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2009 DIGILAW 452 (JHR)

Renu Devi v. Central Coalfields Ltd.

2009-03-26

D.K.SINHA

body2009
JUDGMENT : This appeal has been preferred against the order dated 15.9.2008 passed by the learned Single Judge in W.P (S) No.2113/2008, by which the writ petition was dismissed, as a consequence of which the claim of the petitioner seeking appointment of her son on compassionate ground in place of her missing husband was rejected. 2. The instant matter is not one of those cases where the employee is dead but is a case where the employee of the respondent company was found traceless one year prior to his superannuation. The matter was reported to the police and a First Information Report was lodged but till date, the husband of the petitioner has not been traced out. 3. The petitioner/appellant herein, therefore, came up with a case that there should be a presumption of death of her husband as he was traceless for more than 7 years and therefore, her son should be granted compassionate appointment in place of his father. A direction also was sought to pay all the retiral benefits of her husband. 4. It is informed by the counsel for the respondent-company that the retiral dues have already been paid to the petitioner, which were payable to her husband and in so far as compassionate appointment is concerned, the same cannot be granted as the petitioner’s husband is not dead as he is missing and he might be still alive. 5. The counsel for the petitioner/appellant herein, on the other hand, urged that if the petitioner’s husband was found traceless for more than 8 years, it should be treated as a case of death on the basis of presumption and, therefore, compassionate appointment was fit to be granted to the petitioner’s son as per the rule. 6. Having heard the counsel for the parties in the light of the facts stated hereinabove, we are of the view that the petitioner’s husband had only one year of service left prior to his superannuation during which he was found missing and therefore, after expiry of the period of one year, the petitioner’s claim for compassionate appointment of her son in place of her husband could not be legally sustained, as the claim of compassionate appointment could accrue only after expiry of the period of 7 years of his missing and prior to the expiry of that period, the petitioner’s husband/employee could not be presumed to be dead. It is worth reiterating that the petitioner’s husband during this period also reached the age of superannuation and therefore, only after a period of one year of his disappearance, he ceased to be in service. In that view of the matter, when the petitioner claimed appointment of her son on compassionate ground in place of her missing husband, the cause of action no longer survives as her husband was no longer in service and therefore, the claim of compassionate appointment on the ground of presumption of death of her husband after 7 years of his disappearance cannot be sustained. 7. Besides this, the implication of such a claim of appointment cannot be overlooked for if the plea of the petitioner were to be entertained and the appointment were to be granted to the petitioner’s son, under the aforesaid circumstance, it is not far to visualize that this could be used as a ploy and modus operandi by the employees on the verge of retirement to claim appointment on compassionate ground on the ground that he is missing, although we do not record any finding in absence of any evidence to that effect that this is the situation in the instant matter. But for the reasons indicated hereinabove, the claim for appointment on compassionate ground during the period in which the employee was missing could not be sustained, as he had already retired from the service when the cause of action claiming appointment on compassionate ground accrued. 8. Thus, apart from the reasons assigned by the learned Single Judge, the claim for appointment of the petitioner’s son on compassionate ground has rightly not been entertained and therefore, we find no reason to entertain this appeal, which is dismissed at the admission stage itself. 9. In so far as the retiral dues are concerned, the same shall be paid by the respondent-company expeditiously, if not already paid.