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SCA/1295/2010 12/ 26 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1295 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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GUJARAT
STATE ROAD TRANSPORT CORPORATION - Petitioner(s)
Versus
NANSINH
B DABHI SINCE DIED THRO HIS LEGAL HEIR ARJUNSINH - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 09/03/2010
ORAL
JUDGMENT
Heard
learned advocate Mr. AM Dagli on behalf of petitioner Corporation.
The
petitioner has challenged award passed by Industrial Tribunal,
Ahmedabad in reference IT no. 102/2004 decided on 29/6/2009. The
Industrial Tribunal has directed to Corporation to give appointment
to Arjunsinh Nansinh Dabhi (son of deceased) w.e.f. 1/6/2004 in the
post of Peon with notional increment benefit and with continuity of
service and accordingly fix salary within 30 days from date of
publication of award. No arrears has been directed to be paid by
Corporation to Arjunsinh.
Learned
advocate Mr. Dagli raised contention before this Court that
Industrial Tribunal has committed gross error in granting relief in
favour of respondent.
He
submitted that workman Nansinh Dabhi was working with Corporation as
Conductor died on 1/12/1997. According to policy and as per relevant
Rules and regulation, which was applicable at that time, legal heirs
of deceased is entitled to make application for compassionate
regard to appointment and same was considered in accordance with
Rules and Regulation and policy, prevailing at relevant point of
time. The respondent who failed in standard 10th,
qualified for post of Peon. On 9/2/1998, he made an application for
appointment and it is a say of respondent that on 5/5/1999,
application was disposed of and appointment was not offered to
respondent. Therefore, dispute has been raised, which referred for
adjudication on 24/5/2004.
He
submitted that Corporation has considered application submitted by
respondent as per policy prevailing and since on verification it was
found that monthly income of family was Rs. 3042/- and same is above
income criteria as per GSO No. 1108/2001 dated 21/11/2001.
Therefore, his application was rejected. The wife of deceased is
also getting pension of Rs. 2,625/- and Rs. 416/- received by
respondent, total comes to more than Rs. 2500/-. Therefore, case of
respondent is not covered under policy of income.
The
Industrial Tribunal has not considered Rules and Regulation and
policy which was prevailing at the relevant time. He submitted that
such kind of direction can not be issued by Tribunal because
Industrial Tribunal has no jurisdiction to pass such award against
Corporation.
Learned
advocate Mr. Dagli submitted that before Tribunal, written statement
was filed by Corporation exh 10. The details about income and
reasoning that why application filed by respondent was rejected was
produced. The Corporation has considered amount of pension received
by widow and son which is go beyond Rs. 2500/-. The certificate
dated 20/12/1998 was produced by Corporation where annual income was
of Rs. 5000/-. The Corporation has produced documents vide exh 11
list, circular vide exh 18, General Standing order no. 1069/1997 exh
19, General Standing order no. 1181/2001 exh 20, GSO 361/73 exh 21,
application made by respondent exh 22, given undertaking by
respondent exh 23, copy of ration card exh 24, internal
communication between ST officer and also consent given by remaining
legal heirs of deceased exh 37, 38, 39 and 40.
He
submitted that these all documentary evidence produced on record,
even though, same has been ignored by Industrial Tribunal and passed
an award contrary to Rules, Regulation and policy as well as GSO no.
1108/2001 exh 20. According to him, Industrial Tribunal has
committed gross error in allowing reference in favour of respondent
workman.
I
have considered submission made by learned advocate Mr. Dagli and
also perused award passed by Industrial Tribunal. The reason is
give by Industrial Tribunal in para 9 while framing issue. The
deceased workman Nansinh B Dabhi – Conductor was expired on
1/12/1997. On the basis of settlement arrived between recognized
Union and Corporation, legal heirs of such deceased employee is
entitled for compassionate appointment. On 9/2/1998, an application
was made by respondent alongwith relevant record, but Corporation
has rejected it only on the ground that family is having income more
than Rs. 2500/-. The consent letter was given by other remaining
legal heir in favour of respondent. The Corporation has considered
income of pension received by widow and son, which is go beyond
ceiling of Rs. 2500/- accepted by Corporation.
