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2017 DIGILAW 1146 (ORI)

Mahadev Prasad v. Mahanadi Coal Fields Ltd.

2017-10-12

SUJIT NARAYAN PRASAD

body2017
JUDGMENT : S. N. Prasad, J. 1. This writ petition is under Article 226 and 227 of the Constitution of India whereby and where under direction has been sought for by the petitioner to provide him employment as provided under the provision of National Coal Wages Agreement – IV and further to direct the opposite parties to release his entire entitled financial benefits. 2. The case of the petitioner in brief is that his father who was in the employment under M/s. Mahanadi Coal Fields Limited in the Mine No.3, Orient Colliery at Brajaraj Nagar as a Dresser who expired in harness on 20th June, 1996 after rendering service of 24 years from the date of his appointment, i.e. 1.6.1972. He is the only son and sole legal heir, his mother has already expired since long, i.e. 06.09.1972. At the time of death of his father he was pursuing his study and even though there were none to look after him, with much difficulty and financial stringency he has completed his education. Upon death of his father, he has intimated the Management regarding demise of his father on 3.7.1996 by letter sent under Certificate of posting, as would be evident from Annexure-1 annexed to the writ petition. The petitioner has requested for payment of terminal benefits and employment under the provision of National Coal Wage Agreement – IV (in short NCWA-IV) but no action has been taken at the end of opposite parties. He has again made representation in the year 1999 but without considering the same, the opposite parties had issued an order of removal from service in respect of his father vide letter dtd.22.09.1999. According to the petitioner when due information has already been furnished before the opposite parties regarding demise of his father way back on 3.7.1996, removing him from service after his death is nothing but only to deprive him from his legitimate right to provide employment on compassionate ground under NCWA-IV. Learned counsel for the petitioner, in support of his case, has relied upon the judgments rendered by Hon’ble Apex Court in the case of Balbir Kaur and another vrs. Steel Authority of India Ltd. and Others reported in AIR 2000 SC 1596 and in the case of Canara Bank and Another Vrs. Learned counsel for the petitioner, in support of his case, has relied upon the judgments rendered by Hon’ble Apex Court in the case of Balbir Kaur and another vrs. Steel Authority of India Ltd. and Others reported in AIR 2000 SC 1596 and in the case of Canara Bank and Another Vrs. M. Mahesh Kumar reported in 2015 7 SCC 412 , a coordinate Bench judgment of this Court reported in 2015(II) ILR Cuttack 569 in the case of Damodar Jena Vrs. Chairman-cum-M.D., Grid Corporation Ltd. And Others. 3. The opposite parties have contested the case by filing detailed counter affidavit wherein it has been contended that the petitioner is not the only legal heir of the deceased employee as per the declaration given by the deceased employee on 22.5.1996, apart from the petitioner he has one daughter, namely, Kumari Asha and wife Chandmoti and in view thereof the contention raised by the petitioner that he is the only surviving legal heir of the deceased employee is false. The contention raised by the petitioner that he has informed about the death of his father way back in the month of June 1996 and to support his contention he has relied upon Annexure-1 and 2 series but annexure-1 series has been said to be sent to the authorities under certificate of posting but the same has not been received and it is only for the purpose of filing the instant case, the letter has been fabricated and sent through certificate of posting. Even annexure-2 series does not contain any information having been furnished by him regarding death of his father. It has been contended by them that the father of the petitioner has left the working place in the month of May 1996 by Leave Travelling Concession (L.T.C.) and thereafter he did not turn up till June, 1997, a charge-sheet was framed due to unauthorized absence vide charge-sheet dtd.9.7.1997, when no reply was received an enquiry officer was appointed to conduct enquiry, the enquiry officer had also issued notice on 25.11.1998 fixing the date of hearing on 15.12.1998 with a noting that if the deceased employee fails to attend the enquiry on the next date, it will be set ex-parte, the enquiry officer thereafter had concluded the enquiry on 5.5.1999 and accepting the said enquiry report, the father of the petitioner was dismissed from service on 22.09.1999. The petitioner claims the monetary benefit as also employment on compassionate ground under the provision of NCWA-IV. According to them the death has occurred in the month of May, 1996 but the first application which has been furnished by the petitioner is dtd.18.11.1999 wherein the grievance has been raised regarding delay in payment of arrears and pension while vide representation dtd.7.9.1999 the claim of compassionate employment has also been sought for, meaning thereby the application for getting employment has been made after lapse of about more than three years and three months. It is the admitted case of the petitioner that while his father has died, he was pursuing his study but NCWA-IV has been made to provide immediate relief to the dependents of the deceased employee and as per the provision made by the Coal India Ltd. The required time period to make an application in the statutory format is six months, hence the application sent is beyond the period of limitation. They submit that appointment on compassionate ground cannot be claimed as a matter of right and that too after delay of such a long time wherein such a disputed question of fact is involved. 