Employee Untraceable For Seven Year Should Be Presumed Dead, Heirs Entitled To Terminal Benefits: Calcutta High Court

The bench held that:

“This Court is of the view that having not denied service of the said missing person with the respondent Bank for years together the Bank cannot shut the doors on the face of his legal heirs when time comes for the Bank authorities to compensate adequately, the legal heirs of the person, in absence of the said person. The 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.”

Brief Facts:

The matter pertained to a petition filed by the wife of a missing individual who was employed by the Bank of India. The Petitioner asked for the release of an ex-gratia lump sum amount on the presumption of her husband's death, as he went missing and untraceable on February 2, 2007. Despite no trace of him being found by the authorities or relatives, the Bank maintained a silence regarding the Petitioner's claims.

The Petitioner requested relief through a writ of mandamus in the Calcutta High Court (“High Court”) and urged the Bank to release the ex-gratia sum immediately with interest. Subsequently, the Petitioner also sought retirement benefits which included Gratuity and Provident Fund, and made an application for compassionate appointment for her son on the presumption of his father's death. However, the Bank remained unresponsive to these pleas until the court intervened.

Upon direction from the High Court, the Bank issued an order settling the terminal benefits of the missing person, presuming his death to have occurred on May 28, 2007. Despite this acknowledgment, the Petitioners' request for ex-gratia lump sum payment as legal heirs remained unfulfilled by the Bank.

Observations by the High Court:

The High Court held that the Bank is obligated to compensate the legal heirs of the missing person. The High Court emphasized the Bank's responsibility towards supporting the families of its employees, especially in cases where the employee is unable to provide support due to unforeseen circumstances such as disappearance. It noted that while the scheme of compensation outlined by the Bank may not explicitly mention missing persons as beneficiaries, this does not imply an exhaustive list of eligible individuals. The High Court acknowledged that the scheme's creators could not have anticipated every possible scenario.

The High Court referred to Section 108 of the Indian Evidence Act, 1872, which lays down the presumption of death in cases where a person has not been heard of for seven years. The High Court emphasized that the burden of proof lies not in proving the death of the individual, but rather in establishing their continued existence. However, if it is proven that the person has not been heard of for seven years, the law presumes their death. The High Court further clarified that while the presumption of death is established by law, the determination of the exact time of death relies on factual or circumstantial evidence.

Considering the undisputed absence of the employee for more than seven years and the presumption of his death, the High Court held that the Bank should extend the benefits of the scheme to his legal heirs. Consequently, the High Court directed the Bank to release ex-gratia lump sum payment to the Petitioner, along with interest at the prevailing rate.

Case Title: Smt. Tara Devi & Anr. Vs. Bank of India & Ors.

Case Number: WPA 19235 of 2021

Advocate for the Petitioner: Mr. Kishore Mukherjee.

Advocate for the Respondent: Mr. R.N. Majumder, Mr. S.M. Obaidullah, Mr. Roni Chowdhuri.

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