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Gujarat High Court · body

2017 DIGILAW 57 (GUJ)

Jashodaben M. Bhoi v. Chief Manager (HR)

2017-01-12

S.G.SHAH

body2017
JUDGMENT : S.G. Shah, J. 1. Heard learned advocate Ms. Utpala S. Bora for the petitioner and learned advocate Mr. Ajay R. Mehta for respondent Nos. 1 to 3. Perused the record. 2. The petitioner herein has sought indulgence of this Court under Articles 14, 16 and 226 of the Constitution of India praying to hold that the action of the respondent Corporation of not granting the benefit of compassionate appointment to the petitioner No. 2 is arbitrary, discriminatory, unjust, improper and contrary to their own scheme; with further direction to the respondent Corporation to grant the benefit of compassionate appointment to the petitioner No. 2 with effect from the date of application and to pay regular wages to him. 3. It is undisputed fact that petitioner No. 1 is wife whereas petitioner No. 2 is son of the deceased employee of the respondent namely; Mangalbhai Khodabhai Bhoi who was appointed as fireman w.e.f. 28.5.1968. It is also undisputed fact that said Mangalbhai Khodabhai Bhoi, employee of the respondent Corporation died on 19.5.1998 when he was in services with the respondent. Since petitioners are legal heirs of such deceased employee of the Corporation, just within three days of the death of Mangalbhai Khodabhai Bhoi, petitioner No. 1 has applied initially for appointment on compassionate ground in favour of petitioner No. 2 pursuant to scheme for providing financial assistance in lieu of gainful employment to one dependent of employee who suffers permanent total disability or dies while in service of the ONGC and leaves his family in financial distress. Copy of such scheme in the form of Office Memorandum is placed on record at Annexure B. The bare perusal of the scheme makes it clear that respondent Commission may for rehabilitation of the family of such employee, who leaves his family in indigency and acute financial distress make a lump sum payment as per schedule provided in the scheme in lieu of any employment assistance. It is also confirmed by such scheme that the lump-sum consideration shall be decided at the headquarter of the Commission and it would completely absolve the Commission of any obligation to provide employment on compassionate ground to the spouse or dependent of the employee under the existing scheme. Therefore, the basic scheme of the Corporation is to provide lump-sum compensation to the family members of its deceased employee undergoing financial distress. Therefore, the basic scheme of the Corporation is to provide lump-sum compensation to the family members of its deceased employee undergoing financial distress. However, paragraph 3 of the Scheme confirms that the Commission may; subject to availability of vacancies consider employment of the dependent family member of the employee, subject to his possessing the prescribed qualifications, experience and age requirement and fulfillment of the above requirements and if otherwise such legal heirs are satisfied for compassionate appointment as per all grounds enumerated thereunder, Corporation may at the sole discretion of the Corporation employ such person. However, in Paragraph 4 of the said Scheme, it is specifically stated that it is the sole discretion of the Commission to give financial assistance in terms of lump-sum amount as specified in the Scheme or to consider the dependent for gainful employment subject to above conditions, but no one can claim both the benefits. So far as conditions under paragraph 3 are concerned, at present, we are concerned with the relevant condition only which is to the effect that no additional post is required to be created and employment of such a dependent will be in the productive sphere so also at the discretion of the Corporation when it is contended that relaxation of qualification and experience will be at the sole discretion of the competent authority. One of the conditions specifically confirms that gainful employment to the dependent of deceased employee who dies as a result of accident while on duty may be given on top priority basis after ascertaining the suitability of the dependent through the duly constituted selection committee as per regulations. Such condition is in addition to other normal conditions as may be found in any such scheme by any other employer. However, it is again made clear that employment to a dependent may be considered against the existing vacancy only and not at the intermediate promotional level. Such condition is in addition to other normal conditions as may be found in any such scheme by any other employer. However, it is again made clear that employment to a dependent may be considered against the existing vacancy only and not at the intermediate promotional level. Therefore, one thing is certain that respondents have to give top priority to the dependent of the employee who dies as a result of an accident while on duty and that they do not have to create any additional post while appointing any such person on compassionate ground and that such appointment shall be solely against existing vacancy only and, therefore, in absence of specific information to that effect, it cannot be said that at the relevant point of time, there would be existing vacancy and, therefore, as and when somebody prays for compassionate appointment like present petitioner, he should immediately get the appointment, more particularly, the scheme specifically provides sole discretion to the Commission to appoint such legal heirs of deceased employee or to provide lump-sum payment as financial assistance. It cannot be ignored that any case compassionate appointment would be granted only on the basis of existence of any such scheme laid down by the employer and it can never be by way of any legal right or in favour of legal heirs and, therefore, unless such scheme is held arbitrary or illegal, in all such type of cases, basically we have to rely upon and follow the provisions of such scheme as if such scheme is applicable to such petitioner at the relevant time and to that extent, modification or amendment in scheme after the date of application may not be much relevant. 