Hon'ble Arvind Kumar Tripathi (II),J.
1. Heard Sri Manish Kumar, learned counsel for the appellant and Sri Krishna Kumar Singh, holding brief of Sri M.S. Rathore Advocate.
2. Late Om Prakash, father of the respondent, while working as Class-III employee in Civil Court district Hardoi, was assigned duty in Election of the year 1996. It appears that late Om Prakash had gone to attend Election duty on 3.10.1996 but he did not turn up. Thus, he is missing since 1996.
3. A Regular Suit No.56 of 2008 was filed by the wife of Om Prakash in the Court of Civil Judge (Jr. Div.) West, Hardoi, to declare Om Prakash her husband, as dead. The suit was decreed by the learned Civil Judge (Jr. Div.), West Hardoi on 31.5.2008. The operative portion of the judgment and decree dated 31.5.2008 is reproduced as under:
"दावा याचीगण विरुद्घ प्रतिवादी सव्यय डिक्री किया जाता है। जरिए डिक्री घोषणात्मक ओम प्रकाश पुत्र स्व० सिरदार सिंह निवासी ग्राम भटपुरवा मजरा फरीदापुर परगना बंगर थाना सुरसा तहसील व जिला हरदोई को मृत घोषित किया जाता है।"
4. From the aforesaid declaration, it is evident from the record that by decree and order dated 31.5.2008, Om Prakash, husband of Savitri Devi, resident of village Bhatpurwa, Majra Faridapur, Pargana Bangar, Police Station Sursa, Tahsil and district Hardoi, was declared as dead by the Civil Court.
5. In spite of declaration by the Civil Court no compassionate appointment was made by the District Judge, Hardoi. Hence the respondent Saurabh Kumar son of late Om Prakash, preferred Writ Petition No.6215 (S/S) of 2009. The writ petition was allowed by Hon'ble Single Judge of this Court with the finding that with regard to appointment on compassionate ground, the judgment and decree passed by the Civil Court, should have been taken into account. Feeling aggrieved, the present special appeal has been preferred.
6. Sri Manish Kumar, learned counsel for the petitioner while assailing the impugned order passed by Honble Single Judge, submits that under Rule 5 of the Uttar Pradesh Recruitment of Dependants of Government Servants (Dying in Harness) Rules, 1974 (in short, "the Rules"), it has been provided that death means actual death and not death arising out of presumption. Attention has been invited to Rule 5 of the Rules. For convenience, Rule 5 of the Rules, is reproduced as under:
"5. Recruitment of a member of the family of the deceased. - (1) In case a Government servant dies in harness after the commencement of these rules and the spouse of the deceased Government servant is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government, one member of his family who is not already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government shall, on making an application for the purposes, be given a suitable employment in Government service on a post except the post which is within the purview of the Uttar Pradesh Public Service Commission, in relaxation of the normal recruitment rules if such person -
(i) fulfils the educational qualifications prescribed for the post,
(ii) is otherwise qualified for Government service, and
(iii) makes the application for employment within five years from the date of the death of the Government servant :
Provided that where the State Government is satisfied that the time-limit fixed for making the application for employment causes undue hardship in any particular case, it may dispense with or relax the requirement as it may consider necessary for dealing with the case in a just and equitable manner."
7. Submission is that in sub-rule (1) of Rule 5 of the Rules, the word used by the Legislature is 'death' hence, death by presumption could not be taken into account for appointment on compassionate ground. The argument advanced by the learned counsel for the appellant seems to be misconceived. Legislature to their wisdom, has used the word, 'dies' and not the word, 'actual death', as argued.
8. Section 56 of the Indian Evidence Act, 1872 provides that no fact of which the Court will take judicial notice need to be proved. For convenience, Section 56 of the Indian Evidence Act is reproduced as under:
"56. Fact judicially noticeable need not be proved.--No fact of which the Court will take judicial notice need to be proved."
9. In view of the above, keeping in view the provisions contained in Section 56 of the Indian Evidence Act, it was incumbent on the authorities to take note of the judgment and decree whereby, Om Prakash has been declared dead. No court or authority have right to take a decision contrary to the judgment and decree of the Court which admittedly attained finality (supra).
10. Apart from the above, Section 107 of the Indian Evidence Act provides that whether a man is alive or dead, and he was alive within thirty years, then the burden of proving dead is on the person who affirms it. Section 108 of Indian Evidence Act further provides that where a person is alive or dead and it is shown that he has not been heard of for seven years by those who would naturally have heard of him of he had been alive, the burden of proving him dead, is restricted to the person who affirms it. For convenience, Section 107 and 108 are reproduced as under:-
"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."
11. In view of the above, burden to prove that the person is alive, comes on the State Government but the State Government has not preferred appeal against the judgment and decree. In view of Section 56 of the Indian Evidence Act, it shall be incumbent on the State Government to take note of the judgment and decree of the Civil Court whereby Om Prakash has been declared to be dead.