4. The petitioner has rebutted the stand taken by the authorities in the counter affidavit by way of filing rejoinder affidavit wherein it has been stated that the document disclaiming the petitioner as the sole legal heir is based upon false, forged and manipulated document in view of the fact that his mother has expired on 06.09.1972, as such his father was not entitled to claim Leave Travelling Concession as claimed by him against his wife’s name in the years 1988, 1993 and 1996. According to him such certificate was issued much after the purported declaration made by his late father in the year 1996. He further submits that he has been treated as the sole legal heir and that is the reason the amount pertaining to the Provident Fund Account has been disbursed in his favour, hence the management cannot raise dispute in providing appointment. 5. Heard the learned counsels for the parties and perused the documents available on record. The fact as has been asserted by the petitioner is that he is the sole legal heir of the deceased employee who happens to be his father who died on 20.6.1996. 5. Heard the learned counsels for the parties and perused the documents available on record. The fact as has been asserted by the petitioner is that he is the sole legal heir of the deceased employee who happens to be his father who died on 20.6.1996. At the time of death of his father he was pursuing his study, as such he has not made any claim regarding monetary benefit as also employment which is to be provided to him under the provision of NCWA-IV which was prevalent during the time of death of his father which contains a provision to provide employment to one of the dependent of the deceased employee to provide them support due to sudden demise of the sole bread earner. The petitioner has made an application in the month of July, 1999 for getting appointment on compassionate ground but the same has not been considered by the authorities. While on the other hand, case of the opposite parties is that the father of the petitioner has been dismissed from service on 22.9.1999, as such there is no case of providing employment in favour of the petitioner since there is no provision to provide any appointment in case of dismissal from service which is seriously been disputed by the petitioner by taking a stand that his father has already died in the month of June, 1996, as such the order of dismissal against a dead persons is said to be nullity in the eye of law. The opposite parties have further raised objection regarding claim of the petitioner of being the sole legal heir by placing reliance upon the L.T.C. format wherein apart from the name of the deceased employee the name of his wife Smt. Chandmoti, Sri Mahadev Prasad, his son and one Kumar Asha, his daughter, the said declaration was signed on 21.5.1996 which the petitioner claims to be forged document and it has only been prepared in order to deprive the petitioner from his legitimate claim when he has informed the authorities regarding death of his father by virtue of his application as contained in Annexure-1 dtd.3rd July, 1996 under certificate of posting. In such a disputed question of fact, this court sitting under Article 226 of the Constitution of India is not supposed to adjudicate the issue. In such a disputed question of fact, this court sitting under Article 226 of the Constitution of India is not supposed to adjudicate the issue. Moreover the petitioner is claiming appointment on compassionate ground, i.e. his first prayer made in this writ petition under the provision of NCWA-IV but it is settled in catena of decisions rendered by Hon’ble Apex Court like in the case of Umesh Kumar Nagpal Vrs. State of Haryana and Others reported in (1994) 4 SCC 138 wherein it has been held that as a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. In the case of Jagdish Prasad Vrs. In the case of Jagdish Prasad Vrs. State of Bihar and Another reported in (1996) 1 SCC 301 , Hon’ble Apex Court, while considering the object of compassionate appointment held that the object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. In the case of Haryana State Electricity Board Vrs. Naresh Tanwar and Another reported in (1996) 8 SCC 23 the Hon’ble Apex Court declined to grant relief to the dependent of an employee who was minor at the time of death of the bread earning Government employee. In the case of State of U.P. and Others Vrs. Paras Nath reported in AIR 1998 SC 2612 the Hon’ble Apex Court held that the purpose of providing employment to a dependant of a Government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. It was further observed that none of these considerations can operate while the application is made after a long period of time. In the case of Commissioner of Public Instructions and Others Vrs. K. R. Vishwanath reported in (2005) 7 SCC 206 the Hon’ble Apex Court, after taking into consideration its various judgments, reiterated that the appointment to the public service can only be made on the touchstone of Article 14 or 16 of the Constitution and compassionate appointment is an exception to general constitutional mandate in the interest of justice under peculiar circumstances. It was further observed that where law prescribes limitation for making an application for compassionate appointment, it has to be adhered to. From the law laid down by the Hon’ble Apex Court in