Central Administrative Tribunal - Lucknow
Raghunath vs Union Of India on 12 July, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
Original Application No. 332/00035/2019
Date of Order: This, the 12th day of July, 2023
HON'BLE MR. JUSTICE ANIL KUMAR OJHA, MEMBER (J),
Raghunath aged about 28 year's son of Late Ganga Ram,
R/o- 645C/25, P-29 Ayush Vihar, Jankipuram Extension,
Lucknow.
..Applicant
By Advocate: Praveen Kumar.
VERSUS
1. Bharat Sanchar Nigam Limited through its Chairman
cum Managing Director, Bharat Sanchar Bhawan,
Janpath, New Delhi.
2. Chief General Manager, B.S.N.L., UP East Telecom
Circle, Hazratganj, Lucknow.
3. Assistant General Manager, Recruitment Cell, Office of
Chief General Manager, B.S.N.L. U.P. East Telecom
Circle, Hazratganj, Lucknow.
4. District Telecom Manager, B.S.N.L. Sitapur.
.....Respondents
By Advocate: Shri Amit Arora.
O R D E R (ORAL)
Per Hon'ble Justice Anil Kumar Ojha, Member (J) Heard learned counsel for the applicant, learned counsel for the respondents and perused the records.
2. Applicant has prayed the following relief(s):
"A. Issue an appropriate order to set aside the impugned office order dated 05.11.2018 and 2.1.2019 passed by the opposite party no. 3 & 2 respectively as contained in Annexure No. A- 1&2 to this OA.
B. Direct opposite parties to reconsider the case of the applicant for compassionate appointment treating date of death of the father as 26.09.1990.Page 1 of 5
C. Direct the opposite parties to give appointment to the applicant on a suitable post on compassionate ground.
D. Allow the application with costs.
E. Allow any other relief which this Hon'ble Tribunal deems fit
and proper in the circumstances of the case."
3. It is the case of the applicant that applicant's father namely Ganga Ram was in service of the respondents. He was suffering from Schizophrenia and was getting treatment in KGMU, Lucknow. He was discharged on 26.09.1990 but unfortunately he did not reach home and went missing. The information to this effect was given by mother of the applicant namely Madhubala, wife of Ganga Ram to Police Station- Kotwali Sitapur on 26.09.1990. Applicant and his relatives too could not trace out the whereabouts of Ganga Ram. On the representation of the mother of the applicant retiral benefits were granted to her. Applicant filed a Civil Suit bearing 922 of 2011 (Madhubala Rathor and others vs. Bharat Sanchar Nigam Limited) before the court of Civil Judge Junior Division, Sitapur seeking declaration of civil death of her husband namely Ganga Ram. The said civil suit was decided and decreed by Civil Judge Junior Division, Sitapur on 20.02.2017. Applicant moved application for compassionate appointment before the competent authority which was rejected vide impugned orders dated 05.11.2018 and 02.01.2019, hence, this OA.
4. Respondents by filing their counter affidavit have, inter- alia, stated that Civil Judge, Junior Division, Sitapur vide order dated 20.02.2017 in the matter of Madhubala Rathor and others vs. Bharat Sanchar Nigam Limited declared the civil death of Ganga Ram on 20.02.2017, hence, civil death of Ganga Ram shall be presumed on 20.02.2017 only not on any other date. The case of the applicant for compassionate appointment was considered in light of prevailing guidelines and has been rejected.Page 2 of 5
5. Submissions of the learned counsel for the applicant are that while granting weightage points, the date of death of Ganga Ram has been taken as 20.02.2017, the date on which Civil Judge, Junior Division, Sitapur passed the judgment in Civil Suit No. 922 of 2011 (Madhubala Rathor and others vs. Bharat Sanchar Nigam Limited), this is erroneous approach, hence, impugned order deserves to be quashed.
6. Per contra, learned counsel for the respondents argued that decree passed by the Civil Court is final, this Tribunal is not competent to set aside the decree of Civil Court and application for compassionate appointment is 11 years belated.
7. In LIC of India vs. Anuradha, 2004(5) ALL MR 521 (S.C.), the Hon'ble Apex Court in para 14 & 15 has laid down that 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. The relevant paras of the aforesaid authority of the Hon'ble Apex Court are quoted herein below:
"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 Page 3 of 5 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. Thus, in view of aforesaid law of the Hon'ble Apex court, presumption of civil death can be raised on the date when civil suit was filed in the court of competent jurisdiction. Civil suit was filed in 2011 whereas due to taking the civil death in 2017 there is difference in weightage points. If date of civil death is presumed in year 2011, the weightage point would be different.
9. Learned counsel for the respondents submitted that decree of civil court passed in Smt. Madhubala Rathor and others vs. Bharat Sanchar Nigam Limited is final and this Tribunal is not competent to set aside that. I agree with the contention of the learned counsel for the respondents but it is not the case of setting aside decree of civil court, it is a matter relating to presumption of the date of death as per judgment of Hon'ble Apex Court in LIC of India vs. Anuradha(supra).
Page 4 of 510. So far as argument of the learned counsel for the applicant with regard to delay in moving the application for compassionate appointment is concerned. When whereabouts of Ganga Ram were not known to the applicant or his mother there was no question of moving the application for compassionate appointment.
11. In view of above, I am of the considered opinion that impugned order is illegal and liable to be set aside.
12. Accordingly, OA deserves to allowed and is allowed. Orders dated 05.11.2018 and 02.01.2019 contained as Annexure No. A 1 & 2 are set aside. Respondents /competent authority are directed to reconsider the case of the applicant for compassionate appointment as per rules within a period of three months from the date of receipt of a certified copy of this order under intimation to the applicant.
No order as to costs.
Pending MAs, if any, also stand disposed of.
(Justice Anil Kumar Ojha) Member (J) JNS Page 5 of 5