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Himachal Pradesh High Court · body

2013 DIGILAW 201 (HP)

ANIL KUMAR v. HIMACHAL ROAD TRANSPORT CORPORATION

2013-04-01

RAJIV SHARMA

body2013
JUDGMENT RAJIV SHARMA, J. 1. Petitioner's father, who was working as Driver in the respondent-Corporation, has died in harness on 27.12.2010. The petitioner submitted an application in the month of April, 2011, seeking appointment on compassionate basis. However, the fact of the matter is that the case of the petitioner was turned down vide Annexure P/8, dated 30.03.2012, on the basis of the recommendations made by the screening committee in its meeting held on 20.01.2012. It is evident from the contents of Annexure P/8 that the case of the petitioner has been rejected on the ground of income criteria. 2. Mr. Adarsh Sharma, learned counsel for the respondents has vehemently argued that the petitioner's mother is getting pension of Rs.11,236/-. The case of the petitioner was required to be considered as per the policy framed by the State Government and adopted by the respondent-Corporation for making appointment on compassionate grounds. The income criteria of the family is only one of the criteria to see whether the person is entitled to appointment on compassionate basis or not. The retiral/pensionary benefits are also required to be taken into consideration while considering the case for compassionate appointment, however, this cannot be the sole criteria. The appointment on compassionate basis cannot be denied merely on the ground that the family is getting family pension. The Apex Court in Balbir Kaur and another Vs. Steel Authority of India Ltd. and others (2000) 6 Supreme Court Cases 493 has held that the amount paid under the Family Benefit Scheme, gratuity paid under the Payment of Gratuity Act, 1972 and the provident funds paid under the Employees' Provident Funds and Miscellaneous Provisions Act, 1952, cannot be sole basis to deny the appointment on compassionate basis. Their Lordships have also held that the concept of social justice is the yardstick to the justice administration system or the legal justice and as Roscoe Pond pointed out the greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law courts also to apply the law depending upon the situation since the law is made for the society and whatever is beneficial for the society, the endeavour of the law court would be to administer justice having due regard in that direction. Their Lordships have also held that Employees' Provident Fund & Miscellaneous Provisions Act of 1952 is a beneficial piece of legislation and can amply be described as a social security statute, the object of which is to ensure better future of the employee concerned on his retirement and for the benefit of the dependants in case of his earlier death. Their Lordships have further held that the Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. Their Lordships have held as under: 8. The employer being Steel Authority of India, admittedly an authority within the meaning of Article 12 has thus an obligation to act in terms of the avowed objective of social and economic justice as enshrined in the Constitution but has the authority in the facts of the matters under consideration acted like a model and an ideal employer - It is in this factual backdrop, the issue needs an answer as to whether we have been able to obtain the benefit of constitutional philosophy of social and economic justice or not. Have the lofty ideals which the founding fathers placed before us any effect in our daily life - the answer cannot however but be in the negative - what happens to the constitutional philosophy as is available in the Constitution itself, which we ourselves have so fondly conferred on to ourselves. The socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning. A person dies while taking the wife to a hospital and the cry of the lady for bare subsistence would go unheeded on certain technicality. The bread earner is no longer available and prayer for compassionate appointment would be denied, as "it is likely to open a Pandora's Box" - This is the resultant effect of our entry into the new millennium. Can the law courts be a mute spectator in the matter of denial of such a relief to the horrendous sufferings of an employee's family by reason of the death of the bread-earner. It is in this context this Court's observations in Dharwad Distt. PWD Literate Daily Wage Employees Assn. v. State of Karnataka (1990) 2 SCC 396 : ( AIR 1990 SC 883 : 1990 Lab IC 625) seem to be rather apposite. It is in this context this Court's observations in Dharwad Distt. PWD Literate Daily Wage Employees Assn. v. State of Karnataka (1990) 2 SCC 396 : ( AIR 1990 SC 883 : 1990 Lab IC 625) seem to be rather apposite. This Court upon consideration of Randhir Singh v. Union of India (Daily Rated Casual Labour Employed under P and T Dept. through Bhartiya Dak Tar Mazdoor Manch v. Union of India) (1988) 1 SCC 122 : ( AIR 1987 SC 2342 : 1988 Lab IC 37) as also Surinder Singh v. Engineer-in- chief (1986) 1 SCC 639 : ( AIR 1986 SC 584 : 1986 Lab IC 551) and D. S. Nakara v. Union of India (1983) 1 SCC 305 : ( AIR 1983 SC 130 : 1983 Lab IC 1) observed in paragraphs 14 and 15 as below : "14. We would like to point out that the philosophy of this Court as evolved in the cases we have referred to above is not that of the court but is ingrained in the Constitution as one of the basic aspects and if there was any doubt on this there is no room for that after the Preamble has been amended and the Forty-second Amendment has declared the Republic to be a socialistic one. The judgments, therefore, do nothing more than highlight one aspect of the constitutional philosophy and make an attempt to give the philosophy a reality of flesh and blood. 