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2013 DAILYLAW 1211 (AP)

K. Lakshmi v. A. P. S. R. T. C

2013-12-23

DAMA SESHADRI NAIDU

body2013
ORDER Dama Seshadri Naidu, J. 1. The petitioner's husband, who was working in the respondent Corporation (APSRTC) went missing and was deemed to have been dead. Taking his continuous absence as unauthorised, and thereby as a major misconduct, the Corporation removed him from service on the conclusion of ex parte disciplinary proceedings. Under those circumstances, the petitioner is before this Court. 2. The facts, in brief, are that the petitioner's husband, namely Mr. K. Ramesh, was working in the respondent Corporation as a driver with batch No. E. 505379. On 03.04.1992, when he was off duty, the petitioner's husband went out, but never came back home. Not knowing the whereabouts of her husband, the petitioner lodged a police complaint on 09.06.1992, based on which, the 5th Town Police Station, Nellore, registered a case in Cr. No. 115 of 1992 for 'man missing' and investigated further. Finally, the S.H.O. of the said Police Station informed the petitioner through a notice dated 30.07.1992 that her husband could not be traced. 3. Clueless about what course of action she should take, having lost the bread winner of the family, the petitioner and her three children waited up to 2006 with a fond hope that her husband would turn up. When the wait proved futile, on legal advice, the petitioner filed O.S. No. 267 of 2006 on the file of III Addl. Junior Civil Judge, Nellore, for a declaration that her husband is deemed to have been dead. The competent Civil Court, eventually, allowed the suit through Judgment and Decree dated 11.07.2006, thus declaring that the petitioner's husband is deemed to have been dead, in terms of Section 108 of the Indian Evidence Act. 4. Armed with the said Judgment and Decree, dated 11.07.2006, passed by a competent Court, the petitioner approached the respondent authorities seeking payment of all terminal benefits that are due to her husband as if he had died in harness. She has also claimed compassionate appointment to any one of the eligible members of her family. Eventually, the 3rd respondent informed the petitioner through letter, dated 23.04.2007, that the petitioner was entitled to only those benefits that could be given as per entitlement by a workman, who had been removed from service. 5. She has also claimed compassionate appointment to any one of the eligible members of her family. Eventually, the 3rd respondent informed the petitioner through letter, dated 23.04.2007, that the petitioner was entitled to only those benefits that could be given as per entitlement by a workman, who had been removed from service. 5. Aggrieved thereby, the petitioner filed W.P. No. 20005 of 2007, seeking a direction from this Court to the respondents to pay the terminal benefits, which are due to her husband. In the course of those proceedings it was brought to the notice of the Court, as well as the petitioner, that the petitioner's husband went on unauthorized leave, and that, treating the same as a major misconduct, the Corporation removed him from service. Taking the said submission of the Corporation into account, this Court dismissed the Writ Petition through Orders dated 08.08.2008, leaving it open to the petitioner to assail the order of removal passed against her husband in absentia. 6. In the light of the observations made in W.P. No. 20005 of 2007, the petitioner made a representation to the 2nd respondent i.e., Regional Manager of the Corporation, on 15.12.2008. When no response was forth coming from the 2nd respondent, the petitioner was once again constrained to approach this Court by filing W.P. No. 7441 of 2009, which also came to be disposed of by this Court on 09.04.2009 with a direction to the 2nd respondent-Regional Manager of the respondent Corporation to dispose of the said appeal/representation within six weeks from the date of receipt of a copy of the order. 7. As a matter of subsequent development, it is brought to the notice of this Court that the petitioner, again complaining of in-action on the part of the respondent Corporation, initiated Contempt Case in C.C. No. 1191 of 2009. Pending the Contempt Case, the 2nd respondent passed the impugned Order dated 07.09.2009. In the face of the said order, this Court closed the Contempt Case through Order dated 07.09.2009. Since the 2nd respondent has refused to interfere with the order of removal passed by the 3rd respondent initially through the Disciplinary Proceedings dated 16.10.1992, the petitioner once again - for the fourth time - approached this Court by filing the present Writ Petition. 8. Since the 2nd respondent has refused to interfere with the order of removal passed by the 3rd respondent initially through the Disciplinary Proceedings dated 16.10.1992, the petitioner once again - for the fourth time - approached this Court by filing the present Writ Petition. 