Declaration Of Civil Death By Court U/S 108 Of Evidence Act Would Not Lead To Presumption With Regard To Date & Time Of Death: Allahabad HC Dismisses Compassionate Appointment Plea

The appeal before the High Court stemmed from the impugned orders passed by the Single Judge upholding the order of the Deputy Commissioner, Industries, Gonda wherein the claim of the appellant for compassionate appointment was rejected.

The Division Bench of Justice Rajan Roy & Justice Om Prakash Shukla asserted, “The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised even on expiring of six years and 364 days or at any time short of it.”

Advocate Om Prakash Mani Tripathi appeared for the Appellant while CSC Gopal Kumar Srivastava represented the Respondent.

The fact as presented before the Court was that the appellant’s father was working as a peon at Jila Udyog Kendra, Gonda, Uttar Pradesh and he went missing in the year 2012. This was reported by his family on the same day, however a formal missing complaint came to be filed after 2 days. In the intervening period, he attained the age of 60 in 2013 and no retirement benefits were extended by the respondent-Zila Udyog Kendra, Gonda in the absence of clarity of status of the missing worker. In the year 2019, the representation of the mother of the appellant was rejected for providing any financial help or compassionate appointment before the completion of seven years from the date of missing.

Subsequently, after a lapse of period of seven years, the family of the appellant filed a suit seeking a declaration of the worker’s civil death, which came to be allowed by the Civil Judge. After declaration of civil death by the court, the appellant received an appointment letter for the position of chowkidar. However, when he went to join on the said position, he was not allowed to join for extraneous reasons. The appellant approached the High Court praying for appointment on compassionate ground under the Dying in Harness Rules, 1974 but the same was dismissed by the Single Judge.

One of the main issues before the Bench was whether a person who is unheard of for a period of seven years, is to be presumed to have died on the date he went missing or soon thereafter or at the close/end of period of seven years.

The Bench clarified that Section 107 of Indian Evidence Act, 1872 is about the burden of proving death of a person known to have been alive within thirty years, whereas Section 108 is about the burden of proving that the person has not been heard of for seven years.

Referring to the judgments of the Apex Court in Subhash Ramchandra Wadekar Vs. Union of India, AIR 1993 Bombay 64 and Smt. Narbada and another Vs. Ram Dayal, A.I.R. 1968 Rajasthan 48, the Bench said, “Thus, it is clear as broad daylight from the aforesaid judgments that a declaration of civil death by the civil court under Section 108 of the Indian Evidence Act, 1872 would not lead to a presumption with regard to date and time of death. Essentially, the said declaration is based on a statutory presumption, which comes into play only after the lapse of seven years and not prior.”

On a perusal of records, the Bench observed that the appellant had filed a suit seeking declaration of civil death of his father, however, the appellant did not seek declaration as to any specific date of death of his father and no evidence was adduced for proving a specific date or time of death. The order of the Civil Court was purely based on the presumption of death as provided under Section 108 and there was no specific date of death mentioned which could have given an impetus to the claim of compassionate appointment to the appellant.

The Bench also noticed that the Civil Court had observed that the order would become automatically inoperative/ineffective in case the father of appellant, was found to be alive. The High Court also placed reliance upon its case in

Vivek Kumar Verma Vs. Uttar Pradesh Rajya Vidyut Utpadan Nigam Limited And 02 Other Writ A No.19124 of 2019 where a Single Judge, in almost an identical situation was dealing with the rejection order passed for compassionate appointment by U.P. Rajya Vidhut Utpadan Ltd., Lucknow, wherein the declaration of civil death was granted by the civil court and by that time, the father had already superannuated. The Petition was dismissed on the ground that presumption would not arise unless a specific date of death is proved by evidence in the given facts since the date of death was neither disclosed nor was proved.

“In view of the above discussions, as the father, if alive would have attained the age of superannuation on 30.11.2013. Whereas, in view of the law on the subject, his civil death cannot be presumed on a date prior to 16.10.2019 when the suit was filed for such declaration, the petitioner's claim for compassionate appointment is not sustainable on aforesaid law”, the Bench held.

Finding no infirmity in the impugned orders, the Bench dismissed the special Appeal.

Appellant: Advocate Om Prakash Mani Tripathi

Respondent: CSC Gopal Kumar Srivastava