In Narayan Bhagwantrao Gosavi Balajiwala v, Gopal Vintryhak Gosavi & Ors,(i960] 1 SCR 773 a Bench of three Judges held that the long user by the, public as of right and grant of land and cash by the Rulers, taken along with other relevant facts are consistent only with the public nature of the endowment. It was held that Sri Balaji Venkatesh at Nasik and its Sansthan constituted charitable and religious trusts within the meaning of the charitable and Religious Trusts Act, 1920, In that contest this court also considered the question of burden of proof and held it would mean one of two things, namely, (i) that a party has to prove an allegation before it is entitled to a judgment in its favour; and (2) that the one of the other of the two contending parties had to introduce evidence on a contested issue, The question of onus is material only where the party on which it is place would eventually lose if it failed to discharge the same. Where issues are, however, joined, evidence is led and such evidence can be weighed in order to determine the issues, the question of burden becomes academic.
Supreme Court of India
Narayan Govind Gavate Etc vs State Of Maharashtra on 11 October, 1976
Turning now to the provisions of our own Evi- dence Act, we find the general or stable burden of proving a case stated in section 101 as follows:
"101. Whoever desires any Court to give judgment as to any legal right or liability depend- ent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person".
The principle is stated in section 102 from the point of view of what has been sometimes called the burden of leading or introducing evidence which is placed on the party initiating a proceeding. It says:
"102. The burden of proof in a suit or pro- ceeding lies on that person who would fail if no evidence at all were given on either side". In practice, this lesser burden is discharged by merely showing that there is evidence in the case which supports the case set up by the party which comes to Court first, irrespective of the side which has led that evidence. An outright dismissal in limine of a suit or proceeding for want of evidence is thus often avoided. But, the burden of establishing or general burden of proof is heavier. Sometimes, evidence coming from the side of the respondents, in the form of either their admissions or conduct or failure to controvert, may strengthen or tend to support a petitioner's or plaintiff's case so much that the heavier burden of proving or establishing a case, as distinguished from the mere duty of introducing or showing the existence of some evidence on record stated in section 102, is itself discharged. Sufficiency of evidence to discharge the onus probandi is not, apart from instances of blatant perversity in assessing evidence, examined by this Court as a rule in appeals by special leave granted under Article 136 of the Constitution. It has been held that the question whether an onus probandi has been discharged is one of fact (see: AIR 1930 P.C. p. 90). It is gener- ally so.
"Proof", which is the effect of evidence led, is defined by the provisions of section 3 of the Evidence Act. The effect of evidence has to be distinguished from the duty Or burden of showing to the Court what conclusions it should reach. This duty is called the "onus probandi", which is placed upon one of the parties, in accordance with appropriate provisions of law applicable to various situations, but, the effect of the evidence led is a matter of inference or a conclusion to be arrived at by the Court.
The total effect of evidence is determined at the end of a proceeding not merely by considering the general duties imposed by sections 101 and 102 of the Evidence Act but also the special or particular ones imposed by other provisions such as sections 103 and 106 of the Evidence Act. Section 103 enacts: "103. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person".
And, section 106 lays down:
"106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him".
In judging whether a general or a particular or special onus has been discharged, the Court will not only consider the direct effect of the oral and documentary evidence led but also what-may be indirectly inferred because. certain facts have been proved or not proved though easily capable of proof if they existed at all which raise either a pre- sumption of law or of fact. Section 114 of the Evidence Act covers a wide range of presumptions of fact which can be used by Courts inthe course of. administration of justice to remove lacunae in the chain of direct evidence before iL It is, therefore, said that the function of a presumption often is to "fill a gap" in evidence.
True presumptions, whether of law or of fact, are always rebuttable. In other words, the party against which a presumption may operate can and must lead evidence to show why the presumption should not be given effect to. If, for example, the. party which initiates a proceeding or comes with a case to Court offers no evidence to support it, the presumption is that such evidence does not exist. And, if some evidence is shewn to exist on a question in issue, but the party which has it within its power to produce it, does not, despite notice to it to do so,. produce it, the natural presumption is that it would, if produced, have gone against it. Similarly, a presumption arises from failure to discharge a special or particular onus.