Before
Industrial Tribunal, statement of claim vide exh 8 was filed by
respondent workman. On behalf of Corporation, one Administrative
Assistant Shri Kishorkumar Natvarlal Mehta was examined. He has
admitted in cross examination that he was not having any information
about compassionate appointment of legal heirs of deceased Nansinh.
But he was having knowledge that settlement arrived between
recognized Union and Corporation and also having knowledge about
circular exh 41 to 43. The said circular would not be changed terms
and condition of settlement between parties.
The
Industrial Tribunal has considered one decision which relied by
respondent reported in case of Gujarat State Road Transport
Corporation Vs. Rameshbhai M. Makwana reported in 2002 (3) GLH 282.
The Industrial Tribunal has also considered settlement arrived
between recognized Union and Corporation u/s 12 (3) of Industrial
Dispute Act, 1947. Such settlement is binding to both parties as
per decision of Apex Court in case of Mohan Mahato Vs. Central Coal
Field Limited reported in 2007 (8) SCC 549. The ceiling of income
has been removed w.e.f. 10/3/2000 and as per item no. 30 of
settlement, during course of employment, in case if, any employee
died then his legal heirs are entitled for compassionate appointment
from Corporation. In the said settlement in fact, there is no
provision pointed out, which specified income ceiling.
Therefore,
Industrial Tribunal has come to conclusion that right of respondent
arise as per section 30 of Settlement, which is binding to
Corporation. In section 30, there is no provision made which require
less than income of Rs. 2500/-. In fact, there is no income at all
mentioned in such settlement of section 30. The subsequent
resolution or General Standing order, which has been issued, changed
terms of settlement then it is not binding to respondent as there is
no other settlement arrived for changing section 30, which was
produced before Industrial Tribunal.
According
to section 30 of settlement, time limit has been prescribed but
there is no reference to have any particular amount of income which
is to be satisfied by legal heirs of deceased employee for claiming
compassionate appointment.
Considering
observations and reasoning given by Industrial Tribunal. The
similar aspect has been considered by this Court as well as Apex
Court in such cases. The relevant decisions are quoted as under:
(*) In
case of Gujarat State Road Transport Corporation, Palanpuar Vs.
Rameshbhai Mafatlal Makwana reported in 2002 (4) GLR 2923.
The relevant para 6 and 7 are quoted as under:
(6). This Court
has considered submissions of learned advocate Mr.Dagali.
Looking to the clear language of Item No.30, there is no mention
or no condition is incorporated that in case when any
employee has died during the course of employment or declared
unfit, one family member or heir of the deceased is required to be
given compassionate appointment so far vacancy is available with
the Corporation in Class III / IV category or efforts will have
to be made by the petitioner Corporation to absorb such person.
Thus, the provision is very clear and there is no such condition
incorporated by the Corporation and if any administrative
instruction or direction by way of GSO or by way of any circular
imposing certain conditions not in terms of the settlement,
nullify the object of the settlement or nullify the
provisions of the settlement or nullify the effect of the
settlement which is contrary to the settlement and therefore,
said instructions and/or administrative guidelines cannot be given
legal effect because the settlement under Section 12[3] of
the Industrial Disputes Act, 1947, is like an award and the same
is binding to the petitioner and any breach thereof amounts to
criminal offence under Section 29 of the Industrial Disputes
Act, 1947. Therefore, claim which has been made by the
respondent workman under the provisions of the settlement
cannot be rejected on the
ground of having income in the family. This is not proper ground or ground provided under the settlement and therefore, rejection of claim of the respondent by the petitioner Corporation is illegal. The tribunal has considered this aspect in para-8 and came to conclusion that while arriving at settlement with the consent of the Corporation and Union and therefore, any change if it is to be brought into effect, another settlement is required to be arrived but by virtue of administrative circular, the Corporation cannot impose any condition contrary to the settlement which curtail the right as provided under the settlement. It is also observed by the Tribunal that while issuing this administrative instructions or Circular prescribing ceiling of income of the family, the Union was required to be consulted and the Union ought to have been taken into confidence but for the purpose, there was no such evidence produced by the petitioner Corporation. The tribunal has also observed that settlement having legal effect and such settlement cannot be violated by the Corporation by issuing such administrative instruction and therefore, application of the respondent cannot be rejected based on such administrative circulars. Therefore, ultimately the tribunal has considered that the demand raised by the respondent is legal and valid, and requires to be accepted. Therefore, the tribunal has rightly passed the award. The contention raised by learned advocate Mr.Dagali that at the most the tribunal can direct the petitioner Corporation to reconsider the matter for giving compassionate appointment but the Tribunal cannot direct the petitioner Corporation to appoint the dependent of the deceased workman. This contention cannot be accepted by this Court on the ground that from 1989 upto 2002, the respondent remained without any job. Now after more than twelve years, if the tribunal is directed by this Court to reconsider the matter, it can presume that another number of years will pass on for arriving a fresh decision and therefore, ultimately the purpose for compassionate appointment as per the settlement, will be frustrated. Therefore, according to my opinion, the tribunal has rightly passed the award granting compassionate appointment in favour of the respondent workman.
