Dependant Of Missing Employee Can Seek Compassionate Appointment After Lapse Of Seven Years: Patna High Court

Justice Dr. Anshuman was hearing an appeal of the petitioner whose claim for compassionate appointment was rejected for being time-barred.

The father of the petitioner went missing in 2010 and the petitioner's mother received death-cum-retiral benefits in 2015.

The petitioner filed an application for compassionate appointment on 19.11.2016. However, the application was rejected by the District Compassionate Appointment Committee on the ground that the application was filed after a lapse of five years.

The High Court referred to Section 108 of the Indian Evidence Act as per which presumption of death arises only after a person has been missing for seven years. Consequently, only after this 7-year period, the respondents should begin counting the time period for the application of compassionate appointment, Court said.

The Court also took note of a memo issued by the General Administrative Department dated 16.04.2021 which stated that in case of a missing case, the period for limitation shall be counted after 7 years from the date of missing.

It observed “From the aforesaid extracts of this circular which is of the year 2021, it transpires to this Court that 7 years shall be counted from the date of missing, and thereafter, presumption of death shall be made according to Section 108 of the Indian Evidence Act, and thereafter, 5 years shall be counted as mentioned in the said circular.”

The Court referred to the Supreme Court judgment in Rajiv Kumar Vs. State of Bihar and Ors. (CWJC No. 589 of 2019), where it was held that for compassionate appointment in cases where employee became traceless, the legal dependant would be eligible only after declaration of civil death which is after 7 years period in accordance with Section 108 of the Evidence Act.

The Court stated that the petitioner had filed the application for compassionate appointment within time, in accordance with the memo dated 16.04.2021.

“It transpires to this Court that the petitioner has filed representation for compassionate appointment in the year 2016, and as such, the said application for compassionate appointment has been filed well within time according to the judgment mentioned above as well as the circular of the year 2021…”

The High Court thus quashed the order of the District Compassionate Committee and directed it to consider the claim of the petitioner in accordance with law.

Case title: Prabhat Kumar Son of Late Ram Pukar Choudhary, CWJC No.8488 of 2018

Citation: 2024 LiveLaw (Pat) 47