CW 7072/07 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.7072/2007 Manohari Devi & Manoj Kumar Versus State and others. Date of Order ::: 13/02/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Gajendra Bhawan, for petitioner Mr. Chetan Bairwa, Addl. Govt. Counsel for respondent State. Instant petition has been filed jointly by widow & her son with the grievance that despite her husband being declared dead, still retiral dues of her late husband besides application seeking compassionate appointment under Raj. Compassionate Appointment of Dependants of Deceased Government Servant Rules, 1996 (“Rules, 1996”) were not considered by respondents without any reason or rhyme. Late Ganesh Narain Kumawat, husband of petitioner No.1 was working as Class IV servant in Primary Health Centre, Toda (Sikar) after he went to his office on 04/03/91, since then did not turn up, for which several steps were taken by her to find out his whereabouts and finally despite her efforts, he was not found and presuming him to be missing, efforts were made for release of terminal benefits of her husband and so also consideration of candidature for compassionate appointment but, vide letter dt.11/07/2000 (Ann.1) she was informed CW 7072/07 //2// that she must first seek declaration of her husband being dead and only thereafter, her case of his terminal benefits, besides others to which she is otherwise entitled for can be considered. Accordingly she filed civil suit for declaration (68/2000-122/01) but was dismissed vide judgment dt.09/04/04 (Ann.2) against which she preferred Civil Regular Appeal-25/04 which was disposed of vide judgment dt.20/10/04 (Ann. 5) ad infra: “12- अपीलाथȸया की अपील अः वीकार की जाकर अधीनः थ न् यायालय के िनणर्य व िडबी िदनांक 09-04.2004 की पुिं ट की जाती है अपीलाथȸया वादीया का वाद रेः पोडेन् टेस ूितवादीगण के िवरूƮ इस आब् जरवेशन के साथ िनरः त िकया जाता है िक वादीया के पित गणेश नारायण के सबंिधत िवभाग के अधीकारीगण वादीया के सम् बन् ध में भारतीय साआ य अिधिनयम की धारा 108 में उल् लेिखत ूावधानो को ध् यान मे रखकर िविध अनुकूल कायर्वाही करेगे खचार् मुकदमा पक्षकारान अपना अपना वहन करेगे िडबी पचार् िनयमानुसार जारी हो " while holding that respondents may draw legal presumption U/s 108 of the Evidence Act declaring her husband to be dead. Indisputably, whereabouts of husband of the petitioner were not known from 04/03/91 even after seven years having been rolled by, legal presumption of her husband being dead in terms of S.108 of the Evidence Act can be drawn and when her claim was not considered, she alongwith her son have approached this Court by way of instant petition. Notices were served upon respondents but CW 7072/07 //3// no reply to the petition has been filed. Counsel for petitioners submits that Shri Ganesh Narain (husband & father of petitioners) is missing and his whereabouts are not known to the family despite efforts, is not traceable since 04/03/91, about which respondent-Department was also informed and when retiral dues along with consideration of compassionate appointment were claimed, vide letter dt. 11/07/2000 (Ann.1) it was informed that unless her husband is declared to be dead, their claim cannot be considered – pursuant to which despite observations made by appellate court in its judgment dt.20/10/04 (Ann.5), and more than 7 years have rolled by; as such, presumption ought to have been drawn in view of S.108 of Evidence Act that Ganesh Narain is dead and in this view of matter, denial of retrial benefits for period of service rendered by her husband; compassionate appointment to petitioner No.2 is arbitrary. In support, Counsel placed reliance upon decisions of this Court in Shakuntala Kanwar Vs. Union of India (2002(4) WLC 315), Phuli Devi Vs. State (2001(5) WLC 625) upheld by Division Bench in State Vs. Phuli Devi (2003(1) WLC 479) and Chhaya Nadini Vs. State (1996 Writ Law Report 87) I have considered rival contentions of CW 7072/07 //4// Counsel for parties and with their assistance, examined material on record. This fact remained undisputed that Ganesh Narain (husband & father of petitioners) is missing since 04/03/91 and his whereabouts are not made known to the family members. S.108 of the Evidence Act reads ad infra: “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 head, 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 person who affirms it.” This Court in Chhaya Nadini Vs. State (supra) while examining scope of S.108 of Evidence Act, observed as under : - “3. .. since there is uncontroversial affidavit of the petitioner that she has not heard of her husband for last seven years, a presumption would arise under Section 108 of Evidence Act that he is dead. The respondents therefore have to grant relief to the petitioner on the basis that her husband is dead and she is a widow of deceased Govt. servant.” Relying on afore-quoted observations, this Court in Phuli Devi Vs. State (supra) observed : - “6. The petitioner has filed an affidavit that her husband had left home on 03/04/1986 and had not been heard of. CW 7072/07 //5// The respondent has been issuing public notices for appearance of the husband of the petitioner No.1 with the direction to resume duty otherwise his services could be dispensed with. It is the common case of the parties that the husband of petitioner No.1 was not heard of at all and therefore, in my opinion, presumption is to be drawn U/s 108 of the Indian Evidence Act that Nanagram Meena is presumed to be dead having not been heard of more than 7 years i.e. there is legal presumed death so far as Nanagram Meena is concerned and in my opinion, respondent was not justified in denying the family pension, provident fund and other benefits which may be otherwise available to the petitioners if Nanagram Meena had actually died. “ In instant case also, it has specifically been averred in writ petition that Ganesh Narain has not been heard for more than seven years and that he is not traceable and is missing since 04/03/91. All these facts remained uncontroverted - on the basis whereof, there is a legal presumption about death of Ganesh Narain in view of S.108 of Evidence Act - as a legal corollary whereof, family of Ganesh Narain (employee) became entitled for retrial benefits under RSR & Pension Rules for period of service rendered by him. So far as relief sought for compassionate appointment is concerned, since respondents have rejected his claim treating the employee alive and CW 7072/07 //6// they have not drawn presumption U/s 108 of Evidence Act, that employee is dead on account of being not heard of him for last seven years, matter is left to be considered by respondents to examine their claim for compassionate appointment in accordance with Rules, 1996. Consequently, writ petition succeeds and is hereby allowed. Respondents are directed to release in favour of petitioner No.1 (widow) all terminal benefits (which became due and payable to the family of Ganesh Narain who is presumed to have legally dead by virtue of presumption drawn U/s 108 of Evidence Act. Arrears accrued by virtue of aforesaid direction be paid alongwith interest @ 9% per annum commencing from expiry of seven years from 04/03/1998. As regards claim for compassionate appointment, respondents are directed to consider application seeking compassionate appointment in accordance with relevant Rules, 1996. However, petitioners or other legal heirs if any, shall jointly furnish an indemnity bond that all payments will be adjusted against payments due to the employee in case Ganesh Narain appears on the scene and makes any claim in this regard. Compliance be made within three months. No order as to costs. (Ajay Rastogi), J. K.Khatri/p6/7072CW07-13Fb.doc