Jharkhand High Court
Amit Kumar vs The State Of Jharkhand on 16 January, 2020
Equivalent citations: AIRONLINE 2020 JHA 11, 2020 (1) AJR 748
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.725 of 2018
With
I.A.No.3104 of 2019
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1. Amit Kumar, S/o Late Uma Shankar Prasad @ Uma Shankar
2. Usha Devi, W/o Late Uma Shankar Prasad @ Uma Shankar
.... .... Appellants
Versus
1. The State of Jharkhand
2. The Principal Secretary, Department of Industry, Government of
Jharkhand, Ranchi, Nepal House, Doranda, Ranchi
3. The Director, Department of Industry, Government of Jharkhand,
Ranchi, Nepal House, Doranda, Ranchi
4. The Deputy Director of Industrial Directorate, Hazaribag cum General
Manager, District Industry Centre, Hazaribag .... .... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Mr. Krishna Murari, Advocate
: Mr. Raj Vardhan, Advocate
For the Resp.-State : Mr. Jai Prakash, A.A.G.
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ORAL JUDGMENT
06/Dated: 16.01.2020 I.A.No.3104 of 2019 The instant interlocutory application has been filed under Section 5 of the Limitation Act, 1963 for condonation of delay of 191 days in filing the appeal.
The reason has been shown causing delay in filing the appeal, is due to non-communication of instruction from the writ petitioners as also the time consumed in arranging the required amount in filing the appeal.
It has been submitted by the learned counsel for the appellants that 2 if the aforesaid reason will not be considered by condoning the delay, the appellants would suffer irreparable loss and injury and the issue which has been agitated in the instant appeal will remain un-adjudicated.
Learned counsel for the State has seriously opposed the ground shown in the interlocutory application and prayed to dismiss it.
This Court after having heard the learned counsel for the parties and after considering the reason shown in the interlocutory application as also taking into consideration the fact that the issue which has been agitated by the appellants will remain unanswered, if the appeal would be dismissed on limitation.
Therefore, this Court deem it fit and proper to condone the delay, so that the issue agitated by the appellants may be decided on merit.
Accordingly, the delay in filing the appeal, is condoned. I.A.No.3104 of 2019 is allowed.
L.P.A. No.725 of 2018 The instant intra-court appeal is against the order/judgment dated 19.07.2018 passed by the learned Single Judge of this Court in W.P.(S) No.4369 of 2014 by invoking the jurisdiction as conferred to this Court under Clause-10 of the Letters Patent.
2. The brief facts of this case which required to be enumerated herein before appreciating the argument as also the finding recorded by the learned Single Judge which reads hereunder as:-
The father of the appellant no.1 and husband of the appellant no.2 namely late Uma Shankar Prasad who was the 4th Grade employee posted in the Office of Regional Industries Directorate, Hazaribagh and while he was in service, he became traceless in the year 1994.
Late Uma Shankar Prasad was appointed on 21.11.1987 in the 3 Directorate of Industries of the undivided State of Bihar and joined his service on 25.11.1987. Late Uma Shankar Prasad while discharging his duty, proceeded on earned leave from 03.02.1994 to 03.03.1994 and subsequently filed application for extension of his leave up to 31.05.1994. Thereafter, he became traceless and to that effect, a notice in the daily newspaper has been published as on 09.12.1999. Thereafter, again late Uma Shankar Prasad after completion of leave, proceeded to join the post but not reached at the place of posting and became traceless.
In consequence thereof, a police report being Sanha No.493 dated 15.05.2000 was lodged in Sultanganj Police Station, Patna (Bihar) reporting therein that the father of the appellant no.1 and husband of the appellant no.2 has become traceless since 1994, to that effect, a report was sent vide DR-1606/2006 dated 08.08.2006 prepared by Sultanganj Police Station to the Deputy Director Industries, Hazaribagh.
In the meanwhile, period of 7 years has also expired and as such, declaration has been sought for to treat the father of the appellant no.1 and husband of the appellant no.2 as dead in view of the provision of Section 108 of the Evidence Act.
Late Uma Shankar Prasad has attained the age of normal superannuation on 31.07.2004.