12. One of the argument advanced by the learned counsel for the appellant is with regard to using the word, 'death', in the Rules (supra). Argument of petitioner's counsel is not sustainable for the reason that by fiction of law, Om Prakash shall be deemed to be dead that too, followed by a decree of the competent court of law. It means, after declaration by Civil Court that Om Prakash is dead, he shall be deemed to be dead and shall mean to substitute the provisions contained in the Rules in case dispute arises with regard to death or aliveness of Om Prakash.
13. In the case reported in (1951) 2 All.E.R 587: East and Dwellings Co. Ltd. Vs. Finsbury Borough Council, Lord Asquith J. stated that the law relating to legal fiction in the following manner:
"if you are bidden to treat an imaginary state of affairs as real you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it." The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
14. In the case reported in (1881) 17 CHD 746: Exparte Walten, In Re Levy, it was observed by James L.J. "when a statute enacts that some thing shall be deemed to have been done, which infact and in truth was not done, the court is entitled and bound to ascertain for what purpose and between what persons the statutory fiction is to be resorted to."
15. In AIR 1953 SC 244: State of Bombay vs. Pandurang Vinayak, Hon'ble Supreme court has held that, when a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. (Para5).
16. In AIR 1955 SC 661 : Bengal Immunity Co. Ltd. vs. State of Bihar, the Apex court has held that, legal fictions are created only for some definite purpose and it is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field.
17. In AIR 1959 SC 352 : CIT vs. S. Teja Singh, Hon'ble Supreme Court has held that, it is a rule of interpretation well settled that in construing the scope of legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate. (Para 6).
18. In AIR 1966 SC 719: CIT vs. Shakuntala, Hon'ble Supreme Court has held that the fiction created by the legislature must be restricted by the plain terms of statue. The principle that a legal fiction must be carried to its logical conclusion does not require the court to travel beyond the terms of the section or give the expression a meaning which it does not obviously bear.(para 6).
19. In AIR 1975 SC 164: Boucher Pierre Andre vs. Supdt. Central Jail, Hon'ble Supreme Court has held that, where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion.
20. In AIR 1973 SC 1056: CIT vs. Maharaj Kumar Kamal Singh, Hon'be apex court held that, it is true that a legal fiction should not be extended beyond the purpose for which it is created; but it does not mean that the court should not give full effect to that fiction.(Para 7).
21. In the case reported in AIR 1978 SC 1099 : Cambay Electric Supply Industrial Co. vs. CIT, the apex court held that legal fictions are created for a definite purpose and they should be limited to the purpose for which they were created and should not be extended beyond the legitimate field.(Para 8).
22. In the case reported in (1985)2 SCC 321: State of Maharashtra vs. Narayan Rao, Hon'ble Supreme Court has held that, a legal fiction should ordinarily be carried out to its logical conclusion and to carry out the purposes for which it is created but it can not be carried beyond that.
23. In the case reported in (1995) 1 SCC 537: Harish Tandon vs. ADM, Hon'ble Supreme Court has held that, when a statute creates a legal fiction saying that something shall be deemed to have been done which in fact and truth has not been done, the court has to examine and ascertain as to for what purpose and between what persons such a statutory fiction is to be resorted to. Thereafter full effect has to be given to such statutory fiction and it has to be carried to its logical conclusion.(Para 13).
24. In the case reported in (1997) 1 SCC 650: Gajraj Singh vs. STAT, Hon'ble Supreme court has held that a legal fiction is one which is not an actual reality and which the law recognizes and the court accepts as a reality. Therefore in case of legal fiction the court believes something to exist which in reality does not exist. It is nothing but a presumption of the existence of the state of affairs which in reality is non-existent. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under the circumstances. (Para 22).
25. In the case reported in (1999) 6 SCC 275: Lokmat Newspapers (P)Ltd. Vs. Shankarprasad, It was observed by the Hon'ble Supreme court that, while giving effect to the legal fiction for the purpose for which it is created by legislature, it has to be given fully play for fructifying the said legislative intention.(Para 27&29).
26. In the case reported in (2000)2 SCC 699: State of Maharashtra vs. Laljit Rajshi Shah, Hon'ble Supreme court has held that it is the well settled principle of construction that in interpreting a provision creating legal fiction, the court is to ascertain for what purpose the fiction is to be created, and after ascertaining it, the court is to assume all those facts and circumstances which are incidental or inevitable corollaries to giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created or beyond the language of the section by which it is created. A legal fiction in terms enacted for the purpose of one act is normally restricted to that act and can not be extended to cover another act. (Para 6).
27. In the case reported in JT(2003) 9 SC 477 : Prafulla Kumar Das and others vs. State of Orissa, Hon'ble Supreme court has held that, the purpose and object of creating legal fiction in the statute is well-known, when a legal fiction is created, it must be given full effect.(para39).
