Judgment:
PADMANABHAN NAIR, MEMBER (J)
Petitioners are parents of Nelson.K.T, who was enrolled as Sepoy/Clerk (Store Keeper) in the Army on 6.11.1980, who had absented from the unit lines with effect from 6 AM on 31.10.1987. The petitioners' claim is that their son, Nelson.K.T was missing from 31.10.1987 and nothing was heard about him for more than seven years. According to them, they are entitled to family pension, treating Nelson.K.T as dead, in view of the provisions of Section 108 of the Evidence Act. This application was originally filed as W.P(C).No.32811/2006 before the Honourable High Court of Kerala, which is transferred to this Tribunal, consequent to its formation.
2. The petitioners' son, Nelson.K.T was serving with 56 Company ASC (Supply), Bangalore. On 26.9.1987, he was sent on temporary duty to 65 Company ASC (Supply) Type D. He reported to 65 Company ASC (Supply) on the same day. It is averred that the first petitioner received a copy of apprehension roll sent by the third respondent to the Superintendent of Police, Kollam in which it was stated that their son, Nelson.K.T had deserted himself from 31.10.1987 from the unit lines. The Superintendent of Police was requested to apprehend and hand over Nelson.K.T to the third respondent. On receipt of a copy of that letter, the first petitioner went to Madras and made enquiries. He was told that his son was missing from 31.10.1987 after receiving salary for the month of October. An amount of Rs.1,300/- was kept in his bed and the same was handed over to the first petitioner. On 23.10.l987, the first petitioner sent a letter to the second respondent to find out the whereabouts of their only son. The first petitioner was informed that an apprehension roll was issued treating the son of the petitioners as a deserter, after conducting a proper enquiry. The first etitioner sent a letter to the Prime Minister of India requesting to enquire about his missing son. The first petitioner received a letter in which it was stated that his son was declared as a peace deserter with effect from 31.10.1987 and was dismissed from service with effect from 24.7.1991, as he did not surrender or his whereabouts were not known. Subsequently, the petitioners made several requests, including before the President of India to trace out their son. But no effective action was taken to trace out their missing son. It is averred that the petitioners' son was missing from 31.10.1987 and he was declared as a deserter and was dismissed from service. It is averred that any Army person found to be missing while in service can be declared as deserter under Section 6 of the Army Act and can be dismissed for desertion. It is averred that that position will change as and when the whereabouts of such person is not available for 7 years under Section 108 of the Indian Evidence Act. It is averred that if the whereabouts of a person, who was declared as a deserter and dismissed from service could not be traced out for a period of seven years, he has to be treated as dead with the help of Section 108 of the Evidence Act and all consequences will follow. His Next of Kin are entitled to get family pension and other benefits. According to the petitioner, their only son was serving in the Army and he was missing from 31.10.1987 and nothing was heard about him or his whereabouts could not be found out even after lapse of seven years. So, he must be presumed to be dead and family pension may be granted to the petitioners.
3. The respondents have filed a counter affidavit admitting that the son of the petitioners was enrolled in the Army on 6.11.1980. It was contended that while serving with 56 Company ASC (Supply), he was sent on temporary duty to 65 Company ASC (Supply) Type D with effect from 26.9.1987. While he was attached to 65 Company ASC (Supply), he was granted casual leave with effect from 18.10.1987 to 28.10.1987. He rejoined duty on 29.10.1987. He was absent without leave from unit lines with effect from 6 AM on 31.10.1987. An apprehension roll was addressed to the Superintendent of Police, Kollam and a copy of the same was endorsed to the first petitioner. It is averred that he was sent on temporary duty on 65 Company ASC (Supply) in connection with OP PAWAN. As he had absented from duty while he was dispatched to OP PAWAN, his parents are not entitled to the benefit of doubt of their missing son. It is also contended that the petitioners never lodged an FIR and they have approached the Court after lapse of 20 years since the date of missing/desertion of their son. It is also contended that the court of enquiry was held by 56 Company ASC (Supply) and Nelson.T.K was declared as a peace deserter. Since he was a peace deserter, he was dismissed from service with effect from 27.4.1991. The averment that the petitioners' son was missing from 31.10.1987 was denied. It is contended that he absented from the unit lines to avoid duty with OP PAWAN. It is also contended that as per special Army order dated 11.5.1973, an individual is required to be kept in supernumerary strength of Corps for a period of three years in case of peace desertion and ten years in case of field desertion and dismissed thereafter. It is contended that since the son of the petitioners was dismissed, they are not entitled to any relief.