4. In the present case, in addition to such basic scheme, the fact is quite clear and obvious that immediately after applying for compassionate appointment, initially, respondents have offered an amount of Rs. 85,000/- by forwarding a cheque to the petitioners. However, petitioners have on their own refused to accept such financial assistance and tried to convince the Corporation that instead of financial assistance, they may be given compassionate appointment. However, after all such persuasion, again, when Corporation has by their letter dated 17.12.2003 confirmed that petitioner is not entitled to compassionate appointment and that they are ready and willing to pay Rs. 85,000/- and, therefore, they conveyed the petitioner to accept financial assistance of Rs. However, after all such persuasion, again, when Corporation has by their letter dated 17.12.2003 confirmed that petitioner is not entitled to compassionate appointment and that they are ready and willing to pay Rs. 85,000/- and, therefore, they conveyed the petitioner to accept financial assistance of Rs. 85,000/- in view of death of the deceased employee. It seems that even after such specific intimation, petitioner has failed to accept such amount or to take appropriate steps in accordance with law at the earliest if not immediately. It cannot be ignored that in between petitioner has tried to change their stand, inasmuch as, at one point of time, petitioner No. 1 has prayed to appoint petitioner No. 2 i.e. one of her son namely; Mr. Ashokkumar M. Bhoi and when it is found that probably Mr. Ashokkumar M. Bhoi may not be appointed pursuant to the scheme, petitioner No. 1 has then requested the respondent to appoint his another son namely; Mr. Dineshkumar M. Bhoi. However, as per the terms of schemes as discussed hereinabove when it is decided by the Corporation that neither of the sons of the deceased employee can be given appointment on compassionate ground and, thereby, when they have offered the amount of Rs. 85,000/- initially in the year 1999 itself and in the year 2003, if at all, petitioners were aware about such decision or if at all they are under impression that such decision is illegal or improper they should have agitated it at the earliest. 5. Whereas, petitioners have filed petition as late as in the year 2011 only i.e. almost after seven years and there is no justification except referring a letter dated 17.12.2003 that since petitioners were representing their case before the Corporation and since Corporation has decided and disclosed the denial of compassionate appointment only in the year 2003, they have filed the petition in the year 2011. On the contrary, such fact makes it very much clear that even after 2003, petition was not filed till 2011. Therefore, there is reason to believe that petitioners were not undergoing financial distress from 2003 onwards and, therefore, they have not agitated immediately. On the contrary, such fact makes it very much clear that even after 2003, petition was not filed till 2011. Therefore, there is reason to believe that petitioners were not undergoing financial distress from 2003 onwards and, therefore, they have not agitated immediately. It is settled legal position that though there is no prescribed period of limitation in filing such petition, catena of judgments of Hon'ble Supreme Court makes it clear that generally such petition should be filed if not at the earliest, then at-least within three years and if it is filed beyond three years, then, practically, such petition cannot be entertained on such later date i.e. after seven years or more. 6. Learned advocate for the respondents is relying upon the decision in the case of Sushilaben Mohanbhai Chaudhari Vs. Oil & Natural Gas Corporation reported in 1999(1) GLH 214 wherein while considering the issue of compassionate appointment by the same Corporation, the Court has observed and formulated four guidelines which reads as under:- "(I) appointment strictly in accordance with rules and regulations, (II) prompt action of the authority to treat the application and granting appointment in fit case to authority to achieve the object of the compassionate appointment (III) the appointment a need based and not routine and (IV) a sensitive but not over-sympathetic approach towards the case." 7. On perusal of such judgment and considering the facts and circumstances emerging on record of this petition also, it cannot be said that petitioner is in distress or he has absolute right to be appointed on compassionate ground, more particularly, when Corporation has considered the facts and circumstances and applying their scheme decided to offer them financial assistance and in-fact they have forwarded the cheque for an amount of Rs. 85,000/- to the petitioner at the relevant time which was unfortunately returned by the petitioners for the reasons best known to them. 8. Learned advocate for the petitioners has pointed out that the issue has not been cleared by the respondent till 17.12.2009 since on 17.12.2009, the In-charge HR-ER of Cambay Sub Asset, Cambay has addressed a letter to the Chief ER Executive, ONGC of Dehradun to consider the application received from the petitioner No. 1 for employment assistance to his son Mr. Ashokkumar M. Bhoi under DOD case. Ashokkumar M. Bhoi under DOD case. However, one such communication cannot change the entire scenario which is otherwise clear on record that respondents have already offered an amount of Rs. 85,000/- in the year 1999 and that respondent have communicated the petitioner by their letter dated 17.12.2003 regarding their inability to appoint either Mr. Ashokkumar M. Bhoi or Mr. Dineshkumar M.Bhoi and requested the petitioner to accept financial assistant of Rs. 85,000/- in lieu of employment assistance. Therefore, only because of such correspondence is made by the petitioners till the year 2009, it would not change the entire scenario which is otherwise clear on record. 9. However, when respondents have offered the same amount again in the year 2003, at present, though petition may not be allowed and, thereby there cannot be a direction to appoint the petitioner on compassionate ground, it would be appropriate to observe that the respondents shall be gracious enough to remit such amount of Rs. 85,000/- to the petitioners who were otherwise already offered financial assistance by them as discussed hereinabove. Such amount shall be paid to the petitioners at the earliest. 10. In view of above, I do not find any substance to allow this petition as prayed for. Hence, the same stands dismissed. Rule is discharged.