# Vivek Kumar Verma v. U.P. Rajya Vidyut Utpadan Nigam Ltd. & Ors

- **Citation:** (2020) 1 ILRA 973
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-04
- **Case number:** Writ A No. 19124 of 2019
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-kumar-verma-v-u-p-rajya-vidyut-utpadan-nigam-ltd-ors-45305
- **Pages:** 7

## Headnote

A. Indian Evidence Act, 1872 - Section 108 -
Challenging-impugned
order-rejecting
Petitioner's
claim-for
compassionate
appointment-on the ground-declaration of
civil death-of petitioner's father-by civil courton 07.07.2018-by then-Petitioner's fatherretired-compassionate appoint-not availableonly upon expiry of 7 years-from the date he
went missing-then declaration by civil courtpermissible-no presumption-if specific date of
death proved-present case-no proof or
disclosure of date of death.

B. Held, that it is only upon expiry of 07
years from the time such person went
missing that declaration of civil death
would be permissible in terms of Section
108
of
the
Evidence
Act.
This
presumption, however, would not arise
when a specific date of death is proved by
evidence. In the facts of the present case,
the date of death is neither disclosed nor
is proved. The Division Bench judgment,
therefore, also would not be of any help
to petitioner's cause.

Writ Petition dismissed. (E-8)

## Text

1 All. Vivek Kumar Verma Vs. U.P. Rajya Vidyut Utpadan Nigam Ltd. & Ors.
973
Constitution of India and also under
statutory obligation under the Act, 2009
and the Rules framed thereunder, to
provide free and quality education to all
children of the age of 6 to 14 years which
intends a systematic change to empower
deprived Sections of the Society. The
present petition is clearly intended to
frustrate the very object of the Act, 2009
and fundamental rights of children under
Article 21A of the Constitution of India by
opposing their transfer / adjustment orders
without any fundamental or statutory right
to remain on the place of present posting.
Paragraph No.3(d) of the G.O. dated
17.06.2019 requires to secure certain
information. The last paragraph of the
G.O.
contains
policy
decision
that
adjustment of teachers shall be made on
the basis of actual number of students in
the school as against the total number of
students enrolled. This exercise has been
undertaken by the respondents and on that
basis the impugned adjustment order has
been passed. Thus, impugned adjustment
order is in conformity with the policy
decision of the State Government dated
17.06.2019. Therefore, the
impugned
adjustment order cannot be interfered with.

13. For all the reasons aforestated, I
do not find any good reason to interfere
with the impugned transfer / adjustment
orders. Consequently, the writ petition is
dismissed.
----------
(2020)1ILR 973

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2019

BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No. 19124 of 2019
Vivek Kumar Verma ...Petitioner
Versus
U.P. Rajya Vidyut Utpadan Nigam Ltd. &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashish Chitranshi

Counsel for the Respondents:
C.S.C., Sri Ankit Saran

A. Indian Evidence Act, 1872 - Section 108 -
Challenging-impugned
order-rejecting
Petitioner's
claim-for
compassionate
appointment-on the ground-declaration of
civil death-of petitioner's father-by civil courton 07.07.2018-by then-Petitioner's fatherretired-compassionate appoint-not availableonly upon expiry of 7 years-from the date he
went missing-then declaration by civil courtpermissible-no presumption-if specific date of
death proved-present case-no proof or
disclosure of date of death.

B. Held, that it is only upon expiry of 07
years from the time such person went
missing that declaration of civil death
would be permissible in terms of Section
108
of
the
Evidence
Act.
This
presumption, however, would not arise
when a specific date of death is proved by
evidence. In the facts of the present case,
the date of death is neither disclosed nor
is proved. The Division Bench judgment,
therefore, also would not be of any help
to petitioner's cause.

Writ Petition dismissed. (E-8)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. Challenge is laid in this petition to
an order dated 1.5.2019, passed by U.P.
Rajya
Vidyut Utpadan
Nigam
Ltd.,
Lucknow, whereby petitioner's application
for grant of compassionate appointment is
rejected. Order impugned records that
declaration of civil death of petitioner's
father has been granted by civil court on
974 INDIAN LAW REPORTS ALLAHABAD SERIES
7.7.2018, by when petitioner's father had
already retired, and therefore the provision
for grant of compassionate appointment
would
not
be
available.
Petitioner's
application has accordingly been rejected.