28. In the case reported in (2004) 6 SCC 59: State of W.B. vs. Sadan K. Bormal , Hon'ble Supreme court has held that so far as interpretation of legal fiction is concerned, it is trite that the court must ascertain the purpose for which the fiction is created and having done so must assume all those facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction.(Para 25).
29. In the case reported in (2005) 3 SCC 161: State of A.P vs. Pensioner's Association, Hon'ble Supreme court has held that if the provision it self provides a limitation to operation of legal fiction created by it, consequences flowing from the legal fiction have to be understood in the light of limitations imposed.(Para 28&30).
30 In the case reported in (2008) 5 SCC 257: UCO Bank vs. Rajinder Lal Kapoor, it has been held by the Apex court that, when a legal fiction is created , although it is required to be taken to logical conclusion, but the same would not mean that the effect thereof would be extended so as to transgress the scope and purport for which it is created.(Para 23).
31. In view of the above and keeping in view the decree of competent court (supra), Om Prakash shall be deemed to be dead and his dependants shall be entitled for appointment on compassionate ground. The provision contained in the Rules, shall be deemed to be encompass such cases where a decretal order has been passed by the Civil Court pronouncing death of a person. In such a situation, it shall be incumbent on the competent authority to consider and appoint the dependant of the deceased employee on compassionate ground.
32. Attention has been invited by the learned counsel for the appellant to the judgment in the case reported in [(1998) 2 UPLBEC 1`1`83]: Ravi Shankar Tewari. Vs. Police Maha-Nideshak, U.P. and others. The case of Ravi Shankar Tewari (supra) deals with different facts and circumstances of the case where the employee had not submitted decree of Civil Court. Further, the provisions contained in Section 107 and 108 of Indian Evidence Act, have not been correctly interpreted by the Hon'ble Single Judge while deciding the case of Om Prakash. In view of the above, we are of the view that the case of Ravi Shankar Tewari (supra) seems to be dealt with different facts and circumstances of the case and is not applicable to the present controversy.
33. With profound respect, we are in respectful disagreement with the judgment and proposition of law dealt with by the Hon'ble Single Judge in the case of Ravi Shankar Tewari (supra). The doubt expressed by the Hon'ble Single Judge in the case of Ravi Shankar Tewari (supra) seems to be not correct. The doubt has been raised in para 12 of the judgment that in case a person comes back being alive after seven years, the situation will be anomalous. Respectfully, we would like to express our opinion that it is not for the Court to raise a presumption on unfounded ground. Provisions contained in Section 107 and 108 read with Section 56 of Indian Evidence Act dealt with the public interest and for welfare of people. Any presumption drawn, which go against the spirit of Section 107 and 108 of Indian Evidence Act, shall not be correct. Ordinarily, in case it is found that a person is missing for more than seven years, then the statutory provisions under Section 107 and 108 should be given effect. The right flowing from statutory provisions may not be taken away on a presumption based on unfounded ground. What will happen in due course of time in case statutory provision is implemented affects adversely should be looked into by the Legislature and not by the Courts.
34. Learned counsel for the respondent has relied upon a Division Bench judgment of this Court in the case reported in 2011 (4) ALJ 234: Ramakant Singh v. State of U.P. & Ors., wherein it has been held that even if no suit is filed, presumption may be drawn with regard to civil death. For convenience, relevant portion of para 11 and 12 of the aforesaid judgment are reproduced as under:
"11. We find that the learned single Judge did not consider that even if the suit was not filed, the presumption could be drawn, if the conditions imperative for raising the presumption were satisfied. Once a presumption of civil death is raised on the satisfaction of the conditions given in Section 108 of the Indian Evidence Act, the burden of proof that he is alive, is then shifted to the person who affirms that the person reported missing was seen and is alive.
12. In Ajay Kumar Tewari v. Dy. Inspector General of Police (Establishment) Police Headquarter, U.P., Allahabad, and others [2005 ESC (Alld) 671) [delivered by one of us (Hon'ble Sunil Ambwani, J)], it has been held that the provision of Section 108 of Evidence Act would be applied for claiming compassionate appointment."
35. For the reasons discussed hereinabove, the presumption drawn by the Hon'ble Single Judge with regard to death of Om Prakash, seems to be not incorrect. Rather, it is based on sound principles of law. Accordingly, the impugned judgment and order passed by the Hon'ble Single Judge does not seem to suffer from any infirmity or illegality.
36. In view of the above, the appellant shall appoint the respondent on compassionate ground expeditiously say, within a period of two months from the date of receipt of a certified copy of the present judgment with all consequential benefits.
37. The impugned judgment and order passed by the learned Single Judge is affirmed accordingly and subject to above, the appeal is decided finally.
No orders as to costs.