The result of a trial or proceeding is determined by a weighing of the totality of facts and circumstances and presumptions operating in favour of one party as against those which may tilt the, balance in favour of another. Such weighment always takes place at the end of a trial or proceeding which cannot, for purposes of this final weighment, be split up into disjointed and disconnected parts simply because the requirements of procedural regularity and logic, embodied in procedural law, prescribe a sequence, a stage, and a mode of proof for each party tendering its evidence. What is weighed at the end is one totality against another and not selected bits or scraps of evidence against each other.
It is well established that when a suit is filed, the burden of proof lies upon the plaintiff who has sought relief from the Court and failure to prove its case would disentitle him from getting any relief. The onus shifts from stage to stage. The distinction between the “burden of proof” and ‘onus’ has been discussed by the Apex Court in para 19 of its judgment in Anil Rishi Case[Anil Rishi Vs. Gurbaksh Singh, AIR 2006 SC 1971]. The said paragraph reads as under:
“There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof.
In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto…..
The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways :
(i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later;
(ii) to make that of establishing a proposition as against all counter-evidence; and
(iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.”
In R.V. E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and another (2004) 6 JT (SC) 442 the Court said in para 29 as under:
“In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.”
Gujarat High Court
Ranchhodbhai Somabhai And Anr. vs Babubhai Bhailalbhai And Ors. on 12 November, 1981
It is also well' to bear in mind that there is an essential distinction between "burden of proof" and "onus of proof"; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence (see Raghavamma v. Chenchamma, AIR 1964 SC 136). Burden of proof has two distinct meanings, namely, (i) the burden of proof as a matter of law and pleadings, and (ii) the burden of proof as a matter of adducing evidence. Section 101 of the Evidence Act deals with the former and Section 102 of the Evidence Act with the latter. The first remains constant but the second shifts. In a claim application, therefore, the burden of proof, in the first sense, certainly lies on the claimant. If he examines himself and his witness, if any, and if the evidence, tested in the light of the principles set out above, is found to be acceptable, the onus shifts on the tortfeasor to prove those circumstances, if any, which dislodge the assertions of the claimants. If the tortfeasor fails to prove before the Court any fact or circumstance which tends to affect the evidence led by the claimant, the claimant would be entitled to ask the Court to hold that he has established the case and, on that basis, to make a just award it would thus appear, that though the legal burden, - the burden as a matter of law and pleadings - remains constant on the claimant, the burden as a matter of adducing evidence changes often times as the trial of the claim petition progresses.
Supreme Court of India
State Of Maharashtra vs Wasudeo Ramchandra Kaidalwar on 6 May, 1981
The expression 'burden of proof' has two distinct meanings (1) the legal burden. i.e. the burden of establishing the guilt, and (2) the evidential burden, i.e. the burden of leading evidence. In a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution, and that burden never shifts. Notwithstanding the general rule that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving a particular fact in issue may be laid by law upon the accused. The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution and is discharged by proof of a balance of probabilities.
