The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.24115 of 2024 Nihar Ranjan Hota ..... Petitioner Represented By Adv. – Mr. Kishore Kumar Mishra -versus- 1) State Of Odisha 2) Secy. Member Board Of Revenue,ctc 3) Accountant General,bbsr 4) Collector,puri 5) Deputy Director Consolidation,puri ..... Opposite Parties Represented By Adv. – Mr. M.R. Mohanty, AGA CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA Order No. ORDER 12.02.2025 07. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode).
Legal Reasoning
2. Heard learned counsel for the Petitioner as well as learned Additional Government Advocate appearing for the State- Opposite Parties. Perused the writ petition as well as the documents annexed thereto. 3. Learned counsel for the State, on the other hand, placed on record the instruction dated 2.1.2025 received from the Secretary of Board of Revenue, Odisha, Cuttack. The same is taken on record. 4. The present writ petition has been filed at the instance of the son of the Government employee who is missing disappeared Page 1 of 8. since 02.04.2007, with the following prayers:- that “In the aforesaid circumstance the petitioner this Hon'ble court may humbly prays graciously be pleased to issue notice the Ops calling upon them to show cause as to why the petitioner and his two brothers shall not be given all the service benefits of their father including all arrear pension in accordance with law along with interest of 18% per annum. And or to pass such other order or orders as this Hon'ble court deem just and proper in the facts and circumstance of the case.” 5. Learned counsel for the Petitioner, at the outset, contended that the father of the present Petitioner, namely, Late Umakanta Hota, while working as Consolidation Officer, Puri, disappeared on 02.04.2007. Since 02.04.2007 the above named Government employee has not been heard of and a missing report was filed before the local police station on 23.12.2008. Despite lodging of such missing person report, the father of the present Petitioner has not yet been traced out by the police. As such, the matter remained pending for several years. Finally, the mother of the present Petitioner earlier approached this Court by filing W.P.(C) No.17162 of 2022 with a prayer for a direction to the Opposite Parties to pay the retirement dues as well as leave encashment benefits and other death and gratuity benefits as is due and admissible to her late husband. A coordinate Bench of
Decision
this Court vide order dated 05.08.2022 disposed of the said writ petition by directing the Opposite Party No.2 to take appropriate action as directed by Government and to take a final decision Page 2 of 8. within a period of two months from the date of receipt of a copy of the order dated 05.08.2022. A further direction was given to the effect that if it is found that the Petitioner is entitled to get the benefit as claimed by her, the same shall be released in favour of the Petitioner within a period of two months. In course of argument, learned counsel for the Petitioner, further referring to the letter dated 30.01.2023 under Annexure-5, contended before this Court that the Additional Secretary to the Board of Revenue, Odisha, Cuttack, wrote a letter to the Deputy Director, Consolidation, Puri/Deputy Director, Consolidation, Bhubaneswar, requesting him to take a decision on the grievance petition of the mother of the present Petitioner. Further, the Deputy Director, Consolidation, Puri, was requested to conduct an inquiry and submit a factual report before the Government and to forward a copy thereof to the Petitioner. 6. Pursuant to the order of the Board of Revenue, the Deputy Director, Consolidation, Bhubaneswar conducted an inquiry and submitted a report on 15.02.2023, wherein it has been stated that after verification of office records, it was found that the missing Government employee, namely, Umakanta Hota, had not joined in that Range Office after he was relieved from the office of the Deputy Director, Consolidation Range, Puri. Since no decision was taken and the Petitioner was not extended with the retiral benefits, as is due and admissible to his father, despite a direction by the coordinate Bench of this Court vide order dated 05.08.2022, the Petitioner was compelled to approach this Court Page 3 of 8. by filing the present writ petition. 7. Learned counsel for the Petitioner further submitted that it is not disputed that the father of the present Petitioner, namely, Umakanta Hota, who was working as a Consolidation Officer, Consolidation Range, Puri, has disappeared and till date the said Government employee has not been heard of. In the aforesaid context, learned counsel for the Petitioner, referring to the provisions contained in Section 108 of the Indian Evidence Act, contended that the burden of proof of proving the fact that the father of the Petitioner is alive rests on the person who affirms the fact that he is still alive. Furthermore, the provision contained in Section 108 of the Indian Evidence Act provides that if the person remains unheard of for a period of eight years, it would be presumed that he is dead unless the same is proved otherwise by a person who assails such fact. By referring to the aforesaid provision, learned counsel for the Petitioner emphatically submitted that since the father of the Petitioner is missing since 2007, which is for a period of more than seventeen years, it is to be presumed that he is dead and, accordingly, his service benefits as well as retiral dues be calculated, sanctioned and disbursed in favour of the legal heirs of the said Government employee including the present Petitioner. 