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2012 DIGILAW 14 (JHR)

Steel Authority of India Limited v. Shaila Sinha

2012-01-03

P.P.BHATT

body2012
JUDGMENT Heard learned counsel for the parties. 2. The appellant-employer is aggrieved against order dated 24.02.2010 passed in W.P.(S) No. 3685 of 2003 by which following the judgment of the Apex Court delivered in the case of Balbir Kaur and Anr. Vs. Steel Authority of India Limited reported in (2000) 6 SCC 493 (in the case of present appellant itself), learned Single Judge directed the appellant to re-consider the matter of compassionate appointment of the writ petitioner and pass appropriate order. 3. Facts, in brief, will be necessary for deciding this L.P.A. The employee died in the year 1991. The employee left behind him his wife and two sons. Both the sons were minor and, therefore, at that time could not have got the appointment on compassionate ground being minor. Looking to this peculiar situation, the management decided to give certain facilities with clear indication that these facilities are being given to the family of the employee to meet with the situation cropped up because of the death of the employee all of a sudden. There was indication that after attaining the age of 18 years, the son of the employee shall be given appointment on compassionate ground. One of the son of the employee become major in the year 1995 and he applied for compassionate appointment but that was denied by the management. The petitioner then approached this Court by filing writ petition being C.W.J.C No. 1477 of 2001 wherein the appellant took the plea that family of deceased-employee have been given benefit under the Family Benefit Scheme, therefore, no compassionate appointment can be given. This plea was rejected by the Single Bench of this Court vide order dated 16th April, 2001 in above writ petition. In order dated 16th April, 2001 it was clearly observed that in view of the law laid down by Apex Court in the case of Balbir Kaur & Another (Supra), the order passed by the management dated 5.01.2001 appears to be arbitrary and without jurisdiction. Therefore, a direction was given to consider the case of the petitioner for appointment on compassionate ground strictly in accordance with law laid down by the Apex Court in the aforesaid case. The time was fixed for taking decision as six weeks from the date of receipt of copy of the order dated 16th April, 2001. 4. Therefore, a direction was given to consider the case of the petitioner for appointment on compassionate ground strictly in accordance with law laid down by the Apex Court in the aforesaid case. The time was fixed for taking decision as six weeks from the date of receipt of copy of the order dated 16th April, 2001. 4. The management aggrieved against the order dated 16th April, 2001 passed in C.W.J.C No. 1477 of 2001 preferred L.P.A No. 311 of 2001, which was dismissed by order dated 13th December, 2002, directing the appellant-authority to consider the case of respondent no. 2 for appointment on compassionate ground strictly in accordance with law laid down in Balbir Kaur case (Supra). In pursuance of the above direction, the case of petitioner was considered by the appellant-authority and vide order dated 16th May, 2003 his prayer was rejected. 5.The petitioner then approached this Court by filing W.P.(S) No. 3685 of 2003, which was allowed and gave same directions, as were given in the year 2001 in the earlier round of litigations and by the Single Judge and then by the Division Bench of this Court upholding the order of Single Bench Order. 6. While exercising jurisdiction to issue a writ of certiorari the High Court may set aside the order passed by the Subordinate authority but cannot substitute its own decision in place thereof. Therefore, the High Court gave direction to the appellant to pass appropriate order in the light of the issues decided in the order passed by the Court as the Court could not have passed the order directly to appoint the petitioner, therefore, in C.W.J.C No. 1477 of 2001 and in L.P.A. No. 311 of 2001 orders dated 16th April, 2001 and dated 13th December, 2001 respectively were passed under Article 226 under 227 of the Constitution of India, the High Court has wide jurisdiction and Court can substitute its order after setting aside the order of lower Court or Tribunal which gives the full relief to the party directly without obtaining the mere observations and directions of the Court to the authority to reconsider the matter obviously in the line of decision of all the issues in favour of petitioner. 7. 7. Be that as it may be, in our opinion, in fact the issue has been concluded by the decision given by this Court in C.W.J.C No. 1477 of 2001 dated 16th April, 2001 upheld by the Division Bench of the order of this Court passed in L.P.A. No. 311 of 2001 wherein stand of the management-appellant has already been rejected with respect to justification of denial of the compassionate appointment of the petitioner on the ground of availability of benefit under Family Benefit Scheme after considering the Apex Court decision delivered in the case of Balbir Kaur case (Supra) and in that round of litigation, it was not the contention of the appellant that due to financial crunch or because of any other reason, the appointment has been denied to the writ petitioner. This clearly indicate that giving opportunity to re-consider and pass fresh order even after decision on the merit of the case, the other party may get opportunity to raise new grounds, one after another. 8. We considered the contention of the learned counsel for the appellant who tried to distinguish that the Balbir Kaur Case is not applicable to the present case. According to the learned counsel for the appellant, Hon'ble Supreme Court in paragraph 18 of the Balbir Kaur case observed that in case in that case, in Balbir Kaur case, in fact the benefit under Family Benefit Scheme was not offered to the dependent of the deceased wherein in the present case the benefit of Family Benefit Scheme was given to the dependents of the employees and this fact is admitted. According to learned counsel for the appellant, the family got the benefit continuously at least up-to the year 2010 and, therefore, the Balbir Kaur's case has no application. Learned counsel for the appellant further submitted that compassionate appointment is not a right and other factors also can be considered for giving the compassionate appointment. 9. According to learned counsel for the appellant, the family got the benefit continuously at least up-to the year 2010 and, therefore, the Balbir Kaur's case has no application. Learned counsel for the appellant further submitted that compassionate appointment is not a right and other factors also can be considered for giving the compassionate appointment. 9. We have considered the submission of learned counsel for the appellant and we found that Hon'ble Supreme Court in paragraph 13 of the Balbil Kaur's case clearly held that “But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments.” The observation made by Hon'ble Supreme Court in paragraph 18 cannot be read in isolation to the above issue and we cannot held that once the benefit is availed by petitioner under Family Benefit Scheme, he shall automatically be dis-entitled to compassionate appointment. On this point, we may make it clear that compassionate appointment as held by Hon'ble Supreme Court is not a right but at the same time the employer with the help of this plea cannot take arbitrary decision to deny the appointment when the benefit under the scheme has been offered non else by the employer itself. 10. In view of the above discussion and as we found from the earlier orders which has attained finality the employer shall have to follow the direction of this Court in true spirit. 11. Hence, the L.P.A, having no merit, is dismissed. 12. No order as to costs.