NYTTI Vs. STATE OF KERALA

JUDGEMENT

(1.) The first petitioner is the widow and second petitioner is the son of K. M. Yohannan who was an employee of the Public Works Department as N.M.R. worker. While he was working at Kanjoor he disappeared and not heard after 11-9-1975. Later for unauthorised absence his service was terminated with effect from 11-9-1975. The first petitioner sent Ext. P2 petition dated 9-5-1988 to the Minister for Public Works Department praying forgiving employment to the second petitioner. Ext. P3 is the acknowledgement. As per Ext. P4 the first petitioner was directed to submit an application in the proper form. Pursuant to the same the 2nd petitioner submitted Ext. P5 application on 4-7-1988 to the Government. By Ext. P7 communication the 2nd petitioner was required to produce a declaration from a Civil Court to the effect that the second petitioner's father was missing while in service. Accordingly he got Ext. P8 decree dated 1-12-1989 and produced the same to the respondent. He also submitted Ext. P9 petition before the Minister for Public Works Department. By Ext. P12 communication dated 26-10-1990 the second petitioner was informed that he was not eligible for the increased period of two years after attaining majority for making application for employment assistance. The challenge is against Ext. P12. Both in Ext. P12 as well as in the counter affidavit the ground taken is that the eligibility period of the petitioner for preferring application for employment assistance expired on 11-9-1983, and on the said date there was no provision for giving employment assistance to the dependents of government servants missing while in service. Hence he is not entitled to the same. In Para.5 of the counter affidavit it is stated that the second petitioner attained majority on 30-5-1980, that he submitted the application for employment assistance only on 6-7-1988 and that the eligibility period for preferring application for employment assistance expired on 11-9-1983.

(2.) As per G.O. (P) N0.74/84/GAD dated 1-3-1984 employment assistance under the Dying in Harness Scheme was extended to the dependents of government servants missing while in service. Clause 7(b) of G.O. (P) No. 34/87/P and ARD dated 17-12-1987 also contains similar provision. It was contended by the learned Government Pleader that since the father of the 2nd petitioner was not heard of from 11-9-1975 he must be presumed to be dead on the expiry of 7 years from that date which being 11-9-1982 and the benefit having been first introduced only on 1-3-1984, the second petitioner is not entitled to claim the benefit G.O.(P) No.74/84/GAD dated 1-3-1984 referred to early states that the employment assistance under the Dying in Harness Scheme will be extended to the dependents of government servants missing while in service, if it is not proved otherwise, as laid down in S.108 of the Indian Evidence Act, subject to the conditions laid down in the G.O. Therefore, he will be treated as dead while in service unless the contrary is proved as laid down in S.108 of the Indian Evidence Act. S.108 of the Evidence Act is actually a proviso to S.107 of the Act. S.107 and 108 of the Evidence Act read:

(3.) Ext. P12 is quashed and the respondent is directed to dispose of Ext. P5 application submitted by the 2nd petitioner as expeditiously as possible in accordance with law, at any rate within three months from the date of receipt of the copy of this judgment.