Paschim Gujarat Vij Co. Ltd. v. Kalyanji Somchand Maheshwari
2011-04-26
G.B.SHAH, V.M.SAHAI
body2011
DigiLaw.ai
JUDGMENT : V.M. Sahai, J. We have heard Mr. Dipak R. Dave, learned counsel for the appellant and Mr. Mukesh H. Rathod, learned counsel for the respondent. 2. Admit. Since the facts are not disputed, we have taken up this Appeal for final disposal with the consent of the learned counsel for the parties. 3. Father of the respondent was working with the erstwhile Gujarat Electricity Board as Lineman. He died on 7.5.1990 while he was in service. Mother of the respondent made an application on 15.5.1990 to the Executive Engineer and requested to give appointment to the respondent. She had given two applications for compassionate appointment. In her first application given to the Executive Engineer, she had disclosed the fact that her another son Budharam Somchand was in employment and was earning Rs. 1,500/- per month but she has stated that he is residing separately. But this fact was not disclosed in her second application given to the Superintending Engineer but a certificate was attached stating that her son Budharam Somchand is staying separately. The Superintending Engineer forwarded the application of the respondent to the General Manager of the Board on 29.1.1992 and as per G.S.O. 295, the respondent was appointed by order dated 25.5.1992 on compassionate ground as Junior Assistant in the office of the Deputy Engineer, Gujarat Electricity Board, Mandvi Sub-Division. 4. Subsequently it was discovered by the appellant that the respondent's brother was also in employment prior to compassionate appointment given to the respondent, therefore, a show cause notice dated 26.11.1999 was issued to the respondent to the effect that he had obtained appointment by suppression of facts and he may show cause as to why his appointment should not be cancelled. The respondent replied to the show cause notice on 18.12.1999. After considering the fact that the respondent has made misrepresentation and suppressed the facts from the Superintending Engineer, therefore, appointment of the respondent was withdrawn and he was relieved from service by order dated 13.1.2000. Criminal Case No. 783 of 2000 was also registered against the respondent. However, in the criminal case, the respondent had been acquitted by order dated 16.6.2007.
Criminal Case No. 783 of 2000 was also registered against the respondent. However, in the criminal case, the respondent had been acquitted by order dated 16.6.2007. 4 A. The respondent challenged the order dated 13.1.2000 by raising industrial disputes before the Labour Court at Kachchh at Bhuj being Reference (LCB) No. 13/2006 and the Labour Court allowed the Reference by its order dated 29.11.2008 and directed reinstatement of the respondent in service with 15% back wages. 5. The award of the Labour Court dated 29.11.2008 was challenged by the appellant before the learned Single Judge by means of Special Civil Application No. 11171 of 2009 which has been partly allowed by the learned Single Judge and the award so far as the back wages are concerned, was quashed and so far as the award directing reinstatement was concerned the same was confirmed. It was also clarified that the interregnum period shall be treated as dias-non for the purpose of retiral benefits. It was also directed that the appellant shall pay to the respondent workman the last drawn wages w.e.f. 1.1.2009 till the actual date of reinstatement. Learned counsel for the appellant has challenged the order passed by the learned Single Judge as well as the award of the Labour Court in this Appeal. 6. The question that arises in this appeal is whether the compassionate appointment can be granted where the sole breadwinner of the family had died and one of the sons of the deceased is in employment' It is well settled that compassionate appointments are provided to meet the immediate exigencies in the family of the deceased. It does not confer any right on the dependent of the deceased to claim appointment as a matter of right. The purpose of compassionate appointment is that since the sole breadwinner of the family died, therefore, somebody in the family should be appointed so that the family can make its both the ends meet. Since one son of the deceased was already in employment with Bharat Petroleum Corporation and was getting salary and this fact was not disputed, therefore, the other brother of the family could not be appointed on compassionate ground. Even though the respondent had stated before the appellants that his brother who was employed was residing separately, therefore, the respondent was entitled for compassionate appointment cannot be accepted.
Even though the respondent had stated before the appellants that his brother who was employed was residing separately, therefore, the respondent was entitled for compassionate appointment cannot be accepted. It is the internal matter of the family which should be resolved by the family itself. If it is accepted that one brother who was already in employment is residing separately from the family and in such a case, the other brother has to be given appointment, this will defeat the very objective and purpose of giving appointment on compassionate ground because it is well known that it is not an open market selection and compassionate appointments are provided to the family of the deceased as a help to the family. 7. The Apex Court in catena of decisions has held that compassionate appointments are made to meet exigencies of the family and is not a source of recruitment. In the case of State Bank of India and Another v. Raj Kumar, (2010) 11 SCC 661 , the Apex Court held in para 8 as under : "It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependents of employees, who die in harness, do not have any special claim or right to employment, except by way of concession that may be extended by the employer under the rules or by a separate scheme to enable the family of the deceased to get over the sudden financial crisis...." 8. For the aforesaid reasons, the award of the Labour Court, Kachchh, Bhuj dated 29.11.2008 passed in Reference (LCB) No. 13 of 2006 and the impugned order dated 19.7.2010 passed by the learned Single Judge in Special Civil Application No. 11171 of 2009 cannot be maintained. 9. In the result, this appeal succeeds and is allowed. The order dated 19.7.2010 passed by the learned Single Judge in Special Civil Application No. 11171 of 2009 and the award of the Labour Court, Kachchh, Bhuj dated 29.11.2008 passed in Reference (LCB) No. 13 of 2006 are set aside. The parties shall bear their own costs. Appeal allowed.