#. Similar aspect and the contentions as raised by the Corporation before this Court, has been considered in a decision of GUJARAT S.T. CORPORATION V. DINESHBHAI M. PANCHAL by this Court which is reported in 1995 [2] GLH 854. The relevant observations made in para-5, 6, 7, 15, 16 and 17 are much relevant with the facts of the present case and therefore, same are referred as under :-
“5. By referring to and relying upon the aforesaid decisions, Mr.Rathod, learned advocate for the respondent submitted that certain facts are admitted facts in the case for the respondent to seek an employment on compassionate grounds. The tribunal may have observed about any abstract proposition of law but decided the dispute and/or reference on certain facts which cannot be assailed of by the petitioner and if those facts are appreciated in proper and right perspective, there is nothing left for this Court to interfere with the order of the Tribunal. He has submitted that there are certain Settlements besides a policy adopted by the petitioner – Corporation to provide employment to the dependent of a retired employee and / or an employee who died in harness. In the instant case the employee Manilal Nanjibhai Panchal died while in service, leaving behind him his widow, three sons and a daughter. According to him, the two sons had separated from the deceased employee during the lift of their father, i.e. the deceased employee. At the time of demise the family of the deceased consisted of his widow, unemployed son and a daughter. Before the Tribunal the dependent unemployed son of the deceased employee had deposed that he was living with his widow mother and his sister and that his brother had separated from the family long back and it was stated that both the said bothers had been jointly contributing Rs.200/- per month. Besides such income there is no other provision and source and under these circumstances consideration of appointment on compassionate grounds was a must. He has demonstrated before Court by pointing out materials on record that the evidence of the respondent remained unchallenged and there is no suggestion even at the time of cross examination of the respondent that the respondent had other income or that the family of the deceased employee had other sources for survival.
6.This Court has patiently considered the submissions made on behalf of the respective parties. With great anxiety this Court has considered the material on record in depth and details. In order to avoid any necessary controversy this Court finds certain admitted facts which would be very much pertinent to observe. The employee concerned, viz. Manilal Nanjibhai Panchal died on 28-3-1987. As per the evidence adduced, two sons of Manilal Panchal had been living separately even during the life time of said Manilal Panchal. The meagre contribution by the brothers to the family, comprising of widow of Manilal Panchal, unemployed son and the daughter, having no other source of income is also not in dispute. The evidence adduced by the respondent herein goes unchallenged. There is no cross examination about the availability of funds and against the pitiable financial condition of the family left the deceased.
7.Under this background, there is an obligation for appointment on compassionate
grounds. The settlement as referred to by the petitioner Corporation refers to paragraph 3 wherein it is provided –
One member of the family of the retired employee of the Corporation will be permitted to apply directly in S.T. subject to the condition that there is no other earning member in the family ….”