The appellant no.2 had preferred writ petition before the Hon'ble Patna High Court being C.W.J.C. No.5132 of 2012 which was allowed vide order dated 08.10.2012 directing the respondents to treat the husband of the appellant no.2 a missing employee as dead and ensure payment of the pension and other retiral benefits within a period of six months from the date of passing of the order and in consequent thereto, retiral benefits have been paid.
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Further the benefit of family pension has already been extended in favour of the appellant no.2. The appellant no.1, thereafter has filed application for appointment on compassionate ground before the respondents but the same was rejected vide decision as contained in letter no.481 dated 17.02.2014 along with letter no.13 dated 11.03.2014.
3. The petitioner has filed writ petition being W.P.(S) No.4369 of 2014 for quashing the decision as contained in order/letter no.481 dated 17.02.2014 by raising the entire factual aspects as also placing reliance upon the order passed by this Court (learned Single Judge) rendered in the case of "Shanti Devi and Another Vrs. the State of Jharkhand and Ors." (W.P.(S) No.2503 of 2013), wherein, according to the appellants on the similar facts and circumstance of the case, the writ petition was allowed with a direction upon the respondents for appointment on compassionate ground.
It has been contended further that order in another case passed by the learned Single Judge in W.P.(S) No.3956 of 2011, the direction has been passed on the similar nature of the case for appointment on compassionate ground but in the present case the learned Single Judge without considering these two orders passed by the Coordinate Bench, has rejected the writ petition on the ground that since the date of missing of period of 24 years has already lapsed and hence, no direction for appointment on compassionate ground has been issued.
4. According to the learned counsel appearing for the appellants, the learned Single Judge has not followed the principle of Judicial Discipline in rejecting the claim of the writ petitioner ignoring the similar direction in the similar facts and circumstance of the case, therefore, the order passed by the learned Single, is fit to be set aside with a direction upon the 5 respondents to appoint the appellant on compassionate ground.
5. Mr. Jai Prakash, learned AAG appearing for the State of Jharkhand has defended the order passed by the learned Single Judge on the ground that the presumption of deemed death under Section 108 of the Indian Evidence Act, is not automatic rather a declaration to that effect is required to be passed by the competent court of civil jurisdiction and therefore, the learned Single Judge while considering the aforesaid aspect of the matter has rightly declined to interfere with the impugned decision of the authority concerned.
The learned Single Judge has also taken into consideration the fact about the superannuation of the father of the appellant on attaining the age of superannuation i.e., on 31.07.2004 and since, the appellant, for the first time, has approached to the Court of Law only in the year 2014 which was after attaining the age of superannuation of his father i.e., 31.07.2004, hence no appointment can be granted to the appellant since there is no provision to appoint the dependent of the employee who has attained the age of superannuation.
It has further been contended that the learned Single Judge has also taken care about the object and spirit of appointment on compassionate ground and considering the fact that period of 24 years has already lapsed, as such, declined to interfere with, which cannot be said to be unjustified reason while rejecting the claim of the appellants-writ petitioners, therefore, submission has been made that there is no infirmity in the impugned order.
6. This Court after having heard the learned counsel for the parties requires to refer herein some admitted facts to the effect that the father of the appellant no.1 namely late Uma Shankar Prasad who was appointed 6 on 21.11.1987 became traceless on or after the month of March, 1994.
Sanha to that effect has been made by the appellants for the first time on 15.05.2000 being Sanha No.493 before the Sultanganj Police Station, Patna (Bihar). The concerned Police Station on the basis of the aforesaid Sanha has prepared a report and sent it to the Deputy Director Industries, Hazaribag on 08.08.2006.
The father of the appellant no.1, in the meanwhile, has attained the age of superannuation i.e., on 31.07.2004. The appellant no.2, after lapse of about 8 years from the date when her husband has attained the normal age of superannuation, has approached to the Hon'ble Patna High Court being C.W.J.C. No.5132 of 2012 which was disposed of on 08.10.2012 seeking direction upon the respondents to make payment of retiral/death benefits which has been directed to be paid and in pursuant thereto, the benefit has been paid as also the family pension.
The appellant no.1 in the year 2014 has approached to this Court seeking direction for appointment on compassionate ground on the ground of presumption of civil death of his father as per the provision of Section 108 of the Indian Evidence Act.
