Sharda Sharma vs Chief Election Officer

Rajiv Sharma, J.—The petitioner''s son was employee of the Agriculture Department of Himachal Pradesh. He was deployed for election duty at Polling Station No. 66-Rampur in Shimla Parliamentary Constituency by the District Election Officer (DC), Shimla during election to Shimla (SC) Parliamentary Constituency-2009 as Polling Officer on 8.5.2009 at Rampur Bushehar. He became seriously ill and was admitted at the Government Hospital Khaneri at Rampur on 10.5.2009 at 5:30 PM by Sh. Prem Singh, Naib Tehsildar and Satya Parkash Kanungo. He complained of fever, vomiting, tremors, headache and dizziness. He was attended to by the then Medical Officer on emergency duty. On 10.5.2009 at 7:30 PM, the staff nurse on duty reported that the patient Sh. Anil Kumar was not found in his bed. FIR was also registered on 11.5.2009. Missing report was also registered in PS Rampur. However, the fact of the matter is that the petitioner has not been traced till date. The father of the petitioner also submitted a representation to the Hon''ble Chief Minister vide Annexure P-3, followed by another letter written to Chief Election Commissioner, at page 14 of the paper book. Sh. Anil Kumar''s father also sent communication to the Superintendent of Police vide Annexure P-4 dated 21.7.2010. The fact of the matter is that Sh. Anil Kumar''s whereabouts are not known.

The Election Commission of India has addressed a communication to The Chief Secretaries of all the States and Union Territories on 17.2.2009 for payment of ex-gratia compensation to the families of polling personnel who die or sustain injuries while on election duty. The Commission desired the State Governments to frame separate guidelines for payment of enhanced amount of ex-gratia payment in the event of any mishap to the election related officials. The commission recommended an amount of Rs. 5 lacs as the minimum amount to be paid to the next of kin of the official in the unfortunate event of death of the official while on election duty and if the death is caused due to any violent acts of extremist or unsocial elements like, road mines, bomb blasts, armed attacks etc., the amount of compensation should be double i.e. Rs. 10 lacs.

In sequel to the guidelines issued by the Election Commission of India, respondent also framed the guidelines on 29.4.2009, whereby it is provided that in the case of death of an employee during election duty, the next of kin would be entitled to Rs. 5 lacs as minimum amount of ex-gratia and in the case of violent death Rs. 10 lacs. The petitioner was legitimately expecting that as per the communication dated 29.4.2009, she would be getting ex-gratia amount of Rs. 5 lacs.

The stand taken by the respondent is that since 7 years have not elapsed from the date of disappearance of the employee, he could not be deemed to be dead.

The Ministry of Personnel, P.G. and Pensions, Department of Pensions and Pensioners'' Welfare, New Delhi, has issued Office Memorandum for grant of family pension and gratuity to the eligible members of the family of an employee/pensioner/family pensioner report missing during election duty on 24.6.2013. The relevant extract of the text reads as under:

"4. In the case of a missing employee/pensioner/family pensioner, the family can apply for the grant of family pension, amount of salary due, leave encashment due and the amount of GPF and gratuity (whatever has not already been received) to the Head of Office of the organisation where the employee/pensioner had last served, six months after lodging of Police report. The family pension and/or retirement gratuity may be sanctioned by the Administrative Ministry/Department after observing the following formalities:--

(i) The family must lodge a report with the concerned Police Station and obtain a report from the Police, that the employee/pensioner/family pensioner has not been traced despite all efforts made by them. The report may be a First Information Report or any other report such as a Daily Diary/General Diary Entry.

(ii) (ii) An Indemnity Bond should be taken from the nominee/dependants of the employee/pensioner/family pensioner that all payments will be adjusted against the payments due to the employee/pensioner/family pensioner in case she/he appears on the scene and makes any claim."

The learned Single Judge of the Gujarat High Court in the case of Pooja Vijay Raichandani and Others Vs. State Bank of India and Others, (2009) 1 GLH 164 , while considering Section 107 and 108 of Indian Evidence Act, has held as follows:

"[7] As per the aforesaid provisions of law. for proving the factum of the death of the person concerned, if direct evidence is not available, two things may be required to be proved, first is that he was alive for 30 years before his death and while proving the question whether a person is alive or dead, if it is proved that he has not been heard for 7 years by those who would naturally have heard of him that he is alive. the burden of proving that he is alive would be shifted to the other side. Therefore, if the whereabouts of the person concerned are not known from the other persons who are naturally suppose to know about him for about 7 years or more, the presumption can be drawn that the person concerned is not alive. In the present case, the wife, son and the daughter, brother, father and mother of the person concerned are the relatives who may be aware about the whereabouts of the person concerned. It has been stated by all the aforesaid persons who are in blood relations of Shri Vijay Raichandani that he has left the home and his whereabouts are not known. Even as per the police record, his whereabouts are not known and he is missing. Therefore, under these peculiar circumstances, no evidence being available to the contrary on record, it would be reasonable to proceed on the basis that Vijay Raichandani is not alive and his first degree legal heirs viz. Pooja Vijay Raichandani, Neeta Vijay Raichandani and Satish Vijay Raichandani would be entitled to inherit the property by way of succession in absence of Shri Vijay Raichandani.

[8] it is true that in normal circumstances, this Court may relegate the parties to approach before the civil Court for getting the declaration to the effect that Vijay Raichandani is not alive and consequently for succession certificate by the petitioners herein being the legal heirs of Shri Vijay Raichandani. However, it appears that the peculiar circumstances demonstrated in the present petition are that the petitioners have no means of survive. The second is that no fact to the contrary is available on record which may prima facie create any doubt about the genuineness of the claim made by the petitioners and the third is that the police has also not reported to the contrary. The fourth circumstance as may be referred to hereinafter is that inspite of the public notice issued, none has reported about raising any objection to the claim put forward by the petitioners herein being heirs of Shri Vijay Raichandani."

The respondent has adopted a very hyper technical approach while dealing with the case of the unfortunate mother whose son is not traceable till date. The missing report and FIR had already been registered and despite that till date ex-gratia payment has not been paid to the petitioner. The very purpose of the framing of the guidelines governing the release of ex-gratia payment would be frustrated if the ex-gratia payment is not released promptly. The family need not wait for seven long years to get ex-gratia payment. It is evident from Office Memorandum dated 24.6.2013, as noticed hereinabove, that the family pension could be released to the next of kin of the employee who has gone missing and whose whereabouts are not known by only taking indemnity bond. It is specifically mentioned, as noticed hereinabove, at Sr. No. 4 of letter dated 24.6.2013 that in the case of missing employee/pensioner/family pensioner, the family can apply for the grant of family pension, amount of salary due, leave encashment due and the amount of GPF and gratuity (whatever has not already been received) to the Head of Office of the Organization where the employee/pensioner had last served, six months after lodging of the police report. The Court has already noticed that the FIR stood registered on 11.5.2009 and despite that family is waiting for the release of ex-gratia payment.

Accordingly, the Writ Petition is allowed. The respondent is directed to release ex-gratia compensation of Rs. 5 lacs to the petitioner within a period of four weeks with interest @ 9% per annum, failing which, interest @ 18% shall accrue till the payment is released to the petitioner after taking indemnity bond from the petitioner to refund the amount in case Anil Kumar appears on the scene and stakes any claim. Pending application(s), if any, shall stand disposed of.