The ingredients of the offence of criminal misconduct under s. 5(2) read with s.5(1)(e) are the possession of pecuniary resources or property disproportionate to the known sources of income for which the public servant cannot satisfactorily account. To substantiate the charge, the prosecution must prove the following facts before it can bring a case under s. 5(1)(e), namely, (1) it must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution, and (4) it must prove quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence of criminal misconduct under s. 5(1)(e) is complete, unless the accused is able to account for such resources or property. The burden then shifts to the accused to satisfactorily account for his possession of disproportionate assets. The extent and nature of burden of proof resting upon the public servant to be found in possession of disproportionate assets under s. 5(1)(e) cannot be higher than the test laid by the Court in Jahgan's case (supra), i.e. to establish his case by a preponderance of probability. That test was laid down by the court following the dictum of Viscount Sankey, L.C. in Woolmington v. Director of Public Prosecutions. The High Court has placed an impossible burden on the prosecution to disprove all possible sources of income which were within the special knowledge of the accused. As laid down in Swamy's case (supra), the prosecution cannot, in the very nature of things, be expected to know the affairs of a public servant found in possession of resources or property disproportionate to his known sources of income i.e. his salary. Those will be matters specially within the knowledge of the public servant within the meaning of s.106 of the Evidence Act, 1872. Section 106 reads:
s. 106. when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
In this connection, the phrase the burden of proof is clearly used in the secondary sense namely. the duty of introducing evidence. The nature and extent of the burden cast on the accused is well settled. The accused is not bound to prove his innocence beyond all reasonable doubt. All that he need do is to bring out a preponderance of probability.
Supreme Court of India
Rabindra Kumar Dey vs State Of Orissa on 31 August, 1976
Another question that arises is what are the standards to be employed in order to judge the truth or falsity of the version given by the defence ? Should the accused prove his case with the same amount of rigour and certainty, as the prosecution is required, to prove a criminal charge, or it is sufficient if the accused puts forward a probable or reasonable explanation which is sufficient to throw doubt on the prosecution case ? In our opinion three cardinal principles of criminal jurisprudence are well-settled, namely:
(1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weak- ness or falsity of the defence version while prov- ing its case;
(2) that in a criminal trial the accused must be presumed to be innocent unless he is. proved to. be guilty; and (3) that the onus of the prosecution never shifts.
It is true that under section 105 of the Evidence Act the onus of proving exceptions mentioned in the Indian Penal Code lies on the accused, but this section does not at all indicate the nature and standard of proof required. The Evidence Act does not contemplate that the accused should prove his case with the same strictness and rigour as the prosecution is required to prove a criminal charge. In fact, from the cardinal principles referred to above, it follows that, it is sufficient if the accused is able to prove his case by the standard of preponderance of probabilities as envisaged by s. 5 of the Evidence Act as a result of which he succeeds not because he proves his case to the hilt but because probability of the version given by him throws doubt on the prosecution case and, therefore, the prosecution cannot be said to have established .the charge beyond reasonable doubt. In other words, the mode of proof, by standard of benefit of doubt, is not applicable to the accused, where he is called upon to prove his case or to prove the exceptions of the Indian Penal Code on which he seeks to rely. It is sufficient for the defence to give a version which competes in probability with the prosecution version, for that would be sufficient to throw suspicion on the prosecution case entailing its rejection by the Court. This aspect of the matter is no longer res integra but is concluded by several authorities of this Court. In Harbhajan Singh v. State of Punjab this Court observed as follows:
"But the question which often arises and has been frequently considered by judicial decisions is whether the nature and extent of the onus of proof placed on an accused person who claims the benefit of an Exception is exactly the same as the nature and extent of the onus placed on the prosecution in a criminal case; and there is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not re- quired to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That, no doubt, is the test prescribed while deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but that is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an Exception. Where an accused person is called upon to prove that his case falls under an Exception, law treats the onus as dis- charged if the accused person succeeds "in proving a preponderance of probability." As soon as the preponderance of probability is proved, the burden shifts to. the prosecution which has still to discharge its original onus. It must be remembered that basically, the original onus never shifts and the prosecution has, at all stages of the case, to prove the guilt of the accused beyond a reasonable doubt."
The scope of Article 14 has been summarised in the oft- quoted decision, Ram Krishna Dalmia v. Justice S.R. Tendolkar4. At (AIR p. 547), the Constitution Bench of this Court relied on the following passage from the judgment of the seven-Judge Constitution Bench in Budhan Choudhry v. State of Bihar "It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration." The Court then laid down :
"The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish-
(a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;
(b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clea r transgression of the constitutional principles;
(c) that it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;
(d) that the Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest;
(e) that in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and
(f) that while good faith and knowledge of the existing conditions on the part of a Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation."