8. Sri T.G. Prasad Reddy, learned counsel for the petitioner, has strenuously contended that the petitioner, being an old and illiterate woman, has been driven from pillar to post by the Corporation without providing any succour. He has further submitted that the Corporation has unjustifiably stuck to technicalities, and thereby denied the just relief to the petitioner and her children, all whom had been dependant on the delinquent workman. 9. Tracking the multiple rounds of litigation, the learned counsel has submitted that initially the petitioner was totally at a loss to know who she should approach, given the sudden disappearance of her husband and given her illiteracy and abject poverty. According to the learned counsel the petitioner's conduct is entirely justifiable. First, she went to the police and complained of her husband's disappearance. She waited for some time with a hope that he would come back. Eventually when she approached this Court by filing W.P. No. 20005 of 2007, only through the response of the Corporation in that writ petition, she came to know about the removal of her husband from service in the name of disciplinary action in absentia. 10. The learned counsel has contended that at no stage of the proceedings had any member of her family been put on notice by the Corporation with regard to the so-called disciplinary proceedings alleged to have been initiated against her husband, who had never been heard since his first disappearance on 03.04.1992. Thus, the learned counsel has contended that the entire proceedings were initiated against the dead person, especially in the light of the fact that in course of time the petitioner filed O.S. No. 267 of 1996 and obtained Judgment and Decree, declaring her husband as having died in terms of Section 108 of the Evidence Act. 11. It is the specific contention of the learned counsel for the petitioner that the said judgment and decree have attained finality as have not been challenged. As such, it shall be deemed that the petitioner's husband died in harness. 11. It is the specific contention of the learned counsel for the petitioner that the said judgment and decree have attained finality as have not been challenged. As such, it shall be deemed that the petitioner's husband died in harness. Accordingly, the learned counsel has urged this Court to direct the respondent Corporation to provide compassionate appointment to any of the eligible members of her family, apart from paying every terminal benefit to which the family of the delinquent workman is entitled, treating the disappearance of the petitioner's husband as a deemed death. 12. Per contra, Sri Chintha Appi Reddy, representing Smt. K. Sarala Reddy, the learned Standing Counsel for the respondent Corporation, has contended that the petitioner has already been paid substantial benefits such as Provident Fund, S.R.B.S., C.C.S. and S.P.T.F. Only gratuity has not been paid since the delinquent workman did not complete five years of service, which is the pre-requisite for the entitlement of the gratuity. The learned Standing Counsel has contended that since the petitioner's husband absented from duty without prior intimation, the Corporation, in terms of the Regulations, has treated the same as unauthorized absence and accordingly initiated disciplinary proceedings, inasmuch as any unauthorized absence from duty without prior permission would amount to major misconduct. The learned Standing Counsel has further stated that notices were sent to the last known address of the delinquent workman, and since there was no response, he was rightly set ex parte. After following the due process, it is contended, the Corporation removed the delinquent workman from service, through Order dated 16.10.1992. 13. It is the specific contention of the learned Standing Counsel that the petitioner has approached, in the first place, this Court by filing a couple of Writ Petitions. Subsequently the petitioner approached the respondent Corporation with a representation rather belatedly. As such, the Corporation has rightly rejected her representations, not only on the grounds of merit but also on the grounds of latches. 14. Adverting to the plea of the petitioner for compassionate appointment, the learned Standing Counsel has placed reliance on a judgment rendered by a learned Division Bench of this Court in APSRTC., rep., by its MD v. Valluru Venkata Narayana and Others 2008 (3) ALD 511 and stated that the employer cannot be compelled to provide compassionate appointment unless the employer itself has adopted such a policy. In this regard, the learned Standing Counsel has also placed further reliance on a judgement of the Hon'ble Supreme Court in Umesh Kumar Nagpal V. State of Haryana (1994) 4 SCC 138 . Summing up his submissions, the learned Standing Counsel has laid much stress firstly on the fact that the approach of the petitioner is very belated, thus whatever the semblance of right she has, that stood defeated through negligence. Secondly, it is contended that since her husband was removed from service because of a major misconduct, the petitioner or other family members of her family are not entitled to any terminal benefits other than those that have already been paid in terms of Order of Removal passed by the 3rd respondent i.e., the Disciplinary Authority. Finally, the learned Standing Counsel has contended that under those circumstances, the question of considering the case of the petitioner or her children for compassionate appointment does not arise. 