Similarly, in para-4 of the Settlement it has been provided as under :-
“Similarly, if an employee of the Corporation dies or becomes permanently disabled while in service and there is no other earning member in the family, one member of his/ her family can directly apply for a suitable post in S.T., when names for such vacancy are called for from the Employment Exchange. …”
Admittedly, there is policy of the Corporation to provide employment on compassionate grounds. The policy has been liberalised from time to time.
15. By looking at the principles of law and
the ratio arrived at in the aforesaid reported decisions it is not in doubt that in appropriate cases where there is hardships and the rules do not prohibit, there may be appointment on compassionate grounds. The aforesaid decisions referred to and relied upon by the petitioner and the respondent, only lead to the conclusion that each case has to be considered on its own merits. Any observations by the tribunal contrary to proposition of law and/or contrary to the observations made by the Apex Court of the Country and high Courts, does not change the position of law. The decision of the Tribunal so far as its conclusions is concerned, may be considered, but if there is no other reason contrary to law, it is not certainly binding and it becomes reckoning force.
16. Regard being had to the materials on
record and the circumstances of the case, it transpires that after the demise of Manilal Nanjibhai Panchal the family of the deceased is under duress and the financial condition of the family is pitiable and that there should hardly bed any delay in considering the appointment of the applicant on compassionate grounds. The facts are simple and clear and the conclusion arrived at by the Tribunal is most justiciable. It is also fairly conceded by Mr.Rathod, learned advocate for the respondent that there cannot be any retrospective employment nor the question of any compensation arises from 1988 as observed by the Tribunal. Having anxiously gone through the decision of the Tribunal, this Court approves the decision of the Tribunal so far as the giving of the employment within 30 days of the publication of the award of the Tribunal is concerned. But the question of payment of any compensation or for any retrospective date for reckoning the services from 1988 does not arise.
17. In the result, this petition fails to the
extent that the order of the Industrial Tribunal so far as directs that employment be offered to Dinesh Manilal Panchal in either Grade III or Grade IV according to his educational qualification in the S.T. Corporation within 30 days of the publication of the award is not disturbed and is confirmed. However, so far as the direction for payment of Rs.5,000/- as special compensation having delayed in implementing the settlement to the claimant is concerned, the same is not sustainable and that direction is quashed. Considering the facts and circumstances of the case, there will a special costs of Rs.3,500/- payable by the petitioner Corporation to the claimant for this petition. The order of costs made by the Tribunal in the Reference is maintainable. Rule is discharged subject to aforesaid observations.”
(*) In case of Gujarat
State Transport Corporation Vs. Kalubhai H. Valand
reported in 2002 (4) GLR, 2953. The relevant para 5 is
quoted as under:
5. In the facts of
the present case, the father was admittedly discharged on the ground
of permanent disability without and before being offered any
alternative job. The policy or practice of the management of not
allowing compassionate appointment in case the employee had refused
to accept an alternative job is not placed on record in black and
white. And the petitioner has also failed to show any
co-relation between the provision for recategorisation and the
benefit of compassionate appointment. Therefore, it is difficult
to infer that one benefit could be set off against the
other by or in the name of implementing an obscure management
policy. Instead, a conjoint reading of the relevant Clause No.2 of
Schedule II of the Labour Settlement for the period from 1.8.1970
to 31.7.1973, Clause No.30(7) of the Settlement for the period from
1.8.1987 to 31.7.1992 and G.S.O. No.361 of 1973 indicates a
beneficial scheme under which the effort is made to facilitate
continuation of employment of an employee who is rendered unfit
due to visual deficiency or accidental injuries, and such
employee is to be discharged on the ground of unfitness as a last
resort when he refuses to do alternative work that may be
assigned to him. However, once an employee is discharged on
the ground of permanent disability, the question of giving
compassionate appointment to an eligible heir arises and the issue
whether the disabled employee had accepted the alternative work or
not does not in any way enter into the consideration of an
application for compassionate appointment. Therefore, the policy,
if any, as canvassed on behalf of the petitioner, has no basis,
express or by necessary implication, in the provisions made for
compassionate appointment. And the argument that the privilege and
facility of compassionate appointment was or was likely to be
abused cannot be accepted when the petitioner had consistently
failed to link up recategorisation and compassionate appointment in
the successive settlements as also avoided to put such policy into
black and white for uniform application in all such cases.
