P. K. MOHANTY, J. ( 1 ) THE petitioner who has filed this writ application in person, has prayed for the following relief: "under these circumstances most humbly I pray that this Hon'ble Court may be graciously pleased to direct the opposite parties to show cause as to why: (1) The permanent Medical Unfit Benefit shall not be given from November 4, 1987 (Annexure-1) instead of same benefit of permanent Medical Unfit Benefit from september 7, 1996 (Annexure-9) given by the opposite party on same medical report. (2) Proper Medical Treatment for eye sight shall not be given according to the advice of shankara Netralaya, Madras for both the cases (Annexure-6 and 21 ). (3) I shall not be given the promotion of e. O. (Junior Executive) grade from the year 1992 with all consequential benefits. (4) All the absenteeisms mainly due to harassments, misuse of power or not allowed to join duty, directly or indirectly, since last 17/18 years by the opposite parties shall not be treated as present mark. (5) I shall not be given the losses of leave facilities, injury leave, referred cases expenses, all due L. T. C. , Pooja bonus, expenses for non-referred cases for eye treatment etc. (6) I shall not be allowed to get salary as interim relief and necessary order (s)/direction (s) be passed as I deem fit and proper to do complete relief to me. " ( 2 ) THE petitioner's case in short, is that he joined as an Artisan Trainee in the year 1962 under the Rourkela Steel Plant and after completion of training, was appointed as a skilled worker in the Roll Shop in the year 1964 which was later on re-designated as S. B. Grinder. Between 1964 and 1976, he got promotions from P. A. grade to P. B. grade as roll Grinder in the same department in non-executive cadre. The petitioner alleges that the management of Rourkela Steel Plant gradually started harassment, misusing the power and victimised the petitioner with a view to remove him from service to achieve their conspiracy. According to the petitioner he had an unblemished record of his service of 35 years, but however, his attendance in about 20 years is poor because of medical reasons and harassment, but not because of any deliberate wilful act. According to the petitioner he had an unblemished record of his service of 35 years, but however, his attendance in about 20 years is poor because of medical reasons and harassment, but not because of any deliberate wilful act. ( 3 ) THE petitioner claims that he was a patient of eye disease and mental depression for which he was under continuous treatment and since last 20 years because of the harassment meted out to him he had developed mental depression and his attendance to duty became irregular day after day and later on became worse. The petitioner claims that his incapability of bearing injustice led to encounter when he had raised his voice against injustice and humanity for the needy. He has given certain incidents where because of his protest against injustice to his co-employees, he incurred wrath of his higher authorities and it is alleged that because of such activities the departmental Officers conspired for his removal and he was deprived of all facilities and because of such victimisation he developed mental depression and his absenteeism from work became worse. But however, he was declared permanently medically unfit on january 30, 1996 illegally without any reason whereas he applied to the Manager, Roll Shop for permanent medical benefit on November 4, 1987 vide his application, a copy of which is annexure-1 on medical ground, but the opposite parties did not reply. Subsequently he filed through the Manager, Roll Shop two forms for voluntary retirement on November 10, 1987, but by office order dated March 17, 1988 his request for voluntary retirement was turned down. A copy of the said letter is annexure-2. The petitioner has filed the copies of the medical report from Professor I. S. Ray, calcutta dated August 26, 1987 as Annexure-4, letter of the Director, Medical Health Service, i. G. H. to Shankara Netralaya dated December 12, 1987 as Annexure-5 and the report of shankara Netralaya dated December 18, 1987 as Annexure-6. ( 4 ) THE petitioner has averred that the opposite parties issued a letter dated January 23, 1996 for medical examination on January 30, 1996 to find out the suitability of the petitioner for continuing in employment to the assistant Director, Medical, I. G. H. , Rourkela a copy of which is Annexure-7. ( 4 ) THE petitioner has averred that the opposite parties issued a letter dated January 23, 1996 for medical examination on January 30, 1996 to find out the suitability of the petitioner for continuing in employment to the assistant Director, Medical, I. G. H. , Rourkela a copy of which is Annexure-7. A letter was issued to the petitioner by the opposite parties on March 4, 1996 indicating the result of his medical examination held on January 30, 1996 and the petitioner was advised that if he desires to be referred to a Medical Board for further examination as per the provision in the Standing orders, he may do so within seven days complying with certain formalities. A copy of the letter is Annexure-8. Ultimately by letter dated September 7, 1996, a copy of which is annexure-9, the petitioner has been discharged from service in accordance with Clause-23 of the Standing Orders of the Rourkela Steel Plant with immediate effect. According to the petitioner this very report of medical examination (Annexure-8) was before the authorities in the year 1987 when he made application under Annexure-1 and that could have been acceded to and he could have been discharged on the ground of medical unfitness from the said date and not from September 7, 1996. It is averred in the petition that the petitioner gave several applications to various authorities since 1988 for his transfer to other department to a post with a less hazardous duty on the medical ground, but the same had not been considered and allowed in its proper perspective inasmuch as the petitioner represented to the Chief Personnel Manager on september 22, 1995 but the same was rejected by order dated November 8, 1995 which was communicated by the Assistant Manager (Personnel), Cold Rolling Mill, a copy of which is Annexure-10. ( 5 ) THE petitioner alleges that since his joining as an employee in 1964 , he had been given duties in all the three shifts A, B and C till he was declared unfit on medical ground in 1996. The petitioner has emphasized that even though the petitioner