The above decision has been followed in innumerable subsequent cases. See Mohd. Hanif Quareshi v. State of Bihar, Kerala Education Bill, 1957, Re and other cases.
In Ram Krishna Dalmia case, the different situations in which a statute may come up for consideration on the question of validity under t Article 14 of the Constitution have been catalogued in paragraph 12 of the judgment. They are broadly dealt with as failing in five groups or clauses. For the purpose of this case, it is sufficient if we refer to paragraph 12 clause (1).
"(1) A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances known to or brought to the notice of the Court. In determining the validity or otherwise of such a statute the Court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute, no matter whether the provisions of the statute are intended to apply only to a particular person or thing or only to a certain class of persons or things. Where the Court finds that the classification satisfies the tests, the Court will uphold the validity of the law........
Section 107 and 108 :
Under Section 107, the burden of proving that a person is dead, when it is shown that he was alive within 30 years, is on the person who affirms it. But the burden of proof so cast under Section 107 upon the person affirming death, is whittled down under Section 108 by enabling the person who affirms the death of another to prove that such a person has not been heard of for seven years by those who would naturally have heard of him. Once a person affirming the death of another is able to prove that the other person has not been heard of for seven years, then the burden of proving that the other person is alive, shifts to the person who affirms it. In simple terms, section 107 raises a presumption of life while section 108 raises the presumption of death.
The burden of proof oscillates like a pendulum from the person, who asserts death, to the person who asserts life. To put it differently, the burden of proof cast under Section 107 upon the person asserting death of another becomes lighter under Section 108. While a person asserting death of another is obliged to prove positively under Section 107 that the other person is dead, he is given an option or gateway under Section 108 to prove instead, that the other person has not been heard of for seven years. In other words, the requirement under Section 107 is to prove the factum of death. The requirement under Section 108 is to prove a fact that would lead to a presumption of such a fact. The presumption under Section 108, as in the case of every other presumption, is rebuttable, since a person asserting life is entitled under Section 108 to show that the person presumed to be dead was actually alive.
Though the provisions of sections 107 and 108 are very clear as to the rising of presumption, these sections do not throw any light upon the date on which a person can be presumed to be dead. In other words, the doubt or dilemma that arises in cases of this nature is as to the date of death of the person in respect of whom the presumption is raised. The moment it is established that a person has not been heard of for 7 years, the presumption of death arises. But the presumption under the Act is confined only to the factum of death and not to the actual date of death.
Since the Statute confines itself only to the factum of death and leaves it largely to the imagination of the courts to find out from the evidence on record, the actual date of death, some courts have taken the view that the person must be taken to be dead with effect from the date on which he is not heard of. But some courts have taken the view that in the absence of any evidence to the contrary, the date of death could be fixed only from the expiry of the period of 7 years.
In Ram Singh Vs. Board of Revenue, U.P. Allahabad, AIR 1964 All. 310, a Single judge of the Allahabad High Court held that all that one can presume under Section 108 is that the person concerned is dead but one cannot fix the time of his death under the provisions of said section. The court further held that Section 108 is not exhaustive on the question of presumption as regards the death of a person and hence the Court may in the circumstances of each case make suitable presumption even regarding the time of death. The court said:
"Section 108, however, is not exhaustive on the question of presumption as regards death of a person. The Court may make a suitable presumption in accordance with the circumstances of each case :-
(1) Suppose a man sails in a ship, and the ship sinks. Thereafter the man is never seen alive. Under such circumstances, it is reasonable to assume that the person died in the ship wreck.
(2) When a person goes for pilgrimage he or she ordinarily returns home in six months or in a year. In the present case, Smt. Rukmini left for Gangasagar Yatra 17 years ago. Since then she has not been heard of. It is reasonable to assume that, she died in some accident or of some disease during the journey or at Gangasagar."
