MARIAMMA SAMUEL Vs. STATE OF KERALA

JUDGEMENT

(1.) The claim of interest, rejected by the learned Single Judge, is the only issue in the appeal. The appellant is the wife of one K.M. Samuel, who, while working as Clerk in the school of the 5th and 6th respondents, went missing after duty on 30.11.1987. That he went missing and remained so is not in dispute, since the management of the school had initiated disciplinary action against him for unauthorized absence, which notice was not served and after substituted service, enquiry was proceeded with, culminating in removal from service, as is evidenced by Exhibit P3. The appellant, the wife, having failed to trace out the missing person, was before the authorities seeking family pension, which, after much deliberation and exchange of communication, was rejected as per Exhibit P15 dated 11.6.2001. The appellant challenged these two orders before the learned Single Judge and the learned Single Judge, by the impugned judgment', invoked the presumption under S.108 of the Indian Evidence Act and directed payment of terminal benefits due to K.M. Samuel to the appellant along with the family pension due with arrears. However, the prayer for interest was declined.

(2.) Normally we would not have interfered with the judgment of the learned Single Judge, wherein the learned Single Judge refused to exercise discretion to grant interest. It is also pertinent that the appellant was before this Court in 2010 claiming retiral benefits due to her husband, who is presumed to be dead, by reason of having been missing for more than 7 years. Going through the records, we find that immediately after the husband of the appellant absented himself unauthorizedly from the school, proceedings were taken against him and having failed to serve notice on the delinquent, paper publication was taken out before the enquiry was initiated and concluded as per Exhibit P4. The authorities cannot be found fault with for the said action, because then it was against an unauthorized absence. However, the fact remains that the delinquent was not heard of for a continuous period of 7 years and even thereafter. It was then that the appellant, who was the wife of the missing man, attempted to at least obtain the retiral benefits due to her husband. In Exhibit P15 though it is stated that a person who dies in harness is entitled to pension and his legal heirs to family pension, that does not apply to man missing cases, which are treated as 'civil death' after lapse of 7 years as per the Indian Evidence Act.

(3.) True, there may not be a specific provision for providing retiral benefits to the dependants/heirs of a man missing. However, after a person is not heard of for 7 years by those who naturally would have heard of him, then there is a presumption of civil death and that relates back to the date when he went missing. The law permits such a presumption and deems that the missing man is dead when whereabouts are not known for 7 years. By the said presumption, the law deems that it should be imagined that the death had occurred of such a person and having imagined so, it is trite that we cannot allow our imagination to then boggle and draw distinctions which are not permissible by nature of the presumption that law mandates. In any event, the grant of retiral benefits is not challenged before us and the judgment has been complied with by the respondent-State. However, considering delay in approaching this Court, we are not convinced that the appellant is entitled to any interest for the period before she came to this Court. We find that the Writ Petition was filed in March, 2010. Considering the facts and circumstances of the present case, we are of the opinion that the retiral benefits due as on March, 2010 shall carry interest at the rate of 9% per annum till date of payment.