8. Learned counsel for the State, on the other hand, contended that the father of the Petitioner, namely, Umakanta Hota, who was working as Ex-Consolidation Officer, Puri, has disappeared since 02.04.2007 and he remains unheard of for last Page 4 of 8. several years. He further contended that since there was no complete information with regard to the death of the said Government employee, therefore, the claim of the Petitioner in the present writ petition and his mother in the earlier writ petition could not be processed by the Opposite Parties. He also submitted that pursuant to the direction given by this Court in the previous writ petition, i.e. W.P.(C) No.17162 of 2022, the Secretary, Board of Revenue, Odisha, Cuttack, examined the matter. Accordingly, the Secretary, Board of Revenue, Odisha, Cuttack, has written a letter to the Deputy Director, Consolidation, Puri on 02.01.2025 wherein the Deputy Director, Consolidation has been requested to take immediate steps for grant of pension/family pension in favour of the mother of the Petitioner during her life time. By referring to the aforesaid letter, learned counsel for the State submitted that effective steps have been taken by the Opposite Parties to process the claim of the present Petitioner. 9. On a careful analysis of the factual background of the present case, this Court observed that the issue that is required to be decided in the present writ petition is as to whether the Petitioner being the legal heir (son of the Government servant who is missing since 02.04.2007 while he was still in service) is entitled to the unpaid salary/other dues/pension/other service/financial benefits as is due and admissible to the legal heirs of a deceased Government employee including family pension? The answer to the aforesaid question can be found Page 5 of 8. from the provision contained in Rule-56(19) of the O.C.S. (Pension) Rules, 1992. For better appreciation, the said sub- rule-19 is extracted herein below:- “56(19) Family pension and death gratuity to the family members of the Government employees who disappears or absconded from the Government service shall be as follows : (i) When an employee disappears or absconded while in service leaving his family, the family shall be paid at the first instance the amount of arrear salary due if any and leave encashment due. The house rent, if any for the month(s) in respect of which the salary is due shall be recovered from the amount of salary payable to the family. (ii) After the elapse of a period of one year, other benefits like death gratuity/family pension including arrears shall also be granted to the family provided that the concerned family shall intimate the fact of disappearance of the Government servant to the Head of Office under where the Government servant served last for the purpose of sanction of the benefits. Where the Head of Office is not the pension sanctioning authority of the disappeared Government servant he will send the papers with recommendation/comments to the pension sanctioning authority who will sanction the benefits under Sub-rule (2) or (4), as the case may be, after observing the following formalities, namely: (a) An F.I.R. should be lodged with the nearest Police Station under intimation to the concerned Head of Office. The Head of Office should obtain a report from the Police Station through the District Police Officer that the employees has not been traced out after all efforts made by police. (b) an indemnity Bond in [Form – Q] shall be taken from the dependents of the employee Page 6 of 8. that all payments will be adjusted against the payments due to the employee in case he appears on the scene and makes any claim; (iii) The Head of Office shall assess all Government dues outstanding against the Government servants and effect their recovery in accordance with Rule 68 of these Rules and any other instruction in force for effecting recovery of Government dues. (iv) The family shall apply to the Head of Office of the Government servant, for grant of family pension and death gratuity after one year from the date of in disappearance of accordance with the prescribed procedure.” the Government servant 10. Having heard the learned counsels appearing for the respective parties and on a careful analysis of the submissions made before this Court, further keeping in view the provision of Section 108 of the Indian Evidence Act, as well as Rule-56(19) of the O.C.S. (Pension) Rules, 1992, this Court is of the view that since the father of the present Petitioner-Umakanta Hota disappeared on 02.04.2007 and has remained unheard of for all these years and there is no evidence to establish that he is still alive, legally it is to be presumed that he is dead, unless and until the contrary is proved by a person who is assailing such a fact. Since there is no counter claim or challenge to the fact that the father of the present Petitioner is dead, this Court is of the view that the Opposite Parties shall legally presume that the father of the present Petitioner is dead. Accordingly, the Opposite Parties are directed to construe that the father of the Petitioner is dead w.e.f. 02.04.2007, i.e. from the date of his disappearance. Further, it is directed that all his retiral and financial benefits as Page 7 of 8. is due and admissible, including the pensionary benefits, be calculated and disbursed in favour of his legal heirs strictly in accordance with Rule-56(19) of the 1992 Rules within a period of three months from the date of communication of a certified copy of this order by the Petitioner before the Opposite Party No.5-Deputy Director, Consolidation, Puri. 11. Accordingly, the writ petition is disposed of. Debasis ( A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Reason: Authentication Location: ORISSA HIGH COURT Date: 17-Feb-2025 12:31:40 Page 8 of 8.