The aforesaid view was followed by the Bombay High Court in Subhash Ramchandra Wadekar Vs. Union of India, AIR 1993 Bombay 64, in which a Single Judge of the Bombay High Court held that if section 108 of Indian Evidence Act is to be interpreted literally, it would have to be held that law presumes the death of a person unheard of for seven years but is silent in respect of the date of presumed death. It was further held that the date of presumed death must be proved by the party concerned as a fact by leading reliable evidence. The Court formulated two propositions viz. (1) Ordinarily a person unheard of for the statutory period shall be presumed to be dead on expiry of seven years and not earlier. (2) Section 108 of Indian Evidence Act, 1872 is not exhaustive. It is permissible for the court to raise a suitable presumption regarding the date of presumed death depending upon the attendant circumstances and other reliable material on record. In other words no rule of universal applicability can be spelt out regarding presumed date of death. The court indicated that proposition No.1 must operate subject to proposition No. 2.
In Indira vs- Union of India 2005 (3) KLT 1071, a Single judge of the Kerala High Court held that even though under the Army Act, a person can be said to be a deserter when he is found missing and can also be dismissed for desertion, the situation changes when the presumption of death of such a person becomes available under Section 108 of the Evidence Act. In other words, if a person is declared a deserter and dismissed from service and is not traced out within seven years, then Section 108 of the Evidence Act takes over and all consequences would follow. In other words, presumption of death was held to supersede the finding of desertion.
The aforesaid view was reiterated by the division bench of the Bombay High Court in Smt. Bhanumati Dayaram Mhatre V. Life Insurance Corporation of India, AIR 2008 Bombay 196, wherein the question for consideration before the court was as to whether a person would be presumed to have died on the date he went missing or on the date when the period of 7 years expired from the date of his missing. While interpreting the provisions of Sections 3, 107 and 108 of Evidence Act in para 4 and 5 of its decision, the High Court observed as under:-
"4. . . . . . .. Section 108 of the Act is in the nature of exception to the rule contained in Section 107 of the Act and states that when a person has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who asserts that the person is alive. In other words, if a person has not been heard of for a period of more than 7 years by the persons who would naturally have heard of him if he had been alive, then a presumption arises of his death. Though Section 108 of the Act raises a presumption of death of a person if he has not been heard of for a period of 7 years by the persons who would naturally have heard of him, it raises no presumption as to the date of his death. The date of his death, if disputed, must be proved as any other fact.
Section 3 of the Evidence Act prescribes the standard of proof by defining the word "proved" as follows: "Proved-- A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
If the test of preponderance of probability laid down by Section 3 of the Act is applied, that is to say a fact is said to be proved if the court considers its existence to be so probable that a prudent man ought, under the circumstances of the particular case, to act upon certain supposition that it exists, then it would have to be held that Kushal has died on 13th November 1995 or soon thereafter. If he was alive after 13th November 1995, there was no reason for him not to contact his immediate family members. It is not the case that Kushal left the house in distress or he was under some disability which prevented him from returning home or even contacting his family members. Nor is it shown that Kushal was missing in such circumstances or could be at such place wherefrom he could not even contact his parents or close family members. Considering the fact that Kushal was not under any distress or disability nor was he in the situation wherefrom he could not contact his family members coupled with the fact that he has not contacted his family members at all since 13th November 1995 and has been declared to be dead by the declaratory decree of the competent court makes us, as men of ordinary prudence, believe that Kushal must have died on 13th November 1995 or soon thereafter."
. In Zishan Khan vs- District Inspector of Schools, Varanasi & Ors., 2012 (92) ALR 154, a Single judge of the Allahabad High Court held as follows:
(1) Ordinarily, a person not heard of for the statutory period shall be presumed to be dead on expiry of seven years and not earlier; (ii) Section 108 of the Indian Evidence Act, 1872 is not exhaustive. It is permissible for the Court to raise a suitable presumption regarding the date of presumed death depending upon the attending circumstances and other reliable material on record. In other words, no Rule of universal applicability can be spelt out regarding presumption of death.