Section 108 of the Indian Evidence Act provides which reads hereunder as:-
"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."
7. Prior to reading out the provision of Section 108, it requires to refer the provision of Section 107 also which contains a provision laying down burden of proving death of person known to have been alive within thirty 7 years, therefore, it has been laid down under Section 107 of the Evidence Act, that if a person is proved to have been living within 30 years it shall be presumed that he is alive and the burden of proving that he is dead lies on that person who affirms that he is dead.
Section 108 lays down that when it is proved that a person 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.
It further appears from the provision of Section 108 of the Evidence Act that the law presumes death of a person unheard of for seven years under the aforesaid Section, but is silent in respect of date of presumed death. Hence, possible view that the date of presumed death must be proved by the party concerned as a fact by leading reliable evidence.
It is thus apparent that the death cannot be presumed merely on missing of a person after lapse of seven years from the date of his disappearance because Section 108 does not automatically give rise to presumption as to the exact date of death of missing person, meaning thereby, a declaration about the civil death is required to be made by the competent court of law by leading evidence on fact by the party concerned.
Admittedly herein, there is no declaration to the effect about civil death in view of the provision of Section 108 of the Indian Evidence Act.
This fact has been taken into consideration by the learned Single Judge, by taking note of the fact that the appellant no.1 for the first time has approached to the Court of law by filing the writ petition which is the subject matter of the present intra-court appeal sometime in the year 2014 assailing to the decision of the authority taken on 17.02.2014, meaning 8 thereby, that even accepting the presumption of death after lapse of seven years that would be sometime in the year 2001 but the claim for appointment on compassionate ground has been agitated after lapse of about 13 years.
8. There is no dispute about the settled position of Law that the object and intent of appointment on compassionate ground is to provide immediate relief to the dependents of the bread earner who died in harness.
Therefore, to achieve this aforesaid intent of the scheme, the requirement is to make an application for appointment on compassionate ground within the reasonable period, it is for the reason that if immediate relief will not be provided, the family will not be able to survive due to sudden demise of the bread earner. Further, once the family would be able to survive, there is no reason to provide appointment since the object and spirit for providing appointment on compassionate ground has already been achieved.
This principle has been considered by the Hon'ble Apex Court in catena decisions which is being referred hereinbelow:-
In the case of Jagdish Prasad Vrs. State of Bihar and Another reported in (1996) 1 SCC 301, Hon'ble Apex Court, while considering the object of compassionate appointment held that the object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family.
In the case of Haryana State Electricity Board Vrs. Naresh Tanwar and Another reported in (1996) 8 SCC 23 the Hon'ble Apex Court declined to grant relief to the dependent of an employee who was 9 minor at the time of death of the bread earning Government employee.
In the case of State of U.P. and Others Vrs. Paras Nath reported in AIR 1998 SC 2612 the Hon'ble Apex Court held that the purpose of providing employment to a dependant of a Government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. It was further observed that none of these considerations can operate while the application is made after a long period of time.
In the case of Commissioner of Public Instructions and Others Vrs. K. R. Vishwanath reported in (2005) 7 SCC 206 the Hon'ble Apex Court, after taking into consideration its various judgments, reiterated that the appointment to the public service can only be made on the touchstone of Article 14 or 16 of the Constitution and compassionate appointment is an exception to general constitutional mandate in the interest of justice under peculiar circumstances.
It was further observed that where law prescribes limitation for making an application for compassionate appointment, it has to be adhered to.
From the law laid down by the Hon'ble Apex Court in various judgments referred herein above, it is settled proposition that compassionate appointment cannot be considered to be a source of recruitment or another mode of recruitment to government / public service. The object and purpose of compassionate appointment for the dependent of the deceased- Government servant is to provide immediate financial assistance to the family whose sole bread earner died leaving the family in lurch. The purpose is to enable the family to overcome its 10 immediate financial needs. The compassionate appointment cannot be given as a matter of course, and depends upon various factors, including the financial condition of the family of the deceased and other relevant factors.
Since compassionate appointment is deviation from the constitutional mandate contemplated by Article 14 and 16 of the Constitution of India, which permits employment providing equal and fair opportunity to all the eligible persons, it is necessary that the compassionate appointment is regulated by law / rules so as not to nullify the constitutional spirit.
