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2023 DIGILAW 509 (JHR)

Madhwa Kisku v. State of Jharkhand

2023-04-13

RAJESH SHANKAR

body2023
JUDGMENT : The present writ petition has been filed for quashing the letter bearing Ref. No. FS:43: HR-EB: Court Case/2022 dated 20.10.2022 issued by the Deputy General Manager (HR), NTPC Limited, Farakka Super Thermal Power Station (respondent no.8) whereby the petitioner’s representation dated 25.08.2022 filed in pursuance of the order dated 21.07.2022 passed in W.P.(C) No. 1522 of 2022 seeking permanent employment and compensation in lieu of acquisition of his land appertaining to Jambandi no. 4, Dag no. 2 of village-Ghatiari measuring an area of 5 Bighas 16 Kathas 15 Dhurs (hereinafter to be referred as “the said land”), has been rejected. 2. Learned counsel for the petitioner submits that the aforesaid land, which was recorded in the name of the petitioner’s grandfather namely Kaita Kisku, was acquired by the State authorities in the year 1982-83 for NTPC, Farakka Super Thermal Power Station. The respondent no. 6 issued letter dated 25.08.1993 in the name of the petitioner-Madhwa Kisku for appearing in interview which was scheduled to be held 14.09.1993 along with relevant certificates and documents, however the said letter was not served to the petitioner. It is further submitted that one Lakhi Ram Murmu (the respondent no. 9) got the employment in NTPC, Farakka by impersonating himself as ‘Madhwa Kisku’, i.e the petitioner, claiming to be a land loser of the said land. The petitioner after knowing the said fact, submitted representations dated 01.12.2012 and 11.01.2013 before the respondent no.6 alleging that the respondent no.9 got employment by practicing fraud and as such the petitioner should be provided employment in place of the respondent no.9. Thereafter, the Senior Manager (Vigilance) NTPC, Farakka (the respondent no. 7), vide letter no. 116 dated 28.05.2013, directed the petitioner to provide additional documents in support of his claim, pursuant to which, he submitted his statement in the Vigilance Department, NTPC, Farakka on 20.06.2013. 3. It is further argued that on the basis of the complaint of the petitioner, the respondent no.6 initiated preliminary enquiry and after conducting the same, the respondent no.9 was dismissed from service vide order dated 05.08.2014, however the petitioner was not provided employment by the NTPC, Farakka. Thus, he preferred a writ petition being W.P.(C) No. 1522 of 2022 before this Court seeking issuance of direction upon the respondent no. 6 to provide employment as well as to pay compensation in lieu of acquisition of the said land. Thus, he preferred a writ petition being W.P.(C) No. 1522 of 2022 before this Court seeking issuance of direction upon the respondent no. 6 to provide employment as well as to pay compensation in lieu of acquisition of the said land. This said writ petition was disposed by this Court vide order dated 21.07.2022 giving liberty to the petitioner to prefer a fresh representation before the respondent no.6 who was directed to take an appropriate informed decision in accordance with law within a period of two months from the date of filing the said representation after providing opportunity of hearing to the petitioner. Accordingly, the petitioner filed representation dated 25.08.2022 to NTPC, Farakka seeking employment as well as payment of compensation in lieu of acquisition of the said land, however the respondent no. 8, vide impugned order dated 20.10.2022, rejected his claim. 4. It is also submitted that though the brother of the petitioner namely Arjun Kisku had nominated the petitioner for employment when such offer was made by NTPC against the acquired land, but the same was provided to a wrong person i.e. the respondent no.9 without proper verification. The respondent no.9 had obtained employment by impersonating the petitioner in collusion and connivance of the officials of NTPC, Farakka. Despite finding the complaint of the petitioner as true and the respondent no.9 was removed from service of NTPC, Farakka vide order dated 05.08.2014, the petitioner was neither provided employment nor was paid compensation against acquisition of the said land. 5. Per contra, learned counsel appearing on behalf of the respondent nos. 5 to 8 submits that on the complaint of the petitioner, a thorough inquiry was conducted in which it was found that there was a collusion between the respondent no.9 and the petitioner’s family. Since there was no suitable member in the family to get employment in the year 1993, the respondent no.9, who was one of the acquaintances/relatives of the petitioner’s family, was presented as ‘Madhwa Kisku’ only to get employment in NTPC, Farakka so as to avail the offer of employment against acquisition of the said land. 6. It is further submitted that in the nomination form submitted for employment in the year 1993, the date of birth of Madhwa Kisku was stated as 10.11.1967 which was different from his actual date of birth i.e. 09.05.1985. 