Jammu and Kashmir High Court: Sanjay Dhar, J., while allowing the present petition, clarified that a person who has been declared missing for more than ten years, cannot be said to have ‘deserted’ his service responsibilities.
Background
Petitioner has filed the instant petition seeking declaration that her husband namely Asha Ram, be declared as dead in terms of Section 108 of India Evidence Act, 1872. A Writ of Certiorari to quash the order of respondents whereby the missing husband of the petitioner has been declared as ‘deserter’ by the respondent authority has also been sought.
Issue
Whether the respondents could have, on the basis of an enquiry, declared the petitioner’s husband as ‘deserter’ in the circumstances of the present case?
Observation
Court reproduced Section 108 of the Indian Evidence Act, 1872;
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.
Further, Court referred to the definition of the word ‘desert’ as defined in Oxford English Dictionary to mean: (i) callous or treacherously abandon (ii) leave (a place), causing it to appear empty and (iii) illegally run away from the military service and connecting it with the facts of the present case, observed, “A person, whose whereabouts are unknown and who has not been heard of for the last more than 10 years, cannot be stated to have illegally run away from his service … the petitioner’s husband is presumed to be dead because his whereabouts have remained unknown for more than seven years, as such, and by no stretch of imagination, he can be held guilty of having deserted the service of CRPF… The action of the respondents in declaring the petitioner’s husband as ‘deserter’ and thereafter handing down the punishment of dismissal to him, is unsustainable in law.”
Decision
While allowing the present petition, Court quashed the orders of the respondent authority whereby the petitioner’s husband was declared ‘deserter’ and was dismissed from his service. Further, directions were issued to release all the service/pensionary benefits of the petitioner’s husband in favour of the rightful claimants.[Madhu Devi v. Union of India, 2020 SCC OnLine J&K 723, decided on 24-12-2020]
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