15. Jawaharlal Nehru, the first Prime Minister of this Republic while dreaming of elevating the lot of the common man of this country once stated : "Our final aim can only be a classless society with equal economic justice and opportunity to all, a society organised on a planned basis for the raising of mankind to higher material and cultural levels. Everything that comes in the way will have to be removed gently, if possible; forcibly if necessary, and there seems to be little doubt that coercion will often be necessary." These were his prophetic words about three decades back. More than a quarter of century has run out since he left us but there has yet been no percolation in adequate dose of the benefits the constitutional philosophy stands for to the lower strata of society. Tolstoy wrote : "The abolition of slavery has gone on for a long time. Rome abolished slavery. More than a quarter of century has run out since he left us but there has yet been no percolation in adequate dose of the benefits the constitutional philosophy stands for to the lower strata of society. Tolstoy wrote : "The abolition of slavery has gone on for a long time. Rome abolished slavery. America abolished it and we did but only the words were abolished, not the thing." Perhaps what Tolstoy wrote about abolition of slavery in a large sense applies to what we have done to the constitutional ethos. It has still remained on paper and is contained in the book. The benefits have not yet reached the common man. What Swami Vivekananda wrote in a different context may perhaps help a quicker implementation of the goal to bring about the overdue changes for transforming India in a positive way and in fulfilling the dreams of the Constitution fathers. These were the words of the Swami : "It is imperative that all this various yogas should be carried out in practice. Mere theories about them will not do any good. First we have to hear about them; then we have to think about them. We have to reason the thoughts out, impress them on our minds and meditate on them; realise them, until at last they become our whole life. No longer will religion remain a bundle of ideas or theories or an intellectual assent; it will enter into our very self. By means of an intellectual assent, we may today subscribe to many foolish things, and change our minds altogether tomorrow. But true religion never changes. Religion is realisation; not talk, nor doctrine, nor theories, however beautiful they may be. It is being and becoming, not hearing or acknowledging. It is the whole soul's becoming changed into what it believes. That is religion." 9. As a matter of fact the constitutional philosophy should be allowed to become a part of every man's life in this country and then only the Constitution can reach everyone and the ideals of the Constitution framers would be achieved since the people would be nearer the goal set by the Constitution - an ideal situation but a far cry presently. 13. Mr. 13. Mr. Bhasme, learned Advocate appearing for the Steel Authority contended that the Family Benefit Scheme was introduced on 21st November, 1992 and the salient features of the Scheme were to the effect that the family being unable to obtain regular salary from the management, could avail of the scheme by depositing the lump sum provident fund and gratuity amount with the company in lieu of which the management would make monthly payment equivalent to the basic pay together with dearness allowance last drawn, which payment would continue till the normal date of superannuation of the employee in question. Mr. Bhasme further contended that adaptation of this Family Benefit Scheme was meant to provide an assured or regular income per month, while the bulk amount deposited by way of provident fund and gratuity with the management remained intact. Mr. Bhasme, contended that consequently on deposits as above, with the management, the employee's family could avail of pay up to normal date of superannuation on the footing that the employee though not actually working but notionally continued to work till the normal date of superannuation and such a scheme in fact stands at a much better footing and much more beneficial to an employee or a deceased employee. Apparently these considerations weighed with the High Court and the latter thus proceeded on the basis that by reason of adaptation of a Family Benefit Scheme by the Employees' Union, question of any departure therefrom or any compassionate appointment does not and cannot arise. But in our view this Family Benefit Scheme cannot be in any way 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 sticken 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. 14. It is not that monetary benefit would be the replacement of the bread earner, but that would undoubtedly bring some solace to the situation. 14. It is significant to note that the Employees Provident Fund and Miscellaneous Provisions Act of 1952 is a beneficial piece of legislation and can amply be described as social security statute, the object of which is to ensure better future of the concerned employee on his retirement and for the benefit of the dependants in case of his earlier death. As regards the provisions of the Payment of Gratuity Act, 1972 (as amended from time to time) it is no longer in the realm of charity but a statutory right provided in favour of the employee. Section 4 of the Act is of some significance and as such the same is set out hereinbelow : "4. Payment of gratuity.- (1) Gratuity shall be payable to an employee on the termination of his employment after he has rendered continuous service for not less than five years,- (a) on his superannuation, or (b) on his retirement or resignation, or (c) on his death or disablement due to accident or disease; Provided that the completion of continuous service of five years shall not be necessary where the termination of the employment of any employee is due to death or disablement : Provided further that in the case of death of the employee, gratuity payable to him shall be paid to his nominee or, if no nomination has been made, to his heirs, and where any such nominees or heirs is a minor, the share of such minor, shall be deposited with the controlling authority who shall invest the same for the benefit of such minor in such bank or other financial institution, as may be prescribed, until such minor attains majority.]. . . . . . . . ." 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. . . . . . . . ." 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 dependants 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 1972). 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 adaptation 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. 