6. It is further submitted that in the nomination form submitted for employment in the year 1993, the date of birth of Madhwa Kisku was stated as 10.11.1967 which was different from his actual date of birth i.e. 09.05.1985. The respondent no.9 had intentionally impersonated as ‘Madhwa Kisku’-the petitioner herein, who was minor at the relevant point of time, and as such the respondent no. 9 was dismissed from service. The land acquisition of NTPC, Farakka took place between 1980-86 (i.e. about 40 years ago) and as such the petitioner cannot claim employment after an inordinate delay. 7. Heard learned counsel for the parties and perused the materials available on record. 8. The petitioner is claiming compensation and employment in lieu of acquisition of the said land being the only legal heir of the recorded tenant. 9. It appears that though the respondent-NTPC provided employment to the respondent no.9 for acquisition of the said land, however after receiving complaint of the petitioner against the respondent no. 9, an inquiry was conducted in which it was found that the respondent no.9 got employment by impersonating the petitioner and accordingly he was dismissed from service. During inquiry, the respondent-NTPC found that no male member was eligible for employment at the relevant point of time and as such the family members of the petitioner projected the respondent no.9 as ‘Madhwa Kisku’ (the petitioner) to get the employment. This Court is not going to examine the finding of fact recorded in the impugned order with respect to the connivance of the petitioner’s family and the respondent no.9. 10. It however transpires that the said land was acquired by the respondent-NTPC during the year 1982-83 and the employment was given to the respondent no.9 in the year 1993. The petitioner claimed employment for the first time in the year 2012 i.e., after expiry of 19 years of getting the employment by the respondent no.9. 11. The claim of the respondent-NTPC is that petitioner’s date of birth is 09.05.1985 and as such at the time of providing employment in the year 1993, he was about 8 years. The said contention has though been refuted by the petitioner, however he has not filed any concrete evidence in support of his actual date of birth. 11. The claim of the respondent-NTPC is that petitioner’s date of birth is 09.05.1985 and as such at the time of providing employment in the year 1993, he was about 8 years. The said contention has though been refuted by the petitioner, however he has not filed any concrete evidence in support of his actual date of birth. Moreover, the petitioner has mentioned his age in the writ petition as 45 years and if the same is taken to be true, he was about 14-15 years at the relevant time. Thus, he being minor was not eligible to get employment. An employment under land loser scheme is not kept alive indefinitely for any minor claimant. 12. It is well settled that the purpose of giving employment to the persons whose lands have been acquired is to rehabilitate them so as not to deprive their right of livelihood. The said object is achieved if such employment is extended within reasonable period, however the object cannot be fulfilled by providing rehabilitation, employment after expiry of reasonably long period. An employment provided under rehabilitation policy can be compared with the object of compassionate employment as known in service jurisprudence, thus it cannot be claimed at a belated stage. If the claim of the petitioner is allowed at this juncture, it may lead to multiplicity of stale claims by different persons and the age old policy/scheme will never come to an end. Any policy to provide benefit to the sufferer is framed keeping in view the condition prevailing at the relevant time. The appointment by way of rehabilitation measure cannot be considered as an alternative source of recruitment or a scheme for reserving future vacancies for minor children of the displaced persons. 13. In the case of Shibu Rajwar Vs. Bharat Coking Coal Limited & Others reported in 2017 SCC OnLine Jhar 3307, this Court had an occasion to deal with a case where the petitioner of that case had claimed employment of his two sons and one daughter after attaining their majority in lieu of acquisition of his land measuring an area of 7.63 acres. The said claim of the petitioner was rejected by this Court holding as under:- “7. In the case of Butu Prasad Kumbhar v. Steel Authority of India reported in 1995 Supp (2) SCC 225 held in para 6 as under:— “6. The said claim of the petitioner was rejected by this Court holding as under:- “7. In the case of Butu Prasad Kumbhar v. Steel Authority of India reported in 1995 Supp (2) SCC 225 held in para 6 as under:— “6. The constitutional challenge based on Article 21 does not appear to have any substance. In Olga Tellis ( (1985) 3 SCC 545 ) it was observed by this Court that the concept of right of life conferred was wide and far-reaching and the deprivation of the right to livelihood without following the procedure established by law was violative of the fundamental guarantee to a citizen. Needless to say that petitioners or their ancestors were not deprived of their land without following the procedure established in law. Their land was taken under the Land Acquisition Act. They were paid compensation for it. Therefore, the challenge raised on violation of Article 21 is devoid of any merit. Even otherwise the obligation of the State to ensure that no citizen is deprived of his