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2016 DIGILAW 1461 (JHR)

Manorama Devi v. State of Jharkhand

2016-10-18

D.N.PATEL, RAJESH SHANKAR

body2016
JUDGMENT : D.N. PATEL, J. 1. This Letters Patent Appeal has been preferred against the judgment dated 23rd July, 2014 delivered by the learned Single Judge in W.P. (S) No. 2176 of 2014, whereby the petition preferred by this appellant (original petitioner) was dismissed by the learned Single Judge and hence, the original petitioner has preferred the present Letters Patent Appeal. 2. Factual Matrix (i) The appellant claims that her husband has been missing from 27th August, 1997 while he was in service of the respondents and a complaint to that effect was also lodged on 17th August, 1999 before the police. (ii) It is also alleged by this appellant that under Section 108 of the Indian - Evidence Act, 1872, presumption can be drawn that her husband has expired and hence, compassionate appointment may be given to her son. (iii) It is further alleged that the State has paid the retiral dues of her husband, like G.P.F. Group Insurance etc., but the compassionate appointment was denied by the respondent State vide order dated 22nd June, 2009, hence, writ petition was preferred in the year 2014 claiming Compassionate Appointment. Arguments canvassed by the counsel for the appellant 3. Counsel appearing for the appellant (original petitioner) submitted that the husband of this appellant was missing from 27th August, 1997. Complaint to that effect has also been lodged before the police on 17th August, 1999 and the police was unable to trace out the husband of this appellant. A period of more than seven years has lapsed and therefore, under Section 108 of the Indian Evidence Act, 1872, a presumption should be raised that her husband has expired and hence, her elder son should be given appointment. This aspect of the matter was not appreciated properly by the learned Single Judge while dismissing W.P. (S) No. 2176 of 2014 vide order dated 23rd July, 2014. 4. It is further submitted by the counsel appearing for the appellant that there is no need to file a civil suit for declaration of civil death of the husband of the appellant as it may be declared under Section 108 of the Indian Evidence Act, 1872, especially when police was unable to trace out the husband of the appellant since the year 1999. 5. 5. Learned Counsel appearing for the appellant has relied upon the following decisions: (a) Bijay Kumar Pradhan vs. State of Jharkhand and Others, 2014 (1) JLJR 33 . (b) Shanti Devi and Another vs. The State of Jharkhand and Others, (2013) 4 JLJR 507 . (c) Rajiv Kumar vs. State of Bihar, (2004) 1 PLJR 36 . (d) Santosh Kumar Dubey vs. State of Uttar Pradesh and Others, 2009 (6) SCC 481 in paragraph Nos. 11 and 12. On the basis of the aforesaid decisions, it is submitted by the counsel for the appellant that as the husband of this appellant is missing from the year 1997, respondent should have appointed her elder son on compassionate ground, especially when retirement dues have already been paid to this appellant. These aspects of the matter were also not properly appreciated by the learned Single Judge, hence, judgment dated 23rd July, 2014 delivered by the learned Single Judge in W.P. (S) No. 2176 of 2014 deserves to be quashed and set aside. Arguments canvassed by the counsel for the respondents. 6. Counsel for the respondent State has submitted that no error has been committed by the learned Single Judge in dismissing W.P. (S) No. 2176 of 2014 vide order dated 23rd July, 2014 because the High Court, while exercising powers under Article 226 of the Constitution of India, cannot presume civil death of the husband of this appellant under Section 108 of the Indian Evidence Act, 1872 as cogent and convincing evidences are required to be led by this appellant before the competent court to effect such declaration. 7. It is submitted by the counsel for the State that even otherwise also, in the present case, there has been a long delay in filing the writ petition claiming compassionate appointment and as compassionate appointment is granted, not as a rule, but, as an exception to help the family of the deceased employee to tide over the immediate financial difficulties. The very purpose of the compassionate appointment has been frustrated by the time the writ petition was filed. Compassionate appointment can be given only when the petitioner approaches the court immediately and hence, this Letters Patent Appeal may not be entertained by this court. REASONS: 8. The very purpose of the compassionate appointment has been frustrated by the time the writ petition was filed. Compassionate appointment can be given only when the petitioner approaches the court immediately and hence, this Letters Patent Appeal may not be entertained by this court. REASONS: 8. Having heard counsel for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly on the following grounds: (i) It is alleged by this appellant (original petitioner) that her husband namely Yashodanand Jha, who was serving as a Peon in the office of the Executive Engineer, Road Division, Manoharpur, West Singhbhum, went missing from 27th August, 1997. An application was also made before the concerned police station on 17th August, 1999 that husband of this appellant is missing, but, the police was unable to trace out her husband. (ii) It appears that the respondent State has also paid the dues pertaining to post retirement benefits of the husband of the appellant, viz. G.P.F. Group Insurance etc. to this appellant. Now, this appellant is seeking compassionate appointment for her elder son on the basis of the presumption raised under Section 108 of the Indian Evidence Act, 1872 about the death of her husband. (iii) For declaration of civil death of the husband of the appellant, cogent and convincing evidences are required to be led before a competent court for which a civil suit should have been filed by the appellant. (iv) No step was taken by the appellant for declaration of civil death of her husband. Therefore, in absence of such declaration, compassionate appointment cannot be given to the elder son of this appellant. It