ORDER
S. Samvatsar, J.
1. This petition is filed by the State of M.P. challenging the order dated 26/11/2001 passed by the M.P. State Administrative Tribunal, Gwalior in D.A. No. 654/95.
2. Brief facts of the case are that respondent No. 1 Shrimati Kiran Sengar is the wife of B.S. Sengar. Shri Sengar was a Sales Tax Inspector. He was facing a departmental enquiry since long. He is missing since 20/10/1983 and his whereabouts were not known. An application was filed alleging that the husband of respondent No. l is dead on the basis of presumption under Section 108 of the Evidence Act which provides for the presumption about death of a person if it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is on the person who affirms it.
3. Thus, according to respondent No. 1 it is presumed that her husband is dead as he has not been heard of by her or any of her relatives, and therefore, she is entitled to family pension. It is also stated that petitioners have already paid G.P.F. on the basis of succession certificate obtained by her.
4. The application was opposed by the State Government on the ground that service of B.S. Sengar was terminated after departmental enquiry on 8/4/1988 and once services of an employee are terminated, then he is not entitled to pension and his widow is not entitled to family pension. The order of termination dated 8/4/1988 was challenged by Shrimati Kiran Sengar on the ground that it was passed against a dead person. According to her, her husband disappeared in the year 19S3 and therefore, it should be presumed that he died in the year 1984, i.e. one year after his disappearance as per the circulars issued by the Government.
5. Tribunal accepted this contention and set aside the order of termination on the ground that the order was passed against a dead person. Husband of Shrimati Kiran Sengar died in 1984 as he has not been heard of after 1983. Tribunal has also held that husband of Shrimati Kiran Sengar died after expiry of one year after 1983. This order is under challenge in petition.
6. Contention of the counsel for the petitioners Shrimati Ami Prabal, Deputy Advocate General is that the approach of the Tribunal is illegal and contrary to law. According to her, presumption under Section 108 of the Evidence Act about the death of a person arises after expiry of seven years from the date from which the person is missing.
7. After perusal of Section 108 of the Evidence Act, we find that the contention raised by the counsel for the petitioners is correct. Presumption under Section 108 of the Evidence Act extends to the fact of death at the expiry of seven years and not to the time of death at a particular period. If that is the rule, the Tribunal cannot presume death on the date on which the person was missing but presumption will arise only after expiry of seven years thereafter. Privy Council in the case of Lalchand Maravari v. Mahant Ramrup Gir AIR 1926 P.C. 9 has taken a similar view and held that presumption about the death will arise only after expiry of seven years from the date from which the person is missing or not been heard of Similar view is taken by the Bombay High Court in the case of Subhash Ramchandra Wadekar v. Union of India .
8. Thus, the view taken by the Tribunal cannot be accepted. Tribunal has quashed the departmental enquiry and the order of punishment on the ground that It was passed against a dead person. This order was passed in the year 1988 whereas seven years will be completed in the year 1990, and therefore, it cannot be said that the order which was passed in the year 1988 was against a dead person. Once, it is held that the employee was terminated by a valid order, and said order exists, he is not entitled to get the benefit of pension nor his wife will be entitled to family pension.
9. Contention of the learned Counsel for the respondent No. 1 is that he has raised various grounds in appeal against the termination order which were not decided by the appellate authority.
10. From perusal of original application, we find that in the original application before the Tribunal, only ground which was raised challenging the order of termination was that it was passed against a dead person. Considering the above facts, we set aside the impugned order and consequently dismiss the original application filed by the petitioner.
11. Petition stands allowed without any order as to costs.