Supreme Court: Death Can Be Presumed Only After 7 Years From Date Of Disappearance; No Compassionate Appointment If Employee Retired Earlier
Kiran Raj
The Supreme Court Division Bench of Justices Pankaj Mithal and Prasanna B. Varale held that a person’s death can be presumed only after seven years from the date of disappearance, and accordingly set aside an order of the Bombay High Court’s Nagpur Bench which had directed the Municipal Corporation to grant compassionate employment to the son of a missing employee. The Bench noted that the employee had retired from service before completion of the seven-year period required to presume civil death, and that his family had already accepted retirement and pensionary benefits. It therefore held that a claim for compassionate appointment could not be sustained, while allowing the Corporation to consider the son for any other suitable post in accordance with law.
The appeal was filed by the Commissioner, Nagpur Municipal Corporation and others challenging a judgment dated 18 July 2024 passed by the Bombay High Court, Nagpur Bench. The dispute arose from the High Court’s direction to issue an appointment order to the son of a missing employee on compassionate grounds, treating the date of his disappearance, 1 September 2012, as the date of his death.
The appellants contended that the High Court erred in presuming the date of death as the day the employee went missing. They submitted that under law, a person is presumed dead only after seven years have passed without their whereabouts being known, and therefore, the date of civil death should be considered as 1 September 2019. It was further submitted that the employee had continued in service until his retirement on 31 January 2015, and the family had received all retiral dues amounting to ₹6,49,000 and a monthly pension of ₹12,000. Having accepted these benefits, the family could not later seek compassionate appointment.
The respondents argued that the decree of civil death passed by the Civil Judge, Senior Division, Nagpur, on 11 January 2022, declaring the employee dead, related back to the date of disappearance. They maintained that the delay in obtaining the decree was due to the statutory seven-year requirement. The matter involved interpretation of Section 108 of the Indian Evidence Act, 1872, concerning presumption of civil death and its application to employment and service benefits.
The Bench observed that “the date on which the father of respondent No.2 went missing i.e. 01.09.2012, cannot be treated as the date of his death.” It stated that “in cases of civil death, a person will be presumed to be dead only if his whereabouts are not heard of for seven years from the date the person went missing.”
The Court further noted that “there is no evidence on record to prove the date of his death.” It recorded that the Civil Court decree dated 11.01.2022 “is completely silent on the specific date of death of the father of the respondent No.2” and that “the civil court has not declared him to be dead as on 01.09.2012.”
Referring to LIC v. Anuradha (2004) 10 SCC 131, the Bench stated that “in matters of civil death, the question of the date or time of the death must be determined on the basis of direct or circumstantial evidence, and not on mere assumption or presumption.” It further observed that “the burden to prove the date or time of the death lies upon the person who makes such an assertion of death.”
The Court recorded that “the decree of declaration of civil death only recognizes the fact that the person is presumed to be dead after expiry of seven years of disappearance, without fixing any precise date or time of death.” Applying Section 108 of the Indian Evidence Act, it stated 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.”
It concluded that “the father of the respondent No.2 would be deemed to have died a civil death upon the expiry of seven years from the date he went missing i.e., 01.09.2019.” The Bench also observed that “when the respondent No.2 has accepted that his father had retired, he cannot claim compassionate appointment.”
The Court ordered: “In view of the aforesaid facts and circumstances, we are of the opinion that the impugned judgment and order dated 18.07.2024 passed by the High Court cannot be sustained in law. Accordingly, the impugned judgment and order dated 18.07.2024 passed by the High Court is hereby set aside. However, we leave it open to the appellants to consider the case of the respondent No.2 for appointment for any suitable post within its jurisdiction, independent of claim for compassionate appointment, if necessary by granting age relaxation, provided the same is otherwise permissible in law. The appeal stands allowed in the above terms. Pending application(s), if any, shall stand disposed of.”
Advocates Representing the Parties
For the Appellants: Mr. Gagan Sanghi, Advocate; Mr. Rameshwar Prasad Goyal, AOR
For the Respondents: Ms. Chitra Parande, Advocate; Mr. Shishir Deshpande, AOR; Mr. Nilakanta Nayak, Advocate; Mr. Amit Yadav, Advocate; Mr. Kaushal Narayan Mishra, Advocate; Mr. Naman Tandon, Advocate; Mr. Siddharth Dharmadhikari, Advocate; Mr. Aaditya Aniruddha Pande, AOR; Mr. Shrirang B. Varma, Advocate
Case Title: The Commissioner, Nagpur Municipal Corporation & Ors. v. Lalita & Ors.
Neutral Citation: 2025 INSC 1280
Case Number: Civil Appeal No. 14786 of 2024
Bench: Justice Pankaj Mithal and Justice Prasanna B. Varale
