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2015 DIGILAW 539 (JHR)

Sangita Gupta v. Steel Authority of India Limited

2015-04-28

APARESH KUMAR SINGH

body2015
ORDER: Heard counsel for the parties. 2. The grievance of the petitioners is in relation to refusal of the case of petitioner no. 2 for compassionate appointment under the Guidelines and Procedure for dealing with compassionate cases dated 20.02.2010 (Annexure-I series) by the respondents. 3. The undisputed facts, which emerge from the pleadings on record where more than one affidavits have been filed by either of the parties, are that the employee-late Rajendra Prasad Gupta, husband of the petitioner no. 1 was referred for treatment by the respondent themselves to Vellore vide annexure-1 dated 20.10.2010 for acute renal problem. He passed away while in treatment on 08.12.2010 at Vellore. It is also now undisputed that from his death-bed, he made an application, not in the prescribed form, on 01.12.2010 for submission of his resignation and also for consideration of his son for compassionate appointment on the grounds of medical invalidation. Such letter was admittedly received by the Senior Manager (Cash), Finance and Accounts Department, Bokaro Steel Plant and forwarded to D.G.M.(F&A) for processing. However, when the respondent did not consider the case of the petitioner no. 2 for compassionate appointment, they had to approach this Court in the present writ application for the instant relief. 4. Initially, respondents had resisted the claim on the ground that they had not received any application on the part of the deceased employee within time which is a requirement for consideration of the case of the dependent for compassionate appointment. Only upon receipt of such application, claim for compassionate appointment is to be put forth before the Medical Board and on its recommendation of medical invalidation, cases of dependent of such employee who has been declared medically invalid, could be considered by the competent authority. The categorical assertion of the petitioners made through their affidavit that the deceased had duly applied on 01.12.2010, however was later on accepted by the respondents through their affidavit on 24.11.2014. Respondent in the meantime were directed to take a decision on the petitioners grievance vide order dated 26.08.2014 by passing a reasoned order after giving opportunity of hearing also. A reasoned order thereafter was passed on 10.12.2014 (Annexure-C to the second supplementary counter affidavit) rejecting the petitioners' claim on the ground that the application was made on a plain paper by the deceased employee without conforming to the prescribed procedure. A reasoned order thereafter was passed on 10.12.2014 (Annexure-C to the second supplementary counter affidavit) rejecting the petitioners' claim on the ground that the application was made on a plain paper by the deceased employee without conforming to the prescribed procedure. The other ground urged was that only if the application is received in the prescribed form, the same is processed and forwarded before the Medical Board on whose recommendation thereafter, cases of compassionate appointment would have been considered. The said reasoned order also stood challenged by virtue of I.A. No. 127/2015 being allowed by order dated 06.04.2015. 5. After the order dated 06.04.2015 permitting the petitioners to challenge the reasoned order dated 10.12.2014, another affidavit has also been filed by the respondents defending the impugned order on the same grounds. 6. The aforesaid sequence of facts, undisputed, lead this Court to the conclusion that because of a procedural infirmity in not making an application in the prescribed form, case of the petitioners was refused. As is evident, the deceased employee went to Vellore for treatment of acute renal problem only upon recommendation of the Medical Department of Bokaro General Hospital of the respondent-Bokaro Steel Plant through annexure-1 dated 20.10.2010. The employee passed away while undergoing treatment and before that from Vellore, he took pains even at the twilight of his life to make an application, though on a plain piece of paper, which stand undisputed. It cannot be conceived that from his death-bed, the employee could have completed the formalities for making application in prescribed form to the respondent authorities to process it as per their own procedural requirement. This itself is the only ground for not considering the case of the petitioner no. 2 for compassionate appointment, though all other requirements are fulfilled as per the guidelines of 20.02.2010. 7. It would not be out of place to observe that the scheme for compassionate appointment in the State or its instrumentalities like the respondents are in the nature of social welfare measure. Provisions of such scheme are to be considered as per the scheme itself, as has been well settled by the Hon'ble Supreme Court in several judgment, one of which is also relied upon by the counsel for the respondents i.e. in the case of Bhawani Prasad Sonkar Versus Union of India and others reported in (2011) 4 Supreme Court Cases 209. The scheme for compassionate appointment is in the nature of exception to the mode of regular appointments to be construed strictly in terms of the scheme which however is to be confined only to the purpose it seeks to achieve. The purpose is obvious to give succor and means of sustenance to the dependent of the employee who die in harness or may be on the ground of medical invalidation, as the present case is. The object of the scheme is in the nature of