JUDGMENT : V. Ramasubramanian, J. 1. The State Express Transport Corporation Tamil Nadu Limited has come up with the above appeal, challenging the order of the learned Judge, passed in a writ petition filed by the respondent, directing the appellants to settle all terminal benefits and also to provide compassionate appointment to the respondent's son, due to the presumed death of the respondent's husband. Heard Mr. K. Sudalaiyandi, learned Counsel for the appellants and Mr. F. Deepak, learned Counsel for the respondent. The respondent's husband was employed as a Conductor in the appellant Corporation. He joined service in the year 1978 and put in about 21 years of service. 2. It appears that on one day in May 1999, the respondent's husband disappeared without any trace. All the attempts made by the respondent to trace her husband, proved futile. 3. After making enquiries in various places, the respondent at last lodged a complaint. An F.I.R. was registered in Cr. No. 259 of 2009, for 'Man Missing'. Eventually, a report was filed on 30.11.2000, that he was not traceable. 4. In the meantime, the appellants issued a charge memo in the name of the respondent's husband on 30.6.1999. The charge was for unauthorised absence. The charge memo returned un-served as the respondent's husband had disappeared in May 1999. 5. Another show cause notice dated 21.7.2000, was issued. It was also returned. Therefore, by a final order dated 9.4.2001, the appellants dismissed the respondent's husband from service. 6. After the final order of dismissal from service, dated 9.4.2001, was served on her, the respondent filed a statutory appeal on the ground that her husband was not traceable. She also sought reconsideration of the decision to dismiss her husband from service. But, the representations did not meet with any response. 7. Therefore, the respondent filed a writ petition in W.P. (MD) No. 3796 of 2008. The writ petition was disposed of with a direction to the appellants to consider and pass orders. But, no orders were passed. 8. Therefore, the respondent came up with a writ petition, challenging the final order of dismissal of her husband, dated 9.4.2001 and seeking a direction to grant consequential benefits. The said writ petition in W.P. (MD) No. 13064 of 2009 was allowed by a learned Judge of this Court. As against the said order, the appellant Corporation is on appeal. 9. Therefore, the respondent came up with a writ petition, challenging the final order of dismissal of her husband, dated 9.4.2001 and seeking a direction to grant consequential benefits. The said writ petition in W.P. (MD) No. 13064 of 2009 was allowed by a learned Judge of this Court. As against the said order, the appellant Corporation is on appeal. 9. It is seen from the order of the learned Judge that the learned Judge followed a decision of another learned Judge of this Court in N. Pankajam v. State of Tamil Nadu (2006) 3 M.L.J. 702 wherein it was held that when a person is unheard of for seven years, even by those, who would have naturally heard of him, such a person should be presumed to be dead. The learned Judge consequently held that the respondent's husband should be deemed to have been dead from May 1999 onwards on the basis of the presumption available under section 108 of the Indian Evidence Act, 1872. Taking such a view, the learned Judge held the order of dismissal to be invalid and directed the respondents to settle all terminal benefits and also provide compassionate appointment to the respondent's son. 10. While there can be no dispute about the presumption available under section 108 of the Indian Evidence Act, 1872, what is important is to see the date on which such presumption arises. As per section 108 of the Indian Evidence Act, 1872, whenever a question arises 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, burden of proving that he is alive, is shifted to the person who affirms it. 11. What is provided in section 108 of the Indian Evidence Act, 1872, is only a presumption. Section 108 of the Indian Evidence Act, 1872 cannot be read in isolation. It should be read along with section 107 of the Indian Evidence Act, 1872. Under section 107of the Indian Evidence Act, 1872, whenever a question arises as to whether a man is alive or dead and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. 12. Thus, section 108 is an exception to section 107. Under section 107of the Indian Evidence Act, 1872, whenever a question arises as to whether a man is alive or dead and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. 12. Thus, section 108 is an exception to section 107. If section 107 provides the rule, section 108 provides the exception. Once it is established that a person was alive within 30 years, the burden of proving that he is dead is on the person who affirms it. This is the rule under section 107. But, if it is proved that such a person, despite being alive within 30 years, 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 that he is alive. 