15. The learned Standing Counsel has also submitted that in the light of an efficacious alternative remedy being available to the petitioner, she ought to have approached the Labour Court by raising an industrial dispute in terms of Section 2A of the Industrial Disputes Act, 1947 against the orders passed by the 2nd respondent. Thus, the learned Standing Counsel has urged this Court to dismiss the Writ Petition as being devoid of merits. 16. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondent Corporation, apart from perusing the record. 17. A perusal of the record would indicate that the petitioner, wily-nily, approached this Court on more than one occasion- though not entirely at her option, but was quite compelled to do so. It is not the case of the respondent Corporation that the petitioner herself has the personal knowledge about the Proceedings said to have been initiated against her husband, who had never been heard of since 03.04.1992. Given the illiteracy and ignorance of the petitioner, it is understandable that the petitioner could not straight away approach the respondent Corporation seeking the benefits at the earliest point of time. Instead she had been initially engaged in search of her husband, for which purpose she understandably approached the police, who on their part, having investigated, eventually rendered a report stating that her husband could not be traced. Instead she had been initially engaged in search of her husband, for which purpose she understandably approached the police, who on their part, having investigated, eventually rendered a report stating that her husband could not be traced. As a natural corollary, as could be expected from any person of ordinary prudence, the petitioner approached the Civil Court and filed a suit for declaration in terms of Section 108 of Indian Evidence Act. 18. Undeniably there is delay on the part of the petitioner in her approaching the civil court in the first place, later in approaching this Court, and finally in approaching the respondent authorities. Having said that, in the same breath, it is to be stated further that the conduct of the respondent authorities is not entirely blameless. The petitioner came to know of her husband's removal from service by the respondent Corporation only after her filing W.P. No. 20005 of 2007, in which the Corporation filed a counter affidavit placing on record the disciplinary proceedings. Based on the direction given in that writ petition, the petitioner approached the respondent authorities by making a representation to the 2nd respondent i.e., Regional Manager on 15.12.2008. That was not disposed of. Once again the petitioner knocked the doors of this Court by filing W.P. No. 7441 of 2009. It was disposed of on 09.04.2009 with a direction to the 2nd respondent-Regional Manager to dispose of the petitioner's appeal/representation within six weeks from the date of receipt of a copy of the order. When even that directive of this Court had not been complied with, the petitioner filed Contempt Case in C.C. No. 1191 of 2009. Only pending the Contempt Case, her application was rejected through an order, dt. 7.09.2009. 19. It is apposite to examine section 108 of the Evidence Act, 1872 which is as follows: 108. Burden of proving that person is alive who has not been heard of for seven years.- [Provided that when] the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is [shifted to] the person who affirms it. 20. 20. The presumption of death of a person unheard of for seven years is an aspect of English Common Law, given statutory recognition in India through Section 108 of the Evidence Act, 1872. In fact, section 108 is not a substantive provision of law, but only a procedural one. Thus, it cannot be stated that the said provision exhaustively covers all the facets of the Common Law concept of presumed death. For instance, on completion of seven years, as per the first limb of the provision, the initial burden is on the one who asserts that the person has not been heard for seven years to prove it to be so. On such proof, the burden shifts on to the other who asserts the person's existence. As such, section does not deal with the aspect of when the person has exactly died or deemed to have died. It all depends on the facts of each case. In any event, the presumption comes into play only after the completion of seven years, but not before. 