# Munendra Pal Singh Chauhan v. The Chairman and Managing Director(C.M.D.), U.P. Rajya Vidyut Utpadan Nigam Ltd. & others

- **Citation:** (2007) 2 ILRA 460
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-28
- **Case number:** Civil Misc. Writ Petition No.40429 of 1998
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munendra-pal-singh-chauhan-v-the-chairman-and-managing-director-c-m-d-u-p-rajya-40903
- **Pages:** 6

## Headnote

Indian Evidence Act, 1808-Section-108presumption of Death a person not
known
for
7
years-legal
deathpresumption-but there can not be any
presumption about the date of deathclaim for compassionate appointmentprior two days of retirement of missing
employee-can not be treated died in
harness-dependent of such employee
can not be appointed on compassionate
ground.

Held: Para 11

Taking into consideration the entire
stock of situation this Court is of the
view that the petitioner has not been
able to prove the actual death of his
father as 29th of August, 1990 or the fact
that his father died in harness. Secondly,
even if accepting the case of the
petitioner for the sake of argument, the
petitioner is not entitled for any relief as
very avow object of the compassionate
appointment runs counter to the claim of
the
petitioner:
It
is
acknowledged
position
of law that compassionate
appointment cannot: be new source of
recruitment otherwise, as pointed out by
the Apex Court in State of Hariyana and
others Vs. Rana Devi and others AIR
1966 Supreme Court 2445, such claim of
the petitioner cannot be upheld on the
touch stone of Articles 14 or 16 of the
Constitution of India in as much as the
claim for compassionate appointment is
considered, as reasonable or permissible
on the basis of sudden crisis occurred in
the family of such employee, who has
served the State and dies while in
service.
Case law discussed:
AIR 1926 PC-9
J.T. 2002 (1) SC-11
1994 AIR SCW-2309
AIR 2004 SC-4155
2006 (5) ALJ-489
AIR 1966 SC-2445

## Text

460 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
hardship maybe decided against the
tenant.

13. The Appellate Court has given a
very strange finding in this regard.
Appellate Court held that for 'the
landlord,
getting
possession
of
the
property in dispute was merely a matter of
convenience, while the tenant actually
needed the same. Tenant is having a very
good
business
for
several
decades.
Landlord's son has got no proper
accommodation
for
establishing
his
Chamber.
The
balance
of
hardship
therefore tilts heavily in favour of the
landlord.

14. The Supreme Court in G.C.
Kapoor vs. N.K. Bhasin (A.I.R. 2002
S.C, 200) reversed the concurrent findings
of all the three courts i.e. the Prescribed
Authority, Appellate Court/District Judge
and the High Court on the question of
bonafide need and comparative hardship
and out rightly allowed the release
application, of the landlord holding that
the findings of all the three courts below
were erroneous in law.

15. Accordingly writ petition is
allowed. Judgment and order passed by
the Appellate Court is set aside and
judgment and order passed by the
Prescribed Authority is restored.

Tenant respondent is granted six
months time to vacate provided that:

Within one month from today it files
an undertaking before, the Prescribed
Authority to the effect that on or before
the expiry of period of six months it will
willingly vacate and handover possession
of the accommodation in dispute to the
petitioner-landlord.
(ii) For this period of six months
which has been granted to the tenant to
vacate it is required to pay Rs.12,000/- (at
the rate of Rs.2000/-per month) as
damages for use and occupation. This
amount shall also be deposited within one
month before the Prescribed Authority
and shall immediately be paid to the
petitioner-landlord.

In case of default in compliance wit~
either
of
these
conditions,
tenant
respondent shall be evicted after one
month through process of Court.

16. It is further directed· that in case
undertaking is not filed or Rs.12000/- are
not deposited within one month then
tenant respondent shall be liable to pay
damages at the rate of Rs.3000/- per
month since after one month till the date
of actual vacation.

17. Similarly, if after filing the
aforesaid undertaking and depositing
Rs.l2,000/- the accommodation in dispute
is not vacated after six months then
damages for use and occupation shall be
payable at the rate of Rs.3000/- per month
since after six months till actual vacation.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.11.2006

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

Civil Misc. Writ Petition No.40429 of 1998

Munendra Pal Singh Chauhan ...Petitioner
Versus
The
Chairman
and
Managing
Director(C.M.D.), U.P. Rajya Vidyut Utpadan
Nigam Ltd. & others ...Respondents
2 All] Munendra Pal Singh Chauhan V. C.M.D., Rajya Vidut Utpadan Nigam and others
461
Counsel for the Petitioner:
Sri G.C. Gehrana
Sri Amrit Lal Singh
Sri Manoj Kumar
Sri Pt. Lal Chandra Pandey

Counsel for the Respondents:
Sri S.K. Mishra

Indian Evidence Act, 1808-Section-108presumption of Death a person not
known
for
7
years-legal
deathpresumption-but there can not be any
presumption about the date of deathclaim for compassionate appointmentprior two days of retirement of missing
employee-can not be treated died in
harness-dependent of such employee
can not be appointed on compassionate
ground.