represented several times for entrusting him day duty on the ground of his illness, the opposite parties did not pay any heed and he was forced to work in three shifts and mostly in C and B shifts. The petitioner has emphasized that even though the petitioner represented several times for entrusting him day duty on the ground of his illness, the opposite parties did not pay any heed and he was forced to work in three shifts and mostly in C and B shifts. In spite of his application dated July 13, 1990 which was duly forwarded by the Director, Medical and Health services, I. G. H. Rourkela, the Manager, Roll shop-II by order dated May 14, 1991 insisted and allotted work in all the three shifts. A copy of the said order is Annexure-14. ( 6 ) THE petitioner has submitted that since 1976 he was being issued with continuous charge sheets as well as warnings, suspension and censure etc. and all of a sudden in the year 1985, he was issued with two charge sheets for absence of few days only and awarded a major punishment of reduction of 13 increments. Thereafter on December 6, 1986 a Charge sheet was issued for wilful and habitual absence from duty without prior permission or sanction of leave, from June, 1986 to November, 1986 for 89 days. In the departmental proceeding he was found guilty and he was removed from service on March 31, 1988. For approval of such punishment, the opposite parties moved the Industrial Tribunal, Bhubaneswar and reinstated the petitioner in service without back wages through compromise on April 11, 1990. A copy of the Charge sheet is Annexure-16. Again another Charge sheet dated December 23, 1991 with similar allegations was issued for habitual absence without leave for 87 days between January, 1991 to July 1991 by the manager, Roll Shop, a copy of which is annexure-17 and after enquiry office order dated May 8, 1993 was issued intimating that he was exonerated from the Charge. Copy of the said order dated May 8, 1993 is annexure-18. Again Charge sheet dated July 2, 1994 was issued by the Manager, Roll Shop for breach of Standing Order for having remained absent from duty without intimation from February 12, 1994 till the date of issue of the order. A copy of the Charge sheet is annexure-19 and the copy of the certificate for medical test is Annexure-20. The petitioner alleges that all the charges were made with a view to remove the petitioner from service and to get rid of him. A copy of the Charge sheet is annexure-19 and the copy of the certificate for medical test is Annexure-20. The petitioner alleges that all the charges were made with a view to remove the petitioner from service and to get rid of him. The petitioner alleges that the opposite parties are in a habit of issuing C. C. R. reports with the endorsements "attendance poor", "punctuality indifferent", "devotion of duty and industry indifferent", for which he filed a representation before the Assistant general Manager on July 16, 1993, a copy of which is Annexure-22 for expunction of adverse entries made in the C. C. R. for the years ending March 31, 1991 and March 31, 1992, but the same is yet to be considered. It is further alleged that the petitioner was called for an interview vide office order dated May 25, 1992 of the Deputy General Manager (Personnel) for promotion to E-O Grade, which was a post of Junior Executive, but he was insulted by the Board conducting the interview. Similarly, another interview was held on February 23, 1996, but he was not called to the interview reasonably because of the order in Annexure-8. ( 7 ) THE petitioner reiterates that he was a night-blind worker and mainly due to that reason he has met with many accidents, but he was not allowed the Company's injury leave benefit except once in the year 1990. It is claimed that the petitioner had made an application to the Executive Director on november 13,' 1995, a copy whereof is annexure-28, but no action has been taken thereon. ( 8 ) THE petitioner having not been allowed to join in his duty, made an application to the executive Director dated March 30, 1996, but till September 7, 1996, when he was discharged under medical grounds, no action was taken thereon. The petitioner moved from pillar to post in filing representation to the Chairman, managing Director and other higher authorities, but that yielded no results. The petitioner states that, since last 17/18 years, he was under poverty and incurred heavy loans being harassed by the opposite parties and seeks a direction to the opposite parties for granting monthly salary from the date he had been out from the service on permanent medical unfitness (Annexure-8) under Clause-23 of the certified Standing Orders of the Company. The petitioner states that, since last 17/18 years, he was under poverty and incurred heavy loans being harassed by the opposite parties and seeks a direction to the opposite parties for granting monthly salary from the date he had been out from the service on permanent medical unfitness (Annexure-8) under Clause-23 of the certified Standing Orders of the Company. It is claimed that according to the Clause-23 of the Standing Order, he is entitled to the salary every month till the normal date of superannuation subject to depositing the entire provident Fund to the Company. But because of his financial condition, it is not possible for him to deposit the entire Provident Fund inasmuch as he having two minor children, who are prosecuting their studies in Engineering and 2 Science courses. ( 9 ) THE opposite parties have filed a counter affidavit refuting the claim of the petitioner and the allegations made therein. It is averred that the petition contains a distorted fact, baseless allegations, fabricated stories and suppression of relevant material facts. The petitioner had earlier filed a number of writ petitions but had withdrawn the same since the petitioner found no relief can be granted to him. It is stated that the earlier writ petition bearing o. J. C. No. 8704 of 1996 was withdrawn by the petitioner and O. J. C. No. 8236 of 1996 is still pending. It is alleged in the counter-affidavit that the petitioner after joining in his service in the year 1964 frequently started remaining absent from duty unauthorisedly. Since the petitioner was working in the Roll Shop, a production unit, his frequent unscheduled absence caused dislocation in work schedule and all measures like counselling, communication of adverse entries in C. C. Rs. from 1964 to 1967, 1969, 1971, 1976 to 1986 for poor