2. Undisputed facts that emerge on
record are that petitioner's father was
employed in the respondent Corporation
and he was due to superannuate on
30.5.2010. It transpires that petitioner's
father
attended
his
duties
last
on
10.3.2010, in the afternoon shift that lasted
from 2.00 p.m. to 10.00 p.m. but he did
not return thereafter. A written report was
thus lodged with the concern police station
on 12.3.2010. Newspaper publications
were also made in local Hindi daily
''Dainik Jagran' etc. but despite all
attempts petitioner's father could not be
traced. Ultimately, petitioner alongwith
other heirs instituted Original Suit No.72
of 2017 before the Civil Judge (Sr.
Division), Sonbhadra, seeking declaration
of civil death of petitioner's father. The
employer i.e. respondent Corporation was
impleaded as defendant in the suit. On the
basis of pleadings exchanged the trial
court
formulated
07
issues
for
determination in the suit. Issue no.1 was as
to
whether
petitioner's
father
Chandreshwar Prasad has gone missing
since 10.3.2010. The second issue was
regarding lodging of missing report in the
concern
police
station
regarding
petitioner's father. The last issue related to
grant of relief in the facts of the case.
Other issues framed are not relevant for
present purposes. The trial court after
appreciating the evidence on record
returned a categorical finding on issue
no.1 that petitioner's father was seen last
on 10.3.2010, and has not been seen
thereafter. The second issue has also been
answered acknowledging that a missing
report was lodged with the concern police
station. The trial court for the purpose of
grant of relief to the plaintiff relied upon
Section 108 of the Indian Evidence Act,
1872 to hold that as petitioner's father has
not been seen for a period of 07 years
w.e.f. 12.3.2010, therefore, he is liable to
be
declared
dead.
The
presumption
contained
under
Section
108
has,
accordingly, been granted to hold the
father of petitioner dead under Section 108
of
the
Evidence
Act,
1872.
This
declaration by the civil court is granted on
7.7.2018. It is thereafter that an application
for grant of compassionate appointment
has been moved, which has been declined
by the order impugned.

3. The order of the Corporation is
assailed by counsel for the petitioner, who
submits that relevant date of death in the
facts of the present case ought to be taken
as 10.3.2010, particularly as an intimation
was given to the concern police station on
12.3.2010 itself, and that the declaration of
civil court granted on 7.7.2018 would
relate back to the date when petitioner's
father went missing. For such contention,
learned counsel for the petitioner places
reliance upon a judgment of Nagpur Bench
of the Bombay High Court in Second
Appeal No. 18 of 2016 (Sou. Swati w/o
Abhay Deshmukh Vs. Shri Abhay),
decided on 26.2.2016. Reliance is also
placed upon a Division Bench judgment of
the Andhra Pradesh High Court in Writ
Petition No. 34859 of 2016 (Union of
India, represented by its Secretary and
others Vs. Polimetla Mary Sarojini and
another), decided on 31.1.2017.

4. Petition is opposed by Sri Ankit
Saran, appearing for the Corporation, who
submits
that
the presumption
under
Section 108 of the Evidence Act would
1 All. Vivek Kumar Verma Vs. U.P. Rajya Vidyut Utpadan Nigam Ltd. & Ors.
975
come into being only upon expiry of 07
years term from the date the person was
last seen, and therefore, petitioner's
application has rightly been rejected since
petitioner's father had attained the age of
superannuation by then.

5. In order to appreciate the rival
submissions advanced on behalf of the
parties, it would be necessary first to refer
to Sections 107 and 108 of the Indian
Evidence Act, 1872 (hereinafter referred to
as ''the Act of 1872'), as it would govern
the controversy involved. The sections are
quoted hereinafter:-

"107. Burden of proving death
of person known to have been alive within
thirty
years.--When
the
question
is
whether a man is alive or dead, and it is
shown that he was alive within thirty
years, the burden of proving that he is
dead is on the person who affirms it.

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 dead,
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."

