1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. No. 1155 of 2002 Date of decision: 15.12.2008 State of H.P. and others ..Petitioners Versus Hari Krishan Kalia ..Respondent Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioners: Mr.P.K.Sharma, Additional Advocate General with Mr. P.M. Negi, Deputy Advocate General. For the Respondent: None. Per Surjit Singh, Judge (Oral) State has sought judicial review of the order dated 24th September, 2001 of the State Administrative Tribunal, whereby it has been directed to provide employment on compassionate grounds to the younger son of respondent, Hari Krishan Kalia. 2. Relevant facts are that elder son of the respondent, named, K.K. Kalia, was employed as Junior Engineer in I & PH department of the State Government on 21.10.1980. On 21st May, 1981, he went missing from Pumping station, where he was posted and was performing his duty that day. Respondent was apprised of 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 the fact. He had been having correspondence with the Controlling and Appointing authorities of K.K. Kalia and asking for reliefs of Death-cum-Retirement Gratuity and other pensionary benefits. Ultimately, a suit was filed by the respondent in the court of Senior Sub Judge, Una, seeking a declaration that his son K.K. Kalia having not been heard of for the last more than seven years, was to be presumed to be dead and prayed for passing a decree of declaration to that effect. That suit was decreed in the year 2000. 3. In the year 1998, when the said suit was still pending, respondent filed an OA before the State Administrative Tribunal seeking inter alia, a direction to the writ petitioners to appoint the younger son of the respondent on compassionate grounds, in accordance with the policy of appointment on compassionate grounds. The only ground on which the prayer was opposed by the petitioners ( impleaded as respondents in the O.A) was that the prayer was belated and barred by time. 4. The Tribunal allowed the OA and directed the petitioner to give employment on compassionate grounds to the younger son of the respondent, who at the time of passing of the impugned order, was about 29 years of age. 5. We have heard the learned Addl. Advocate General, representing the writ petitioners. None has appeared for the respondent, even though he is represented by a counsel. 3 6. Learned Tribunal has over ruled the objection that the claim of the respondent is belated holding that the civil court granted the decree declaring Sh. K.K. Kalia as being not alive in the year 2000 and that prior to that respondent could not have claimed appointment of his younger son on compassionate grounds as it was not clear whether K.K. Kalia was dead or alive. 7. Reasoning given by the learned Tribunal is contrary to the provisions of law. As a matter of fact, immediately on completion of 7 years period from the date of Sh. K.K. Kalia having gone missing, respondent got the right to approach the Tribunal seeking compassionate employment of his younger son because by virtue of the provisions of section 108 of the Evidence Act, a person who has not been heard of for seven years by those who would naturally have heard of him, if he had been alive, is to be presumed to be dead. Of course, such a presumption can be drawn only when the question is raised whether missing person is dead or alive. Such a question is not necessarily required to be raised by filing a suit and seeking a declaration that the person be presumed to be dead. It can be raised in any other proceedings also and it could have been raised even in the OA and the Tribunal was supposed to decide the same in accordance with the law. Therefore, in our considered view, Tribunal was not right in holding that before the declaration given by the Senior Sub Judge about the death of K.K. Kalia, respondent could not have claimed the relief. 4 8. Another reason for not endorsing the reasoning of the Tribunal is that as a matter of fact the suit was filed in the court of Senior Sub Judge for decree in favour of respondent declaring his son to be dead, on the ground that his son had not been heard of for the last seven years in 2000 while O.A was filed in 1998. The fact suggests that respondent was fully aware that he could have approached the Tribunal even before being armed with a decree of the court declaring his son to be dead. 9. The younger son of the respondent for whom employment on compassionate grounds was sought, was born in March, 1972, that means he attained majority in the year 1990. Petition seeking his employment on compassionate grounds could have been filed within one year of his attaining majority or say upto 2nd March, 1991. Petition was filed in the year 1998 and thus it was barred by time and no cause much less a sufficient cause was pleaded for condoning this long delay. Otherwise also, it is well settled that employment on compassionate grounds has to be given to provide immediate relief to the dependents of the deceased so that on account of the death of the deceased they do not slip into penury. There are many judgments on this point even by the Apex Court. 10. K.K. Kalia, in this case went missing in the year 1981. Application seeking employment on compassionate grounds was made in 1998 or say about 17 years after the respondent lost 5 the source of income on account of disappearance of K.K. Kalia. If he could manage his affairs and arrange necessities of life, including food andsw clothes for 17 years, it was expected of him to have disclosed that it was no longer possible for him to maintain himself or to arrange for his livelihood, unless employment on compassionate grounds was provided to his younger son. In view of the above stated position, writ petition is allowed and the order dated 24.9.2001( Annexure P-1 ) is set aside. (R.B. Misra),J. ( Surjit Singh) J, 15th December, 2008 (sl)