socio-economic welfare legislation / policy. Such socio-economic welfare legislation / policy is to be interpreted in a manner of course within the confines of the scheme. If a broader interpretation of such a scheme / legislation advances the course of justice, then the same has to be followed, if narrower interpretation tends to defeat the object and purpose of socio economic welfare measure, it is to be avoided. This view has also been held by the Hon'ble Supreme Court in the case of Badshah versus Urmila Badshah Godse and another reported in (2014) 1 Supreme Court Cases 188. It is held therein that the Court in such a case, must give effect to that construction which will be responsible for smooth functioning of the system for which the statute has been enacted and construction which would reduce the legislation to a futility, should be avoided. It has been further held that the Court's role is to understand the purpose of law in society and to help the law achieve its purpose. For better appreciation, para-20 of the judgment is quoted hereunder: “20. Thus, while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon case which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction of ut res magis valeat quam pereat in such cases i.e. where alternative constructions are possible the court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125 CrPC, such a woman is to be treated as the legally wedded wife.” 8. As would appear from the facts of the present case, case of the petitioner no. 2 was not considered only for the reason that the application was not made in the prescribed form. One can only observe that if the employee was on his deathbed, he could not be expected to comply with all such procedural formalities, as required under the scheme and that too from Vellore, though other attendant facts do not stand disputed, as noticed herein-above. The employee died within one week of making such an application which was admittedly received by the respondent. In such circumstances, One is tempted to reiterate the well settled maxim Lex Non Cogit Ad Impossibilia; the law does not compel a man to do that which he cannot possibly perform. On the point of delay in placing the representation before the Advisory Board because of sufficient excuse for its non compliance, applying the doctrine of impossibility of performance, the Supreme Court in the case of State of Rajasthan and another vrs. Shamsher Singh reported in 1985 (Supp) SCC 416, held as follows. Para-10 is quoted here-under: “10. Mr. Jethmalani placed before us a passage from Broom’s Legal Maxims (p. 162), 10th Edn., where the doctrine of impossibility of performance (lex non cogit ad impossibilia) has been discussed. It has been indicated therein that however mandatory the provision may be, where it is impossible of compliance that would be a sufficient excuse for non compliance, particularly when it is a question of the time factor. It has been indicated therein that however mandatory the provision may be, where it is impossible of compliance that would be a sufficient excuse for non compliance, particularly when it is a question of the time factor. Keeping the attendant circumstances of this case in view, we find it difficult to hold that the time taken by the State Government can amount to withholding of the representation which resulted in noncompliance of Section 10 of the Act so as to vitiate the detention ............................” In RE PRESIDENTIAL POLL Special Reference No. 1 of 1974 reported in [ 1974 (2) SCC 33 ], the Hon'ble Supreme Court in its advisory jurisdiction, considering the doctrine of impotentia excusat legam. held as follows: Para-15 is quoted here-under: “15. The impossibility of the completion of the election to fill the vacancy in the office of the President before the expiration of the term of office in the case of death of a candidate as may appear from Section 7 of the 1952 Act does not rob Article 62(1) of its mandatory character. The maxim of law impotentia excusat legam is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legam is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. “Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.” Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom’s Legal Maxims 10th Edn. at pp. 162163 and Craies on Statute Law 6th Edn. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom’s Legal Maxims 10th Edn. at pp. 162163 and Craies on Statute Law 6th Edn. at p. 268).” It is otherwise also well settled that the procedural requirements are the hand maiden of justice and otherwise directory in nature to be construed in a manner where substantive object of the legislation / policy is not defeated. 9. The employee could not have been expected to come to Bokaro at that stage for making an application in prescribed form. All these facts therefore led to only conclusion that the rejection of the petitioners' case for compassionate appointment has been done on hyper technical ground. Respondents appear to have blindly followed the letter of the Circular while overlooking the spirit and object of socio economic legislation / policy. 10. In such circumstances, given the peculiar facts of the instant case, the impugned order of rejection dated 10.12.2014 cannot sustain in the eye of law as well as on the facts of the case and the same is quashed. The matter is remanded to the respondents to give fresh consideration to the claim of the petitioners for compassionate appointment in accordance with law within a period of ten weeks from the date of receipt of a copy of this order. 11. The writ petition stands allowed in the aforesaid manner.