9. The learned Single Judge has also considered the aspect of lapse of period of 24 years which according to us, cannot be said to suffer from any infirmity, in view of the object and intent of appointment on compassionate ground as discussed above as also the judgment pronounced by the Hon'ble Apex Court as referred hereinabove.
10. Learned counsel appearing for the appellants has emphatically argued about the judicial discipline by placing reliance upon the order passed by this Court (learned Single Judge) in W.P.(S) No.3956 of 2011 (annexure-5) which was disposed of on 26.09.2013.
This Court has gone across the factual aspect as has been referred in the order (annexure-5), wherefrom it is evident that the father of the writ petitioner of the aforesaid writ petition went missing on 23.07.2001 while working as Forester and after lapse of period of seven years, an application was filed for appointment on compassionate ground but the same was rejected by the authorities on the ground that no such 11 declaration about the civil death by the competent court of civil jurisdiction is available and it is thereafter the petitioner of the aforesaid writ petition has filed a suit for declaration of death of his father on 23.07.2001 being Title Suit No.23 of 2009 before the Sub Judge-I, Garhwa which was decreed on 29.06.2010 holding that the plaintiff (writ petitioner in W.P.(S) No.3956 of 2011) has been able to prove that his late father was missing since 23.07.2001.
Thereafter, the fresh application was filed for appointment on compassionate ground along with the declaration of the competent court of civil jurisdiction passed in Title Suit No.23 of 2009 but again it was rejected on 28.04.2011 which was challenged before this Court. This Court after taking into consideration about the declaration of the trial Court has passed order for appointment on compassionate ground.
The said order is not applicable on the facts of the present case as because there is no declaration of the competent court of civil jurisdiction since no such suit for declaration about the civil death has been filed by the appellant, therefore, the order passed by the learned Single Judge of this Court in W.P.(S) No.3956 of 2011, is not applicable on facts.
11. Learned counsel appearing for the appellants has also relied upon the order passed by the learned Single Judge of this Court dated 24.10.2013 (annexure-5/1).
This Court has gone across the factual aspect involved in the aforesaid order, wherefrom it transpires that the view has been taken about presumption of death after lapse of seven years as per the provision of Section 108 of the Indian Evidence Act.
The consideration of the order passed by the Hon'ble Allahabad High Court in the case of Sanjai Kumar Singh Vrs. State of U.P. and 12 Ors., reported in (2005) 3 AWC 2724 (LB) as also the judgment delivered by the same High Court in the case of Avinash Gupta Vrs. State of U.P. and Ors. (Civil Misc. Writ Petition No.17395 of 2011), wherein it has been observed that there is no distinction between civil death and natural death for the purpose of grant of compassionate appointment.
Further the judgment rendered by the Division Bench of the High Court of Uttrakhand has also been considered in the case of Director General of Police and Two Others Vrs. Banshidhar Bhatt (Special Appeal No.173 of 2008), wherein also the claim of appointment on compassionate ground to the dependent of a person who was missing for more than seven years and after investigation, the police could not trace out the missing person, therefore, the direction for appointment on compassionate ground to the dependent has been passed.
The fact of the writ petition being W.P.(S) No.2503 of 2013, wherein the father of the dependent was missing from 22.11.2000, information to that effect was made on 20.08.2005.
The death would be said to be a civil death on presumption, if not traceable for a period of seven years and as such, on or after 22.11.2000, the father of the dependent namely Prahlad Bahadur Singh was found to be dead and prior to that, retiral benefits were paid.
The dependent was filed an application for appointment on compassionate ground after the payment of retiral dues in the year 2010 by filing the writ petition in the year 2013 being W.P.(S) No.2503 of 2013.
The learned Single Judge has passed an order in the aforesaid writ petition by disposing of the same vide order dated 24.10.2013 for appointment on compassionate ground by quashing the order, by which, the claim has been rejected, therefore, the claim for appointment on 13 compassionate ground was made on 18.11.2006 but as would appear from the aforesaid order that the claim was not decided by the respondents and therefore, the writ petition was filed, wherein stand was taken in the counter affidavit about no provision provided under the scheme to grant appointment on compassionate ground in a case of civil death and in the light of the aforesaid factual aspect, the order for compassionate appointment has been made holding therein that there cannot be any distinction in civil death and the death due to other reasons.
