Bhawani Singh, C.J.

This L.P.A. arises out of the order of learned Single Judge passed on 17-9-2002, directing the respondent to consider the case of the petitioner for compassionate appointment within two months from the date of order and get requisite forms filled up by her within 15 days and make payment of retiral dues within two months, failure to entail payment of interest at the rate of 12% per annum, from the date of order and retiral dues and in case the same is not paid within two months, interest recoverable from the salary of the person of the Federation responsible for clearing the dues.

Satish Kumar Pyasi was the husband of Smt. Aruna Pyasi. He was permanent employee of the appellant working as Field Assistant in the District of Rajgarh (Byavra). He is missing since 7-2-1992. Accordingly, Smt. Aruna Pyasi (petitioner) submitted an application for compassionate appointment and retiral dues of her husband. However, the same was rejected. Precisely, case of the petitioner is that she is entitled to compassionate appointment as per rules applicable to the employees of the appellant - her husband presumed to have died. Appellant submits that husband of the petitioner remained absent from duty from 6-2-1992, therefore, his service were terminated by order dated 12-8-1992. Accordingly, petitioner is not entitled to compassionate appointment. Further, petitioner has not been released retiral benefits since she did not fill up requisite forms.

Considering the matter in the context of section 108 of the Evidence Act, learned Single Judge decided that presumption in terms of section 108 of the Evidence Act is applicable in this case. Therefore, husband of the petitioner is presumed to be dead, otherwise, he would naturally have been heard of by his wife or the employer. According to rule 8(c) of the service Rules, the dependent of an employee who dies during service, is entitled to compassionate appointment; therefore, since husband of the petitioner, in the eye of law, is dead, respondent has to consider the case of the petitioner for compassionate appointment, learned Single Judge has decided. With regard to claim for retiral benefits, learned Single Judge has decided that the defence of appellant is based on wholly unsubstantial ground, since it has not been shown that appellant ever called upon the petitioner to fill up the forms. Petitioner deserves sympathetic treatment and should not have been treated in the manner she has been treated. Accordingly, petition has been allowed and directions quoted in para 1 of the judgment are issued.

This order of learned Single Judge has been challenged.

Shri N.S. Kale, learned Senior Advocate, submits that u/s 108 of the Evidence Act, there is no presumption with respect to date/time of death, though there may be presumption of death. The presumption will arise on the date the question is raised by initiating proceedings, meaning thereby, raising of claim. Reliance was placed on some decisions, namely : Appula Vadhyar Narayana Vadhyar Vs. Venkateswara Vadhyar and Others, , Kottapalli Venkateswarlu vs. Kottapalli Bapayya and others, AIR 1957 A.P. 380, Mst Rajula Bai vs. Suka, 1971 MPLJ 1014 and Union of India (UOI) Vs. Joginder Sharma, , we find no force in these submissions. In our considered opinion, section 108 of the Evidence Act raises a presumption of death and continuous absence for 7 years and not the time the question is raised or suit instituted. The party on whom the burden is placed to prove the absentee, cannot get rid of that burden. A person may be treated as dead after the expiry of 7 years from the date he was last heard of and the party relying on the presumption in entitled to succeed if no evidence is offered by the opponents to the death. (See Narayan Nayak vs. SBI, 2002 (III) LLU 181). Even otherwise, Court may, in the circumstances of each case, make a presumption even regarding time of death.

In the case in hand, there is no dispute that husband of the peti