Delhi High Court
Himachal Devi vs State Trading Corp. Of India Ltd. on 17 February, 2006
Author: S R Bhat
Bench: S R Bhat
JUDGMENT
S. Ravindra Bhat, J.
1. The Petitioner has approached this Court for a direction to the Respondent (hereifter referred to as the 'STC') to give her compassionate appointment in place of her husband Naresh Kumar who has been missing since 30.4.1997.
2. Naresh Kumar was appointed sometime in the year 1988 by the STC. It is claimed that on 30.4.1997 he went on duty but did not return home. The Petitioner, his wife lodged a First Information Report (FIR) and informed the employer STC.
3. It is claimed that the Petitioner requested the STC for compassionate appointment on the ground that it was difficult for her to make both ends meet as she was unemployed and had two small children. The request, made on 3.10.2000 was turned down and the STC which by an order dated 4.4.2001 declared that Naresh Kumar ceased to be in the rolls of the Corporation with effect from 27.3.2001 since he was on unauthorised absence.
4. The Petitioner had approached the Civil Court for a direction that she ought to be appointed on compassionate basis; that suit was dismissed as pre-mature. She also approached the authorities under the Industrial Disputes Act and later filed these proceedings.
5. The STC does not dispute the fact that Naresh Kumar went missing after 30.4.1997; it also dies not dispute or deny the fact that this was duly intimated by the Petitioner in these proceedings. However, it states that upon the issuance of the Order dated 4.4.2001 the position changed radically and that since the employee had ceased to be in the services of the STC, there is no question of the Petitioner seeking any entitlement for compassionate appointment.
6. Counsel for the parties have reiterated the averments taken in the respective pleadings. It is claimed on behalf of the Petitioner that the position taken by the STC is unjustified and unreasonable. Even after becoming aware that Naresh Kumar was missing the STC callously went ahead and held some sort of proceedings culminating in the Order dated 4.4.2001. It is submitted that this does not alter the situation which is that Naresh Kumar was missing and even till date his whereabouts are not known to his family. It is stated that in law under Section 108 of the Evidence Act a presumption is raised as to the death of such a person, and the STC is under a duty to prove otherwise.
7. Mr. Rao, appearing on behalf of the STC, submits that compassionate appointment can only be made when an employee dies in harness or in exceptional cases. In this case in view of the order dismissing the employee in April, 2001 as per the policies of STC the Petitioner cannot claim any entitlement to compassionate appointment. It was also submitted that as per a settlement/agreement between the STC and its union the Corporation can provide employment only where the incumbent workman/official dies in harness during service.
8. I have considered the submissions of the parties and also gone through the record. Section 108 of the Evidence Act reads as follows:-
108. Burden of proving that person is alive who has not been 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.
9. It is evident from reading of the above provision that a presumption is raised as to a particular state of affairs as to the life of a person. In this case the onus of proving that Naresh Kumar was indeed alive would lie on the person who affirms it in accordance with the said provision.
10. It is not open for the STC to contend that when it passed the order in 2001 there could have been the possibility of the said Naresh Kumar being alive. In any case at this stage after Naresh Kumar went missing for seven years the STC cannot lay such a claim. The presumption in such a case squarely arises. In view of the above situation and also keeping in mind that the Petitioner intimated the STC about the true state of affairs immediately upon becoming aware, which was apparently accepted by the STC for about three years, I find that its stand refusing to consider the Petitioner's case for compassionate appointment is unreasonable. The only ground on which it issued the order dismissing Naresh Kumar was his alleged unauthorised absence. In the present state of affairs there is no one to come forward and assert that Naresh Kumar was indeed alive when the order was passed; even STC has not done so.
11. As far as the second defense taken by the STC is concerned, I am of the view that this too is covered by Section 108. In any case the assertion was made on the basis of contents of letter written on 21.7.2004 Having regard to the presumption outlined under Section 108, the Petitioner is entitled to claim the benefit of that provision.
12. During the course of hearing counsel had submitted that the Petitioner had been permitted to occupy the residential quarter which was allotted to Naresh Kumar, all these years. The STC had in fact taken a sympethetic view in regard to the issue. It was contended that in the event the STC were to pass an order on merits and ultimately decide that the Petitioner is not eligible an appropriate order/direction ought to be issued to the STC to permit her to continue in the quarters and not recover damages.
13. I am of the opinion that the petitioner is entitled to relief. A direction is accordingly issued to the Respondent-STC to consider the application of the Petitioner for the quota earmarked for compassionate appointment and pass a speaking order within eight weeks from today. The STC shall not claim damages at the market rate for the quarters occupied between 30.4.1997 and the expiry of three months from the date of the order as per the directions in this judgment.
14. The writ petition is allowed to the extent indicated above. No costs.
