V. Ramasubramanian, J.

1. The State Express Transport Corporation Tamil Nadu Limited has come up with the above appeal, challenging the order of the learned Judge, passed in a writ petition filed by the respondent, directing the appellants to settle all terminal benefits and also to provide compassionate appointment to the respondent's son, due to the presumed death of the respondent's husband.

Heard Mr. K. Sudalaiyandi, learned Counsel for the appellants and Mr. F. Deepak, learned Counsel for the respondent.

The respondent's husband was employed as a Conductor in the appellant Corporation. He joined service in the year 1978 and put in about 21 years of service.

2. It appears that on one day in May 1999, the respondent's husband disappeared without any trace. All the attempts made by the respondent to trace her husband, proved futile.

3. After making enquiries in various places, the respondent at last lodged a complaint. An F.I.R. was registered in Cr. No. 259 of 2009, for 'Man Missing'. Eventually, a report was filed on 30.11.2000, that he was not traceable.

4. In the meantime, the appellants issued a charge memo in the name of the respondent's husband on 30.6.1999. The charge was for unauthorised absence. The charge memo returned un-served as the respondent's husband had disappeared in May 1999.

5. Another show cause notice dated 21.7.2000, was issued. It was also returned. Therefore, by a final order dated 9.4.2001, the appellants dismissed the respondent's husband from service.

6. After the final order of dismissal from service, dated 9.4.2001, was served on her, the respondent filed a statutory appeal on the ground that her husband was not traceable. She also sought reconsideration of the decision to dismiss her husband from service. But, the representations did not meet with any response.

7. Therefore, the respondent filed a writ petition in W.P. (MD) No. 3796 of 2008. The writ petition was disposed of with a direction to the appellants to consider and pass orders. But, no orders were passed.

8. Therefore, the respondent came up with a writ petition, challenging the final order of dismissal of her husband, dated 9.4.2001 and seeking a direction to grant consequential benefits. The said writ petition in W.P. (MD) No. 13064 of 2009 was allowed by a learned Judge of this Court. As against the said order, the appellant Corporation is on appeal.

9. It is seen from the order of the learned Judge that the learned Judge followed a decision of another learned Judge of this Court in N. Pankajam v. State of Tamil Nadu (2006) 3 M.L.J. 702 wherein it was held that when a person is unheard of for seven years, even by those, who would have naturally heard of him, such a person should be presumed to be dead. The learned Judge consequently held that the respondent's husband should be deemed to have been dead from May 1999 onwards on the basis of the presumption available under section 108 of the Indian Evidence Act, 1872. Taking such a view, the learned Judge held the order of dismissal to be invalid and directed the respondents to settle all terminal benefits and also provide compassionate appointment to the respondent's son.

10. While there can be no dispute about the presumption available under section 108 of the Indian Evidence Act, 1872, what is important is to see the date on which such presumption arises. As per section 108 of the Indian Evidence Act, 1872, whenever a question arises 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, burden of proving that he is alive, is shifted to the person who affirms it.

11. What is provided in section 108 of the Indian Evidence Act, 1872, is only a presumption. Section 108 of the Indian Evidence Act, 1872 cannot be read in isolation. It should be read along with section 107 of the Indian Evidence Act, 1872. Under section 107of the Indian Evidence Act, 1872, whenever a question arises as to whether a man i