(*) In case of Gujarat
State Road Transport Corporation Vs. M. I. Pathan & Anr reported
in 2000 (4) GLR 3137. The relevant para 3 and 5 are quoted
as under:
3.I
had perused the entire Award and gone through Item No. 30 of the
Settlement. Mr. Vaishnav pointed out that there is one G.S.O of
the year 1992 wherein the said ceiling of Rs. 1,000/= has been
enhanced to Rs.1,500/=, however, Mr. Vaishnav submitted that
considering the undisputed right that in case if any employee is
declared `unfit’ during the course of his employment and he is
unable to perform his duty on the
post held and his services are terminated due to the said reason, in that circumstances, one dependant of such employee who is declared `unfit’ is entitled to compassionate appointment irrespective of any ceiling of income. In the present matter, the concerned workman’s son Shri Ayub Pathan has submitted his application inter alia as per Item No. 30 of the Settlement, and therefore, the petitioner Corporation which has rejected the application of Ayub Pathan on wrong assumptions and illegally which is contrary to Item No. 30 of the Settlement dated 21st December, 1998, and therefore, the
Tribunal has rightly considered each and every aspect of the matter, and before the Tribunal, the income of Ayub Pathan was also not proved to be beyond the prescribed ceiling, and therefore, according to Mr. Vaishnav the Industrial Tribunal has not committed any error either in law or on facts which requires any interference at the hands of this Court in exercise of powers under Art. 226 & 227 of the Constitution of India.
5. Now, considering the submissions of learned advocate Mr. Zaveri that terms of reference which give power to the Industrial Tribunal to direct petitioner Corporation to appoint the dependent as per the Settlement Item No. 30 dated 21st December, 1989, the Tribunal derives jurisdiction in terms of the reference and Tribunal is having wide jurisdiction under the provisions of Industrial Disputes Act, 1947 and even Tribunal can create a new contract or modify the existing one. The Tribunal is not bound by service rules of the Corporation and the Tribunal has to function within the sphere of the provisions of the Industrial Disputes Act. The view taken by this Court in the matter of Re. Kalol Municipality, reported in 1993 (2) GLR 997 that the Industrial Tribunal has powers to pass award even granting confirmation and permanency, irrespective of the rules of the concerned authority. The Division Bench of this Court has considered earlier decisions rendered by this Court in the matter of Natvarlal V. Patel v. Municipality of Vadodara, (1965) GLR (VI) 189 and of Apex Court in the matter of Baroda Borough Municipality v. Its Workmen, reported in AIR (1957) SC 110.
(*) The Zharkhand High
Court in case of Sukhu Manjhi vs. Central Coalfields Limited &
Ors reported in 2010 LabIC 378. The relevant para 16 and 17
are quoted as under:
16. The
Division Bench of this Court, in the case of Lakhan Kumar Vs.
Central Coalfields Limited and Others in L. P. A. No. 780 of 2004 :
2006 (3) AIR Jhar R 34 (Annexure 13), has held that the case of
minor has been specifically provided for in para 9.5.0 of National
Coal Wage Agreement and the intention of the respondent Company in
making the said provision is that those who are minors at the time
when their parents in employment died, should be provided with
employment once the minor attains the age of majority. It has
further been held that the objection taken in that case that the
application was made after four years from the date of death of his
father was highly technical and was also not supported by the Scheme
since it does not in any way indicate that the minor has to apply
within six months from the date of death of the deceased.
The
decision of the Division Bench in the case of Sushi Kumar Vengra
Vs. Union of India and others (supra) relied on by the respondents
in the present case was also considered in this decision of the
Division Bench and the same was distinguished holding that the fact
of the said case was on a quite different footings.
