The declaration of the trial court on civil death U/S 108 Evidence Act would not create any presumption as to the date and time of death: Allahabad HC

A bench of Justice Rajan Roy and Justice Om Prakash Shukla further noted that the suspicion 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 earlier than seven years.

“If an issue arises regarding the date or time of death, this must be determined on the basis of direct or circumstantial evidence and not on supposition or conjecture. The burden of proof would be on the person claiming that the death occurred on a certain date or time to succeed in their claim, before the expiry of seven years.the division bench noted.

The Court essentially heard an appeal from one person Amardeep Kashyap challenging the orders of the Single Judge in Writ Petition A No. 2731 of 2024 and Civil Misc. Review application defect no. 117 of 2024.

According to the impugned order, the Single Judge found no illegality in the order passed by the Judge Deputy Commissioner Industries, Gonda (in March 2023)whereby 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 his best efforts, the appellant and his family could not find him.

According to the appellant’s case, his father would have turned 60 years on November 30, 2013. Yet, his employer (defendant Zila Udyog Kendra, Gonda) did not provide retirement benefits as his status (dead or missing) remained unclear.

Further, in a vide letter dated December 19, 2019, the representation of the mother of the appellant was also rejected for providing financial assistance or compassionate arrangement before the expiry of seven years from the date of disappearance.

Subsequently, in October 2019, after a lapse of seven years, the appellant’s family filed a suit for a declaration of civil death, which was granted by the civil court on April 22, 2022.

The case of the appellant was that after the court declared the civil death of his father, he received an appointment letter for the post of chowkidar on May 28, 2022. Yet he was prevented from taking the role and his letter of appointment as a defendant was taken away. demanded a death certificate for his father.

Thereafter, appellant obtained a death certificate stating the date of death of appellant’s father as October 16, 2019, the date on which he filed a suit requesting a declaration of civil death of his father.

The appellant has filed a plea before the HC seeking payment of dues and a compassionate appointment after the death of his father. The writ petition was quashed on September 20, 2022, directing the appellant to file a detailed statement and asking the respondent to decide the same within a specified time.

The representation was dismissed on February 3, 2023. Challenging this, the appellant again filed a plea seeking appointment under the Dying in Harness Rules, 1974.

The vide impugned order of the Single Judge dismissed the writ petition on April 5, 2024 with the following observations:

“According to the petitioner, his father went missing on June 30, 2012. As per statutory provisions, he is presumed dead seven years from the date he went missing i.e. in the year 2019. The petitioner’s father is said to have attained retirement age on 30.11.2013. Therefore, on the basis of the material available on record, it cannot be said that the petitioner’s father died during the armor and, therefore, the petitioner cannot claim a compassionate appointment in place of his father.” (emphasis added)

A review petition against this order was also dismissed.

Now the appellant has challenged before the court 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, counsel for the defendants, in support of the impugned order of the Single Judge, submitted that the date of death of the missing employee should be treated as the date of declaration of civil death by the court and in this case the father of the appellant. , who went missing on June 25, 2012, was not declared dead by the court until April 22, 2022, by which time he would have already reached retirement age; The appellant would therefore not be entitled to a ‘compassionate appointment’ and there was no question of issuing an appointment letter.

Supreme Court Comments

To begin with, the Court noted that the appellant could only present his claim for a compassionate appointment if he could prove that his father died between June 25, 2012 (when he went missing) and in harness. November 30, 2013 (when he would have reached retirement age).

The Court referred the judgment of the highest court in the case of LIC of India vs. Anuradha 2004 and the judgments of Allahabad HC in the cases of Ram Singh vs. Board of Revenue and Ors. 1963 to notice that the only thing that can be assumed under Article 108 is that the person concerned is dead. Still, one cannot fix the time of a death of a person under this provision as it is not exhaustive on the issue of presumption regarding the death of a person.

Returning to the facts of the case, the Court noted that although the appellant had filed a suit seeking a declaration of civil death of his father, he did not seek a declaration. regarding a specific date of death of his father, and no evidence was presented to prove a specific date or time of death.

The Court noted that the judgment of the Civil Court was purely based on the presumption of death as provided for in Article 108 and that it did not refer to a specific date of death which could have given impetus to the claim of compassionate appointment at the court. appellant.

In this backdrop, the Court underlined that his civil death cannot be presumed to have occurred on a date prior to October 16, 2019, when the suit was filed for such declaration, and thus, the petitioner’s claim for a compassionate appointment was not tenable as his father, if he were still alive, , would in any case have reached retirement age on November 30, 2013, well before the date of filing of the civil suit.

In view of this, the appeal was rejected.

Performances

Appellant’s lawyer: Om Prakash Mani Tripathi

Defendant’s lawyer: CSC Gopal Kumar Srivastava