Allahabad High Court
Vivek Kumar Verma vs Uttar Pradesh Rajya Vidyut Utpadan ... on 4 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 1989, (2019) 6 ALL WC 6335, (2020) 138 ALL LR 1, (2020) 1 ADJ 33 (ALL), (2020) 206 ALLINDCAS 914
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 39 Case :- WRIT - A No. - 19124 of 2019 Petitioner :- Vivek Kumar Verma Respondent :- Uttar Pradesh Rajya Vidyut Utpadan Nigam Limited And 02 Others Counsel for Petitioner :- Ashish Chitranshi Counsel for Respondent :- Ankit Saran Hon'ble Ashwani Kumar Mishra,J.
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 by then.
5. In order to appreciate the rival submissions advanced on behalf of the parties, it would be necessary first to refer to Sections 107 and 108 of the Indian Evidence Act, 1872 (hereinafter referred to as ''the Act of 1872'), as it would govern the controversy involved. The sections are quoted hereinafter:-
"107. Burden of proving death of person known to have been alive within thirty years.--When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.
108. Burden of proving that person is alive who has not been heard of for seven years.--Provided that when the question is 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 if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it."
6. Section 107 provides that the burden of proving whether a man dead, if it is shown that he was alive within thirty years, is on the person who affirms it. Section 108 is an exception to Section 107, and provides that when the question is 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, if he had been alive, the burden of proving that he is alive is shifted upon the person who affirms it. Statutory scheme is absolutely clear. The presumption of death under Section 108 would be available if a person has not been seen for a period of 07 years by those who would have naturally heard of him, if he had been alive. For presumption of death to arise under Section 108 of the Act of 1872 two facts must be entertained. Firstly, it has to be ascertained as to what is the last date when such a person is seen last. Secondly, it must be established that a period of 07 years has expired since such person is seen last by those who would have naturally heard of him. The facts of a given case would have to be examined in the context of the aforesaid statutory scheme before a presumption of civil death arises. In the facts of the present case it is admitted that father of petitioner was seen last on 10.3.2010, as he completed his work in the shift that lasted from 2.00 p.m. to 10.00 p.m. It is thereafter that he has not been heard of. 10th March, 2010, therefore, would be treated to be the date when petitioner's father was last seen. There is no specific date of death disclosed by the plaintiffs nor any evidence is lead in that regard, and the suit appears to have been instituted by relying upon Section 108 of the Evidence Act. The suit has also been decreed by the civil court accepting such contention. In order to decree the suit based upon Section 108 of the Evidence Act, a period of 07 years must pass since the date when petitioner's father was last seen. The period of 07 years accordingly would expire on 10.3.2017. The declaration under Section 108 of the Indian Evidence Act cannot be stretched to a date prior to 10.3.2017. It is admitted that petitioner's father had retired by then.
7. The interpretation of Sections 107 and 108 of the Evidence Act is no longer res-judicata, inasmuch as the purport of the provision has been examined by the Apex Court in LIC of India Vs. Anuradha, (2004) 10 SCC 131. Para 12 to 15 of the judgment would be relevant for the present purposes and is reproduced hereinafter:-
"12. Neither Section 108 of Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years absence and being unheard of having elapsed before that time. The presumption stands un-rebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death.
13. A presumption assists a party in discharging the burden of proof by taking advantage or presumption arising in his favour dispensing with the need of adducing evidence which may or may not be available. Phipson and Elliott have observed in 'Manual of the Law of Evidence' (Eleventh Edition at p.77) that although there is almost invariably a logical connection between basic fact and presumed fact, in the case of most presumptions it is by no means intellectually compelling. In our opinion, a presumption of fact or law which has gained recognition in statute or by successive judicial pronouncements spread over the years cannot be stretched beyond the limits permitted by the statute or beyond the contemplation spelled out from the logic, reason and sense prevailing with the Judges, having written opinions valued as precedents, so as to draw such other inferences as are not contemplated.
14. On the basis of the abovesaid authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words. The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who's life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise.
15. If an issue may arise as to the date or time of death the same shall have to be determined on evidence-direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed."
