, applying provisions of Section 108 of the Indian Evidence Act, he must be presumed to be dead, in which case, despite the departmental proceedings, the legal heirs should be given benefits as applicable to a person who is no more on the presumption that he was no more from the date of his missing.

(3.) I have considered the rival contentions in detail.