HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 35 Case :- SPECIAL APPEAL DEFECTIVE No. - 896 of 2010 Petitioner :- Ramakant Singh Respondent :- State Of U.P. & Others Petitioner Counsel :- Arun Kumar Respondent Counsel :- C.S.C.,Amit Sthalekar,Rajeev Gupta,Yashwant Verma Hon'ble Sunil Ambwani,J.
Hon'ble Kashi Nath Pandey,J.
We have heard Sri Arun Kumar, learned counsel for the appellant. Learned standing counsel appears for respondent Nos. 1 and 2. Sri Rajeev Gupta, appears for respondent No.3.
The petitioner's father, Sri Veer Pratap Singh was serving as a Class IV employee in the Judgeship at Mainpuri. He went missing from 17.8.1997, and has not been traced out since thereafter. A disciplinary enquiry was initiated in the Judgeship, in which an enquiry report was submitted by Sri Vishram Singh, Enquiry Officer/Special Judge (D.A.A), Mainpuri on 3.2.1999, confirming that Sri Veer Pratap Singh, a Class IV employee, is absenting himself from duties from 17.8.1997. No application for leave has been received, and that the show cause notice sent to his residence has been returned back with the remark that he was not available.
An application dated 20.12.2001, given by the petitioner for compassionate appointment was rejected by the District Judge, Mainpuri on 5.2.2002, on the ground that the application was premature, as the period of seven years, to draw a presumption of civil death had not expired.
The petitioner filed Original Suit No. 85 of 2005, impleading his sister Smt. Jaya W/o Sri Sunil D/o Veer Pratap Singh and Avam (general public) as defendants. The suit was decreed on 7.10.2005, with the declaration that Sri Veer Pratap Singh, the father of the plaintiff-petitioner attained civil death.
The District Judge by his letter dated 29.9.2004, sought opinion of the State Government. This letter was replied vide letter dated 22.12.2004, that there was no provision for giving any direction or guidance on the decision of the application for compassionate appointment.
Vide order dated 16.2.2005, the District Judge, rejected the application for compassionate appointment on the ground that the petitioner's case is not covered by U.P. Recruitment of Defendants of Government Servants Dying in Harness Rules 1974.
The learned Single Judge has dismissed the writ petition on the ground that neither the State nor the District Judge was made parties in the suit. The case was conducted without impleading the proper and necessary parties. The decree obtained therefore would not be against the District Judge, and will not binding on him or the State Government.
Learned counsel for the appellant has relied upon judgments of the Supreme Court that in the matter of presumption drawn under Section 108 of the Evidence Act, and submits that it was not necessary for the petitioner to have filed the suit. Section 108 of the Evidence Act comes into play, for presuming civil death.
Section 108 of the Indian Evidence Act, 1872 is quoted hereunder:-
"108. Burden of proving that person is alive who has not be heard of for seven years. - Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it."
In the present case the son (appellant) of the deceased employee had filed a suit impleading his sister and Avam (general public) for declaring that his father will be presumed to have died. The plaint was verified by the son of the deceased, and that there was no denial by any one that his father Sri Veer Pratap Singh went missing and that an FIR was lodged in which the police had filed a closure report.
We find that the learned Single Judge did not consider that even if the suit was not filed, the presumption could be drawn, if the conditions imperative for raising the presumption were satisfied. Once a presumption of civil death is raised on the satisfaction of the conditions given in Section 108 of the Indian Evidence Act, the burden of proof that he is alive, is then shifted to the person who affirms that the person reported missing was seen and is alive.
In Ajay Kumar Tewari Vs. Dy. Inspector General of Police (Establishment) Police Headquarter, U.P. Allahabad and others [2005 ESC (Alld) 67] [delivered by one of us (Hon'ble Sunil Ambwani, J)] , it has been held that the provision of Section 108 of Evidence Act would be applied for claiming compassionate appointment.
It is not denied that service benefits such as Gratuity, PF etc., applicable to the deceased employee have been paid over to his dependents.
For the aforesaid reasons, the Special Appeal is allowed. The judgment of the learned Single Judge dated 19.8.2010, is set aside. A writ of mandamus is issued to the District Judge, Mainpuri, to consider the application of the petitioner for compassionate appointment afresh, treating the deceased employee to have died on expiry of seven years, after he was reported missing. Since the petitioner is pursuing his remedies in the court, his application shall not be rejected on the ground of delay.
Order Date :- 18.4.2011 nethra