IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.23834 of 2011 Date of decision : 21.12.2011 Smt. Lajwanti and another ....Petitioners Versus Union of India and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Mr.S.S.Rana, Advocate for the petitioners. ..... MAHESH GROVER, J. This writ petition has been filed by the petitioners praying that a writ in the nature of mandamus be issued directing the respondents to declare the son of the petitioners, namely Balwinder Singh, C.No.93106697 'C' Coy of 131 BN B.S.F. presumed to be dead so as to enable them to get the benefits of family pension and other service benefits in accordance with the policy which has been attached as Annexure P-15. The petitioners plead that their son who was serving with the respondents proceeded on leave with effect from 3.1.2001 to 19.1.2011 and he was directed to report for duty on 20.1.2001. On 17.1.2001 their son after availing the leave went to Jalandhar for boarding the train for re-joining his duties which he actually did on C.W.P.No.23834 of 2011 -2- 20.1.2001. Thereafter, there was no news about his whereabouts and 10 years have elapsed since then and thus he should be presumed to be dead. The petitioners also averred in the petition that they received a communication on 3.3.2001 from respondent No.3 informing them that their son had not joined the duty on 20.1.2001. They also informed them that disciplinary action would be taken against their son. The respondents then went ahead with the proposal of taking disciplinary action against the son of the petitioners and concluded the inquiry. On 16.11.2005 the petitioners were informed that their son had been dismissed from service on 1.6.2001. Thereafter, the petitioners have been persuading the respondents to give them service benefits and family pension, etc. in terms of the policy Annexure P-15. It has been averred in the petition that an FIR was also registered in this regard in the year 2008. Learned counsel for the petitioners with reference to Annexure P-15 states that the respondents themselves have expressed concern with such situations where a person goes missing and the family faces problems on account of the provisions of Section 108 of the Indian Evidence Act in which a civil death can be presumed only after 7 years. In the wake of this concern, the respondents have stated in their policy that after the lapse of a period of one year, other benefits like retirement or death gratuity/family pension may also be granted to the family subject to the fulfillment of conditions which have been provided in the subsequent paragraphs of the policy. As a measure of benefit in the first instance it has been stated that when an C.W.P.No.23834 of 2011 -3- employee disappears leaving his family, the family can be paid in the first instance the amount of salary due, leave encashment due and the amount of GPF having regard to the nomination made by the employee. The policy thus enumerates two conditions which are to be fulfilled before such benefits can be given : “(i) The family must lodge a report with the concerned Police Station and obtain a report that the employee has not been traced after all efforts had been made by the police. (ii) An Indemnity Bond should be taken from the nominee/ dependents of the employee that all payments will be adjusted against the payments due to the employee in case he appears on the scene and makes any claim.” On due consideration of the matter, I am of the opinion that whther a person is to be presumed dead or not in terms of Section 108 of the Indian Evidence Act, is a matter to be established before a civil court in appropriate proceedings and where the findings can be recorded on the basis of evidence. It cannot be ipso facto presumed that a person has been unheard on the simple averments made and that too in proceedings under Articles 226/227 of the Constitution of India. The petitioners pleaded that they be given the benefits in terms of policy Annexure P-15. But if the averments made in the petition are to be seen, then the petitioners have not placed on record any material to show that the police upon investigation has certified that the person is untraceable despite their best efforts. C.W.P.No.23834 of 2011 -4- Having regard to the aforesaid, it is extremely difficult to answer the prayer of the petitioners in the instant petition. However, the petitioners are at liberty to approach the respondents to grant them the benefits in terms of Annexure P-15 which is a policy of August 20, 1986. The Court is also not enlightened about the fact whether such a policy still subsists or has been replaced by another policy. Be that as it may, the petitioners are at liberty to pursue the remedy with the respondents and also seek a declaration to the effect that their son, who is missing, is dead. The petition is disposed of accordingly. 21.12.2011 (MAHESH GROVER) JUDGE dss