21. Though the respondent Corporation has taken recourse to a convenient option of setting the petitioner's husband ex parte and passed orders removing him from service, it is not the case of the Corporation that the petitioner's husband had deliberately absconded from duty, or had been guilty of any grave crime or misconduct, thus fleeing from the course of justice, by performing the vanishing act. 22. Indeed, on earlier occasion, this Court dismissed W.P. No. 20005 of 2007 on 08.08.2008, holding that in the face of finality attached to the orders of the primary authority i.e., the 3rd respondent, removing the husband of the petitioner from service, no relief could be granted so long as those orders subsisted. Accordingly, leaving it open to the petitioner to exercise the legal remedies available to her, this Court dismissed the Writ Petition. Eventually, the 2nd respondent refused to set aside the order of removal from service passed against the petitioner's husband. Curiously though, the 2nd respondent has not taken into account the judgment and decree passed by the Civil Court, nor has he examined the Order of the primary authority, thus supplying any justification to it. Having narrated sequences of events, the 2nd respondent has simply reaffirmed the order of primary authority and dismissed the appeal (treating the petitioner's representation as one). 23. Having narrated sequences of events, the 2nd respondent has simply reaffirmed the order of primary authority and dismissed the appeal (treating the petitioner's representation as one). 23. To appreciate whether the 2nd respondent has applied his mind before denying a substantive right of the petitioner, it is worthwhile to extract a portion of the said impugned Order, which is as follows: The concerned subject case and connected records are verified. Sri K. Ramesh, E. 505379, Driver of Nellore-2 Depot was unauthorisedly absented to his duties from 02.04.1992 without prior intimation or sanction of leave. After following the procedure, Sri K. Ramesh E. 505379, Driver/Nellore-2 was removed from service w.e.f. 16-10-92 vide Proc. No. E1/1(45)/92/NLR-2, dt. 16.10.1992. The wife of the Ex-driver has also received terminal benefits such as PF & SRBS. The DM/NLR II has followed the principles of natural justices and issued the proceedings of Removal from services of the Corporation to Sri K. Ramesh E. 505379, Driver of Nellore-2 Depot w.e.f. 16.10.1992 is in order and justified. The proceedings was issued before the declaration of missing i.e., 11th July, 2006. Therefore, the Removal Proceedings No. E1/1(45)/92/NLR-2, dt. 16.10.1992 issued to Sri K. Ramesh E. 505379, Driver of Nellore-2 Depot is in order and justified and at present I do not find any reason to set aside the proceedings issued by DM/ NLR-2. (emphasis added) 24. Indeed, the petitioner could have approached the Labour Court invoking Section2A of the Industrial Dispute Act. On that count, the learned Standing Counsel for the respondent Corporation has laid much stress, contending that the petitioner has an efficacious alternative remedy available to her. Be that as it may, it is quite prosaic to once again stress what is otherwise a very established legal principle that while exercising powers under Article 226 of the Constitution, though the alternative remedy is one of the factors to be considered, it cannot be said that it is an insurmountable legal hurdle, which cannot be overcome under any circumstance. In fact, confining the discussion to the facts of the present case, it can be stated without fear of contradiction that the totality of the circumstances would amply justify to hold that not taking recourse to Section 2A of the Act is not fatal, given the history of the litigation i.e., the petitioner's approach on more than one occasion to this Court assailing the inaction on the part of the respondent Corporation. In fact, the respondent Corporation ought to have considered the case of the petitioner without insisting on technicalities, especially since it is a peculiar case of delinquent workman disappearing and having never been traced thereafter. Once the respondent Corporation never doubted the bona fides of the petitioner, it could not have insisted on technicalities, thus denying the petitioner's claim, which is otherwise justifiable. 25. Now I may consider the submissions of the learned Standing Counsel for the respondent Corporation that all the terminal benefits were paid, treating the delinquent workman as having been removed from service. In the face of declaration granted by the Civil Court under section 108 of the Evidence Act, the petitioner's husband, for all intents and purposes, is dead or deemed to have been dead. Having stated that the presumption comes into play only on the completion of seven years, as a natural corollary, the date of death shall also be presumed to be at the end of the seventh year or thereafter. However, as there cannot be no hard and fast rules in this regard, and such presumption as to the exact time of death is a matter of conjecture, it entirely depends on the facts of each case. In this case, taking recourse to a beneficial approach of the issue, it shall be presumed that the presumption relates back to the initial disappearance of the petitioner's husband, on completion of seven years, though. 26. Once such a legal fiction is employed, it should run its full course. Ipso facto, as the workman was deemed to have been dead on the date of his disappearance, the disciplinary proceedings are deemed to have been initiated against the dead person. Those proceedings are a nullity. A fortiori, the workman is deemed to have died in harness, since by the date of his presumptive death, the workman was not removed from service. 