A bank of Justice Rajan Roy and Justice Om Prakash Shukla also observed that the presumption of Section 108 is not the only mechanism for declaring death and that a party has the right to prove by convincing evidence that the date and time of death is before seven years.

“if a question arises as to the date or time of death, it must be established by direct or circumstantial evidence and not by conjecture or presumption. The burden of proof is on the person who asserts that the death occurred at a date or time to succeed in his claim, before the lapse of seven years,” the division bench observed.

The court was essentially dealing with an appeal by one Amardeep Kashyap contesting the orders of the Single Judge in Record A No. 2731 of 2024 and Miscellaneous Civil. Revision of defective application no. 117 of 2024.

By the contested order, the single judge did not find illegality in the order issued by Deputy Commissioner, Industries, Gonda (in March 2023)by which the appellant’s request for compassionate appointment was rejected.

The case in brief

The appellant’s father, born in November 1953, worked as a peon at the Jila Udyog Kendra in Gonda, Uttar Pradesh. He went missing on 25 June 2012 and despite best efforts the appellant and his family were unable to locate him.

In the appellant’s case, his father would have completed 60 years on 30 November 2013. However, his employer (respondent Zila Udyog Kendra, Gonda) did not provide pension benefits as his status (dead or missing) remained unclear.

Further, by letter dated 19 December 2019, the appellant’s mother’s representation was also rejected for granting any financial aid or compassionate appointment before the completion of seven years from the date of disappearance.

Subsequently, after a period of seven years, the appellant’s family filed a civil death action in October 2019, which was allowed by the civil judge on 22 April 2022.

The appellant’s case was that after the court declared his father to be civilly dead, he was given a letter of appointment for the post of chowkidar on 28th May 2022. However, he was prevented from taking up the post and the letter of appointment took was withdrawn as a respondent. he asked for a death certificate for his father.

Subsequently, the applicant obtained a death certificate stating that the date of death of the appellant’s father was October 16, 2019, the date on which he filed an action requesting the civil death declaration of his father.

The appellant filed a writ petition in the SC seeking payment of dues and compassionate appointment after the death of his father. The writ was ordered on September 20, 2022, by which the appellant was ordered to submit a detailed representation, and the respondent was asked to rule within a set period.

The representation was rejected on February 3, 2023. Challenging this, the appellant filed another writ petition seeking appointment under the Dying in Harness Rules, 1974.

The single judge, by contested ordinance, rejected the request on April 5, 2024, with the following observations:

“In the case of the petitioner, his father disappeared on 30.06.2012. According to the legal provisions, he is presumed dead seven years after the date of his disappearance, which is in 2019. The petitioner’s father would have reached retirement age on 30.11.2013. So, from the material available on record it cannot be said that the petitioner’s father died in harness and therefore the petitioner cannot claim compassionate appointment in place of his father.” (emphasis supplied)

A revision petition against this order was also dismissed.

Now before the division bench, the appellant challenged both the orders on the ground that there was no distinction between civil death and natural death to grant compassionate appointment.

On the other hand, supporting the contested order of the single judge, the respondent’s counsel argued that the date of death of the missing employee must be considered as the date of the civil death declaration by the court and in this case, the appellant’s father. , who disappeared on June 25, 2012, was declared dead by the court only on April 22, 2022, and at that time, he would have already reached retirement age; thus, the appellant would not be entitled to compassionate appointment and there was no question of issuing a letter of appointment.

Observations of the High Court

At the outset, the Court held that the appellant could claim a compassionate appointment only if he could prove that his father died in harness between 25 June 2012 (when he disappeared) and November 30, 2013 (when he would retire).

The court referred the decision of the superior court in the case LIC Of India vs Anuradha 2004 and judgments of Allahabad HC in cases of Ram Singh vs. Board of Revenue and Ors. 1963 let’s note that all that can be presumed under Section 108 is that the person concerned is dead. Still, the time cannot be fixed the death of a person under this provision because it is not exhaustive in the matter of presumption as to the death of a person.

Now coming back to the facts of the case, the Court held that although the appellant filed an action seeking a declaration of civil death of his father, he still did not seek a declaration. as to any specific date of his father’s death and no evidence was adduced to prove a specific date or time of death.

The Court observed that the order of the Civil Court was solely based on the presumption of death as provided under Section 108 and did not refer to any specific date of death which could have given impetus to the plea of ​​compassionate appointment to the appellant.

In this context, the Court pointed out that his civil death cannot be presumed on a date earlier than October 16, 2019, when the suit for such declaration was filed and therefore, the petitioner’s claim for compassionate appointment was not viable as his father, if alive. , would have reached retirement age anyway on November 30, 2013, long before the date of the civil suit.

Against these, the appeal was rejected.

Apparitions

Appellant’s attorney: Om Prakash Mani Tripathi

Defendant’s lawyer: CSC Gopal Kumar Srivastava