The presumption of civil death under Section 108 of the Indian Evidence Act arises after seven years of absence, preventing termination of services without proper inquiry into the employee's status.

JUDGMENT :

J.J. MUNIR, J.

The District Cane Officer, Meerut, by his order dated 31st March, 2021, has terminated the services of Avinash Yadav, a one-time Peon in the Office of the Senior Cane Development Inspector, Meerut, a man missing since 13.04.2010, with his whereabouts not known to those who would normally have heard of him, if alive, retrospectively from the date he went missing.

2. It appears that Avinash Yadav disappeared from the lives of his family members as well as his employers on 13.04.2010. He has not been heard of eversince. While the family, particularly, the petitioner, his wife, a handicapped woman with 60% disability in her lower limb, has been destituted, waiting in vain for her missing husband, the respondents, who are Avinash’s employers, think that he is guilty of absenteeism from duty. They have punished him on those charges by the order impugned, with retrospective effect, after holding a departmental inquiry, as already said, more than ten years after he went missing.

3. The facts giving rise to this petition are these :

The petitioner, Kamlesh Yadav alias Kumari Kamlesh Yadav’s husband, Avinash Yadav, was a Class IV employee, a Peon in the Office of the Senior Cane Development Officer, Meerut. The petitioner is 60% permanently disabled in the right lower limb, suffering this handicap as a non-progressive condition. She is an unemployed woman, with no source of sustenance. The petitioner says that since 13.04.2010, Avinash Yadav went missing and has not been found eversince. He has remained absent from his duties, without sanctioned leave or permission of the respondents. He has not been heard of by the petitioner as well as other members of the family, who would have normally heard of him, if alive. Avinash’s family members did their best to trace him out, but with no success. The petitioner says that looking to the duration of his whereabouts remaining unknown both by his employers and the members of his family, including the petitioner, his wife, all of whom would have heard of him, if alive, must lead to raising a presumption of his civil death. After 13.04.2010, when Avinash failed to resume duties, various notices were sent in his name by the respondents, asking for an explanation regarding his unauthorized absence from duty and directing him to join upon pain of departmental action. The earliest on record is a notice dated 30.06.2010 issued by the District Cane Officer, Meerut. Avinash failed to turn up and report for duty. The Office of the Senior Cane Development Inspector, Daurala, Meerut got a press note published in the Hindi daily ‘Dainik Jagran’ issue dated 18.01.2011, asking Avinash to rejoin duty within one week, again upon pain of disciplinary action. His whereabouts remained unknown and the man untraceable. He failed to rejoin duties.

4. On 28.02.2018, almost eight years after Avinash’s disappearance, the Senior Cane Development Officer initiated departmental proceedings against him and issued a charge-sheet, asking him to answer charges carried there. These charges read :

5. The petitioner says that the fact that the Inquiry Officer issued a charge-sheet to Avinash on 28.02.2018, is an acknowledgement of the fact that the respondents considered Avinash still to be in their employ and it is the said fact which led them to initiate departmental proceedings against him. On 06.11.2019, the Senior Cane Development Officer sent a communication to Avinash Yadav through the petitioner, asking him for an explanation and seeking his cooperation in the departmental proceedings. For the first time ever, the petitioner says it was inquired of her if Avinash is alive or dead, so that the fact may be reported to the Senior Cane Development Officer. In this regard, there is on record a copy of the communication dated 06.11.2019 from the Senior Cane Development Officer, Daurala, Meerut addressed to Avinash through the petitioner, as already said.

6. Since a period of more than nine years had elapsed, wit