attendance, yielded no improvement in the conduct of the petitioner and when the unauthorised absence on the part of the petitioner crossed the tolerable limit and all efforts failed, the petitioner was imposed with the punishment of reduction of basic pay to the minimum of scale as a disciplinary measure on september 10, 1986, but in spite of imposition of such punishment, the petitioner continued with his habit of unauthorised and habitual absence for which he was again charge-sheeted on December 6, 1986. ( 10 ) IN the disciplinary proceeding, the charges having been proved and there being no alternative left for the management, he was removed from his service by the Company vide order dated March 31, 1988. At the relevant point of time, he being a workman concerned in a dispute then pending before the Industrial tribunal, Bhubaneswar, an application under section 35 (2) (b) of the Industrial Disputes Act was filed, which was registered as I. D. Misc. Case No. 6 of 1988. During the pendency of the dispute, the petitioner having appealed to the management for consideration on sympathetic ground for his family problems and sickness, such appeal was duly considered with the hope that the petitioner would improve his conduct if he is given another chance and accordingly, the management agreed to reinstate him in the service without back wages to which the petitioner agreed and accordingly, a memorandum of settlement was drawn on april 11, 1990 and such settlement was filed before the Industrial Tribunal in the pending i. D. Case. The learned Tribunal, after hearing both the parties and being satisfied with the settlement as fair and proper, accepted the memorandum of settlement, which formed a part of the order. A xerox copy of the settlement and the copy of the order dated April 16, 1990 passed by the Industrial Tribunal are annexed as Annexures-A and B to the counter affidavit. The petitioner was reinstated in service afresh in terms of the settlement in I. D. Misc. Case No. 6 of 1988 dated April 11, 1990 and all the past disputes and differences between the parties stood resolved. ( 11 ) BUT unfortunately, after his reinstatement, he again adopted his old habit of frequently remaining absent from duty for which he was communicated with the adverse entries, in his C. C. Rs. for his poor attendance consecutively for the year 1991, 1992, 1993,1994 and 1995 and he was given counselling several times for improving his conduct, but all efforts taken by the management to correct the petitioner yielded no result. for his poor attendance consecutively for the year 1991, 1992, 1993,1994 and 1995 and he was given counselling several times for improving his conduct, but all efforts taken by the management to correct the petitioner yielded no result. The opposite parties claimed that the petitioner instead of becoming regular in his work went on making complaints of inability to work because of his eye-ailment and since he was a Senior Operator in the Roll Shop, a vital production unit, it was not only risky for the life of the petitioner as well as other persons working there but also it was highly risky for the plant and machinery to deploy the petitioner with the complaint of his deficiency in eye-sight. Therefore, in order to assess the extent of his disability and the suitability/desirability in putting him on the job, the petitioner was referred for medical examination by the Company's Medical officer. During the examination, the petitioner was found permanently unfit for the job. In accordance with the provisions contained in the certified Standing Orders of the Company, the petitioner requested the management vide his letter dated March 15, 1996 to refer him again to a Medical Board of the Company for re-medical examination. Such request of the petitioner was acceded to and he was asked to report to the Medical Officer for his re-medical examination by a Medical Board consisting of specialised Doctors in different disciplines, but in spite of several opportunities given to the petitioner and (he Medical Board suspending all their scheduled work waited for medical examination of the petitioner on several dates, the petitioner deliberately avoided to report before the Medical Board for his re-medical examination. Copies of the communications dated March 30, 1996 and April 25, 1996 to the petitioner for medical re-examination by the medical Board on April 17, 1996 and May 7, 1996 are Annexure-C series to the counter affidavit. Copies of the communications dated March 30, 1996 and April 25, 1996 to the petitioner for medical re-examination by the medical Board on April 17, 1996 and May 7, 1996 are Annexure-C series to the counter affidavit. ( 12 ) IT is, therefore, the assertion of the opposite parties that the petitioner having failed to report before the Medical Board for his medical examination in spite of several opportunities given to him, the management had no other alternative than to take action on the basis of the medical report already available on record and accordingly, a notice asking the petitioner to show cause as to why his services shall not be terminated because of his permanent medical unfitness under the provisions of the Certified Standing Orders of the Company, was given to him. A copy of the said notice is Annexure-D. The aforesaid notice indicated that in the event the petitioner is discharged from the services of the company, he may apply for the benefits under the Employees Family Benefit Scheme as per which an employee is entitled to receive his wages i. e. basic pay and D. A. last drawn till the date of his normal superannuation, provided he deposits the Provident Fund and gratuity in the Company Trust which is refundable on the date of normal superannuation of the employee. The petitioner, instead of showing cause by giving his consent for availing of the benefits, again requested for his medical re-examination by the board and accordingly, he was directed by letter dated July 10, 1996 to appear before the medical Board on July 16, 1996, but the petitioner avoided to receive the communication sent by Registered Post as well as by Special messenger and did not appear before the Board. The management vide letter dated August 20, 1996 again communicated the petitioner to appear before the Board on september 4, 1996, but even though the petitioner received the communication on august 21, 1996 neither appeared before the medical Board nor applied for the benefits under the Employees' Family Benefit Scheme