The Supreme Court has held that a person who has gone missing cannot be presumed to be dead on the date of disappearance, and that the presumption of death arises only after the expiry of seven years . The statutory presumption, the court said, may be rebutted only by producing concrete evidence to prove an earlier date of death.
A bench of justices Pankaj Mithal and PB Varale emphasised that Section 108 of the Indian Evidence Act, 1872 (which allows presumption of death if a person has not been heard of for seven years) merely permits the inference of death after this period, but does not fix the date of death as the date of disappearance. The provision has been retained as Section 108 in the Bharatiya Sakshya Adhiniyam, 2023.
The date of death remains uncertain unless proved through direct or circumstantial evidence, noted the bench while adding: “The decree declaring civil death recognises only that the person is presumed dead after seven years of disappearance, without fixing any precise date.”
The judgment came while the bench was hearing an appeal filed by the Nagpur Municipal Corporation challenging a direction by the Bombay High Court to grant compassionate employment to the son of an employee, Gulab Mahagu Bawankule, who went missing on September 1, 2012. The high court had treated the date of disappearance as the date of death and directed that an appointment be issued.
The Supreme Court found this reasoning to be erroneous. It said that in the absence of evidence proving when the missing person actually died, only the statutory presumption could operate, and such presumption arises only after seven years, i.e., in this case, from September 1, 2019.
“Section 108 of the Indian Evidence Act, 1872, states that in cases of civil death, the death will be presumed to be after the expiry of seven years from the date the person went missing. Hence, as per Section 108, he will be presumed to be dead on the expiry of 7 years from the date he disappeared or went missing unless contrary or specific date of death is proved by adducing cogent evidence,” it underlined.
Furthermore, since Bawankule was treated as being in continuous service until his retirement on January 31, 2015, and his family had received all retirement benefits amounting to ₹6.49 lakh and a monthly pension of ₹12,000, the Court held that his son could not now claim compassionate appointment on the footing that the death occurred in 2012.
Once the family had accepted retirement dues and pension, the court said, they could not claim a benefit available only in cases of an employee who dies in service. Compassionate appointment is meant to alleviate sudden financial crisis caused by the death of a breadwinner, the bench noted, and is not a vested right.
The bench also held that the high court had erred in directing appointment straightaway, rather than directing consideration of eligibility under the governing rules. “The High Court manifestly erred,” said the court, adding that even where compassionate appointment is sought, the employer must examine eligibility and availability of posts.
While setting aside the high court’s direction, the Supreme Court left it open to the municipal corporation to consider the son for a suitable post, not as a matter of right or under the compassionate appointment scheme, but as a fresh consideration in accordance with law, including by granting age relaxation if permissible.