Held: Para 11

Taking into consideration the entire
stock of situation this Court is of the
view that the petitioner has not been
able to prove the actual death of his
father as 29th of August, 1990 or the fact
that his father died in harness. Secondly,
even if accepting the case of the
petitioner for the sake of argument, the
petitioner is not entitled for any relief as
very avow object of the compassionate
appointment runs counter to the claim of
the
petitioner:
It
is
acknowledged
position
of law that compassionate
appointment cannot: be new source of
recruitment otherwise, as pointed out by
the Apex Court in State of Hariyana and
others Vs. Rana Devi and others AIR
1966 Supreme Court 2445, such claim of
the petitioner cannot be upheld on the
touch stone of Articles 14 or 16 of the
Constitution of India in as much as the
claim for compassionate appointment is
considered, as reasonable or permissible
on the basis of sudden crisis occurred in
the family of such employee, who has
served the State and dies while in
service.
Case law discussed:
AIR 1926 PC-9
J.T. 2002 (1) SC-11
1994 AIR SCW-2309
AIR 2004 SC-4155
2006 (5) ALJ-489
AIR 1966 SC-2445

(Delivered by Hon'ble Prakash Krishna, J.)

1. Raising a short controversy the
present writ petition has been filed
principally on the allegation that the
petitioner's father Mahendra Pal Singh
Chauhan was a senior operator in 'A'
Power Station, Harduaganj, U.P. State
Electricity Board and was a permanent
employee who left the house for attending
duty on 28th of August, 1990 and did not
return thereafter till date. The petitioner
claimed that a civil death of his father
should be presumed and as his father died
during the service, the petitioner is
entitled for appointment under the Dying
in Harness Rules. The said claim having
been rejected by the respondents by the
impugned order dated 17th of November,
1998, the present writ petition has been
filed for quashing the impugned order
dated November 17, 1998 (Annexure -2
to the writ petition) and a writ of
Mandamus commanding the respondents
to consider the appointment of the
petitioner on the post of routine grade
clerk under the Dying in Harness Rules
forthwith in place of his father and prayed
for all consequential service benefits in
accordance with law.

2. The fact that the father of the
petitioner was in the permanent service of
the respondents, has not been disputed in
the counter affidavit. The claim for
compassionate appointment has been
denied on the ground that the father of the
petitioner was reported to be missing two
days prior to his date of superannuation
462 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
and he could not be traced out, but in
absence of any cogent material about the
date of death or place of death, it would
not be proper to treat that he died during
the service. By extending the benefit of
Dying in Harness Rules, it will not be
proper to offer the appointment to the
petitioner. The due date for the retirement
of the petitioner's father was 31st of
August, 1990 who after availing medical
leave w.e.f. 22.8.1990 to 27.8.1990
attended the duty in the last night shift
(from 22 hours to 6 hours) on 28/29th of
August, 1990 in "D" group at Harduaganj
"A" Thermal Plant Station. After due date
of retirement, the mother of the petitioner
has been paid G.P.F. amounting to
Rs.23,488-78, encashment balance leave
Rs.8,348.67 and arrears of pension
amounting to Rs.1,32,633-69. Besides,
the family pension is being paid every
month.

3. The sole argument raised by the
learned counsel for the petitioner, in the
present writ petition is that indisputably
the father of the petitioner was in service
on 28th of August, 1990, since when he is
missing. A reference has been made to a
circular dated August 16, 1996 issued by
the Mukhya Karmik Adhikari wherein,
according to the learned counsel for the
petitioner it has been provided that in case
of such employees whose whereabouts
are not known and the presumption of
their civil death should be drawn, the
payment of pension and other pensionary
benefits and the balance amount has been
provided for. In the said circular it has
been clarified that in the case of such
employees whose whereabouts are not
known, the compassionate appointment
shall not be made within a period of one
year. The facility of compassionate
appointment shall be admissible as per
Section 108 of Indian Evidence Act when
the competent authority has treated such
employee as dead. In contra, the learned
counsel for the Department supported the
impugned order and submitted that the
father of the petitioner has been found
missing only two days prior to the date of
his superannuation. The petitioner cannot
claim compassionate appointment as only
two days were left and the object of
giving compassionate appointment is to
give support to such families to tide over
the sudden crisis.

