The main legal point established in the judgment is that the presumption of death under Section 108 of the Indian Evidence Act, 1872, arises only after the person has not been heard of for seven years and does not extend to the date or time of death. The presumption can only be rebutted by evidence.

JUDGMENT :

1. Challenge is laid in this petition to an order dated 1.5.2019, passed by U.P. Rajya Vidyut Utpadan Nigam Ltd., Lucknow, whereby petitioner’s application for grant of compassionate appointment is rejected. Order impugned records that declaration of civil death of petitioner’s father has been granted by civil court on 7.7.2018, by when petitioner’s father had already retired, and therefore the provision for grant of compassionate appointment would not be available. Petitioner’s application has accordingly been rejected.

2. Undisputed facts that emerge on record are that petitioner’s father was employed in the respondent Corporation and he was due to superannuate on 30.5.2010. It transpires that petitioner’s father attended his duties last on 10.3.2010, in the afternoon shift that lasted from 2.00 p.m. to 10.00 p.m. but he did not return thereafter. A written report was thus lodged with the concern police station on 12.3.2010. Newspaper publications were also made in local Hindi daily ‘Dainik Jagran’ etc. but despite all attempts petitioner’s father could not be traced. Ultimately, petitioner alongwith other heirs instituted Original Suit No.72 of 2017 before the Civil Judge (Sr. Division), Sonbhadra, seeking declaration of civil death of petitioner’s father. The employer i.e. respondent Corporation was impleaded as defendant in the suit. On the basis of pleadings exchanged the trial court formulated 07 issues for determination in the suit. Issue no.1 was as to whether petitioner’s father Chandreshwar Prasad has gone missing since 10.3.2010. The second issue was regarding lodging of missing report in the concern police station regarding petitioner’s father. The last issue related to grant of relief in the facts of the case. Other issues framed are not relevant for present purposes. The trial court after appreciating the evidence on record returned a categorical finding on issue no.1 that petitioner’s father was seen last on 10.3.2010, and has not been seen thereafter. The second issue has also been answered acknowledging that a missing report was lodged with the concern police station. The trial court for the purpose of grant of relief to the plaintiff relied upon Section 108 of the Indian Evidence Act, 1872 to hold that as petitioner’s father has not been seen for a period of 07 years w.e.f. 12.3.2010, therefore, he is liable to be declared dead. The presumption contained under Section 108 has, accordingly, been granted to hold the father of petitioner dead under Section 108 of the Evidence Act, 1872. This declaration by the civil court is granted on 7.7.2018. It is thereafter that an application for grant of compassionate appointment has been moved, which has been declined by the order impugned.

3. The order of the Corporation is assailed by counsel for the petitioner, who submits that relevant date of death in the facts of the present case ought to be taken as 10.3.2010, particularly as an intimation was given to the concern police station on 12.3.2010 itself, and that the declaration of civil court granted on 7.7.2018 would relate back to the date when petitioner’s father went missing. For such contention, learned counsel for the petitioner places reliance upon a judgment of Nagpur Bench of the Bombay High Court in Second Appeal No.18 of 2016 (Sou. Swati w/o Abhay Deshmukh Vs. Shri Abhay), decided on 26.2.2016. Reliance is also placed upon a Division Bench judgment of the Andhra Pradesh High Court in Writ Petition No.34859 of 2016 (Union of India, represented by its Secretary and others Vs. Polimetla Mary Sarojini and another), decided on 31.1.2017.

4. Petition is opposed by Sri Ankit Saran, appearing for the Corporation, who submits that the presumption under Section 108 of the Evidence Act would come into being only upon expiry of 07 years term from the date the person was last seen, and therefore, petitioner’s application has rightly been rejected since petitioner’s father had attained the age of superannuation b