16. Adverting to the Provident Fund, be it noted that the same is payable to an employee under the provisions of a statute and this statutory obligation cannot possibly be deferred in the event of an untimely death of a worker or an employee. As noticed above, the family needs the money in lump sum and availability of this amount is the only insulating factor in such a grief stricken family. The amount is payable in one lump and as a matter of fact it acts as a butter to the retirement of or on the death of an employee. As noticed above, the family needs the money in lump sum and availability of this amount is the only insulating factor in such a grief stricken family. The amount is payable in one lump and as a matter of fact it acts as a butter to the retirement of or on the death of an employee. Situations are not difficult to conceive when the family needs some lump-sum amount but in the event of deposit of the same with the employer, the heirs of the deceased employee could be put into the same problems of realities of life, even though, if this money would have been made available to them the situation could have been otherwise. 19. Mr. Bhasme further contended that family members of large number of the employees have already availed of the Family Benefit Scheme and as such it would be taken to be otherwise more beneficial to the concerned employee. We are not called upon to assess the situation but the fact remains that having due regard to the constitutional philosophy to decry a compassionate employment opportunity would neither be fair nor reasonable. The concept of social justice is the yardstick to the justice administration system or the legal justice and as (respondent) pointed out that the greatest virtue of law is in its adaptability and flexibility and thus it would be otherwise an obligation for the law courts also to apply the law depending upon the situation since the law is made for the society and whichever is beneficial for the society, the endeavour of the law court would be to administer justice having due regard in that direction." 3. Their Lordships of the Hon'ble Supreme Court in Govind Prakash Verma Vs. Life Insurance Corporation of India and others (2005) 10 Supreme Court Cases 289 have held that scheme of compassionate appointment of respondent was over and above whatever was admissible to legal representatives of deceased employee as benefits of service which they get on death of the employee. Their Lordships have further held that the compassionate appointment cannot be refused on the ground that any member of family had received such benefits. Their Lordships have held as under: "6. Their Lordships have further held that the compassionate appointment cannot be refused on the ground that any member of family had received such benefits. Their Lordships have held as under: "6. In our view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the appellant, has now been reduced to half) and other amounts paid on account of terminal benefits under the Rules. The scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules. So far as the question of gainful employment of the elder brother is concerned, we find that it had been given out that he has been engaged in cultivation. We hardly find that it could be considered as gainful employment if the family owns a piece of land and one of the members of the family cultivates the field. This statement is said to have been contradicted when it is said that the elder brother had stated that he works as a painter. This would not necessarily be a contradiction much less leading to the inference drawn that he was gainfully employed somewhere as a painter. He might be working in his field and might casually be getting work as painter also. Nothing has been indicated in the enquiry report as to where he was employed as a regular painter. The other aspects, on which the officer was required to make enquiries, have been conveniently omitted and not a whisper is found in the report submitted by the officer. In the above circumstances, in our view, the orders passed by the High Court are not sustainable. The respondents have wrongly refused compassionate appointment to the appellant. The inference of gainful employment of the elder brother could not be acted upon. The terminal benefits received by the j widow and the family pension could not be taken into account." 4. Their Lordships of the Hon'ble Supreme Court in Mumtaz Yunus Mulani Vs. The respondents have wrongly refused compassionate appointment to the appellant. The inference of gainful employment of the elder brother could not be acted upon. The terminal benefits received by the j widow and the family pension could not be taken into account." 4. Their Lordships of the Hon'ble Supreme Court in Mumtaz Yunus Mulani Vs. State of Maharashtra and others (2008) 11 Supreme Court Cases 384 have held that it may be true that in a given case, appointment on compassionate grounds cannot be denied only because the dependant of the deceased had been receiving some amount by way of family pension. Their Lordships have held as under: "10. The High Court in its judgment had noticed that the scheme which was operative at the relevant point of time was that appointment on compassionate ground should not be given if the monthly income exceeds Rs.5,00/-. Evidently, the appellant did not fulfill the said criteria. It may be true that in a given case, appointment on compassionate ground cannot be denied only because the dependent of the deceased had been receiving some amount by way of family pension." Petitioner's mother is getting pension of only Rs.11,236/-. She has to support the petitioner, his brother and one daughter. In view of this, it cannot be held that the income of the petitioner's family is exorbitantly on the higher side. 5. Accordingly, in view of the discussions and analysis made hereinabove, the writ petition is allowed. Annexure P-8, dated 30.03.2012, is quashed and set aside. The respondent- Corporation is directed to offer appointment to the petitioner under the kith and kin policy, taking into consideration his educational qualifications, within a period of eight weeks from today. The pending application(s), if any, also stands disposed of. No costs.