a bench Justice Rajan Roy and Justice Om Prakash Shukla I also observed this: Chapter 108 This is not the only mechanism for declaring death, and a party has the right to prove by convincing evidence that the date and time of death were earlier than seven years.

“If an issue arises as to the date or time of death, this should be determined on the basis of direct or indirect evidence and not on assumption or conjecture. In order to win his claim, the burden of proof will fall on the person who claims that the death occurred on a certain date or time before seven years have passed.“the division bench observed.

The court was mainly concerned with an appeal filed by an individual. Amardeep Kashyap Writ A No. 2731 of 2024 and challenging the orders of the Single Judge in Civil Misc. See Defective Application No. 117 of 2024.

According to the impugned order, the Single Judge did not find any illegality in the order passed by the Court. Deputy Commissioner, Industries, Gonda (in March 2023)The plaintiff’s request for appointment was rejected.

Case in brief

The appellant’s father, born in November 1953, was serving as a servant at Jila Udyog Kendra in Gonda, Uttar Pradesh. He went missing on 25 June 2012 and despite their best efforts, the appellant and his family were unable to find him.

According to the appellant’s case, his father would have turned 60 on 30 November 2013. However, his employer (defendant Zila Udyog Kendra, Gonda) did not provide retirement benefits as his condition (whether dead or missing) remained unclear.

In addition, in the letter dated 19 December 2019, the representation of the appellant’s mother was also rejected for providing any financial assistance or compassionate appointment before the completion of seven years from the date of loss.

Subsequently, after a seven-year gap, the appellant’s family filed a motion for civil obituary in October 2019, which was allowed by the Civil Judge on April 22, 2022.

The appellant’s case was that he received an appointment letter for the post of chowkidar on May 28, 2022, after the court declared the civil death of his father. Nevertheless, he was prevented from participating in this duty and his letter of appointment as a defendant was taken away from him. He requested a death certificate for his father.

The appellant subsequently obtained a death certificate stating that the date of death of the appellant’s father was October 16, 2019; This was the date his father filed a lawsuit to obtain a civil declaration of death.

Following the death of his father, the appellant filed a written plea with the HC seeking payment of dues and compassionate appointment. The letter directing the appellant to submit a detailed statement was removed on 20 September 2022 and the respondent was asked to decide on it within a certain period of time.

The appeal was denied on February 3, 2023. Objecting to this, the appellant filed another written submission seeking appointment under the Dying in Harness Rules, 1974.

The Single Judge rejected the decision regarding the impugned decision on 05 April 2024 with the following observations:

“The plaintiff’s case is that his father disappeared on 30.06.2012. According to the provisions of the law, he will be considered dead seven years after 2019, the date of his disappearance. The applicant’s father will have reached retirement age on 30.11.2013. Therefore, as per the available records, it cannot be said that the plaintiff’s father died during the harness and hence, the plaintiff cannot seek the appointment of mafia in his father’s place.” (emphasis supplied)

The review petition filed against this order was also rejected.

Now, before the division bench, the appellant challenged both the orders on the ground that there was no distinction for granting compassionate appointment between civil death and natural death.

On the other hand, the counsel for the respondents, supporting the impugned decision of the single judge, argued that the date of death of the missing employee should be taken into account by the court as the date of civil declaration of death and the appellant’s father should also be taken into account in this case. The person who disappeared on June 25, 2012 was declared dead by the court only on April 22, 2022, and he would have reached retirement age on that date; therefore, the appellant would not have been entitled to compassionate appointment and the question of issuance of a letter of appointment would not have arisen.

Observations of the Supreme Court

Initially, the Court found that the appellant, but not his father, was on 25 June 2012 (the date of his disappearance) and November 30, 2013 (the date he will complete his retirement).

The court was cited The decision of the Supreme Court in the case LIC India vs Anuradha 2004 and Allahabad HC’s rulings in the cases. Ram Singh vs. Board of Revenue and Ors. 1963 to note this Under Section 108, all that can be assumed is that the person concerned is dead. Still, no one can correct the timing of something Since it is not comprehensive in the matter of presumption regarding the death of a person, the death of the person under this provision.

Turning now to the merits of the case, the Court noted that although the appellant’s father had filed an action seeking a civil declaration of death, he had not sought a declaration. No evidence has been presented regarding the specific date of his father’s death and to prove a specific date or time of death.

The Court observed that the decision of the Civil Court was based entirely on the presumption of death as provided for in Article 108 and that the decision did not refer to any specific date of death which could give impetus to the claim of compassionate appointment as prosecutor. appellant.

In this context, the Court underlined that for such a declaration, his civilian death cannot be assumed at a date before 16 October 2019, when the case was opened, and therefore, the applicant’s request for compassionate appointment is not sustainable due to the fact that his father is alive. , would have already reached retirement age on November 30, 2013, well before the date of filing of the civil suit.

Taking this situation into consideration, the objection was rejected.

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Appellant Lawyer: Om Prakash Mani Tripathi

Defendant’s Lawyer: CSC Gopal Kumar Srivastava