27. Those proceedings are a nullity. A fortiori, the workman is deemed to have died in harness, since by the date of his presumptive death, the workman was not removed from service. 27. Concerning the proposition of law that compassionate appointment cannot be directed to be provided, when the employer does not have such policy, there cannot be any quarrel with the proposition of law laid down in APSRTC., rep., by its MD v. Valluru Venkata Narayana and Others ( 2008 (3) ALD 511 supra) Umesh Kumar Nagpal V. State of Haryana (1994) 4 SCC 138 supra). 28. However, if we examine the judgement in Chief Engineer, APSEB and Ors. V. K. Naga Hema 1996 (1) ALD 304 (DB) rendered by a Division Bench of this Court, the ratio laid down there in squarely applies to this case, as even the facts are substantially similar in both the cases. 29. In that case the writ petitioner's husband has been missing for more than a decade. She has been running from pillar to post seeking from the employer - Electricity Board - Compassionate appointment for herself or family pension. The Board, however, maintained that her husband was unauthorisedly absent for more than five years and for that reason his services stood automatically terminated. The Board gave no consideration to her for either compassionate appointment or family pension. When the wife has approached this Court, this Court has given a direction to treat her husband as legally dead and grant to her family pension. The petitioner-wife has also been allowed to make application for compassionate appointment. This Court further observed that in case such application is filed by her, the Board shall give a sympathetic consideration. Aggrieved there by, the Board has filed a Writ Appeal. 30. The Division Bench of this Court has held that the presumption as to the death of the workman, however, is not in any manner against the interest of the Board, for if he is alive, he is entitled to claim continuity in service until the service is determined in accordance with law and if he is dead for all legal purposes, the obligation upon the Board is to pay the family pension to his wife and dependents only. Finding no merits in the appeal, in that context, their Lordships have observed: 5. Finding no merits in the appeal, in that context, their Lordships have observed: 5. We, however, take notice of the long suffering of the wife of an erstwhile employee of the Board and the family which has gone without anything for its subsistence provided by the employer of the husband of the writ-petitioner. While we endorse the directions of the learned Singled Judge, we direct the Board to consider the case of the writ petitioner for compassionate appointment and give to her such appointment in accordance with law at the earliest. As we have noticed above, for all practical purpose the husband of the writ petitioner will be deemed to have died and as he has died while in service of the Board, he will be deemed to have died in harness. 31. Being in respectful agreement with the above ratio laid down by the Division Bench of this Court, I am of the considered opinion that for all practical purposes, the petitioner's husband shall be treated to have died in harness. Accordingly, the impugned Order, dt. 07.09.2009 passed by the second respondent is hereby set aside. Consequently, the respondent Corporation is further directed to pay the balance of terminal benefits to the petitioner treating the workman to have died in harness. 32. Insofar as the question of compassionate appointment is concerned, in the of the legal proposition laid down in APSRTC., rep., by its MD v. Valluru Venkata Narayana and Others ( 2008 (3) ALD 511 supra) Umesh Kumar Nagpal V. State of Haryana (1994) 4 SCC 138 supra), the respondent Corporation cannot be compelled. The Corporation, however, shall consider the application, if already made or to be made, of the petitioner for compassionate appoint to any member of her family sympathetically, in the light of the policy in vogue in the respondent Corporation, especially, G.O.Ms. No. 2, Transport, Road and Buildings (TR.II) Department, dated 05.01.2013 and consequential Notification No. PD-04/13, dated 02.03.2013 issued by the respondent-Corporation. Needless to observe that in this context, the respondent-Corporation may not take into account the delay, if any on the part of the petitioner, or any other dependent of the deceased employee from his family, in making the application under the peculiar circumstances of this case. 33. Needless to observe that in this context, the respondent-Corporation may not take into account the delay, if any on the part of the petitioner, or any other dependent of the deceased employee from his family, in making the application under the peculiar circumstances of this case. 33. It is hoped that the respondent authorities would process the request of the petitioner for settling the terminal benefits and also her application for compassionate appointment as expeditiously as possible, at any rate not beyond three months' time from the date of receipt of a copy of this order. 34. In the manner stated above, the Writ petition stands disposed of. No order as to costs.