6. Section 107 provides that the
burden of proving whether a man dead, if
it is shown that he was alive within thirty
years, is on the person who affirms it.
Section 108 is an exception to Section 107,
and provides that when the question is
whether a man is alive or dead, 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 upon the person who affirms it.
Statutory scheme is absolutely clear. The
presumption of death under Section 108
would be available if a person has not been
seen for a period of 07 years by those who
would have naturally heard of him, if he
had been alive. For presumption of death
to arise under Section 108 of the Act of
1872 two facts must be entertained.
Firstly, it has to be ascertained as to what
is the last date when such a person is seen
last. Secondly, it must be established that a
period of 07 years has expired since such
person is seen last by those who would
have naturally heard of him. The facts of a
given case would have to be examined in
the context of the aforesaid statutory
scheme before a presumption of civil death
arises. In the facts of the present case it is
admitted that father of petitioner was seen
last on 10.3.2010, as he completed his
work in the shift that lasted from 2.00 p.m.
to 10.00 p.m. It is thereafter that he has not
been heard of. 10th March, 2010,
therefore, would be treated to be the date
when petitioner's father was last seen.
There is no specific date of death disclosed
by the plaintiffs nor any evidence is lead in
that regard, and the suit appears to have
been instituted by relying upon Section
108 of the Evidence Act. The suit has also
been decreed by the civil court accepting
such contention. In order to decree the suit
based upon Section 108 of the Evidence
Act, a period of 07 years must pass since
the date when petitioner's father was last
seen. The period of 07 years accordingly
would
expire
on
10.3.2017.
The
declaration under Section 108 of the
Indian Evidence Act cannot be stretched to
a date prior to 10.3.2017. It is admitted
that petitioner's father had retired by then.

7. The interpretation of Sections 107
and 108 of the Evidence Act is no longer
res-judicata, inasmuch as the purport of
976 INDIAN LAW REPORTS ALLAHABAD SERIES
the provision has been examined by the
Apex Court in LIC of India Vs. Anuradha,
(2004) 10 SCC 131. Para 12 to 15 of the
judgment would be relevant for the present
purposes and is reproduced hereinafter:-

"12. Neither Section 108 of
Evidence Act nor logic, reason or sense
permit a presumption or assumption being
drawn or made that the person not heard of
for seven years was dead on the date of his
disappearance or soon after the date and
time on which he was last seen. The only
inference permissible to be drawn and
based on the presumption is that the man
was dead at the time when the question
arose subject to a period of seven years
absence and being unheard of having
elapsed before that time. The presumption
stands un-rebutted for failure of the
contesting party to prove that such man
was alive either on the date on which the
dispute arose or at any time before that so
as to break the period of seven years
counted backwards from the date on which
the question arose for determination. At
what point of time the person was dead is
not a matter of presumption but of
evidence, factual or circumstantial, and the
onus of proving that the death had taken
place at any given point of time or date
since the disappearance or within the
period of seven years lies on the person
who stakes the claim, the establishment of
which will depend on proof of the date or
time of death.

13. A presumption assists a party
in discharging the burden of proof by
taking advantage or presumption arising in
his favour dispensing with the need of
adducing evidence which may or may not
be available. Phipson and Elliott have
observed in 'Manual of the Law of
Evidence' (Eleventh Edition at p.77) that
although there is almost invariably a
logical connection between basic fact and
presumed fact, in the case of most
presumptions
it
is
by
no
means
intellectually compelling. In our opinion, a
presumption of fact or law which has
gained recognition in statute or by
successive judicial pronouncements spread
over the years cannot be stretched beyond
the limits permitted by the statute or
beyond the contemplation spelled out from
the logic, reason and sense prevailing with
the Judges, having written opinions valued
as precedents, so as to draw such other
inferences as are not contemplated.

