EMPLOYMENT LAW UPDATE
12th June 2024
Issue No. 07/24-25
UNTRACEABLE EMPLOYEE PRESUMED DEAD AFTER SEVEN YEARS
BACKGROUND
A writ petition in the nature of mandamus (WPA 19235 of 2021) was filed before the Calcutta High Court wherein the petitioner sought release of the ex-gratia lump sum amount of her husband’s retirement benefits due to her. These benefits had accrued on the ground of presumption of death of her husband, an erstwhile employee of the respondent Bank of India (“Bank”).
The dispute therefore was, if after lapse of more than seven years from the date when the person went missing, the Bank can presume the same to be death of the person in accordance with law.
BRIEF FACTS
The husband of the petitioner had gone missing since 2nd February 2007 and it was noted that there was no trace of him. The petitioner had for that purpose prayed for the High Court to commend the Bank to release the ex-gratia sum amount immediately with an interest @ 18% per annum.
The High Court while hearing the matter made emphasis to Section 108 of the Indian Evidence Act, 1872 which says “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.”
THE VIEW OF THE COURT
The High Court while taking an empathetic view, kept note of the years of service of the said missing person with the respondent Bank and thus held that the Bank cannot shut the doors on the face of his legal heirs when the time has come for the Bank authorities to compensate the legal heirs in absence of the said person.
The High Court also acknowledged that greater objective of supporting the family of an employee who may not be in a position to earn and support the family, cannot be sub-served for some technical reasons.
The High Court subsequently directed the Bank to release the ex-gratia lump sum payment in favour of the petitioners being the legal heirs of the erstwhile employee of the Bank.
This was to be done according to the terms of the Bank’s prevalent scheme and in accordance with the interest at the rate of savings bank interest in a Nationalised Bank. The interest would be payable from the date of application made by the petitioners for the ex-gratia, till the date of actual payment.
The detailed judgement can be accessed here.
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