17. Paras
10, 11 and 16 of the judgment of the Supreme Court, in the case of
Mohan Mahto Vs. M/s Central Coalfield Ltd and Ors (2007 (4) JLJR
144 (SC) : 2008 (1) AIR Jhar R 650), are very much relevant to be
noticed for deciding the points raised in this writ petition and as
such, they are quoted herein below.
In
para 11 of the said judgment, it has been held that:
The
right to obtain appointment on compassionate grounds emanates from
the settlement. Settlement is defined in Section 2 (p) of the
Industrial Disputes Act to mean a settlement arrived at in the
course of conciliation proceeding and includes a written agreement
between the employer and the workmen arrived at otherwise than in
the course of conciliation proceeding where such agreement has been
signed by the parties thereto in such manner as may be prescribed
and a copy thereof has been sent to an officer authorized in this
behalf by the appropriate Government and the conciliation officer.
In
para 10 of the said judgment, it has been held that:
A settlement
within the meaning of sub section (3) of Section 18 of the
Industrial Dispute Act is binding on both the parties and continues
to remain in force unless the same is altered, modified or
substituted by another settlement. No period of limitation was
provided in the settlement. We would assume that the respondent had
jurisdiction to issue such circular prescribing a period of
limitation for compassionate ground. But, such circular was not
only required to be strictly complied with but also was required to
be read keeping in view the settlement entered into by and between
the parties. The expanding definition of workman as contained in
Section 2 (s) of the Industrial Disputes Act would confer a right
upon the appellant to obtain appointment on compassionate ground,
subject, of course, to compliance of the conditions precedent
contained therein.
In
para 16 of the said judgment, it has been held that:
It is neither in
doubt nor in dispute that the case for grant of compassionate
appointment of a minor was required to be considered in terms of
sub clause (iii) of Clause 9.5.0 of the N.C.W.A. – V. In terms of
the said provision, the name of the appellant was also to be kept
on a live roaster. He was to remain on the live roster till he
attained the age of 18 years. Respondents did not perform their
duties cast on them thereunder. It took an unilateral stand that
an application has been filed in the year 1999 in the prescribed
form. For complying with the provisions of a settlement which is
binding on the parties, bona fide or otherwise of the respondent
must be judged from the fact as to whether it had discharged his
duties thereunder or not. In this case, not only it failed and/or
neglected to do so, but as indicated hereinbefore, it took an
unholy stand that the elder brother of the appellant being
employed, he was not entitled to appointment on the compassionate
ground. Thus what really impelled the respondent in denying the
benefit of compassionate appointment to the appellant is, therefor,
open to guess. We expect a public sector undertaking which is a
‘State’ within the meaning of Article 12 of the Constitution of
India, not only to act fairly but also reasonable nor bona fide.
The
Supreme Court after considering the case of Umesh Kumar Nagpal Vs.
State of Haryana reported in 1994 (4) SCC : 1994 AIR SCW 2305
which has been relied by the respondents in the present case,
distinguished the same.
(*) In
case of S. C. Rupchandani Vs. Chairman, State Bank of India,
Mumbai & Ors reported in 2008 (5) GLR 4018. The
relevant observation made in para 9 is quoted as under:
9.
Learned counsel for the respondent Bank has placed heavy reliance
upon the policy produced at page 101 of the petition, especially in
Para no. 1, 2 and clause (e) of the said policy under title
Financial Condition of the family for resisting this petition,
which is said to be the codification of the existing policy from
5/12/1996. Petitioner has also placed reliance upon the policy which
was existing prior to 5/12/1996 and it was in operation when the
petitioner retired on 19/6/1996. The relevant policy which is said
to have been codified vide document dated 5/12/1996 refers to a
communication received from Government of India, Ministry of Finance
in the letter dated 28/11/1994 and the same was for the first time
implemented or effected in the policy which is said to be codified
w.e.f. 5/12/1996. The question arise as to why was there the
requirement for codifying the policy. It is not the case of the
respondent Bank that the policy which is relied upon by the
petitioner was not in the vogue at the relevant time nor is it the
case of the Bank that the Government of India’s letter referred to
in the codified policy dated 5/12/1996 had been taken into
consideration while framing the policy on the earlier occasion. In
fact the policy of offering employment to the dependant of deceased
employee was in vogue and the same was extended to the employees
who were made to retire on account of medical grounds. The
petitioner has in fact cited example of one Mr.K.A. Trivedi, Mr.
