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2008 DIGILAW 100 (CAL)

Tapan Kumar Barman v. STATE OF WEST BENGAL

2008-01-22

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

body2008
Judgment (1) THIS application, in spite of notice, is unopposed either by filing affidavit-in-opposition, though direction was given at one point of time and also by appearance, though repeated notices were served and such last notice was served on 10th January, 2008 pursuant to our earlier direction dated 10th January, 2008. Affidavit of service is kept on record. Hence, we have no option but to proceed with the hearing in absence of the State. (2) THIS application has impugned the order of the learned Tribunal dated 21st September, 2004 whereby and where under the application filed before the learned Tribunal for obtaining relief for compassionate appointment, was rejected. Short fact, for which the application before the learned Tribunal was filed is as follows: (3) THE applicant is the son of one Late Birendra Nath Barman. He has sufficient educational qualification and he belongs to the scheduled caste community. His father died in harness on 16th December, 1999. Consequent upon his death, under the relevant rules the applicant applied on 21st December, 2000 for compassionate appointment. His application was duly processed and examined by the department. By an order dated 26th September, 2002, the Director of Health Services rejected the prayer observing that need for immediate financial assistance is absent in the instant case. The aforesaid order was challenged by filing an application before the learned Tribunal being O.A. No. 433 of 2003. The said application was disposed of by an order dated 30th July, 2003, setting aside the order passed by the director and directing the Director to consider the matter by passing a speaking order. (4) PURSUANT to the said order, the Director of Health Services passed an order assigning reasons that on scrutiny of the papers it was revealed that the family left behind by said Birendra Nath Barman consisted of his widow, two sons and two daughters. The family received around Rs. 3,45,620/- as death benefit and was entitled to family pension of Rs. 4,000/- per month. It was felt by the Director that on receipt of the aforesaid amount and monthly amount of family pension, financial crisis owing to the death of the deceased employee is over and, therefore, there is no reason to give any compassionate appointment. Against this order, the applicant approached the learned tribunal with the second application being O. A. No. 980 of 2004. (5) MR. Against this order, the applicant approached the learned tribunal with the second application being O. A. No. 980 of 2004. (5) MR. Ashok Maity, appearing for the applicant has drawn our attention to the impugned order of the learned Tribunal and contends that truly speaking learned Tribunal has not decided anything nor applied its mind, while examining the grievance of the applicant made in the application. Impugned order of the learned Tribunal is a reproduction of the order of the director, which was impugned. (6) WE have gone through the order dated 21st September, 2004 and we find some substance in the submission of Mr. Maity that learned Tribunal has not decided anything at all and had merely accepted what the Director has observed in his order, which was impugned. We fail to understand as to why the Tribunal has failed to discharge its duty to adjudicate the matter and failed to assign any reason, why the order of the Director did not call for any interference. (7) IN these circumstances, in ordinary course we ought to have remanded the matter, after setting aside the impugned order. In view of the facts and circumstances of this case and since the dispute is pending from 2000, we feel it convenient to decide this matter by ourselves. (8) THE question is as to whether the receipt of Rs. 3,45,620/- on account of death benefit and Rs. 4,000/- as family pension per month stands in the way of granting employment on compassionate ground or not. (9) THE Director has not set out any provision of law as to how on receipt of the aforesaid amount, the applicant is debarred from getting any appointment. The payment which had been received is an earned and assured amount which includes Provident Fund and Gratuity and Provident Fund and Gratuity is the amount earned by the deceased employee and as far as the family pension is concerned, this is also one kind of deferred payment and earned by the deceased. In our view, compassionate appointment is given with an idea to compensate the family for the loss of income because of sudden death of the employee who would have earned in future. The money which has been received was earned by the employee, which he might have received had he been alive. (10) BESIDES, the amount of Rs. In our view, compassionate appointment is given with an idea to compensate the family for the loss of income because of sudden death of the employee who would have earned in future. The money which has been received was earned by the employee, which he might have received had he been alive. (10) BESIDES, the amount of Rs. 4,000/- being the family pension, is coterminous with the life of widow and the moment the widow dies, this benefit stands withdrawn. The sons are unemployed, the daughters are unmarried. Therefore, it is not for the Director to assess the financial need of the family and it is for the family who can feel their own need. Had the son been appointed, he would not have earned the same amount which his father would have earned during his service, however, his earning would have been some amount of financial replenishment. Therefore, the payment of terminal benefit on account of death cannot be equated with the scheme of compassionate appointment and this concept has been laid down by the Supreme Court in a decision rendered in the case of Balbir Kaur and Anr. vs. Steel Authority of India Ltd, and Anr., reported in 2000 (6) SCC page 493. (11) WE cannot do better than to quote the verbatim language of the observation made by the Supreme Court in paragraph 13 of the said judgment, which runs as follows: ". . . . . . . . But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread-earner can only be absorbed by some lump-sum amount being made available to the family-this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread-earner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the bread-earner, but that would undoubtedly bring some solace to the situation". It is not that monetary benefit would be the replacement of the bread-earner, but that would undoubtedly bring some solace to the situation". (12) IN view of the aforesaid dictum of the Supreme Court, we feel that in this case the reasons given by the Director of Health Services does not stand to scrutiny. Accordingly, the order passed by the learned Tribunal stands set aside and the order passed by the Director of Health Services also stands quashed. (13) WE direct the appropriate State authority to take all lawful steps to give compassionate appointment to the applicant within a period of three months from the date of communication of this order. This application, thus, stands allowed, without any order as to costs. Application allowed.