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2003 DIGILAW 993 (JHR)

Ashok Kumar Pal v. State Of Jharkhand

2003-08-13

TAPEN SEN

body2003
ORDER Tapen Sen, J. 1. Heard. Mr. R.P. Gupta, learned" counsel for the petitioner and Mr. A. Bannerji, J.C. to G.A. for the State respondents and with their consent this Writ Application is being disposed off at this stage. 2. The petitioner in the instant case has prayed for quashing the Order dated 12.6.2002 passed by the Deputy Commissioner, West Singbhum, at Chaibasa rejecting the application filed by the petitioner for compassionate appointment. 3. The underlying object behind compassionate appointment is to enable a family to tide over the misery that befalls it on account of the death of the bread winner. However, compassionate appointment must be given immediately after the death and the matter should not be allowed to be kept in abeyance for a long period of time because if such matter is delayed then the very object for which this concept took shape will be frustrated. 4. However, the facts of this case is totally different and they are that on 24.9.1993 while the father of the petitioner had proceeded to Kolkata for negotiation of the marriage of his daughter he became traceless. All efforts were made to trace him out including filing of an F.I.R. on 20.10.1993. The presumption of death in the case of a man or woman who becomes traceless takes a positive shape only on the expiry of seven years, The seven years period in the facts of this case came to an end on 23.9.2000. It is thereafter that the petitioners mother filed an application on 30.1.2001 by Annexure-2 praying that the petitioner be given compassionate appointment. In other words, the aforementioned application was filed just on the expiry of about three months from the date of death and a legal presumption of the same became a reality on the expiry of seven years. Since the respondents apparently were not taking into consideration the aforementioned application, the same gave rise to filing of W.P. (S) No. 4171 of 2001 and by Judgment/Order dated 6.9.2001 the same was disposed off with a direction upon the Superintending Engineer, Public Health Engineering Department, Jamshedpur Circle to enquire into the matter from the concerned office/the officer Incharge of the Police Station relating to the present situation and thereafter was asked to determine the issue as to whether on presumption of death the benefit of compassionate appointment will be allowed in favour of the petitioner or not. It appears that even thereafter the respondents were sitting over the matter which led to filing of a Contempt Application but it appears that on 15.7.2002, the said Contempt Application was disposed off on account of an affidavit filed stating that the claim of the petitioner had been rejected by Memo dated 12.6.2002. While disposing off the Contempt Application, the petitioner was given liberty to move before an appropriate forum and that is why this Writ Application has been filed challenging the Memo dated 12.6.2002. 5. Upon perusal of the Order dated 12.6.2002 as contained in Annexure-6, it appears that the Deputy Commissioner, while dealing with the matter relating to compassionate appointment, observed that there is no guideline or scheme of the Government which lays down that compassionate appointment would be given in case of presumption of the death. He has also taken note of the observations made by the Honhle Judge in the earlier order to the effect that "however in the guidelines no scheme has been framed to provide compassionate appointment on presumption of death". 6. Thus, although the earlier Court had directed the Deputy Commissioner to deal with the matter in accordance with law, the same undoubtedly has so been done but the reasons for rejection appears to be the non-availability of any guideline in relation to presumption of death. 7. In the counter affidavit it has been stated that the respondents have already paid the retirement dues to the petitioner and at paragraph 12 reference has been made with regard to recommendation of the Superintending Engineer made in favour of the petitioner for appointment on compassionate consideration. It is now an admitted fact that the petitioner has become trace-less for more than the last seven years and the report of the police as is evident from Annexure-E appended to the counter affidavit goes to show that the police officer has made a statement to the effect that there appears to be no possibility of the father of the petitioner being traced out. 8. Under Section 108 of the Indian Evidence Act, 1872, a person who has not been heard of for seven years is presumed to be dead and the burden of proving that he is alive is shifted to the person who affirms it. For all practical purposes therefore, the petitioners father is now presumed to be dead. 9. 8. Under Section 108 of the Indian Evidence Act, 1872, a person who has not been heard of for seven years is presumed to be dead and the burden of proving that he is alive is shifted to the person who affirms it. For all practical purposes therefore, the petitioners father is now presumed to be dead. 9. In that view of the matter, whatever was applicable or is applicable to a dead person would naturally therefore by reason of the deeming fiction provided under Section 108 of the Evidence Act, should have been made applicable to a person who is presumed to be dead unless the department comes with a plea that he is still alive. In that event it would be for the department comes with a plea that he is still alive. In that event it would be for the department to prove his existence. That having not been done, the benefit of compassionate appointment should be accorded in favour of the petitioner. This aspect of the, matter has not been taken into consideration by the Deputy Commissioner while rejecting the claim of the petitioner. 10. For the foregoing reasons, therefore, the impugned order of the Deputy Commissioner is set aside and the matter is remanded to him to pass a fresh order in accordance with law taking into consideration the observations made above within a period of four months from the date of receipt of a copy of this order. This Writ Petition is accordingly allowed to the extent indicated above. No order as to costs.