livelihood does not extend to provide employment to every member of each family displaced in consequence of acquisition of land. Rourkela Plant was established for the growth of the country. It is one of the prestigious steel plants. It was established in public sector. The Government has paid market value for the land acquired. Even if the Government or the steel plant would not have offered any employment to any person it would not have resulted in violation of any fundamental right. Yet considering the poverty of the persons who were displaced both the Central and the State Government took steps to ensure that each family was protected by giving employment to at least one member in the plant. We fail to appreciate how such a step by the Government is violative of Article 21. The claim of the petitioners that unless each adult member is given employment or the future generation is ensured of a preferential claim it would be arbitrary or contrary with the constitutional guarantee is indeed stretching Article 21 without any regard to its scope and ambit as explained by this Court. Truly speaking it is just the other way. Acceptance of such a demand would be against Article 14.” 8. Truly speaking it is just the other way. Acceptance of such a demand would be against Article 14.” 8. I have perused the judgment of the Hon'ble Supreme Court rendered in the case of Tukaram Kana Joshi (Supra), as has been cited by the learned counsel for the petitioner. In the said judgment, the Hon'ble Supreme Court has held that the question of condonation of delay is one of discretion and has to be decided on the basis of the facts of each case. Merely because, there is delay in raising the claim, it is not an impediment to exercise judicial discretion. In the said case, the fact was that the land was taken in possession by the authorities but due to lapse of the proceeding, the compensation and other benefits as were given to the other displaced persons, were not extended to the appellant despite the fact that he had been pursuing his claim before the authorities continuously. 9. However, in the present case, the land of the father of the petitioner was acquired in the year 1989-90 and at that time, the children of the petitioner were minor. Though it is claimed by the petitioner that an application for appointment was initially made by his wife in time, yet the said claim was not pursued. The fact also reveals that the family of deceased was not in dire need of any immediate assistance. The said claim was perhaps preserved by the petitioner to secure employment of his children after they attain majority. The scheme of rehabilitation employment cannot be allowed to perpetuate for more than 20 years. Grant of employment under rehabilitation scheme after such long delay or a claim for such employment after attaining majority would itself be violating of Article 16 of the Constitution of India. It would amount to reserving the employment for the descendants of the displaced persons only. Rehabilitation by way of appointment cannot be considered as another source of recruitment or a scheme for reserving future vacancies for minors of the displaced persons. It is apparent from the fact of the present case that during the period the lands of the petitioner were acquired, the petitioner did not make any claim for getting employment in lieu of the acquisition of 7.63 acres of lands. It is apparent from the fact of the present case that during the period the lands of the petitioner were acquired, the petitioner did not make any claim for getting employment in lieu of the acquisition of 7.63 acres of lands. Once the children of the petitioner attained majority, the petitioner started pursuing the matter with the respondent BCCL for their employment in lieu of acquisition of his land made in the year 1989-90. Thus, in the facts of the case, I am not persuaded by the said contention of the learned counsel for the petitioner, so as to condone the delay committed by the petitioner in pursing the matter of employment in lieu of acquisition of his land made in the year 1989-90.” 14. The whole object of granting employment under rehabilitation policy is to enable the family to tide over the sudden crisis. Thus, there should not be delay in providing appointment under rehabilitation policy. This claim for employment under rehabilitation policy cannot be upheld on the touchstone of Article 21 of the Constitution of India. It would be arbitrary to reserve any post for future generation of the displaced person and acceptance of such a demand would be against Articles 14 and 16 of the Constitution of India. 15. Moreover, it has specifically been recorded in the impugned order dated 20.10.2022 that no recruitment with respect to any land oustee has taken place after 1994-95 as there has been no requirement/vacancy available at NTPC, Farakka. Otherwise also, this court does not find it appropriate to reopen the proceeding of acquisition of land which has already been closed several years ago, that too, in absence of any reasonable explanation given by the petitioner for committing such an inordinate delay. 16. In view of the aforesaid discussion, I do not find any ground to entertain the present writ petition and the same is, accordingly, dismissed.