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2024 Supreme(Online)(MAD) 12176
HIGH COURT OF MADRAS
Hon`ble Mrs.Justice L. VICTORIA GOWRI
Arunkumar N – Appellant
Versus
The Secretary – Respondent
A missing person's legal presumption of death after seven years allows for compassionate appointments without needing a formal death certificate.
Headnote:
Compassionate Appointment - Missing Person - Indian Evidence Act, Section 108; Registration of Births and Deaths Act, 1969, Sections 8, 10, 13, 21 - The court determined that for missing persons presumed dead after 7 years, death certificates are not required; instead, a non-traceable certificate suffices for compassionate appointment.
Fact of the Case:
The petitioner filed for compassionate appointment after his father went missing since 2003. Despite efforts, the father was never officially declared deceased until after 7 years, leading to issues with appointment processes requiring death certificates.
Finding of the Court:
The court acknowledged the father's status as presumed dead under the Indian Evidence Act. It noted that the application for compassionate appointment was submitted within the required timeframe, justifying the respondents' obligation to consider it.
Issues: Whether a death certificate is required for a compassionate appointment in the case of a missing person who has been presumed dead for more than seven years.
Ratio Decidendi: The court upheld that Section 108 of the Indian Evidence Act allows for presumption of death after 7 years of absence. Thus, funeral arrangements and subsequent applications for benefits can rely on a non-traceable certificate rather than a death certificate.
Final Decision: The Writ Petition is allowed, directing the respondents to consider the petitioner's application for compassionate appointment.
ORDER
This Writ Petition has been filed for issuance of a Writ of Mandamus, seeking to direct the second respondent to give compassionate appointment to the petitioner, without death certificate of his missing father S.Natarajan, who is presumed to be dead as per law by the Court order in vide W.A.(MD)No.440 of 2020 in W.P.(MD)NO.12181 of 2018 dated 01.07.2020 along with the strength of Government order in vide G.O.Ms.No.18, Labour and Employment (Q1) Department dated 23.01.2020 by considering the petitioner representation dated 26.07.2023 to the second respondent for the reply of his official Letter R.No.
2302077/E4/S3/2022 dated 12.04.2023.
2.The petitioner's father, late S.Natarajan, worked as a Health Inspector in the Primary Health Center, Kamati, Pudupatti, Thirumangalam Taluk, Madurai district. While in service, he missed from 02.05.2003 and his whereabouts could not be traced thereafter. The petitioner has yet another sister named Shanmuga Selvi. The petitioner's mother, Tmt.Ponni, gave a complaint to the Superintendent of Police, Madurai on 25.06.2003 in reference number GDP/689/SPMD/03 with respect to the missing of Thiru S. Natarajan from 02.05.2003. On the direction of the Superintendent of Police, Madurai, the petitioner's mother gave a complaint to the Thirumangalam Police Station, subsequently. However, Thirumangalam police dragged on the matter for 9 years and thereafter, filed a FIR on 27.07.2012 in Crime No.480 of 2012 under the man missing case category.
3.Despite the petitioner's continuous correspondence to all the respondents about his father's man missing case, the second respondent initiated disciplinary action against the petitioner's father by proceedings in R.No.90014/DA/12/S2 dated 18.03.2013 and removed the petitioner's father permanently from service. The said proceedings came to be issued by the respondents without giving weightage to the petitioner's mother's man missing complaint. Hence, the petitioner's mother filed a writ petition in W.P.(MD)No.12181 of 2018 and this Court was pleased to pass an order on 10.09.2018 as follows:-
“ 10.Taking into consideration of the fact that the petitioner's husband has worked from 08.02.1982 to 31.03.2003 in the respondents / Department and he is found missing from 2003 and that the presumption is he dead, the terminal benefits due to him have to be paid to the petitioner. Accordingly, the respondents are directed to settle the terminal benefits due to the the petitioner's husband within a period of 3 months from the date of receipt of a copy of this order. In case the petitioner's husband appears, then the property of the petitioner will be attached apart from initiation of criminal and other proceedings against the petitioner. The Writ petition is disposed of accordingly.”
4.Even pursuant to the order passed by this Court in W.P.
(MD)No.12181 of 2018, the respondents did not comply the order. Hence, the petitioner's mother filed a contempt petition in Contempt (MD)No.1183 of 2019, in which, the statutory notice was issued. While so, the respondent Health Department preferred a Writ Appeal with delay condonation in W.A.(MD)No.440 of 2020 against the order of this Court in W.P.(MD)No.12181 of 2018. In the meanwhile, the petitioner's mother obtained death certificate and legal heir certificate of Thiru.Natarajan from the competent authority based on the order passed by this Court in W.P.(MD)No. 12181 of 2018. Pending disposal of the said writ appeal, the petitioner's father's dismissal order was set aside by the second respondent/Director of Public Health and Preventive Medicine Department through his official proceedings in R.No. 022894/DA/S2/2020 dated 13.03.2020. In the meanwhile, the Writ Appeal in W.A.(MD)No.440 of 2020 was dismissed by the Hon'ble Division Bench of this Court on 01.07.2020. In the aforesaid order, the Hon'ble Division Bench of this Court was pleased to set aside the death certificate of the petitioner's missing father Natarajan issued by th