and, therefore, the management was left with no alternative than to discharge him from service for his permanent medical unfitness under the provisions of the Certified Standing orders of the Company. It is further submitted that instead of applying for availing benefit under the Scheme, the petitioner filed O. J. C no. It is further submitted that instead of applying for availing benefit under the Scheme, the petitioner filed O. J. C no. 8704 of 1996, but when the matter was heard, he having realised that he is not going to get any relief withdrew the writ application and filed the present one. It is alleged that the petitioner's sole intention is to continue with the litigation so as to forcibly occupy the company's quarter allotted to him while he was in employment by virtue of the interim orders of the Court, The averments and allegations made in the writ application have been stoutly and strongly denied by the opposite parties. ( 13 ) THE petitioner has filed a rejoinder to the counter affidavit filed by the opposite parties, more or less reiterating the averments made in the writ application and giving certain instances as to how he has been treated illegally. In reply to paragraph 5. 1 of the counter affidavit, the petitioner alleges that the settlement between him and the opposite parties in Annexure-A was full of conspiracy and misuse of power or forceful and it is further alleged that the opposite parties disobeyed the order of the Industrial Tribunal because they have not maintained Annexures-A and B according to their nature and character. According to the petitioner after he joined in service pursuant to Annexures-A and B, the opposite parties started their evil work like past. It is also alleged that he made an application for changing of work place on the safe area but that was not acceded to. According to the petitioner after he joined in service pursuant to Annexures-A and B, the opposite parties started their evil work like past. It is also alleged that he made an application for changing of work place on the safe area but that was not acceded to. The petitioner has not denied the allegations made in paragraph 51 of the counter affidavit to the effect that in spite of repeated request made by the petitioner and conceded to by the management and the management having intimated him to attend the Medical Board on april 17, 1996 and May 7, 1996 by their letter dated March 30, 1996 and April 25, 1996 as in annexure-C series and the letter dated May 20, 1996 in Annexure-D. The allegations that the petitioner again requested after Annexure-D for re-examination by the Board accordingly, he was directed vide letter dated July 10, 1996 to appear before the Medical Board on July 16, 1996 but he avoided to receive the communication by registered post as well as special messenger for which the management again vide letter dated August 20, 1996 communicated the petitioner to appear before the Board on September 4, 1996 but though he received the said communication on August 21, 1996, failed to appear before the Medical board for re-examination nor, he made any application for availing the Employees' Family benefit Scheme. The petitioner alleges that he moved the authorities not to allot him work for b and C shifts, but he was intentionally allotted the work in B and C shifts during the night hours for which he was not able to discharge his duties effectively. The petitioner has narrated his plight in attending the night shift and alleges that this is all because, of the illegal and motivated action of the opposite parties. The petitioner reiterated that he has been harassed by application of trick for last 20 years and even though he has requested many a times, enquiry against violation of Rules, but, it was not allowed. The petitioner has filed a very big rejoinder affidavit, more or less reiterating the averments made in the writ petition and making some further allegations stating how. he was treated unjustly. The petitioner has annexed 32 annexures in support of his case and with his written submission containing 46 pages, has filed a series of documents for consideration. The petitioner has filed a very big rejoinder affidavit, more or less reiterating the averments made in the writ petition and making some further allegations stating how. he was treated unjustly. The petitioner has annexed 32 annexures in support of his case and with his written submission containing 46 pages, has filed a series of documents for consideration. ( 14 ) THE petitioner who appears in person, has reiterated the averments made in his writ petition as well as in the rejoinder affidavit. It has been emphasised that the memorandum of settlement, dated April 11, 1990 between the management and the Steel Authority of India limited and the petitioner was illegal and by coercion since the petitioner had no other alternative than to agree to the terms of the settlement, and therefore, the memorandum of settlement (Annexure-A) and the order of the presiding Officer, Industrial Tribunal in I. D. Misc. Case No. 6 of 1998 under Section 33 (2) (b) dated April 16, 1990 has to be ignored. It is the contention of the petitioner that soon after reinstatement in service pursuant to the order dated April 16, 1990 of the industrial Tribunal on mutual settlement he had been harassed and the management somehow wanted to get rid of him from the service. The absence of the petitioner from duty as alleged by the management however, has not been denied, but it has been explained by showing that since he was suffering from eye disease i. e. displacement of retina and mental depression, he ought to have been given duty in day shift only and that having not been done, even if he did not attend the duty it is of no consequence. ( 15 ) IN view of the pleadings of the parties, the main question that arises for consideration is as to whether in the facts of the case the memorandum of settlement dated April 11, 1990 (Annexure-A) and the order of the learned presiding Officer, Industrial Tribunal can be said to be illegal and obtained by coercion and thus, has to be ignored. The second question that arises for consideration is as to whether in view of the admitted position that the petitioner is medically unfit to discharge the duties he should have been given permanent medical benefit with effect from November 4, 1987 instead of the same being given from september 7, 1996 as in Annexure-9. The second question that arises for consideration is as to whether in view of the