various judgments referred herein above, it is settled proposition that compassionate appointment cannot be considered to be a source of recruitment or another mode of recruitment to government/public service. The object and purpose of compassionate appointment for the dependent of the deceased – Government servant is to provide immediate financial assistance to the family whose sole bread earner died leaving the family in lurch. The purpose is to enable the family to overcome its immediate financial needs. The object and purpose of compassionate appointment for the dependent of the deceased – Government servant is to provide immediate financial assistance to the family whose sole bread earner died leaving the family in lurch. The purpose is to enable the family to overcome its immediate financial needs. The compassionate appointment cannot be given as a matter of course, and depends upon various factors, including the financial condition of the family of the deceased and other relevant factors. Since compassionate appointment is deviation from the constitutional mandate contemplated by Article 14 and 16 of the Constitution of India, which permits employment providing equal and fair opportunity to all the eligible persons, it is necessary that the compassionate appointment is regulated by law/rules so as not to nullify the constitutional spirit. 6. When the case in hand is compared with the proposition laid down by the Hon’ble Apex Court as referred herein above, it is evident that even accepting the death has occurred in the month of June 1996 but the application has been filed by the petitioner after lapse of more than three years and the Coal India Limited has come out with a circular on 12.12.1995 wherein there was provision for making application within the period of six months from the date of death of employee concerned which was replaced by another circular issued in the year 2000 extending the period from six months to one year to entertain such application but in the present case, taking into consideration the date of death, the circular dtd.12.12.1995 will be applicable. In view thereof the application will be said to be time barred. 7. In view thereof the application will be said to be time barred. 7. The opposite parties have disputed the claim of the petitioner by showing the order of dismissal passed against his father and for one reason or the other the dismissal order has never been assailed by the petitioner on the pretext that the order of dismissal after death of his father is nullity in the eye of law, it is the fact that no order can be passed against the dead person but this fact is in serious dispute since the opposite parties have disputed this fact by taking a stand that the petitioner has communicated regarding death of his father through a letter dtd.3.7.1997 sent through certificate of posting but that letter itself has been disputed by the opposite party – management, as such there is serious dispute over this fact as to whether information regarding death of his has father been communicated to the management or not. Further, this court, sitting under Article 226 of the Constitution of India cannot go ante-sight the date of death by scrutinizing the death certificate, the fact remains that there is a dismissal order and the claim of the petitioner has also been disputed on the ground of his status as the sole legal heirs. 8. So far as reliance placed by learned counsel for the petitioner upon the Coordinate Bench judgment of this court in the case of has relied upon the judgment rendered in the case of Damodar Jena Vrs. Chairman-cum-M.D., Grid Corporation Ltd. And Others (supra), the fact of the said case is regarding applicability of which rule, the rule prevalent at the time of death or the subsequent rule and in that context this court has decided the issue that the rule which was prevalent at the time of submission of application for getting appointment on rehabilitation assistance scheme will be taken into consideration, hence the fact of the said case is quite different to that of the instant case. In the judgment rendered in the case of Balbir Kaur and another vrs. Steel Authority of India Ltd. and Others (supra) and Canara Bank and Another Vrs. In the judgment rendered in the case of Balbir Kaur and another vrs. Steel Authority of India Ltd. and Others (supra) and Canara Bank and Another Vrs. M. Mahesh Kumar (supra) that are also regarding applicability of rules, but the fact here in the instant case is quite different to that of these two cases, hence the ration laid down in those cases are not applicable to the facts and circumstances of this case. 9. Considering the fact as has been discussed in detail and taking into consideration the disputed question of fact and also considering the fact that compassionate appointment cannot be demanded as a matter of right being not a vested right and the application since been filed after more than three years from the date of death, as such the very principle of providing appointment on compassionate ground has been vitiated, i.e. to provide immediate relief due to sudden demise of the sole bread earner, this court finds no reason to entertain the prayer of the petitioner so far it relates to appointment on compassionate ground. However, so far as the monetary benefit is concerned, if the petitioner will make proper application along with no objection from other legal heirs duly been issued by the competent court of law, the authorities will disburse the same in his favour without any delay. With these observation and direction the writ petition stands disposed of.