Thus various courts have come to the conclusion that depending upon the circumstances of each case, it would be open to the court to fix the date of death. But the reasoning given by many courts to come to such a conclusion appear to be one sided and made without reference to the perspectives of persons upon whom claims may be lodged on the basis of presumed date of death.
Take for instance the case on hand, where a person was removed from service for unauthorised absence. If such a person is presumed to be dead due to the operation of Section 108 of the Evidence Act, with retrospective effect from the date he went missing, then any order of removal from service passed after the date of his presumed death would be a nullity. But if he is taken to be dead only with effect from the date on which a valid presumption could arise i.e. after the expiry of 7 years from the date he went missing, then the order of removal from service cannot be treated as a nullity.
When a person is not seen for quite some time, it may be a case of man missing for people at home. But for the office where he is working, it will only be a case of unauthorised absence. The employer is entitled to take disciplinary action against every employee who absents himself unauthorisedly. At that stage, the employer cannot be expected to anticipate that the employee will not come back for 7 years so as to arrest the raising of the presumption under Section 108.
The employers right to take disciplinary action and impose a penalty of removal or dismissal, within the period of 7 years is not taken away by Section 108. Therefore, an order of removal or dismissal passed before the date on which the presumption under Section 108 arises, cannot become a nullity post facto.
In N.Pankajam Vs. State of Tamil Nadu on which the Central Administrative Tribunal placed reliance, a learned Judge of the Madras High Court held that by virtue of the presumption under Section 108 of the Evidence Act, a person who is not heard of for 7 years should be treated as dead, from the date he became untraceable. But a Division Bench of the Madras High Court disagreed with the said view, in The Managing Director, State Express Transport Corporation Tamil Nadu Limited Vs. E.Tamilarasi . The distinction between Sections 107 and 108 of the Evidence Act were brought out in the said decision of the Division Bench, . Paragraphs 11 to 16 of the said decision read as follows:
While there can be no dispute about the presumption available under Section 108 of the Indian Evidence Act, 1872, what is important is to see the date on which such presumption arises. As per Section 108 of the Indian Evidence Act, 1872, whenever a question arises whether a man is alive or dead and it is proved that he has not been heard of for seven years by those, who would naturally have heard of him, burden of proving that he is alive, is shifted to the person, who affirms it.
What is provided in Section 108 of the Indian Evidence Act, 1872, is only a presumption. Section 108 of the Indian Evidence Act, 1872 cannot be read in isolation. It should be read along with Section 107 of the Indian Evidence Act, 1872. Under Section 107 of the Indian Evidence Act, 1872, whenever a question arises as to whether a man is alive or dead and it shown that he was alive within thirty years, the burden of proving that he is dead is on the person, who affirms it.
Thus, Section 108 is an exception to Section 107. If Section 107, provides the rule, Section 108, provides the exception. Once it is established that a person was alive within 30 years, the burden of proving that he is dead is on the person, who affirms it. This is the rule under Section
107. But, if it is proved that such a person, despite being alive within 30 years, 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 shifted to the person, who affirms that he is alive.
Therefore, it follows as a corollary that for the application of Section 107, the outer limit of the period of prescription is 30 years. Similarly, for the Application of Section 108, the minimum period of time limit statutorily prescribed for the presumption to arise is seven years.
This is why the presumption as to death cannot be raised before the expiry of seven years. It cannot be raised even if the period of seven years falls short by one or two days. In LIC of India v. Anuradha, MANU/SC/0285/2004 : 2004 (3) CTC 281 (SC) : AIR 2004 SC 2070, the Supreme Court held that the presumption as to death by reference to Section 108 would arise only on the expiry of seven years and would not by applying any logic or reasoning be permitted to be raised on the expiry of 6 years and 364 days or at any time short of it. More over, the Court pointed out that an occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an Authority, who is called upon to decide as to whether the person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings, the occasion for raising the presumption does not arise.
