'Expects Family To Get Date Of Civil Death Declared Through Courts', MP High Court Deplores Indian Army's Behaviour Towards Missing Soldiers

Disapproving the 'somewhat rude' behaviour of the Indian Army towards the missing soldiers and their families, Madhya Pradesh High Court has highlighted the importance of abolishing the 'worn-out rules' regarding the pension and retirement benefits of soldiers.

The single-judge bench of Justice Anil Verma was adjudicating a second appeal filed by the family members (parents) of the missing soldier to modify the date of his death in order to avail the GPF, Gratuity, Family pension and other retiral benefits.

“…The brave soldiers of the Indian Army live for the country and die for the country. But unfortunately when a soldier suddenly goes missing, the Indian Army's behavior towards him becomes somewhat rude. Instead of helping the family of the missing soldier, the Indian Army expects them to get the date of his civil death declared through civil Court, and they are denied to release the pension and other retirement allowances of the missing soldier…” the bench sitting at Indore underscored how the grieving families are put through certain hardships based on old rules.

Earlier, Mandsaur Civil Judge had partly allowed a civil suit filed by the dependents of the soldier for declaration of civil death. The missing soldier, Surendra Singh Solanki, had joined the army in 2002. Thereafter, he was appointed to the post of Signalman at Srinagar in 2010. Around the same time, Military Technical Training Institute, Goa had called Solanki for further training, commencing from 25.7.2010. However, Solanki neither reached the institute on the specified date nor returned to his hometown.

A missing person report was lodged at the police station and the family started receiving ordinary pension w.e.f 25.07.2010. However, in 2020, the Defense Accounts Department informed the family that the non-availability of the death certificate would make them ineligible for Special Family GPR & other dues. Hence, a suit was filed before the civil judge by the current appellants. In its judgment, the trial court construed the date of death as 24.06.2020, i.e., the date of instituting the civil suit. These findings were affirmed by the first appellate court later.

The appellants contended that the Department has already taken 25.07.2010 as the date of death for granting ordinary family pension and no variance from that date could be justified for paying other retirement arrears. It is pertinent to note here that the Army Court of Inquiry has also determined the date of disappearance of Solanki as 25.07.2010. Relying on the above reasoning, the appellants submitted that the date of civil death should be declared as 25.07.2010.

Court's Observations

In the course of second appeal, High Court analysed Sections 107 and 108 of Indian Evidence Act to show that it does not provide any indications on how the date on which a person is presumed to be dead can be determnined.

“…The moment it is established that a person has not been heard of for 7 years, the presumption of death arises. Although the presumption under the Evidence Act is confined only to the factum of death, but is silent in respect of the actual date of death or presumed death”, the court pointed out.

Justice Anil Verma relied on the apex court judgment in N.Jayalakshmi & Ors. v. R. Gopala Pathar & Anr. (1994) to iterate that the exact time of death is not a matter of presumption. It must be a matter of evidence and the onus to prove the exact time of death rests upon 'a person who claims a right to the establishment of which that fact is essential'.

After perusing the evidence on record, the court found that nothing else except the date of death of Solanki is in dispute. The statements of the parents as well as the findings of the Court of Inquiry indicate that the date on which the soldier went missing is 25.07.2010.

Applying the test of preponderance of probabilities as given in Section 3 of the Evidence Act to the current factual scenario, the court inferred that Solanki could have died on 25.07.2010 or soon thereafter:

“…If he was alive after 25.7.2010, there was no reason for him not to contact his immediate family members. It is not the case that Surendra Singh left the house in distress or he was under some disability which prevented him from returning home or even contacting his family members. Nor is it shown that Surendra Singh was missing in such circumstances or could be at such place wherefrom he could not even contact his parents or close family members..”

The court also referred to a 1989 Circular issued by the Government of India under Rule 54 of the CCS (Pension) Rules, applicable to the concerned Departments. In this circular, it has been stated that a family is eligible to 'apply to the Head of the Office of the Government servant for grant of family pension and death/retirement gratuity, after one year from the date of disappearance of the Government servant in accordance with the prescribed procedure.' The circular also came with a rider that this provision will only be applicable to genuine cases of disappearance under normal circumstances.

“…the finding given by the trial court is not based on any cogent material based upon only an inference drawn for which there was no basis for the aforesaid reasons. In the present case the finding of the both the courts below are erroneous and unsustainable due to lack of proper appreciation of fact and law as indicated above”, the court concluded while partly allowing the appeal by declaring the date of death of soldier as 25.7.2010.

For Appellants: Advocate Nitin Singh Bhati

For Respondent No.2: Advocate Himanshu Joshi

Case Name: Chhaya & Anr. v. Public at Large & Ors.

Case No: Second Appeal No. 2186 of 2023

Citation: 2024 LiveLaw (MP) 111

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