Court's Declaration Of Civil Death U/S 108 Evidence Act Wouldn't Lead To A Presumption About Date & Time Of Death: Allahabad HC

A bench of Justice Rajan Roy and Justice Om Prakash Shukla further observed that the presumption of Section 108 is not the only mechanism for declaring death and that a party is within his/her right to prove by convincing evidence that the date and time of death are before seven years.

“if an issue arises as to date or time of death the same shall have to be determined on evidence direct or circumstantial and not by assumption or presumption. The burden of proof would lie on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim, prior to the lapse of seven years,” the division bench observed.

The Court was essentially dealing with an appeal filed by one Amardeep Kashyap challenging the orders of the Single Judge in Writ A No.2731 of 2024 and Civil Misc. Review Application Defective No.117 of 2024.

Vide the impugned order, the Single Judge found no illegality in the order passed by the Deputy Commissioner, Industries, Gonda (in March 2023), in which the appellant's claim for the compassionate appointment was rejected.

The case in brief

The appellant's father, born in November 1953, served as a peon at the Jila Udyog Kendra in Gonda, Uttar Pradesh. He went missing on June 25, 2012, and despite making his best efforts, the appellant and family could not find him.

As per the appellant's case, his father would have turned 60 on November 30, 2013. Yet, his employer (respondent Zila Udyog Kendra, Gonda) did not provide retirement benefits, as his status (whether dead or missing) remained unclear.

Further, vide letter dated December 19, 2019, the representation of the appellant's mother was also 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 seven years, the appellant's family filed a suit for a declaration of civil death in October 2019, which was allowed by the Civil Judge on April 22, 2022.

The appellant's case was that after the court declared his father's civil death, he received an appointment letter for the position of chowkidar on May 28, 2022. Still, he was prevented from joining the role, and his appointment letter was taken away as the respondent demanded a death certificate concerning his father.

After that, the appellant obtained a death certificate which mentioned the date of death of the appellant's father to be October 16, 2019, the date when he had filed a suit seeking a declaration of civil death of his father.

The appellant filed a writ plea in the HC seeking payment of dues and compassionate appointment following his father's death. The writ was disposed of on September 20, 2022, directing the appellant to submit a detailed representation, and the respondent was asked to decide it within a specified time.

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

The Single Judge vide impugned order, dismissed the writ on April 05, 2024, with the following observations:

“It is the petitioner's case that his father had gone missing on 30.06.2012. As per the provisions of law, he shall be presumed to be dead seven years after the date on which he went missing, which comes in the year 2019. The petitioner's father would have attained the age of superannuation on 30.11.2013. Therefore, from the material available on record, it cannot be said that the petitioner's father had died in harness and, therefore, the petitioner cannot claim compassionate appointment in place of his father.” (emphasis supplied)

A review petition against this order was also dismissed.

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

On the other hand, supporting the impugned order of the single judge, the counsel for the respondents argued that the date of death for the missing employee should be considered as the date of civil death declaration by the court and in this case, the appellant's father, who went missing on June 25, 2012, was declared dead by the court only on April 22, 2022, and by that time, he would have already reached the age of superannuation; thus, the appellant wouldn't be entitled to compassionate appointment and there was no question of issuance of an appointment letter.

High Court's observations

At the outset, the Court noted that the appellant could lay his claim to compassionate appointment only in case he could prove that his father died in harness between June 25, 2012 (when he went missing) and November 30, 2013 (when he would have superannuated).

The Court referred to the top court's judgment in the case of L.I.C. Of India vs Anuradha 2004 and Allahabad HC's judgments in the cases of Ram Singh vs Board Of Revenue And Ors. 1963 to note that all that one can presume under Section 108 is that the person concerned is dead. Still, one can't fix the time of a person's death under this provision as it is not exhaustive on the question of presumption as regards the death of a person.

Now, reverting to the fact of the case, the Court noted that though the appellant filed a suit seeking a declaration of civil death of his father, however, he did not seek a 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 Court observed that the order of the Civil Court was purely based on the presumption of death as provided under Section 108, and it doesn't refer to any specific date of death which could have given an impetus to the claim of compassionate appointment to the appellant.

Against this backdrop, the Court underscored that his civil death cannot be presumed on a date before October 16, 2019, when the suit was filed for such declaration, and thus, the petitioner's claim for compassionate appointment was not sustainable as his father, if alive, would have anyway attained the age of superannuation on November 30, 2013, much before the date of the filing of the civil suit.

In view of this, the appeal was dismissed.

Appearances

Counsel for Appellant: Om Prakash Mani Tripathi

Counsel for Respondent: CSC Gopal Kumar Srivastava

Case title - Amardeep Kashyap vs. State Of U.P. Thru. Addl. Chief Secy. Msme Lko. And 3 Others

Case citation:

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