4. I have given careful consideration
to the respective submissions of the
learned counsel for the parties. Before
considering
the
nature
of
the
compassionate appointment, it is desirable
to notice the law dealing with when
presumption about the death of a person
from the fact that a person has not be
heard of for 7 years to be drawn. The
Privy Council in Lal Chand Marwari Vs.
Mahant Ram Rup Giri and another
A.I.R 1926 Privy Council 9 held that
there is no presumption, under law as to
when a person has died, if such person is
not heard of for 7 years. There is only one
presumption, and that is the person was
no longer alive. There is no presumption
at all as to when such person has died,
like any fact, is a matter to proof. Their
Lordships quoted with approval law of
England and held that there is no
difference both in India and in England on
this issue. Their Lordships have quoted
following passage:

"If a person has not been heard of
for 7 years, there is a presumption of law
that he is dead. But at what time within
what period he died is not a matter of
presumption but of evidence, and the onus
of proving that the death took place at any
2 All] Munendra Pal Singh Chauhan V. C.M.D., Rajya Vidut Utpadan Nigam and others
463
particular time within 7 years lies upon
the person who claims a right to the
establishment of which that fact is
essential."

5. The aforesaid judgment of the
Privy Council has been approved by the
Apex Court in Darshan Sinah and others
Vs. Gujar Singh JT 2002 (1 J S.C. 11. A
suit was filed claiming property of Jagjeet
Singh who was reported to be not being
'heard for more than 7 years. The High
Court considered Jagjeet Singh to be
"dead only on the date on which the
present suit was filed." In this fact
situation the Supreme Court held that
succession to the estate of Jagjeet Singh
would open only on the death of Jagjeet
Singh and as the plaintiff could not prove
the date of death of Jagjeet Singh
therefore his succession to the estate did
not open on the date of filing of the suit.
In para 5 of the report, the Apex Court
noticed the decision of the Privy Council
of Lal Chand Marwari Vs. Mohan Ram
Rup Giri (supra).

6. Thus from the above discussion it
boils down to this that the burden to prove
the actual date of death, lies upon the
person who propounds the death of such
person. Under Sections 107 and 108 of
the
Evidence Act only this much
presumption can be drawn that such a
person is no longer alive but there is no
presumption about the actual date of death
of such person. In view of this legal
proposition, the argument of the learned
counsel for the petitioner that the father of
the petitioner has died on 29th of August
1990 while in service cannot be accepted
in absence of any proof about his actual
death on that date. Reliance has been
placed upon a judgment of Civil Judge in
O.S. suit No.588 of 1997 Smt. Murti Devi
Vs.
Munendra
Singh
Chauhan
and
another decided on 17.1.1998. The Civil
Judge has held only this much therein,
that a presumption may be drawn about
the death of Mahendra Pal Singh as there
is no evidence that he is alive, under
Section 108 of the Indian Evidence Act.
Even in the said judgment no finding has
been recorded about the actual date of
death of Shri Mahendra Pal Singh
Chauhan.

7. In view of the above discussion,
the argument that Shri Mahendra Pal
Singh
Chauhan,
the
father
of
the
petitioner has expired on 29th of August,
1991 or while in service, is not tenable in
law and is therefore rejected. There is no
material on record to show nor the
petitioner has made any attempt by
producing evidence of unimpeachable
character to prove that his father actually
expired on 29th of August, 1990 or in
harness.

8. There is another aspect of the case
also. The entire thrust of the argument is
that as the father of the petitioner has
expired on 29th of August, 1990 while in
service, therefore, the petitioner is entitled
for
compassionate
appointment.
The
aforesaid
argument
has
been
made
ignoring
the
very
concept
of
compassionate appointment.

9. The object of compassionate
appointment is not to give a member of
deceased family a post. Mere death of an
employee in harness does not entitle his
family to such source of livelihood. The
employer or the government as the case
may be, has to examine the financial
condition of the family of the deceased
and compassionate appointment shall be
offered only when the employers come to
464 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
the conclusion that the family will not be
able to meet the crisis on account of the
sudden death of the employee, then a job
is to be offered to the eligible member of
the family (See Umesh Kumar Nagpal
Vs. State of Hariyana and others 1994
AIR SCW 2309).

Punjab National Bank and others
Vs. Ashwani Kumar Taneja AIR 2004
S.C. 4155 is an authority for the
proposition that the appointment on
compassionate ground is not source of
recruitment but merely an exception to the
requirement of making appointment on
open invitations of applications on merits.
Basic intention is that on the death of
employee concerned his family is not
deprived of the means of livelihood. The
object is to enable the family to get over
the sudden financial crisis. In Union
Bank of India Vs. M. To Latheesh 2006
AIR SCW 4626, the Apex Court has
reiterated its above view.