admitted position that the petitioner is medically unfit to discharge the duties he should have been given permanent medical benefit with effect from November 4, 1987 instead of the same being given from september 7, 1996 as in Annexure-9. ( 16 ) IT is not disputed that the petitioner Sri a. K. Mitra who was working as Roller Grinder in the Roll Shop of the opposite parties, was removed from service with effect from March 31, 1988 on the charges of misconduct and habitual unauthorised absence from duty after a departmental proceeding, the allegations having been found correct. The management filed an application before the Industrial tribunal, Bhubaneswar under Section 33 (2) (b)of the Industrial Disputes Act seeking approval of the managements action of removal of Sri mitra from service from the Company. During pendency of the application before the industrial Tribunal discussions were held mutually and parties had agreed to resolve the settlement on the terms of settlement arrived at between them. The following are the terms of settlement as per the memorandum of settlement dated April 11, 1990 between the management and Sri A. K. Mitra the petitioner, a copy of which is Annexure-A to the counter:" (1) Sri A. K. Mitra will be reinstated in service without back wages or any other benefits financial or otherwise except as provided at para-5 hereunder. Sri Mitra will be posted to Roll Shop subject to being found medically fit by Company's Medical officer. (2) The basic pay of Sri Mitra will be fixed at Rs. 1909. 00 in the scale of pay of Rs. 1690-73-2201-80-2761/-L-8 from the date of his reinstatement. He will be entitled to get his next increment from July, 1990. (3) He will be charged normal rent for the period he was in occupation of the company's quarters during the period he was out of employment, i. e. with effect from March 31, 1988. (4) Sri Mitra will be allowed to avail bus facilities, as he was availing prior to his removal from service. (5) He will be paid a lump sum amount of rs. 15,000/- (Rupees fifteen thousand only ). Sri Mitra will not raise any dispute on punishment/s imposed on him in the past. (4) Sri Mitra will be allowed to avail bus facilities, as he was availing prior to his removal from service. (5) He will be paid a lump sum amount of rs. 15,000/- (Rupees fifteen thousand only ). Sri Mitra will not raise any dispute on punishment/s imposed on him in the past. He will also not raise any claim financial or otherwise for the period of his past service or for the period he was out of employment. (6) The settlement fully and finally settles the disputes I. D. Misc. Case No. 6 of 1988. (7) A joint application will be filed by both the parties before the Hon'ble Industrial tribunal praying for passing orders in terms of the settlement I. D. Misc. Case No. 6 of 1988. (8) The settlement will be implemented within 30 days of receipt of the orders of the hon'ble Tribunal. "it appears from the order dated April 16, 1990 in I. D. , Misc. Case No. 6 of 1988 of the presiding Officer, Industrial Tribunal that the petitioner-workman was present in person along with his counsel Mr. A. C. Mohanty, advocate. The settlement was read over to both the parties present who admitted the contents thereof to be true and correct. The Tribunal has recorded that the settlement appears to be fair and as such he dismissed the Misc. Case in terms of the settlement and directed the memorandum of settlement to form a part of the order. ( 17 ) UNDISPUTEDLY the petitioner as well as the management acted upon the settlement and the petitioner resumed his duties received, the lump sum payment and the other conditions thereto. Nothing has been brought on record to show that the settlement arrived at was by coercion or undue influence or that it has not been fully acted upon. The petitioner on the date of the settlement was recorded was personally present along with his learned counsel and agreed before the Tribunal with regard to the settlement and the contents of the memorandum of settlement, signed by him and the representative of the management was present and he had not objected to any of its clauses. The petitioner on the date of the settlement was recorded was personally present along with his learned counsel and agreed before the Tribunal with regard to the settlement and the contents of the memorandum of settlement, signed by him and the representative of the management was present and he had not objected to any of its clauses. In that view of the matter, we are of the considered opinion that the memorandum of settlement as well as the order of the presiding Officer, Industrial Tribunal, bhubaneswar dated April 16, 1990, having been acted upon by the petitioner as well as by the management and the petitioner having received the benefits thereunder and joined the post it is not open to him to turn round at this stage to say they were illegal and arbitrary. The petitioner as well as the opposite partiesmanagement proceeded on the basis of the order of the Industrial Tribunal I. D. Misc. Case No. 6 of 1988 dated April 16, 1990 and the petitioner was allowed by the opposite parties to join the post afresh, paid the lump sum amount as agreed to in the memorandum of settlement which formed a part of the order. He having obtained the benefits under the order dated April 16, 1990, cannot now be permitted to turn down and say either that the order was illegal or the memorandum of settlement was arrived at because of undue influence. A reference may be made to the decision of the apex Court in General Manager, Telephones, ahmedabad and others v. V. G. Desai and another, a. I. R. 1996 SC 2062 : 1996 (7) SCC 44. ( 18 ) THE next question for consideration is as to whether the incident prior to the order of dismissal or order of removal dated March 31, 1988 and the order of settlement dated April 16, 1990 can be gone into for determining the right or interest, if any, of the petitioner. The petitioner and the management having resolved the disputes as existing prior to the date of settlement by the memorandum of settlement on April 11, 1990 the actions/inaction/ illegalities or infirmities, if any that crept in earlier to the date of settlement has to be treated as closed. The petitioner and the management having resolved the disputes as existing prior to the date of settlement by the memorandum of settlement on April 11, 1990 the actions/inaction/ illegalities or infirmities, if any that crept in earlier to the date of settlement has to be treated