Therefore, the expiry of the full period of seven years is essential to raise the presumption under Section.
Supreme Court of India
L.I.C. Of India vs Anuradha on 26 March, 2004
Sections 107 and 108 of the Evidence Act read as under:
"107. Burden of proving death of person known to have been alive within thirty years.-When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it."
"108. Burden of proving that person is alive who has not been heard of for seven years.-Provided that when the question is whether a man is alive or dead, and 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 shifted to the person who affirms it."
There is no difference in the English Law and the Indian law on the subject. The English Law as stated in Halsbury's Laws of England (Fourth Edition, Vol. 17, paras 115 and 116) is as under:
"115. Presumptions of life and death. There is generally no presumption of law by which the fact that a person is alive or dead on a given date can be established but the question must be decided on the facts of the particular case.
Certain exceptions to this general rule are provided by statute, and, in addition where there is no acceptable affirmative evidence that a person was alive at some time during a continuous period of seven years or more and it is proved that there are persons who would be likely to have heard of him over that period, that those persons have not heard of him, and that all due inquiries have been made appropriate to the circumstances, there arises a rebuttable presumption of law that he died sometime within that period."
"116. Proof of life or death at a particular time. He who asserts that a person was alive on a given date, or dead on that date, must prove the fact by evidence, since there is no presumption of continuance of life, and, generally, no presumption of death at a particular time. Where there is insufficient evidence in support of the fact alleged, the party bearing the burden of proof will fail.
Where the presumption of death after seven years absence applies, the person will be presumed to have died by the end of that period; where the presumption does not apply, or is displaced by evidence, the issue will be decided on the facts of the particular case. In some old cases, where neither the evidence nor the incidence of the burden of proof was decisive, the court made the best order it could in the circumstances. Where the question to be decided, for purposes affecting the title to property, is which of two persons died first, a statutory rule may apply.
The question of whether a person was alive or dead at a given date will be decided on all the evidence available at the date of the hearing."
We may with advantage quote the statement of law as contained in Manual of The Law of Evidence by Phipson and Elliott (Eleventh Edition, at pp. 83-84). The learned authors after stating the presumption, further state:
"It must be noted that the presumption is only as to the fact of death, not as to the time of death, so that if it has to be established that A was alive or dead on a particular day during the seven-year period, that fact will have to be proved by evidence, aided by any presumption of fact which the jury may see fit to act on. The presumption of death does not oblige the court to presume that death occurred at any time during the seven years, nor is there any presumption of law that life continued for any part of the seven-year period. Strictly, according to the leading case on the subject Re Rhene's Trusts (1870) L.R. 5 Ch. App. 139-the presumption only operates to establish that if at the date of an action in which the death is called in question, seven years or more have elapsed without news. A is dead at that date, i.e. the date of the action. Accordingly, it is impossible to use this presumption to prove that A was dead in, say 1950, even if he has not been heard of since 1943. This inconvenience has caused the strict rule to be departed from in some cases to allow presumption of death at any given date if seven years absence before that is shown."
As to Indian decided cases of authority we are relieved of the need of entering into a research and review thereof on account of availability of two recent decisions of this Court on the point. In N. Jayalakshmi Ammal and Ors. v. R. Gopala Pathar and Anr.,  Supp 1 SCC 27, this Court went in-depth into the jurisprudential concept underlying Section 107 and 108 of the Evidence Act and referred to commentaries of settled authority by eminent jurists such as Sri John Woodroffe and Amir All's Law of Evidence, M. Monir's Principles and Digest of the Law of Evidence, Sarkar on Evidence as also the leading authority of Judicial Committee of the Privy Council in Lal Chand Marwari v. Mahant Ramrup Gir, AIR (1926) PC 9, which has stood the test of the times for over three quarters of a century by now. The law laid down in N. Jayalakshmi Ammal and Ors. 's case (supra) has been reiterated in Darshan Singh and Ors. v. Gujjar Singh (D) by Lrs. and Ors.,  2 SCC 62.