13. Therefore, it follows as a corollary that for the application of section 107, the outer limit of the period of prescription is 30 years. Similarly, for the application of section 108, the minimum period of time limit statutorily prescribed for the presumption to arise is seven years. 14. This is why the presumption as to death cannot be raised before the expiry of seven years. It cannot be raised even if the period of seven years falls short by one or two days. In LIC of India v. Anuradha, 2004 (17) AIC 59 : 2004 (55) ALR 418 (SC) : AIR 2004 SC 2070 the Supreme Court held that the presumption as to death by reference to section 108 would arise only on the expiry of seven years and would not by applying any logic or reasoning be permitted to be raised on the expiry of 6 years and 364 days or at any time short of it. More over, the Court pointed out 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 the 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. 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. Therefore, the expiry of the full period of seven years is essential to raise the presumption under section 108. This takes us to the next question as to what exactly could be taken as the date of death. 16. In Lal Chand Marwari v. Mahant Ramrup Gir, AIR 1926 PC 9 the Judicial Committee of the Privy Council stated the law on the point as follows: "There is only one presumption, and that is that when these suits were instituted in 1916 Bhawan Gir was no longer alive. There is no presumption at all as to when he died. That, like any other fact, is a matter of proof....Now, upon this question there is, their Lordship are satisfied no difference between the law of India as declared in the Evidence Act and the Law of England (Range Balaji v. Mudiyeppa) and searching for an explanation of this very persistent here say, their Lordships find it in the words in which the rule both in India and in England is usually expressed. These words taken originally from. In re Phene's Trusts run as follows: "If a person has not been herd of for seven years, there is a presumption of law that he is dead; but at what time within that period he died is not a matter of presumption but of evidence, and the onus of proving that the death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential." Following these words, it is constantly assumed--not perhaps unnaturally--that where the period of disappearance exceeds seven years, death, which may not be presumed at any time during the period of seven years, may be presumed to have taken place at its close. This of course, is not so. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four periods of seven years. This of course, is not so. The presumption is the same if the period exceeds seven years. The period is one and continuous, though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if, instead of speaking of a person who had not been heard of for seven years, it described the period of disappearance as one of not less than seven years." 17. In N. Jayalakshmi Ammal v. Gopala Pathar, AIR 1995 SC 995 the Supreme Court quoted a passage from Sarkar on Evidence to the effect that if a person is not heard of for seven years, there is a presumption of the fact of death at the expiration of seven years but, the exact time of death is not a matter of presumption. The onus of proving that death took place at any particular time within the seven years lies upon the person who claims a right to the establishment of which that fact is essential. 18. As a matter of fact, there is an inherent danger in presuming that the date from which a person went missing could be taken to be the date of death. If it is so taken, many claims that could be made by his legal heirs would become barred by time, despite the fact that the very presumption of death could be raised only after seven years from the date on which he was last heard of. 19. In LIC of India v. Anuradha, 2004 (17) AIC 59 : 2004 (55) ALR 418 which we have cited earlier, the Supreme Court extracted the following passage from Halsbury's Laws of England, after pointing out that there is no difference between the English Law and the Indian Law on the subject. "Where the presumption of death after seven years' absence applied, the person will be presumed to; have died by the end of that period, where the presumption does not apply, or is displaced by evidence, the issue will be decided on the facts of the particular case. In some old cases, where neither the evidence nor the incidence of the burden of proof was decisive, the Court made the best order it could in the circumstances. In some old cases, where neither the evidence nor the incidence of the burden of proof was decisive, the Court made the best order it could in the circumstances. Where the question to be decided, for the purposes affecting the title to property, is which of two persons died first, a statutory rule may apply. The question whether a person was alive or dead at a given date will be decided on all the evidence available at the date of the hearing. 