14. On the basis of the abovesaid
authorities, we unhesitatingly arrive at a
conclusion which we sum up in the
following
words.
The
law
as
to
presumption of death remains the same
whether in Common Law of England or in
the statutory provisions contained in
Sections 107 and 108 of the Indian
Evidence Act, 1872. In the scheme of
Evidence Act, though Sections 107 and
108 are drafted as two Sections, in effect,
Section 108 is an exception to the rule
enacted in Section 107. The human life
shown to be in existence, at a given point
of time which according to Section 107
ought to be a point within 30 years
calculated backwards from the date when
the question arises, is presumed to
continue to be living. The rule is subject to
a proviso or exception as contained in
Section 108. If the persons, who would
have naturally and in the ordinary course
of human affairs heard of the person in
question, have not so heard of him for
seven years the presumption raised under
Section 107 ceases to operate. Section 107
has the effect of shifting the burden of
proving that the person is dead on him
who affirms the fact. Section 108, subject
to its applicability being attracted, has the
effect of shifting the burden of proof back
1 All. Vivek Kumar Verma Vs. U.P. Rajya Vidyut Utpadan Nigam Ltd. & Ors.
977
on the one who asserts the fact of that
person being alive. The presumption raised
under Section 108 is a limited presumption
confined only to presuming the factum of
death of the person who's life or death is in
issue. Though it will be presumed that the
person is dead but there is no presumption
as to the date or time of death. There is no
presumption
as
to
the
facts
and
circumstances under which the person may
have died. The presumption as to death by
reference to Section 108 would arise only
on lapse of seven years and would not by
applying any logic or reasoning be
permitted to be raised on expiry of 6 years
and 364 days or at any time short of it. An
occasion for raising the presumption
would arise only when the question is
raised in a Court, Tribunal or before an
authority who is called upon to decide as
to whether a person is alive or dead. So
long as the dispute is not raised before any
forum and in any legal proceedings the
occasion for raising the presumption does
not arise.

15. If an issue may arise as to the
date or time of death the same shall have
to be determined on evidence-direct or
circumstantial and not by assumption or
presumption. The burden of proof would
lay on the person who makes assertion of
death having taken place at a given date or
time in order to succeed in his claim.
Rarely it may be permissible to proceed on
premise that the death had occurred on any
given date before which the period of
seven years' absence was shown to have
elapsed."

8. Perusal of the judgment in LIC of
India (supra) would clearly indicate that
grant of declaration under Section 108
would not lead to a presumption with
regard to date or time of death. The
presumption, moreover, would arise only
on lapse of 07 years, and by applying no
logic or reasoning can be stretched to a
period prior to expiry of 07 years. Apex
Court has observed that rarely would it be
permissible to proceed on the premise that
death had occurred on any given date
before expiry of 07 years' absence. Such
rarity is not shown to exist in the facts of
the present case. The petitioner, therefore,
would not be entitled to declaration of
death prior to 10.3.2017.

9. Learned counsel for the petitioner
has placed heavy reliance upon the
judgment of Nagpur Bench of the Bombay
High Court in Sou. Swati (supra). The
judgment of the Bombay High Court was
in the context of facts, as had been noticed
in para 2 of the judgment. It was noticed
that the person concerned went missing on
16.7.2006 and was not heard of since then.
A
report
at
the
Police
Station
Ranapratapnagar, Nagpur was lodged on
16.3.2008. It was in that context that
applicability of Sections 107 and 108 was
examined by the Court. On the facts of the
case, the Court came to a conclusion that
16.3.2008 would be the relevant date for
issuing a death certificate. This judgment
although refers to the judgment of the
Apex Court in the case of LIC of India
(supra) and also notices Sections 107 and
108 of the Evidence Act, but on facts it
was found by the Court that the death had
occurred prior to 16.3.2008. No principle
of law can be culled out from this
judgment
to
support
petitioner's
contention, inasmuch as the declaration in
that case is based more upon the
appreciation of facts of that particular
case.

10. Learned counsel for the petitioner
has also placed reliance upon the death
certificate
issued
by
the
competent
978 INDIAN LAW REPORTS ALLAHABAD SERIES
authority, in which the date of death is
mentioned 10.3.2010. This document
would not be of much relevance, inasmuch
as the registration of date of death appears
to be based upon the decree passed by the
civil court itself. This Court had already
taken note of the decree to hold that
presumption of death in terms of Section
108 of the Indian Evidence Act would
arise only on 10.3.2017. In that view of the
matter, mere registration of date of death
in the death certificate would not be
material and the declaration of civil court
would be binding.

11. Coming to the Division Bench
judgment of the Andhra Pradesh High
Court in the case of Union of India
(supra), learned counsel for the petitioner
has referred to para 36 and 37 of the
judgment,
which
are
reproduced
hereinafter:-

"36. Thus it is clear that both in
England and elsewhere, the date of expiry
of 7 years from the time a person went
missing, is taken to be the date of death
also, unless any other date is proved by the
party asserting, to be the date of death. But
the moment a party is able to prove a
particular date as the date of death, then
the question of presumption itself would
not arise. The decisions of various Courts
holding that in certain circumstances a
person must be presumed to be dead from
the date he went missing or within a few
days thereafter, are based upon a flawed
logic. The Evidence Act allows of only
one presumption. But by holding that a
person must be presumed to be dead from
the time he went missing, some Courts
have raised a second presumption, which
is not traceable to the Evidence Act. A
distinction exists between a presumed fact
and an inferred one. Many times the
confusion occurs due to the use of the
presumption as a synonym for inference.