Peter Murphy states in 'A practical approach to Evidence' (Second Edition pp 460-461)-"The presumption is only that the subject died at some time during the period; Ms death on any particular day will not be presumed, and must be proved by evidence if in issue". The learned author having set out in brief the facts of the cases in Re Phene's Trusts (1870) 5 Ch App 139 and Chipchase v. Chipchase (1939) P 391 and having noticed the law laid down therein proceeds to state-"The period of seven years is, however, strictly insisted upon, and it is often pointed out that, though the rule is to some extent illogical, a period of six years and 364 days is not enough. Nor is there any presumption that the subject died from any particular cause, died childless or died celibate, though these matters may be capable of inference on the evidence, as a question of fact. It should be remembered that it is always open to the court to infer death (or that someone is alive) as a matter of fact, as it is to make any other proper inferences from the evidence. No question of the presumption arises in such a case; it is a matter of circumstantial evidence. What is sometimes called the 'presumption of continuance'-an instance of which is that if a person is shown to be alive at a certain time, his continuing life may be inferred-is no more than an example of such an inference, and will yield to the presumption of death where the latter applies".
Neither Section 108 of Evidence Act nor logic, reason or sense permit a presumption or assumption being drawn or made that the person not heard of for seven years was dead on the date of his disappearance or soon after the date and time on which he was last seen. The only inference permissible to be drawn and based on the presumption is that the man was dead at the time when the question arose subject to a period of seven years absence and being unheard of having elapsed before that time. The presumption stands un-rebutted for failure of the contesting party to prove that such man was alive either on the date on which the dispute arose or at any time before that so as to break the period of seven years counted backwards from the date on which the question arose for determination. At what point of time the person was dead is not a matter of presumption but of evidence, factual or circumstantial, and the onus of proving that the death had taken place at any given point of time or date since the disappearance or within the period of seven years lies on the person who stakes the claim, the establishment of which will depend on proof of the date or time of death.
A presumption assists a party in discharging the burden of proof by taking advantage or presumption arising in his favour dispensing with the need of adducing evidence which may or may not be available. Phipson and Elliott have observed in 'Manual of the Law of Evidence' (Eleventh Edition at p.77) that although there is almost invariably a logical connection between basic fact and presumed fact, in the case of most presumptions it is by no means intellectually compelling. In our opinion, a presumption of fact or law which has gained recognition in statute or by successive judicial pronouncements spread over the years cannot be stretched beyond the limits permitted by the statute or beyond the contemplation spelled out from the logic, reason and sense prevailing with the Judges, having written opinions valued as precedents, so as to draw such other inferences as are not contemplated.
On the basis of the abovesaid authorities, we unhesitatingly arrive at a conclusion which we sum up in the following words. The law as to presumption of death remains the same whether in Common Law of England or in the statutory provisions contained in Sections 107 and 108 of the Indian Evidence Act, 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two Sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises, is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section 108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for seven years the presumption raised under Section 107 ceases to operate. Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person who's life or death is in issue. Though it will be presumed that the person is dead but there is no presumption as to the date or time of death. There is no presumption as to the facts and circumstances under which the person may have died. The presumption as to death by reference to Section 108 would arise only on lapse of seven years and would not by applying any logic or reasoning be permitted to be raised on expiry of 6 years and 364 days or at any time short of it. An occasion for raising the presumption would arise only when the question is raised in a Court, Tribunal or before an authority who is called upon to decide as to whether a person is alive or dead. So long as the dispute is not raised before any forum and in any legal proceedings the occasion for raising the presumption does not arise.
If an issue may arise as to the date or time of death the same shall have to be determined on evidence-direct or circumstantial and not by assumption or presumption. The burden of proof would lay on the person who makes assertion of death having taken place at a given date or time in order to succeed in his claim. Rarely it may be permissible to proceed on premise that the death had occurred on any given date before which the period of seven years' absence was shown to have elapsed.