as closed. It has been clearly stipulated in the memorandum of settlement dated April 11 1990 at CIause-5 thereof that the workman Sri mitra shall not raise any dispute in future regarding his past service and punishments imposed on him in the past inasmuch as he shall not raise any claim, financially or otherwise for the period of his past service or for the period he was out of employment. In that view of the matter any question relating to the service of the petitioner prior to his reinstatement by virtue of the settlement, is not open to review or challenge. ( 19 ) THE next question that needs consideration is as to whether the action of the management in discharging the petitioner from service in accordance with Order 23 of the standing Orders of the Rourkela Steel Plant with immediate effect by order dated september 7, 1996, a copy of which is annexure-9 is sustainable in law. It is the consistent case of the petitioner that he has been humiliated and harassed by the opposite parties and its officials since the date of his entry into the service in the year 1964. The petitioner was reinstated in service pursuant to the memorandum of settlement and the order passed by the Industrial Tribunal dated April 16, 1990 afresh. As per the settlement, all past dues and disputes and differences stood resolved. The petitioner after his reinstatement again frequently remained absent from duty for which he was communicated an adverse entry in his C. C. R. for the years 1991, 1992, 1993, 1994 and 1995. He was counselled several times for improving conduct, but all efforts according to the management did not yield any result. The petitioner after his reinstatement again frequently remained absent from duty for which he was communicated an adverse entry in his C. C. R. for the years 1991, 1992, 1993, 1994 and 1995. He was counselled several times for improving conduct, but all efforts according to the management did not yield any result. The petitioner undisputedly complained of his inability to work because of his eye ailment and it is stated by the opposite parties that since the petitioner is working as Senior operator in the Roll Shop, a vital production unit, it was risky for the life of the petitioner as well as other persons working there and it was also risky for the plant machineries to deploy the petitioner with the complaint of his deficiency in the eye sight. In order to assess the extent of disability and suitability in putting him in job, the petitioner was referred medical examination by the Company's Medical Officer. The petitioner was found permanently unfit for the job on proper examination by the Medical Board of the Company on January 30, 1996, is not disputed. The petitioner undisputedly requested the management by his letter dated March 15, 1996 to refer him again to a Medical Board of the company for re-medical examination. The management accepted the request and he was asked to report to the Medical Board consisting of specialised Doctors in different disciplines. Communication was sent on March 30, 1996 for attending the Board on April 17, 1996 and he having not appeared before the Board, another letter dated April 25, 1996 was sent instructing the petitioner to appear before the medical Board on May 7, 1996, copies of which are Annexure-C series. Communication was sent on March 30, 1996 for attending the Board on April 17, 1996 and he having not appeared before the Board, another letter dated April 25, 1996 was sent instructing the petitioner to appear before the medical Board on May 7, 1996, copies of which are Annexure-C series. The petitioner having failed to attend the Medical Board, arranged even on his own request, the management was left with no option than to issue a notice asking the petitioner to show-cause why he shall not be terminated from service because of his permanent medical unfitness under provision of the Certified standing Orders of the Company by notice dated May 20, 1996, a copy of which is annexure-D. In the said notice also the petitioner was intimated that if he is discharged from service he may apply for the benefit under the Family Benefit Scheme under which an employee is entitled to receive his wages i. e. basic pay and D. A. last drawn till the date of his normal superannuation provided he deposits the P. F. and Gratuity on the Company Trust which is refundable on the date of normal superannuation of the employee. The petitioner did not show cause nor gave his consent for availing the benefits. Again the petitioner requested for medical re-examination by the board and accordingly, he was directed by letter dated July 10, 1996 to appear before the medical Board on July 16, 1996. The petitioner avoided to receive the communication sent by registered Post as well as by special messenger nor did he appear before the Board. The management by letter dated August 20, 1996 informed the petitioner again to appear before the Medical Board on September 4, 1996. The petitioner received the communication dated august 21, 1996, but did not attend the Board for medical examination as requested by him. The management in accordance with the standing Orders discharged him from service for being medically unfit on the basis of the report of the Medical Officer. The petitioner earlier filed O. J. C. No. 8704 of 1996. However, that was withdrawn. According to the opposite parties the petitioner's intention was to continue the litigation so as to occupy the company's quarter which was allotted to him while he was in employment. The petitioner earlier filed O. J. C. No. 8704 of 1996. However, that was withdrawn. According to the opposite parties the petitioner's intention was to continue the litigation so as to occupy the company's quarter which was allotted to him while he was in employment. ( 20 ) IF the petitioner applied for a re-medical examination by the Medical Board and in spite of repeated notice avoids to attend the same without justifiable cause, the management cannot be faulted for having not afforded an opportunity to the petitioner for re-examination medically. In such situation if the management takes a decision on the basis of the report of the Director, Medical and health Services on the basis of the medical examination conducted on January 30, 1996, no illegality or infirmity can be said to have been committed by the management in declaring the petitioner medically unfit and consequently removing from the service. The petitioner himself vide Annexure-1 had written to the Manager, Roll