37. As we have pointed out
earlier, there is a distinction between a
presumption of fact and an inference.
Section 108 of the Evidence Act admits of
only
one
presumption
namely
the
presumption of death of a person not heard
of for 7 years by those who would normally
have heard of him. Since it is a rebuttable
presumption and the rebuttal can take place at
any time, the law does not stipulate any date
as the date on which a person may be
presumed to be dead. There is huge difference
between the presumption as to death and
presumption as to date of death. Since the law
does not prescribe any presumption as to date
of death, the same may have to be proved. An
inference cannot take the place on proof or
presumption."

12. The above observation of the
Division
Bench
clearly
endorses
the
proposition that it is only upon expiry of 07
years from the time such person went missing
that declaration of civil death would be
permissible in terms of Section 108 of the
Evidence Act. This presumption, however,
would not arise when a specific date of death is
proved by evidence. In the facts of the present
case, the date of death is neither disclosed nor
is proved. The Division Bench judgment,
therefore, also would not be of any help to
petitioner's cause.

13. In light of the discussions and
deliberations aforesaid, this Court finds
that there is no error in the decision taken
by the Corporation to deny compassionate
appointment to the petitioner.

14. Writ petition lacks merit and is
accordingly dismissed. No order is passed
as to costs.
----------
1 All. Rajendra Prasad Kanaujiya Vs. State of U.P. & Ors.
979
(2020)1ILR 979

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.01.2019

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 1059 of 2019

Rajendra Prasad Kanaujiya ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ravi Shanker Tiwari

Counsel for the Respondents:
C.S.C., Sri Ram Bahadur Singh

A. The falling standard of legal profession
- instituted a one Judge enquiry -
approved by the Hon'ble Administrative
Committee-a resolution was taken to
authorize the Hon'ble Chief Justice to
take appropriate remedial action. (Para 3,
4, 5, 9 & 10)

In absence of any training or good educational
background law graduates cannot be expected
to integrate to the high standard tradition, and
professed proficiency which is required for
practicing in the High Court - The Supreme
Court in the case of R.K. Anand (supra) has
considered this issue and has issued directions
to the High Courts to frame the Rules for holding
examinations like the Advocate-on-Record for
High Courts and courts subordinate thereto -
The Madras High Court also considered the
same issue in WP (MD) No.7257 of 2019,
A.Kannan v. High Court of Madras and others -
issued certain directions for the improvement of
the standard of the Bar. (Para 6 & 7)

Held: - This Court should also consider to
frame the Rule in the line of the other High
Courts to arrest the deterioration of standard of
legal profession which also affect the entire justice
delivery system. The Hon'ble Chief Justice has
been requested to consider the remedial
measure suggested in the enquiry report in the
light of the facts recorded in this order and the
directions of the Hon'ble Supreme Court in
A.Kannan (supra). (Para 9 & 11)

Writ Petition dismissed. (E-7)

List of cases cited: -

1.Sandeep Patel and others v. State of U.P. and
others, Writ-C No. 17720 of 2014

2.Committee of Management, Sri Shankar
Shiksha Prasar Samiti and another v. State of
U.P. and others, 2009 (2) AWC 1871 All

3. A.Kannan v. High Court of Madras and
others, WP (MD) No.7257 of 2019

(Delivered by Hon'ble Pradeep Kumar Singh
Baghel, J. & Hon'ble Pankaj Bhatia, J.)

1. The petitioner has preferred this
writ petition under Article 226 of the
Constitution for the following relief:

"PRAYER

It is, therefore, Most respectfully
prayed that this Hon'ble Court may
graciously be pleased to-:

(i) issue a writ order or direction in
the nature of Mandamus by direct to the
Respondents not to delete the fruit Juice Shop
of the petitioner which is located at Town Hall
Road Shahjahanpur on the land of Arya
Samaz Mandir on Rent.

(ii) issue any other suitable writ,
order or direction as this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the case.

(iii) To award the cost petition in
favour of the petitioner."