10. In M/s. Indian Drugs and
Pharmaceuticals Vs. Devki Devi and
others 2006 (5) ALJ 489, the Apex Court
has considered its other earlier decisions
on the point and reached to the same
conclusion
that
compassionate
appointment is given out of purely
humanitarian consideration and having
regard to the fact that unless some source
of livelihood is provided the family would
not be able to make both the ends meet,
provisions are made for giving to one of
the dependants of the deceased who may
be eligible for appointment. Care has,
however, to be taken that the provision for
grant
of
compassionate
employment
which is in the nature of an exception to
the general provisions does not unduly
interfere with the right of those other
persons
who
are
eligible
to
seek
appointment against the post which would
have been available, but for the provisions
enabling appointment being made on
compassionate grounds of the dependants
of the deceased employee, it has been
held
that
appointment
on
the
compassionate ground is not another
source of recruitment.

11. Coming to the facts of the
present case and the law as discussed
above, it is clear that in any view of the
matter it is not a case of sudden crisis.
Indisputably, the father of the petitioner
was due to retire on 31st of August, 1990.
Two
days
prior
to
the
date
of
superannuation,
according
to
the
petitioner, he has been found missing. The
father of the petitioner indisputably was
going to retire on 31st of August, 1990 and
as such even assuming for the sake of
argument that he has not been actually
heard of since 29th of August, 1990, the
family has not suffered any sudden
financial crisis to entitle the petitioner to
lay
his
claim
for
compassionate
appointment. As pointed out by the Apex
Court that the very object of granting
compassionate appointment is to provide
financial support to the family of an
employee on account of sudden death. By
no stretch of imagination, in the present
case it can be said that it is a case of
sudden financial crisis to the family even
if it is assumed that the father of the
petitioner is no longer alive. Taking into
consideration the entire stock of situation
this Court is of the view that the petitioner
has not been able to prove the actual death
of his father as 29th of August, 1990 or the
fact that his father died in harness.
Secondly, even if accepting the case of
the petitioner for the sake of argument,
the petitioner is not entitled for any relief
as very avow object of the compassionate
2 All] Smt. Sheela Devi V. M.D., Union Bank of India and others
465
appointment runs counter to the claim of
the petitioner: It is acknowledged position
of law that compassionate appointment
cannot: be new source of recruitment
otherwise, as pointed out by the Apex
Court in State of Hariyana and others
Vs. Rana Devi and others AIR 1966
Supreme Court 2445, such claim of the
petitioner cannot be upheld on the touch
stone of Articles 14 or 16 of the
Constitution of India in as much as the
claim for compassionate appointment is
considered, as reasonable or permissible
on the basis of sudden crisis occurred in
the family of such employee, who has
served the State and dies while in service.

12. Reliance placed upon the
circular dated August 16, 1996 (Annexure
-4 to the writ petition) is misplaced one
and has hardly any application to the facts
of the present case. Only this much has
been said in the said circular that the
facility of compassionate appointment
shall be admissible only when the
competent authority treats the employee
as dead, under Section 108 of the Indian
Evidence Act.

13. In view of the above discussion,
the writ petition lacks merit and is
therefore dismissed. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.02.2007

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 47758 of 2005

Smt. Sheela Devi

...Petitioner
Versus
Managing Director & others ...Respondents

Counsel for the Petitioner:
Sri A.N. Srivastava

Counsel for the Respondents:
Sri Vivek Ratan

(A) Constitution of India, Art. 226Compassionate appointment-husband of
petitioner died in harness-within one
month claimed appointment-non of the
grounds for rejection of claim found in
existence-time consumed in litigationcan not be treated as ground for
rejection-held-entitled for appointment
on compassionate ground.

Held: Para 12

Next it is urged that now since more
than six years have expired and the
family has managed to survive, thus,
giving any relief at this point of time
would defeat the object of lending a
helping hand to tide over the sudden
crises. Foremost, such a plea cannot be
raised by the Bank because the widow
had approached them within a month
claiming
compassionate
appointment
and the Bank rejected her claim and
forced her to approach this Court earlier.
Again it has rejected her claim which
grounds have been held to be incorrect
or misleading.

(B) Constitution of India-Art. 226-Writ
Jurisdiction
Practice
of
Proceduredirection for appointment-normally writ
court should not issue such direction-but
where the authorities found negligentdispite of repeated direction failed to
exercise their consideration- futile -
direction
shall
not
be
issued-heldconsidering the entire facts and the
circumstances in view of-law laid down
by Division Bench of this Court-direction
issued to issue letter of appointment
within six weeks.

Held: Para 14

Normally, the Court is very loathe to
grant a mandate itself for appointment