12. Here the factual aspect is totally different, since in the present case, the father of the appellant no.1 became traceless on or after the Month of March, 1994. Sanha was instituted on 15.05.2000 and a report was submitted on 08.08.2006 by the concerned Police Station to the Deputy Director Industries, Hazaribag.
The appellant no.2 (wife of the employee) has approached the Hon'ble Patna High Court vide C.W.J.C. No.5132 of 2012 which was disposed of on 08.10.2012 with a direction upon the respondents to make payment of retiral dues. It is only thereafter i.e., after lapse of about 1 ½ year for consideration for appointment on compassionate ground has been made by the appellant no.1 which was rejected on 17.02.2014 which has been challenged before this Court in W.P.(S) No.4369 of 2014, the subject matter of the present intra-court appeal.
13. The distinguished fact herein is from the case of W.P.(S) No.2503 of 2013, is that the employee has found missing since 22.11.2000 and prior to completion of period of 7 years, the retiral benefits were paid on 18.11.2006 by taking the decision on the representation filed by the dependent as also the application was filed for appointment on compassionate ground on 18.11.2006 which was kept pending by the 14 authority and when the counter affidavit has been filed, the stand has been taken about no provision under the scheme for appointment on compassionate ground on the ground of civil death, therefore, in the aforesaid case the application for appointment was filed on 18.11.2006 remain undecided by the authority but here in the present case, the application for appointment on compassionate ground has been filed for the first time in the year 2013 i.e., after lapse of more than the period of 12 years from the presumption of death which is after expiry of the period of seven years from the date of missing and in that pretext, the learned Single Judge has passed the order keeping the fact into consideration about expiry of the period of 24 years and therefore refused to interfere with the impugned decision.
However, the contradictory view has been taken by the Court about the implication of the provision of Section 108 of the Indian Evidence Act but since the order passed by this Court in W.P.(S) No.2503 of 2013, is not the subject matter of the present intra-court appeal, therefore, it would not be proper for this Court to make any remarks upon it but the fact remains that the Law is settled in this regard unless there is a declaration about the civil death by the competent court of civil jurisdiction, the death cannot be presumed so far as the provision of Section 108 is concerned.
It is evident from the aforesaid provision that a declaration about death, which requires evidence and as such, it is not proper for the writ Court to come to a conclusive finding about the civil death as because the question of proving or disproving would only come if the issue would be raised before the competent court of civil jurisdiction but admittedly herein, there is no declaration from the competent court of civil jurisdiction as required to be declared in view of the provision of Section 108 of the 15 Indian Evidence Act.
14. Therefore, this Court is of the view that even if some finding has been recorded by the learned Single Judge while passing the order in W.P.(S) No.2503 of 2013 pertaining to implication of the provision of Section 108 of the Indian Evidence Act, will not bind this Court to follow the same if the finding is contrary to Law, it is for the reason that if proposition would be followed, it would amount to perpetuating the illegality which would be against the principle that if any illegality has been committed even by the Court of Law, the same has to be rectified, the moment it came to the notice of the Court which on the position of Law that the illegality cannot be allowed to be perpetuated.
15. Further, it has been discussed hereinabove on fact, the present case is totally distinguishable from the fact of W.P.(S) No.2503 of 2013 and hence, is not applicable.
16. The learned Single Judge has taken into consideration about the period of 24 years while rejecting the claim, which cannot be faulted with, considering the very object and intent of the appointment on compassionate ground which is to provide the immediate relief to the dependent of the bereaved family who had come to penury due to sudden demise of bread earner.
In the present case, there is no requirement to provide any relief by showing compassion, it is for the reason that if the family of the deceased employee has been able to survive for the period of 24 years, even if direction for appointment would be passed, it would be contrary to very object and intent of the scheme made for the said purpose.
17. This Court in view of the discussion made hereinabove, is of the view that the order passed by the learned Single Judge cannot be faulted 16 with.
18. In the result, the present appeal is held to be devoid of merit, accordingly, is dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad,J.) Rohit/-
A.F.R.