2013 Supreme(Raj) 1416

RAJASTHAN HIGH COURT
P.K.Lohra, J.
Savitri Devi & Anr. - Appellant
Versus
District & Session Judge, Hanumangarh - Respondent
S.B. Civil Writ Petition No. 7121 of 2010.
Decided On : 3-07-2013

The presumption of civil death under Section 108 of the Indian Evidence Act, 1872 is equivalent to physical death in the eyes of the law, and family pension is a statutory right available to the widow/mother and legal heirs of the deceased as per the Rajasthan Civil Services Pension Rules, 1996.

Headnote:

CIVIL DEATH - FAMILY PENSION - SUCCESSION CERTIFICATE - COMPASSIONATE APPOINTMENT - DISMISSAL FROM SERVICE - SECTION 108 OF THE INDIAN EVIDENCE ACT, 1872 - RAJASTHAN CIVIL SERVICES (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1958 - RAJASTHAN CIVIL SERVICES PENSION RULES, 1996 - RAJASTHAN COMPASSIONATE APPOINTMENT OF DEPENDENTS OF DECEASED GOVERNMENT SERVANT RULES, 1996 - INDIAN SUCCESSION ACT, 1925 - RIGHT TO INFORMATION ACT - Presumption of civil death under Section 108 of the Indian Evidence Act, 1872 is equivalent to physical death in the eyes of the law. Family pension is a statutory right available to the widow/mother and legal heirs of the deceased as per the Rajasthan Civil Services Pension Rules, 1996. Succession certificate is not required for family pension as it does not fall within the ambit of debt and security of the deceased employee. Dismissal from service based on willful absence without following due procedure and without conducting a regular enquiry is not sustainable. Compassionate appointment should be considered afresh if the application is made within 90 days from the date of civil death, as determined by the court.

Fact of the Case:

The petitioners, the wife and son of a government employee, sought family pension and compassionate appointment after the employee disappeared and was presumed dead under Section 108 of the Indian Evidence Act, 1872. The respondent, the employer, denied the benefits, citing the employee's dismissal for willful absence and the need for a succession certificate. The petitioners challenged these decisions in a writ petition.

Finding of the Court:

The court held that the presumption of civil death under Section 108 of the Indian Evidence Act, 1872 is equivalent to physical death in the eyes of the law. The court also held that family pension is a statutory right available to the widow/mother and legal heirs of the deceased as per the Rajasthan Civil Services Pension Rules, 1996, and that a succession certificate is not required for family pension as it does not fall within the ambit of debt and security of the deceased employee. The court further held that the dismissal from service based on willful absence without following due procedure and without conducting a regular enquiry is not sustainable. Finally, the court held that compassionate appointment should be considered afresh if the application is made within 90 days from the date of civil death, as determined by the court.

Issues: 1. Whether the presumption of civil death under Section 108 of the Indian Evidence Act, 1872 is equivalent to physical death in the eyes of the law. 2. Whether family pension is a statutory right available to the widow/mother and legal heirs of the deceased as per the Rajasthan Civil Services Pension Rules, 1996. 3. Whether a succession certificate is required for family pension. 4. Whether dismissal from service based on willful absence without following due procedure and without conducting a regular enquiry is sustainable. 5. Whether compassionate appointment should be considered afresh if the application is made within 90 days from the date of civil death, as determined by the court.

Ratio Decidendi: 1. The presumption of civil death under Section 108 of the Indian Evidence Act, 1872 is equivalent to physical death in the eyes of the law, as it is a statutory presumption that a person who has not been heard of for seven years is presumed to be dead. 2. Family pension is a statutory right available to the widow/mother and legal heirs of the deceased as per the Rajasthan Civil Services Pension Rules, 1996, and it does not fall within the ambit of debt and security of the deceased employee. 3. A succession certificate is not required for family pension as it does not fall within the ambit of debt and security of the deceased employee. 4. Dismissal from service based on willful absence without following due procedure and without conducting a regular enquiry is not sustainable, as it violates the principles of natural justice and the employee's right to a fair hearing. 5. Compassionate appointment should be considered afresh if the application is made within 90 days from the date of civil death, as determined by the court, as the delay in filing the application was due to exceptional circumstances.

Final Decision: The court allowed the writ petition, quashed the impugned orders, and directed the respondent to forward the family pension case of the first petitioner to the competent authority, release other retiral benefits to the first petitioner, and consider afresh the application of the second petitioner for compassionate appointment.