8. Perusal of the judgment in LIC of India (supra) would clearly indicate that grant of declaration under Section 108 would not lead to a presumption with regard to date or time of death. The presumption, moreover, would arise only on lapse of 07 years, and by applying no logic or reasoning can be stretched to a period prior to expiry of 07 years. Apex Court has observed that rarely would it be permissible to proceed on the premise that death had occurred on any given date before expiry of 07 years' absence. Such rarity is not shown to exist in the facts of the present case. The petitioner, therefore, would not be entitled to declaration of death prior to 10.3.2017.
9. Learned counsel for the petitioner has placed heavy reliance upon the judgment of Nagpur Bench of the Bombay High Court in Sou. Swati (supra). The judgment of the Bombay High Court was in the context of facts, as had been noticed in para 2 of the judgment. It was noticed that the person concerned went missing on 16.7.2006 and was not heard of since then. A report at the Police Station Ranapratapnagar, Nagpur was lodged on 16.3.2008. It was in that context that applicability of Sections 107 and 108 was examined by the Court. On the facts of the case, the Court came to a conclusion that 16.3.2008 would be the relevant date for issuing a death certificate. This judgment although refers to the judgment of the Apex Court in the case of LIC of India (supra) and also notices Sections 107 and 108 of the Evidence Act, but on facts it was found by the Court that the death had occurred prior to 16.3.2008. No principle of law can be culled out from this judgment to support petitioner's contention, inasmuch as the declaration in that case is based more upon the appreciation of facts of that particular case.
10. Learned counsel for the petitioner has also placed reliance upon the death certificate issued by the competent authority, in which the date of death is mentioned 10.3.2010. This document would not be of much relevance, inasmuch as the registration of date of death appears to be based upon the decree passed by the civil court itself. This Court had already taken note of the decree to hold that presumption of death in terms of Section 108 of the Indian Evidence Act would arise only on 10.3.2017. In that view of the matter, mere registration of date of death in the death certificate would not be material and the declaration of civil court would be binding.
11. Coming to the Division Bench judgment of the Andhra Pradesh High Court in the case of Union of India (supra), learned counsel for the petitioner has referred to para 36 and 37 of the judgment, which are reproduced hereinafter:-
"36. Thus it is clear that both in England and elsewhere, the date of expiry of 7 years from the time a person went missing, is taken to be the date of death also, unless any other date is proved by the party asserting, to be the date of death. But the moment a party is able to prove a particular date as the date of death, then the question of presumption itself would not arise. The decisions of various Courts holding that in certain circumstances a person must be presumed to be dead from the date he went missing or within a few days thereafter, are based upon a flawed logic. The Evidence Act allows of only one presumption. But by holding that a person must be presumed to be dead from the time he went missing, some Courts have raised a second presumption, which is not traceable to the Evidence Act. A distinction exists between a presumed fact and an inferred one. Many times the confusion occurs due to the use of the presumption as a synonym for inference.
37. As we have pointed out earlier, there is a distinction between a presumption of fact and an inference. Section 108 of the Evidence Act admits of only one presumption namely the presumption of death of a person not heard of for 7 years by those who would normally have heard of him. Since it is a rebuttable presumption and the rebuttal can take place at any time, the law does not stipulate any date as the date on which a person may be presumed to be dead. There is huge difference between the presumption as to death and presumption as to date of death. Since the law does not prescribe any presumption as to date of death, the same may have to be proved. An inference cannot take the place on proof or presumption."
12. The above observation of the Division Bench clearly endorses the proposition that it is only upon expiry of 07 years from the time such person went missing that declaration of civil death would be permissible in terms of Section 108 of the Evidence Act. This presumption, however, would not arise when a specific date of death is proved by evidence. In the facts of the present case, the date of death is neither disclosed nor is proved. The Division Bench judgment, therefore, also would not be of any help to petitioner's cause.
13. In light of the discussions and deliberations aforesaid, this Court finds that there is no error in the decision taken by the Corporation to deny compassionate appointment to the petitioner.
14. Writ petition lacks merit and is accordingly dismissed. No order is passed as to costs.
Order Date :- 4.12.2019 Anil (Ashwani Kumar Mishra, J.)