Shop on November 4, 1987 that he had suffered eye diseases for which he may become blind shortly according to several specialists and he having psychiatric problem for which he is unable to do the duties regularly and he feels physically and mentally incompetent to continue in the present job. Again it appears from Annexure-3 that the petitioner had written to the Deputy Manager (PL-JC) and Enquiring Officer by letter dated march 20, 1987 more or less to the similar effect requesting him to close the proceeding of the Enquiry Committee. The petitioner was referred to the Shankara Netralaya by the director, Medical and Health Services by letter dated December 12, 1997, copy of which is annexure-5 with a detailed report indicating the physical condition of the petitioner. It is revealed from the report that the petitioner was suffering from Primary Retinitis Pigmentsia and suffering Marked Field Constriction as per the report of Dr. Bhaskar Rao, Senior specialist, Ispat Government Hospital. It is revealed from the report that the petitioner was suffering from Primary Retinitis Pigmentsia and suffering Marked Field Constriction as per the report of Dr. Bhaskar Rao, Senior specialist, Ispat Government Hospital. In view of the fact that the petitioner was medically examined on January 30, 1996 as revealed from annexure-8 and not disputed by the petitioner, but subsequently did not stand the Medical board, the management has committed no illegality in accepting the report of the director, Medical and Health Services, The grievance of the petitioner is that he should have been declared medically unfit from november 4, 1987, when he made the first application in Annexure-1, but that chapter, he himself has closed having entered into settlement in I. D. Misc. Case No. 6 of 1988 under Section 33 (2) (b) of the Industrial disputes Act as discussed in the earlier paragraphs and joined the service afresh pursuant to the order. In such circumstances, it is not open to the petitioner to claim any benefit, for a period anterior to April 11, 1990 inasmuch as the medical examination, held on january 30, 1996 and the request for re-medical check up is not disputed by him and, therefore, in such circumstances, question of allowing him to be declared medically unfit from April 11, 1987 does not arise at all. It may be reiterated that the petitioner himself has pleaded that he is medically unfit for continuing in the job, but his only prayer is that he should be declared medically unfit from 1987 and not from 1996. ( 21 ) NOW the question arises as to whether the petitioner would be entitled to the benefits under the Certified Standing Orders of the company and the Employees' Family Benefit scheme in pursuance of the N. J. C. S. agreement dated July 5, 1989 in getting his nominee employed, he having permanently become medically unfit and discharged from the service as such. The petitioner has contended that under the Personal Policy circular No. 656, dated November 21, 1992 the management has decided to extend the coverage of the "employees' Family Benefit scheme" circulated vide PT Circular No. 625 dated August 7, 1991 to the employees who are discharged from service under Standing Order 23 having been declared permanently medically unfit. The petitioner has contended that under the Personal Policy circular No. 656, dated November 21, 1992 the management has decided to extend the coverage of the "employees' Family Benefit scheme" circulated vide PT Circular No. 625 dated August 7, 1991 to the employees who are discharged from service under Standing Order 23 having been declared permanently medically unfit. It is his contention that as per 1983 Circular pursuant to the Tripartite wage agreement a dependent member of the family of the employee discharged for permanent disablement was entitled to be employed under the Company and thus, the same privilege should also be granted under the present circular. However, it is his contention that if the petitioner is allowed to be discharged pursuant to his application (Annexure-1) in the year 1987 he would be covered under the 1983 circular and, therefore, it would be possible for his dependent to be employed under the company even though the petitioner has not been able to substantiate his claim in course of hearing, his claim otherwise may find support from a recent decision of the Apex Court in balbir Kaur and another v. Steel Authority of india Ltd. and others, 2000-II-LLJ-1 (SC ). ( 22 ) IN the case of Balbir Kaur referred to (supra) which was against the decision of a division Bench of this Court, the Apex Court has considered and interpreted the very same family Benefit Scheme introduced by the Steel authority of India Ltd. In the aforesaid case, the Apex Court has interpreted the Family benefit Scheme as introduced in N. J. S. C. Tripartite Agreement, 1989, and the consequence thereof on the existing circular as contained in N. J. S. C. Agreement, 1983. This court in Balbir Kaur's case (supra) upheld the benefit of Family Benefit Scheme and held that the question of compassionate employment in view of the introduction of the "family Benefit scheme "does not arise. However, the Hon'ble supreme Court on consideration of the 1989 tripartite Agreement, more specifically clauses 8. 10. 4, 8. 10. 5, 8. 14. 1 and 8. 14. 2, in paragraph 11 of the judgment quoted some portions of the Tripartite Agreement and the priority of cases as follows in 2000-II-LLJ-1 at 6,7:"11. However, the Hon'ble supreme Court on consideration of the 1989 tripartite Agreement, more specifically clauses 8. 10. 4, 8. 10. 5, 8. 14. 1 and 8. 14. 2, in paragraph 11 of the judgment quoted some portions of the Tripartite Agreement and the priority of cases as follows in 2000-II-LLJ-1 at 6,7:"11. Turning on to the factual aspects once again, it is not that compassionate appointments have never been effected, steel Authority of India was in fact providing compassionate employment to one dependent of an employee dying in harness or permanently disabled. As a matter of fact on September 22, 1982 the respondent-Steel Authority, further issued the Circular pertaining to appointments on compassionate grounds. The Circular however for the first time introduced categorisation of compassionate employment as First Priority Cases, Second priority Cases and Third Priority Cases. The Circular reads as below:"the system of compassionate appointment was reviewed in a meeting of the Advisory committee recently. On the lines of the discussions the system may be operated in future as given below:1. First Priority Cases (a) Employment of a dependent of an employee who dies owing to an accident arising out of and in the course of employment; (b) Employment of a dependent of an employee who dies in a road accident while on duty or while coming to or going back from duty. The existing practice will continue. 