No Compassionate Appointment When Missing Employee Was Retired With Dues | SC

Case Details: Commissioner v. Lalita - [2025] 180 taxmann.com 139 (SC)

Judiciary and Counsel Details

• Pankaj Mithal & Prasanna B. Varale, JJ.
• Gagan Sanghi, Adv. & Rameshwar Prasad Goyal, AOR for the Appellant.
• Ms Chitra Parande, Nilakanta Nayak, Amit Yadav, Kaushal Narayan Mishra, Naman Tandon, Siddharth Dharmadhikari, Shrirang B. Varma, Advs., Shishir Deshpande & Aaditya Aniruddha Pande, AORs for the Respondent.

Facts of the Case

In the instant case, the respondent’s father, an employee, went missing on 1 September 2012. Following his disappearance, the respondent and family members continued to receive employment related benefits as the father was treated to be in continuous service by the employer. Subsequently, the employer formally retired him from service on 31 January 2015, upon reaching the age of superannuation. The family was then paid all retirement dues

Nearly ten years after the father went missing, the respondent filed a civil suit seeking a declaration that his father be treated as dead. On 11 January 2022, the Civil Court decreed the suit, declaring that the father was dead but did not specify the exact date of death.

The respondent then applied for a compassionate appointment, claiming that his father should be considered to have died on the date he went missing (1 September 2012), and therefore, he was entitled to employment under the compassionate grounds policy.

The employer rejected the request, stating that since the father was treated as in service until retirement and all dues had been settled, no compassionate appointment could be granted.

The respondent challenged this decision before the High Court of Bombay, Nagpur Bench, which directed the employer to issue an appointment order to the respondent on a suitable post, treating 1 September 2012 as the date of death.

Aggrieved by the High Court’s order, the employer filed an appeal before the Supreme Court, arguing that the High Court erred in presuming death from the date of disappearance, contrary to Section 108 of the Indian Evidence Act, 1872, which presumes death only after a person has been missing for 7 years.

Supreme Court Held

The Hon’ble Supreme Court held that a person missing for 7 years is presumed dead only after the expiry of that period under Section 108 of the Indian Evidence Act, 1872. Since the respondent’s father, though missing from 2012, was treated as in service and retired in 2015 with all retirement benefits paid, the son’s claim for compassionate appointment was untenable. The High Court erred in directing a direct appointment, and its order was set aside; however, the employer may consider the respondent for any suitable post independently.

List of Cases Reviewed

• Order of the High Court of Judicature at Bombay at Nagpur in Writ Petition No. 913 of 2024, dated 18.07.2024 (para 11) set aside

List of Cases Referred to

• LIC v. Anuradha (2004) 10 SCC 131 (para 7).