When family members of person missing for seven years can claim all service benefits of missing person?

  I am inclined to follow the           view taken by the

learned Judges in the decisions quoted above. In Indira's

case (supra), a learned Judge of this Court has held as

follows:


              ". . . . . There may be cases where the missing person
       may be dead or permanently disabled mentally or
       physically which may not come to the notice of the Army or
       the family.      Even in such cases also, the Army may be
       justified in declaring him a deserter but the position will
       continue only until expiry of seven years from the date of
       missing of the person when presumption of death is
       available under Section 108 of the Evidence Act.
       Therefore, as and when presumption of death is available
       under Section 108 of the Evidence Act, the whole position
       changes and the presumption of death supercedes the
       declaration of the person a deserter under Section 106 of
       the Army Act. Consequently the family members can claim
       all benefits as if the man is dead on the date of his missing.


       Since it is admitted that the petitioner's husband has not
       surfaced and could not be traced after 5.10.1995 in spite of
       effort to trace him by the Police at the request by the Army,
       the presumption of his death as on 5.10.1995 is available
       under Section 108 of the Evidence Act. Since petitioner's
       husband was admittedly sick and had undergone major
       surgery, the possibility of his death could not be ruled out.
       It is regularly reported in newspapers and media that many
       dead bodies surfacing here and there are all buried without
       anybody identifying such bodies. Going by the statement of
       the respondents, petitioner's husband should have been on
       his way from Bangalore to Military Hospital on the date of
       missing that is, 5.10.1995. Apart from the presumption of
       death, the circumstances do not suggest any chance of
       petitioner's husband deserting the Army towards the end of
       his career."


Of course, that is a case where the person missing was

declared as a deserter by the Army. Another learned Judge

of this Court in W.P(C) No. 24613/2006 applied the ratio of

that decision for granting compassionate employment to

the dependent of a person who was missing similarly. Of

course, there also was a First Information Report. But, I do

not think that registration or non-registration of a First

Information Report will             be fatal to the case of the

petitioner. The petitioner has reported the missing of her

husband to the police, the police had made investigation

pursuant thereto and             the police have issued          Ext.P1

certificate stating that despite investigation made in that

regard, the whereabouts of K.M. Samuel could not be

ascertained.        Once a complaint relating to missing of a

person is filed before the police, it is for the police to file a

First Information Report and do whatever is necessary. The

petitioner does not have any control regarding the same.


Therefore,      if a distinction is to be made in respect of

identical circumstances based on whether FIR has been

registered or not, it would result in injustice to the

petitioner for no fault of hers. I am of opinion that the ratio

of the decisions relied on by the petitioner would be equally

applicable to a case where a First Information Report has

not been registered also, if it is reasonably certain that the

person went missing and he has not been heard of for more

than seven years.      So, the disciplinary proceedings against

the petitioner's husband would hold good only for seven

years prescribed in Section 106 of the Indian Evidence Act

and    thereafter      what   would    be   applicable to  the

circumstances is Section 108 of the Indian Evidence Act.

That means if an employee went missing he has not heard

of for seven years notwithstanding the disciplinary

proceedings, the consequences of presumption             under

Section 108 of the Indian Evidence Act would follow,

meaning thereby that the legal heirs of the missing person

should be given all benefits presuming that that person is

dead and that the disciplinary proceedings were against a

dead person.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                              PRESENT:

                       MR.JUSTICE S.SIRI JAGAN

                      22ND DAY OF MAY 2012
                                   WP(C).No. 8107 of 2010 (K)
                         

                     MARIMMA SAMUEL, 
Vs

               STATE OF KERALA,

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Madras HC:Person missing for seven years can be presumed to have died only on day after completion of seven years

The Madurai Bench of Madras High Court (HC) has ruled that a person missing for long period and not heard of for over seven years could be presumed to have died under Section 108 of Indian Evidence Act, 1872 only on the day after the completion of seven years. A Division Bench comprising Justices V.Ramasubramanian and N.Kirubakaran passed the ruling while disagreeding with a view taken by a single Judge of the HC that a Tamilnadu State Transport Corporation (TNSTC) bus conductor should be considered to have died on the date when he went missing in May 1999 for settlement of terminal benefits to his legal heirs. The bench observed that there is an inherent danger in presuming that the date from which a person went missing could be taken to be the date of death. If it is so taken, many claims that could be made by his legal heirs would become barred by time despite the fact that the very presumption of death could be raised only after seven years from the date on which he was last heard of. The Judges said Section 108 should always be read along with Section 107 of the Act. Their combined reading would make it clear that whenever a question arose as to whether a person was alive or dead and it was proved by one of the parties to the case that he was alive within 30 years, then the burden of proving his death would squarely lie on the other party.

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Whether court can grant legal heir certificate if person is missing for seven years?

It is thus seen that the said Mohammed Ismail has been missing and is not heard of for a period of more

than seven years since before the filing of this petition. Therefore, in view of the provisions of section 108

of the Evidence Act presumption about his death can be drawn. Petitioner has also filed the affidavits of

his mother, Smt. Jamila and sister Mrs. Najabul Nisha in support of the petition. It appears that the

heirship certificate is required for the purpose of obtaining the terminal dues of the said Mohemmed

Ismail. The Mumbai Port Trust authorities have informed this court the total amount payable to the said

Mohammed Ismail is Rs. 97,195/ -. The petitioner and his mother and sister being the only legal heirs of

the said Mohammed Ismail who must be presumed to have died, are entitled to get a legal heirship

certificate in their joint names for collecting of dues which were payable to the said Mohammed Ismail.

HIGH COURT OF BOMBAY

Mohammed Ali Mohamamed Ismail Khan V/S STATE

Date of Decision: 14 June 2001

Citation: 2001 LawSuit(BOM) 983

Hon'ble Judges: J A Patil

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