Missing Employee Can't Be Treated As 'Dead In Harness' After 7 Years To Claim Compassionate Appointment: Telangana High Court

The Telangana High Court has held that a missing employee cannot be treated as a case of “death in harness” merely because 7 years have passed raising presumption of death under Section 108 Indian Evidence Act, to claim benefit of compassionate appointment scheme if scheme contains a separate category for missing employees.Dismissing a writ appeal filed by the son of a missing TSNPDCL lineman, a Division Bench of Chief Justice Aparesh Kumar Singh and Justice G.M. Mohiuddin held that the statutory presumption under Section 108 cannot be used to bypass the express terms of the scheme.The Bench observed that the scheme “does not treat a missing employee as 'dead.' Instead, it creates a distinct category of employees who have gone missing and whose whereabouts are not known for more than seven years.” The Court added that for this category, the scheme itself prescribes “specific conditions, including the requirement of a waiting period of seven years before an application can be made and the exclusion clause relating to employees who had less than seven years of service remaining.” It therefore held that “the presumption under Section 108 of the Evidence Act cannot be invoked to bypass the clear conditions contained in the scheme governing cases of missing employees.”The case concerned S. Sanjeev, whose father S. Sayanna was working as a Lineman in the Bhainsa Division under the respondent-Corporation. Sayanna went missing on 07.03.2012 while in service. A police complaint was lodged, but despite investigation, his whereabouts could not be traced, and the police ultimately issued an untraceable certificate. Sanjeev then sought compassionate appointment, stating that the family had been left without any source of livelihood.His request, however, was rejected on 17.07.2020. The authorities noted that Sayanna was born on 19.06.1958 and was due to retire on 30.06.2016. As on the date of disappearance, he had only 4 years, 3 months and 23 days of service left, which was below the minimum seven-year threshold stipulated under the scheme for missing employees. The learned Single Judge upheld that rejection, leading to the present writ appeal.Before the Division Bench, the appellant argued that the compassionate appointment scheme is a beneficial and social welfare measure meant to provide immediate relief to distressed families, and therefore ought to receive a liberal interpretation. He further contended that since his father had remained untraceable since 07.03.2012, a presumption of death arose under Section 108 of the Evidence Act, and the case should accordingly be treated on par with one of death in harness rather than under the category of missing employees.The Corporation opposed the plea, arguing that compassionate appointment is not a matter of right but a concession strictly governed by the terms of the scheme. It submitted that the scheme itself draws a clear distinction between “death in harness” and “missing employees,” and that the presumption under Section 108 cannot be used to convert one category into the other. It also pointed out that Sayanna had less than seven years of service remaining when he went missing, bringing the case squarely within the exclusion clause.Accepting that submission, the High Court held that the law on compassionate appointment is well settled: it is an exception to the constitutional norm of equality in public employment and must therefore be strictly construed. The Court said it cannot dilute or rewrite the conditions of a scheme on grounds of sympathy or equity. Where the scheme expressly excludes a category, that exclusion must be given full effect.The Bench then examined the scheme governing compassionate appointment in cases of missing employees. It noted that while the scheme allows one dependent of a missing employee to seek compassionate appointment after seven years, it also contains a clear exclusion where the employee had less than seven years of service left to retire on the relevant date. Since that factual position was undisputed in the present case, the Court held that the appellant's claim fell squarely within the exclusion.The Court also explained why the appellant's reliance on Section 108 of the Evidence Act was misconceived. It held that the presumption of death under Section 108 cannot be “mechanically imported” into a distinct statutory context where the scheme itself has consciously created a separate framework for missing employees. The Bench noted that the framers of the scheme were evidently aware of the legal presumption of death after seven years, but still chose to retain a distinct category for missing employees and an exclusion clause for those with less than seven years' service left. This showed that the mere passage of seven years was not intended to automatically confer eligibility for compassionate appointment.The Court further pointed out that accepting the appellant's argument would render the separate framework for missing employees...

Missing Employee Can't Be Treated As 'Dead In Harness' After 7 Years To Claim Compassionate Appointment: Telangana High Court

Ananya Tangri

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Missing Employee Can't Be Treated As 'Dead In Harness' After 7 Years To Claim Compassionate Appointment: Telangana High Court

Ananya Tangri

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