D.R. Joshi, Mr. Javed Akhtar,Mr. R.A. Koteshwar, Mr. R.N. Daoo etc.
who were admittedly in a better financial position than the
petitioner, and yet their dependents were offered employment to
which the Bank has simply replied, stating that their cases were
‘peculiar’ and therefore the benefit of compassionate employment was
accorded to them. The Bank has not taken a stand that in those
employees’ cases compassionate appointment to the dependants were
given wrongly or through any mistake. Had it been the case of the
Bank that these employees who have been named herein above and who
have said to be in better position than that of the petitioner were
wrongly or through mistake given the benefit then it could have been
said that, as the Bank had realised the mistake the petitioner can
not be permitted to agitate and rely upon same mistake so as to
compel the Bank to perpetuate the same mistake once again. But in
the instant case on the contrary the Bank has not denied the
assertion of the petitioner that those employees were on a better
footing financially than the petitioner, but a defence is put up
that on account of ‘peculiar’ circumstances of their cases their
dependents were given appointments. It was bounden duty cast upon
the Bank when confronted with an assertion of discrimination to
explain the ‘peculiar cirsumtances’ warranting according of benefit.
Only some explanation is found in case of Shri. Joshi and Shri.
Trivedi. The fact remains that no explanation except peculiar
circumstances is coming up so far as Mr. Javed Akhtar,Mr. R. A.
Koteshwar and Mr. R.N. Daoo, who were admittedly holding higher
position than the petitioner were beneficiaries of the policy. They
were far higher than the petitioner in position. As it is stated
herein above it is not the case of the Bank that through mistake or
through inadvertence employment was given to their dependants.
Juxtaposing this fact with the fact of requirement of codifying the
policy as it is submitted by learned counsel for the Bank in the
document dated 5/12/1996 specifically introducing clause of taking
into consideration the financial status will all the more make it
clear that atleast when the petitioner retired from service of the
Bank on medical ground i.e. 19/6/1996 the policy in vogue relied
upon by the petitioner was being operative and implemented and at
that time the consideration of financial status was not one of the
factor for denying the benefit of compassionate appointment. The
Division Bench decision in respect of Gujarat Maritime Board
(supra) is binding on this Court wherein the decision of the Apex
Court in case of Umesh Kumar Nagpal (supra) is considered and
thereafter the Court has permitted the contention of the Gujarat
Maritime Board in respect of passage of time and non applicability
of the policy to the deceased at the relevant time. The Apex Court
decision in case of MUKESH KUMAR V. UNION OF INDIA & ORS,
reported in 2007 AIR SCW 5556; and in case of ABHISHEK KUMAR V.
STATE OF HARYANA & ORS, reported in 2006 (13) SCALE, 658 helps
the case of the petitioner.
(*) The
Division Bench of Delhi High Court has considered such industrial
dispute relating to compassionate appointment of son of deceased
employee in case of Delhi Development Authority Vs. Sudesh
Kumar and Anr reported in 2009 (II) LLJ 641. The relevant
para 8, 9 and 10 are quoted as under:
8. Our
attention was drawn to a direct decision on this point delivered by
a single Judge of this Court in Delhi Municipal Worker Union (Regd)
Vs. Management of M. C. D. and Others 1999 -II-LLJ 856 (Del). The
facts were almost identical. In that case also a Beldar working in
MCD had expired and his widow had applied for appointment of her son
on compensate grounds. The claim was rejected by the management and
the matter was taken up by the Municipal Workers Union and the
question arose as to whether the dispute falls within the definition
of ‘industrial dispute’ within the meaning of Section 15. The
learned single Judge following a judgement of the Supreme Court in
Kyas Construction Company (pvt) Limited vs. its Workmen 1958 II-
LLJ- 660 has held that a dispute relating to the compassionate
appointment raised by the son of a deceased employee was an
industrial dispute within the meaning of said Section. In Kyas
Construction Company (Pvt) Limited v. Its Workmen (Supra), the
Supreme Court has reiterated that an industrial dispute need not be
a dispute between the employer and his workman and that the
definition of the expression ‘industrial dispute’ is wide enough to
cover a dispute raised by the employer’s workmen with regard to non
employment of others who may not be employed workmen of others who
may not be employed workmen at the relevant time.
