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2013 DIGILAW 1167 (JHR)

Shanti Devi v. State of Jharkhand

2013-10-24

SHREE CHANDRASHEKHAR

body2013
ORDER 1. The petitioners have approached this Court seeking a direction upon the respondents for appointment of petitioner no. 2 on compassionate ground or alternatively, for a direction upon the respondents to consider the case of the petitioner no. 2 for appointment on compassionate ground. 2. The brief facts of the case are that, the husband of the petitioner no. 1 namely, Prahlad Bahadur Singh was reported missing since 22.11.2000. An information was given to the police and the police on 20.08.2005, submitted a report that inspite of all efforts, it could not trace the said Prahlad Bahadur Singh. Thereafter, the petitioner no. 1 made representation to the authorities for release of the retiral benefits of her husband. On 18.11.2006, a representation was made for grant of compassionate appointment to the petitioner no. 2. Since the claim of the petitioners have not been decided by the authorities, the petitioners have approached this Court by filing the present writ petition. 3. A counter-affidavit has been filed in which it has been admitted that the retiral benefits of the husband of the petitioner no. 1 have been granted by different office orders issued in the year, 2010. However, a plea has been raised that there is no provision for grant of appointment on compassionate ground to the dependents of the persons, who are missing. 4. Heard the learned counsel appearing for the parties and perused the documents on record. 5. The learned counsel appearing for the petitioners submits that since the respondents have released the retiral benefits of the husband of the petitioner no. 1 in her favour, appointment on the compassionate ground to petitioner no. 2 should have been granted by the respondents. He has further submitted that inspite of efforts the police could not trace the husband of the petitioner no. 1 and the respondents have accepted that her husband is no longer in service and therefore, in view of Section 108 of the Evidence Act, death of the husband of the petitioner no. 1 should be presumed. The learned counsel appearing for the petitioner has relied on an order passed by this Court in “Bijay Kumar Pradhan Vs. State of Jharkhand & Others” [W.P.(S) No. 3956 of 2011] to contend that there is no distinction between the civil death and the natural death in so far as the claim for compassionate appointment is concerned. 6. The learned counsel appearing for the petitioner has relied on an order passed by this Court in “Bijay Kumar Pradhan Vs. State of Jharkhand & Others” [W.P.(S) No. 3956 of 2011] to contend that there is no distinction between the civil death and the natural death in so far as the claim for compassionate appointment is concerned. 6. As against the above, Mr. Sumir Prasad, S.C. I, learned counsel appearing for the respondents has submitted that there is no express provision for grant of appointment on compassionate ground to the dependents of the persons who are missing or who could not have been traced out. 7. Section 108 of the Evidence Act is as under: - 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 persons who affirms it.” 8. The presumption raised under Section 108 of the Evidence Act is confined to presuming the factum of death of the person whose life or death is in issue. A person would be presumed to be dead if for a period of seven years, he is unheard or not traceable. In “Sanjai Kumar Singh Vs. State of U.P. and Ors.”, reported in (2005) 3 AWC 2724 (LB), a case in which appointment on compassionate ground was denied to the dependent of an employee as the natural death of the employee was not established, a learned Single Judge of the Allahabad High Court has observed as under:- 10. “There may be cases where while discharging duties particularly in police force or armed force persons may be placed in the list of lost or missing employees for some unforeseen reasons and denial for appointment on compassionate grounds to the dependents of such employees even after the lapse of statutory period of 7 years shall frustrate very purpose of the Dying in harness Rules. 11. In, view of the above discussions, the principle of purposeful interpretation may be applied in the present case while considering the availability of benefits to the petitioner under Dying-in-Harness Rules. 11. In, view of the above discussions, the principle of purposeful interpretation may be applied in the present case while considering the availability of benefits to the petitioner under Dying-in-Harness Rules. The purpose of Dying-in-Harness Rules is to proved help to the family of the deceased of a Government employee by making appointment on compassionate ground. After the death of government employee in harness or in case the Government employee is not traceable on account of certain mishappenings like happened in the present case, the appointment on compassionate ground of a dependent may save the family from dying on account of starvation and financial hardships.........” 9. In “Avinash Gupta Vs. State of U.P. and Others” (Civil Misc. Writ Petition No. 17395 of 2011), another learned Judge of the Allahabad High Court relying on the decision in 'Sanjai Kumar Singh' (Supra) has observed that there is no distinction between civil death and natural death for the purpose of grant of compassionate appointment, in as much as in both the cases, bread earner of the family is not at all therein who would come forward to help the incumbents who are in penury. Purpose is to provide help to the family of the deceased employee whether it is a case of natural death or it is a case of civil death. 10. A Division Bench of the High Court of Uttrakhand in “Director General of Police and Two Others Vs. Banshidhar Bhatt” (Special Appeal No. 173 of 2008) has allowed the claim for 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. 11. I further find that a learned Judge of this Court taking note of the above referred orders, has found the stand taken by the respondents in the said case not justified when a distinction was sought to be made between deemed death and natural death of an employee for rejecting the claim of the dependent of the employee for appointment on compassionate ground. In the present case, the husband of the petitioner no. 1 namely, Prahlad Bahadur Singh was reported missing since 22.11.2000 and an information was given to the police. On 20.08.2005, the police submitted a report that the said Prahlad Bahadur Singh is not traceable. In the present case, the husband of the petitioner no. 1 namely, Prahlad Bahadur Singh was reported missing since 22.11.2000 and an information was given to the police. On 20.08.2005, the police submitted a report that the said Prahlad Bahadur Singh is not traceable. The retiral benefits of the husband of the petitioner no.1 has been paid by the respondents however, on 18.11.2006 when a representation was made for grant of appointment to the petitioner no. 2, the claim of the petitioners was not decided by the respondents. In the present proceeding, a plea has been raised that there is no provision for grant of appointment on compassionate ground to the dependents of the persons, who are not traceable. A counter-affidavit has been filed on 08.07.2013 in which it has been admitted that the retiral benefits of the husband of the petitioner no. 1 have been granted in the year, 2010 itself. I am of the considered opinion that once the claim for grant of the retiral benefits of the husband of the petitioner no. 1 has been accepted by the respondents, it is not open to the respondents to deny the claim of the petitioner no. 2 for his appointment on compassionate appointment. I find support from the order passed in 'Bijay Kumar Pradhan' (Supra) whereunder the rejection of the claim for appointment on compassionate ground by drawing a distinction between deemed death and the natural death of an employee has been found not justified. The present is an identical case. 12. In view of the aforesaid discussions, the writ petition is allowed and the respondent no. 2 is directed to consider the claim of the petitioner no. 2 for his appointment on compassionate ground. It is made clear that the delay which has occurred during this period would not be taken into account and the claim of the petitioner no. 2 would be decided on merits.