2. Second Priority Cases. i. e. employment of a dependent of an employee whose services are terminated in accordance with order 23 of the Standing orders, i. e. on his being found permanently medically unfit for his job by the Director m. andh. S. (a) Dependents of only those employees would be considered for employment on compassionate grounds whose services are terminated on the ground of being declared permanently unfit for their job before they enter 56th year of age, that is, they have a balance of at least three years of service. (b) The minimum period of service of the employee, whose dependent is to be considered for employment, will be 10 years, as against 5 years under the existing rules. 3. Third Priority Cases i. e. Cases of death for reasons not covered under (1) above. The existing rules will continue. The above will be subject to the following general conditions: (I) The eligible dependents for consideration for such employment would continue to be wife/husband/ son/daughter. 3. Third Priority Cases i. e. Cases of death for reasons not covered under (1) above. The existing rules will continue. The above will be subject to the following general conditions: (I) The eligible dependents for consideration for such employment would continue to be wife/husband/ son/daughter. (II) No employment would be provided to a second dependent, i. e. , if the husband/wife or a son/daughter of the deceased or of the employee whose services are terminated on his being found medically unfit is already in employment of R. S. P. no employment will be provided to another dependent. (III) The employee covered under the 2nd and 3rd priorities: (a) should not have been awarded a major punishment during the last 5 years of their service and (b) should have at least good grading in the c. C. R. for the last 3 years. This has the approval of the Managing director. "it has been held that the existing Rule as a matter of fact was not prohibitive of such compassionate appointment but lend affirmation to such appointment. ( 23 ) PARAGRAPH 15 of the judgment of the apex Court may be quoted hereunder for ready reference 2000-II-LLJ-1 at 8:"15. It is upon consideration of the above noted provisions of Section 4, it was contended that question of compulsory depositing of the gratuity amount does not and cannot arise. We shall come back to the deposit of the Provident Fund but as regards the Gratuity amount, be it noted that there is a mandate of the statute that Gratuity is to be paid to the employee on his retirement or to his dependents in the event of his early death - the introduction of Family Pension scheme by which the employee is compelled to deposit the Gratuity amount, as a matter of fact runs counter to this beneficial piece of legislation (Act of 1982 ). The statutory mandate is unequivocal and unambiguous in nature and runs to the effect that the gratuity is payable to the heirs or the nominees of the concerned employees but by the introduction of the Family Pension scheme, this mandate stands violated and as such the same cannot but be termed to be illegal in nature. We do find some substance in the contention as raised, a mandatory statutory obligation cannot be trifled with by adoption of a method which runs counter to the statute. We do find some substance in the contention as raised, a mandatory statutory obligation cannot be trifled with by adoption of a method which runs counter to the statute. It does not take long to appreciate the purpose for which this particular Family Pension Scheme has been introduced by deposit of the provident fund and the gratuity amount and we are not expressing any opinion in regard thereto but the fact remains that statutory obligation cannot be left high and dry on the whims of the employer irrespective of the factum of the employer being an authority within the meaning of Article 12 or not". In paragraph 17 of the judgment, the Apex court held as under in 2000-II-LLJ at 8:"17. In any event as appears in the contextual facts, the N. J. C. S. agreement being a Tripartite Agreement expressly preserves the 1982 circular to the effect that any benefit conferred by the earlier circular shall continue to be effective and on the wake of the same we do not see any reason to deny the petitioner the relief sought for in the writ petition. " ( 24 ) IN view of the decision of the Apex court referred to (supra), there cannot be any room for doubt that under the N J. C. S. Tripartite Agreement of 1989 the welfare measures preserve the 1982 Circular to the effect that any benefit conferred by the earlier circular shall continue to be effective and, therefore, the employee's dependent-nominee would be entitled to the benefits thereunder for compassionate appointment, if he falls within the scope of such appointments and fulfils the terms and general conditions governing the second Priority Cases, as quoted above or according to the option, to avail the benefits of the Family Benefit Scheme for payment of salary till the actual date of superannuation as contemplated and the conditions laid therein. ( 25 ) IN that view of the matter, we direct the opposite party-management to ask for option from the petitioner as to whether he would opt under the "family Benefit Scheme" for compassionate appointment as contemplated under the Second Priority Cases referred to (supra) or for the benefit contemplated under Clause 4 of the Employees family Benefit Scheme, for monthly payment equivalent to his basic pay and D. A. last drawn till the actual date of superannuation of the petitioner. On option being received, the same shall be considered in accordance with the circular/tripartite agreement referred to above in its proper perspective and the observations made herein, and grant the benefits as are admissible within a period of one month from the date of receipt of the option and on fulfilment of conditions laid therein, the benefit shall be promptly allowed to the petitioner. ( 26 ) THE writ petition is disposed of in the aforesaid terms. But however, on the facts and circumstances of the case, there shall be no order as to costs. ( 27 ) B. N. AGRAWAL, C. J. I agree.