20. Therefore, it is impossible to think that a person can be presumed to be dead from the date on which he went missing. Unless a period of seven years expire from the date of his missing, the very occasion for the raising of the presumption does not arise. Therefore, the learned Judge was not correct in thinking that the respondent's husband should be presumed to be dead from May 1999 onwards. 21. Having cleared the said aspect, what is now to be considered is as to whether the dismissal order is valid or not. Fortunately, the respondent has challenged the order of dismissal. The dismissal order has been passed in disciplinary proceedings taken ex parte. The reason for non-appearance of the respondent's husband before the disciplinary authority is the factum of his missing. Once it is established that he has not been heard of for seven years from May 1999, it was impossible for him to participate in the enquiry. Therefore, the punishment by itself, cannot stand unless the presumption under section108 of the Indian Evidence Act, 1872 is rebutted by the employer. 22. As a matter of fact, the Government itself had taken note of the contingencies of this nature and amended the Tamil Nadu Pension Rules, 1978, by G.O.Ms. No. 540, Finance (Pension), dated 5.7.1995. Rule 49-A inserted by way of amendment, reads as follows: "49-A. Benefits to the family of a disappearing Government servant. - When a Government servant disappears leaving his family, the family of such Government servant shall be entitled immediately for the payment of dues of salary, leave encashment. No. 540, Finance (Pension), dated 5.7.1995. Rule 49-A inserted by way of amendment, reads as follows: "49-A. Benefits to the family of a disappearing Government servant. - When a Government servant disappears leaving his family, the family of such Government servant shall be entitled immediately for the payment of dues of salary, leave encashment. General Provident Fund and Special Family Pension-cum-Gratuity and after lapse of a period of two years of such disappearance, for the payment of dues of Death-cum-Retirement Gratuity and Family Pension in accordance with the nomination made by such Government Servant, subject to the following conditions, namely:- (i) a complaint must have been lodged with the police station concerned and a report obtained that the Government servant has not been traced despite all efforts made by the police; (ii) An indemnity bond must have been executed by the nominee or dependents of such Government servant to the effect that all payments shall be adjusted against the payment due to the such Government servant in case he appears later and makes any claim." 23. A careful look at Rule 49-A would show that if a Government servant disappears leaving his family, the family of such Government servant shall be entitled immediately for the payment of dues of salary, leave encashment, General Provident Fund and Special Family Pension-cum-Gratuity. After a lapse of a period of two years of such disappearance, the family will also be entitled to the payment of dues of Death-cum-Retirement Gratuity and Family Pension in accordance with the nomination made by such Government Servant. 24. But, the above payments are subject to two conditions namely, (i) a complaint had been lodged with the police and a report obtained and (ii) an indemnity bond had been executed by the nominee to the effect that all payments shall be adjusted against the payments due to such Government servant, in case, he surfaces later. 25. Therefore, Rule 49-A of the Tamil Nadu Pension Rules, 1978, provides a relief which is larger in nature than the consequences that flow out of section 108 of the Indian Evidence Act, 1872. 26. But, we do not know whether the provision similar to Rule 49-A of the Tamil Nadu Pension Rules, is available in the Rules relating to Transport Corporation employees. In any case, the logic behind under Rule 49-A is of universal application. 27. 26. But, we do not know whether the provision similar to Rule 49-A of the Tamil Nadu Pension Rules, is available in the Rules relating to Transport Corporation employees. In any case, the logic behind under Rule 49-A is of universal application. 27. Therefore, we are of the considered view that the benefits granted by the learned Judge are in tune with the benefits that would flow out of the presumption under section 108 of the Indian Evidence Act, 1872. The only correction that is required in the order of the learned Judge is that the date of death cannot be fixed as May, 1999. But, the correction does not really alter the outcome of the writ petition or the writ appeal. Therefore, with the above observations, the writ appeal is dismissed. Consequently, M.P. (MD) No. 1 of 2013 is also dismissed and M.P. (MD) No. 1 of 2015 is closed. No costs.