ought to be kept in mind that there is a vast difference between civil death and natural death. For presumption to be made about the civil death, various factors are to be pointed out before the competent trial court. As it appears, husband of the appellant was missing from the year 1997 and therefore, certain facts should have been brought on record as to how this appellant and other family members are carrying on, in absence of any earning member in the family since the year 1997. As it appears, husband of the appellant was missing from the year 1997 and therefore, certain facts should have been brought on record as to how this appellant and other family members are carrying on, in absence of any earning member in the family since the year 1997. It is hard to believe that a period of more than one and a half decade has lapsed since the husband of the appellant went missing in the year 1997 and neither this appellant nor her son, who is seeking compassionate appointment, is earning livelihood to maintain the family. Therefore, it is highly dangerous to give appointment on compassionate ground without basic facts being proved for declaration of civil death of the husband of this appellant. (v) Compassionate appointment is an exception to regular appointment. In the facts of the present case, compassionate appointment cannot be given because it has been a long lapse of time since the husband of this appellant went missing in the year 1997. It has been held by Hon'ble the Supreme Court in Santosh Kumar Dubey vs. State of Uttar Pradesh and Others, 2009 (6) SCC 481 in Paragraph Nos. 11 and 12 as under: “11. The very concept of giving compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. 12. The request for appointment on compassionate grounds should be reasonable and proximate to the time of death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who has died in harness. But this, however, cannot be another source of recruitment. But this, however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service.” (Emphasis supplied) In view of the aforesaid decision also, it appears that in the facts of the present case, claim for compassionate appointment should not be considered because after the husband of this appellant, who was the bread earner of the family, went missing from August, 1997 the appellant and her family has obviously managed to overcome the sudden financial constraints. (vi) It appears that this appellant is not coming with a clean hand before this court as to how this appellant and her family earns their livelihood. It is also possible that the husband is alive and maintaining the family. Highly disputed questions of facts are involved in the present case and therefore, in these set of circumstances, we are not inclined to quash and set aside the judgment dated 23rd July, 2014 delivered by the learned Single Judge in W.P. (S) No. 2176 of 2014. (vii) Counsel for the appellant has relied upon a judgment delivered in Bijay Kumar Pradhan vs. State of Jharkhand and Others, 2014 (1) JLJR 33 . In this case civil death was declared by the competent civil court. Despite this fact the State has not given compassionate appointment and hence the writ petition was preferred and the matter was decided. Whereas, in the facts of the present case, civil death has yet not been declared by a competent trial court. Similarly, in the other decisions also, referred to by the counsel for the appellant, facts are quite different from the case in question. (viii) Counsel appearing for the appellant has relied upon the decision rendered by the learned Single Judge in Shanti Devi and Another vs. The State of Jharkhand and Others, (2013) 4 JLJR 507 . It appears that in the facts of the present case, husband of the appellant went missing in the year 1997. Thereafter, complaint was made after two years before the police in the year 1999 and claim for compassionate appointment was made after more than one decade which was rejected in the year 2009 and after five years of this rejection, another writ petition has been preferred. Thereafter, complaint was made after two years before the police in the year 1999 and claim for compassionate appointment was made after more than one decade which was rejected in the year 2009 and after five years of this rejection, another writ petition has been preferred. These facts make the present case different from the facts of the case in the judgment reported in (2013) 4 JLJR 507 . (ix) Further, looking to the facts of the present case, the judgment delivered in Rajiv Kumar vs. State of Bihar, (2004) 1 PLJR 36 , on which the appellant has placed reliance, is also not helpful to this appellant because it has been stated in paragraph No. 3 of this decision that the employee had expired but the dead body was not traceable whereas, in the facts of the present case, no such fact has been established by this appellant. Thus, this court will not raise any presumption under Section 108 of the Indian Evidence Act, 1872 while exercising powers under Article 226 of the Constitution of India. The petitioner is at liberty to file a civil suit. Moreover, there is no such prayer in the writ petition preferred by this appellant for declaration of civil death of the husband of this appellant. Moreover, there is a long lapse of time from the date the husband of the appellant went missing in the year 1997 and by the time W.P. (S) No. 2176 of 2014 was filed, the very purpose of compassionate appointment, viz. to help the family of the deceased employee to tide over sudden financial crisis, was frustrated, hence, no compassionate appointment can be given to the son of the appellant. These aspects of the matter have been properly appreciated by the learned Single Judge while dismissing the writ petition and we see no reason to take any other view then what has been taken by the learned Single Judge. 9. As a cumulative effect of the aforesaid facts and reasons, there is no substance in this Letters Patent Appeal. No error has been committed by the learned Single Judge in deciding W.P. (S) No. 2176 of 2014 vide Order dated 23rd July, 2014 , hence, this Letters Patent Appeal is, hereby, dismissed.