4. The sole question arising for consideration in this Application is whether the petitioners are entitled to get family pension treating their son, Nelson.T.K as dead on account of the presumption available under Section 108 of the Indian Evidence Act. Materials on record show that the petitioners' son, while serving with 56 Company ASC (Supply), was sent on temporary duty to 65 Company ASC (Supply) Type D with effect from 26.9.1987. Immediately he joined that unit. He availed casual leave with effect from 18.10.1987 to 28.10.1987. He rejoined duty on 29.10.1987. He had absented without leave from unit lines with effect from 6 AM on 31.10.1987. Exhibit P1 apprehension roll was sent to the Superintendent of Police, Kollam. It was dated 19.11.1987. A copy of the same was sent to the first petitioner also. On getting that letter, the first petitioner wrote Exhibit P2 letter to the Director General of Supplies and Transport, in which he had denied the allegation that his son was absented himself from 31.10.1987. In that letter, he had made an unequivocal admission that on 2.11.1987, his son Nelson.K.T had written a letter from Madras to his uncle, T.M.Joseph, U.D.Clerk working in the office of the Assistant Education Office, Kundara, a copy of which was also attached to Exhibit P2. The said statement goes a long way to prove the contention of the respondents that it is not a case of ordinary man missing, but it is a case in which the son of the petitioners deliberately absented from the unit lines. Letter No.17774/AG/DV-1 dated 11th March, 1980 of the Senior Record Officer shows that when a PBOR deserts a court of enquiry has to be held under Section 106 of the Army Act. A reading of the letter shows that at first a court of enquiry has to be conducted and the person is to be declared as deserter. If the person is missing from the forward area, his name has to be kept in the register for a period of ten years as deserter. If he is absent from a peace area, he is to be dismissed from service after three years of absence or desertion. In this particular case, the son of the petitioners was declared as a deserter, after conducting a court of enquiry. Since he was deserted from a peace area, he was dismissed from service after observing the formalities. It is true that in a genuine case of man missing, the Next of Kin of the person missing is entitled to get family pension and other benefits. For that purpose, they need not wait for seven years. If it is a case of man missing, the Next of Kin are entitled to get the gratuity, leave salary etc. immediately and pension after a period of one year. For getting family pension, the family members must lodge an FIR before the concerned Police Station and obtain a report that the employee has not been traced after all efforts had been made by the police. They should also execute an indemnity bond admitting that the payments received by them will be adjusted against the payments due to the employee in case he appears on the scene and makes any claim. In such a case the Next of Kin are entitled to get family pension after lapse of one year from the date of registering the FIR (see Government of India decisions 10, 11, 12 and 13 under Rule 54 of CCS (Pension) Rules, 1972). But, this rule applies only to a genuine case of man missing under normal circumstances and not in a case like this, where the employee deliberately ran away from the barrack lines. After absenting from the barrack lines on 31.10.1987, he wrote a letter to his uncle on 2.11.1987, which shows that he deliberately ran away from the barrack lines. In such a case, the parents are not entitled to get the benefits drawing the presumption available under Section 108 of the Evidence Act. It is to be noted that there may be cases in which the officials disappear after committing fraud or committing crimes. This rule cannot be used as a bonus to help such individuals and can be applied only in genuine case of disappearance under normal circumstances.
5. The petitioners' son was declared as deserter and dismissed from service with effect from 27.4.1991. The petitioners approached the Honourable High Court only in the year 2006. There is unexplained delay in approaching the Honourable High Court also.
6. We do not find any reason to grant relief to the petitioners. The Transferred Application is only to be dismissed. In the result, the Transferred Application is dismissed.