9. Our
attention was drawn to the judgment of the Madras High Court in
Management Southern Textiles Limited, Coimbatore vs. United
Textiles Labour Association and others 1983-I- LLJ- 435, wherein it
has been held that a dispute relating to fixation of a ratio between
the heirs and the dependents of the workmen and the outsiders, in
the matter of recruitment, would constitute an ‘industrial dispute’
because the workmen as a class have a community of interest in the
employment of their heirs and dependents. The Court further held
that heirs and dependents of the workmen would fall within the ambit
of the expression ‘any person’ and, therefore, the dispute is an
‘industrial dispute’.
10. Mr.
Birbal, however, sought to rely upon a recent judgment of the
Supreme Court in Mukund Limited Vs. Mukand Staff and Officers’
Association AIR 2004 SC 3905 : 2004 II-LLJ- 327. In that case, the
order of reference was relating to the dispute between the company
and the workmen employed under them. The question was whether the
Tribunal could have adjudicated the issue of the salaries of the
employees who were not workmen under the Act. The Court held that
the award in favour of the non workmen can not be supported on the
ground that the workmen can, in appropriate case, espouse the cause
of non workmen because under the definition of ‘industrial dispute’
under Clause (k) of Section 2, the dispute may not only be related
to workmen but any person including non workmen, provided that there
should be community of interest between the workmen and the non
workmen; provisions, of Section 18 of the Act make the award not
only binding on the workmen but also on the non workmen, who may be
in the employment on the date of the dispute or may have
subsequently become employed in the establishment and that under
Section 18(3)(b) the Tribunal has power to summon parties other than
parties to the order or reference, to appear in the proceedings as
parties to the disputes; as the employees in whose favour the award
was passed by the Tribunal were admittedly belonging to the non
workmen category. Consequently, the Court held that the non workmen
were not necessary party to the dispute. The Court, however,
clarified that the workmen in appropriate cases, can espouse the
cause of non workmen if there is community of interest between the
workmen and the non workmen. We fail to appreciate how this
judgment is applicable to the facts of the present case.
(*) In
case of Gujarat State Road Transport Corporation Vs. Dineshbhai
Manibhai Panchal reported in 1995 (2) GLH 854. The relevant head
note is quoted as under:
Industrial
Disputes Act, 1947 S. 10 Award by Industrial Tribunal
Appointment on compassionate ground Tribunal directed the
petitioner Corporation to give employment to the respondent on
compassionate ground in consonance with the settlement and policy of
the Corporation and to relieve the family of the deceased employee
from economic distress The above decision being just and in
accordance with law, does not warrant interference It is,
however held, that there can not be retrospective employment and no
payment of compensation can be ordered for the lost days
Tribunal’s directions in this regard are quashed.
In
view of above referred decisions and keeping in mind facts of
present case, according to my opinion, Industrial Tribunal has
rightly considered dispute raised by respondent, which has been
referred for adjudication is squarely covered being an industrial
dispute u/s 2 (K) of I. D. Act, 1947. In terms of settlement
section 30 which was produced on record by respondent exh 16 where
there is no terms or having any ceiling of income for getting
compassionate appointment, then such condition can not be instead or
to be incorporated by issuing GSO which relied by Corporation. The
Industrial Tribunal has rightly ignored it and relied exh 16
settlement u/s section 30. On that basis, Industrial Tribunal has
rightly granted relief in favour of respondent. For that,
Industrial Tribunal has not committed any error which would require
interference by this Court while exercising power under Art. 227 of
Constitution of India.
Hence,
there is no substance in present petition. The present petition is
dismissed.
(H.K.RATHOD,
J)
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