7-Year Absence: Supreme Court Clarifies the Law on Presumption of Death

The Supreme Court of India, in a recent landmark judgment, has reaffirmed the interpretation of Section 108 of the Indian Evidence Act, 1872, holding that a person who goes missing cannot be presumed dead on the date of disappearance. The presumption of death, according to law, arises only after the expiry of seven years, unless concrete evidence proves an earlier date of death.

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Facts of the Case

The case originated from an appeal filed by the Nagpur Municipal Corporation against a Bombay High Court ruling that directed it to grant compassionate employment to the son of an employee, Gulab Mahagu Bawankule, who had gone missing on September 1, 2012.
The High Court had erroneously treated the date of disappearance as the date of death, thereby ordering compassionate appointment to the missing employee’s son.

However, the Supreme Court, comprising Justices Pankaj Mithal and PB Varale, found this reasoning legally flawed. The Court clarified that, in the absence of proof regarding the actual date of death, only the statutory presumption under Section 108 of the Evidence Act can apply—and that presumption arises only after seven years of disappearance, i.e., from September 1, 2019, in this case.

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Statutory Provision: Section 108 of the Indian Evidence Act, 1872

Section 108 provides that when a person has not been heard of for seven years by those who would naturally have heard from them, the burden of proving that the person is alive shifts to the person who affirms it.
This section allows for the presumption of death but does not assign any fixed date of death.

The provision was retained as Section 108 in the Bharatiya Sakshya Adhiniyam, 2023, preserving its original intent. The Court reiterated that the date of death remains uncertain unless proved by direct or circumstantial evidence.

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Supreme Court’s Reasoning

The bench emphasized that the High Court had “manifestly erred” in assuming that the date of disappearance automatically translates into the date of death.
It clarified that:

• The presumption of death under Section 108 arises only after seven years, and not before.

• Even after seven years, only a presumption of death can be drawn—not the exact date of death.

• Such presumption is rebuttable and can be displaced by producing credible evidence indicating an earlier or different date of death.

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Impact on Compassionate Appointment

The Court also ruled that since Bawankule was deemed to be in continuous service until his retirement on January 31, 2015, and his family had already received retirement benefits worth ₹6.49 lakh and a monthly pension of ₹12,000, his son could not now seek compassionate appointment.

The Court explained that compassionate appointments are an exceptional form of relief—not a vested right—intended to mitigate the sudden financial distress caused by the death of a government employee while in service.
Once the family had accepted post-retirement benefits, they effectively acknowledged the employee’s service continuity, negating any claim for such appointment.

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Judicial Precedents on Compassionate Appointment

The Court’s reasoning aligns with earlier rulings such as:

• Umesh Kumar Nagpal v. State of Haryana (1994) 4 SCC 138, where the Supreme Court held that compassionate appointment is not a matter of right but an exception designed to relieve immediate hardship caused by the employee’s death while in service.

• Canara Bank v. M. Mahesh Kumar (2015) 7 SCC 412, where it was reaffirmed that the objective of compassionate appointment is not to grant employment as a matter of inheritance but to alleviate financial distress.

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Constitutional Context

The judgment indirectly upholds Article 14 of the Constitution of India, ensuring equality before law and preventing arbitrary administrative decisions that could extend compassionate employment benefits beyond their legal scope.

The Court’s decision also reflects adherence to the rule of law, as compassionate appointments are meant to operate strictly within statutory and policy limits, not through judicial discretion that conflicts with existing regulations.

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Supreme Court’s Final Direction

While setting aside the Bombay High Court’s directive for direct appointment, the Supreme Court allowed the Nagpur Municipal Corporation to consider the son for a suitable post—not under the compassionate appointment scheme, but through fresh consideration in accordance with law, possibly with age relaxation if permissible under the applicable rules.

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Conclusion

This ruling underscores a crucial legal principle—that presumption of death cannot be conflated with the date of disappearance, and that compassionate appointments are not entitlements but exceptions guided by strict legal criteria.

The judgment provides clarity on both evidentiary and administrative fronts, reinforcing that judicial presumptions must align with statutory frameworks, and relief under compassionate employment must be confined to genuine cases of in-service death.

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