{"id":17099,"date":"2010-03-09T00:00:00","date_gmt":"2010-03-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gujarat-vs-nansinh-on-9-march-2010"},"modified":"2017-12-23T22:05:35","modified_gmt":"2017-12-23T16:35:35","slug":"gujarat-vs-nansinh-on-9-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gujarat-vs-nansinh-on-9-march-2010","title":{"rendered":"Gujarat vs Nansinh on 9 March, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Gujarat vs Nansinh on 9 March, 2010<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/1295\/2010\t 12\/ 26\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 1295 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.K.RATHOD\n \n \n=========================================================\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================================\n\n \n\nGUJARAT\nSTATE ROAD TRANSPORT CORPORATION - Petitioner(s)\n \n\nVersus\n \n\nNANSINH\nB DABHI SINCE DIED THRO HIS LEGAL HEIR ARJUNSINH - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nASHISH M DAGLI for\nPetitioner(s) : 1, \nNone for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 09\/03\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
Heard
\n\tlearned advocate Mr. AM Dagli on behalf of petitioner Corporation.\n<\/p>\n
The
\n\tpetitioner has challenged award passed by Industrial Tribunal,
\n\tAhmedabad in reference IT no. 102\/2004 decided on 29\/6\/2009.  The
\n\tIndustrial Tribunal has directed to Corporation to give appointment
\n\tto Arjunsinh Nansinh Dabhi (son of deceased) w.e.f. 1\/6\/2004 in the
\n\tpost of Peon with notional increment benefit and with continuity of
\n\tservice and accordingly fix salary within 30 days from date of
\n\tpublication of award. No arrears has been directed to be paid by
\n\tCorporation to Arjunsinh.\n<\/p>\n
Learned
\n\tadvocate Mr. Dagli raised contention before this Court that
\n\tIndustrial Tribunal has committed gross error in granting relief in
\n\tfavour of respondent.\n<\/p>\n
He
\n\tsubmitted that workman Nansinh Dabhi was working with Corporation as
\n\tConductor died on 1\/12\/1997. According to policy and as per relevant
\n\tRules and regulation, which was applicable at that time, legal heirs
\n\tof deceased is entitled to make application for  compassionate
\n\tregard to appointment and same was considered in accordance with
\n\tRules and Regulation and policy, prevailing at relevant point of
\n\ttime.  The respondent who failed in standard 10th,
\n\tqualified for post of Peon. On 9\/2\/1998, he made an application for
\n\tappointment and it is a say of respondent that on 5\/5\/1999,
\n\tapplication was disposed of and appointment was not offered to
\n\trespondent.  Therefore, dispute has been raised, which referred for
\n\tadjudication on 24\/5\/2004.\n<\/p>\n
He
\n\tsubmitted that Corporation has considered application submitted by
\n\trespondent as per policy prevailing and since on verification it was
\n\tfound that monthly income of family was Rs. 3042\/- and same is above
\n\tincome criteria as per GSO No. 1108\/2001 dated 21\/11\/2001.\n<\/p>\n
\tTherefore, his application was rejected.  The wife of deceased is
\n\talso getting pension of Rs. 2,625\/- and Rs. 416\/- received by
\n\trespondent, total comes to more than Rs. 2500\/-. Therefore, case of
\n\trespondent is not covered under policy of income.\n<\/p>\n
The
\n\tIndustrial Tribunal has not considered Rules and Regulation and
\n\tpolicy which was prevailing at the relevant time. He submitted that
\n\tsuch kind of direction can not be issued by Tribunal because
\n\tIndustrial Tribunal has no jurisdiction to pass such award against
\n\tCorporation.\n<\/p>\n
Learned
\n\tadvocate Mr. Dagli submitted that before Tribunal, written statement
\n\twas filed by Corporation exh 10. The details about income and
\n\treasoning that why application filed by respondent was rejected was
\n\tproduced. The Corporation has considered amount of pension received
\n\tby widow and son which is go beyond Rs. 2500\/-. The certificate
\n\tdated 20\/12\/1998 was produced by Corporation where annual income was
\n\tof Rs. 5000\/-. The Corporation has produced documents vide exh 11
\n\tlist, circular vide exh 18, General Standing order no. 1069\/1997 exh
\n\t19, General Standing order no. 1181\/2001 exh 20, GSO 361\/73 exh 21,
\n\tapplication made by respondent exh 22, given undertaking by
\n\trespondent exh 23, copy of ration card exh 24, internal
\n\tcommunication between ST officer and also consent given by remaining
\n\tlegal heirs of deceased exh 37, 38, 39 and 40.\n<\/p>\n
He
\n\tsubmitted that these all documentary evidence produced on record,
\n\teven though, same has been ignored by Industrial Tribunal and passed
\n\tan award contrary to Rules, Regulation and policy as well as GSO no.
\n\t1108\/2001 exh 20. According to him, Industrial Tribunal has
\n\tcommitted gross error in allowing reference in favour of respondent
\n\tworkman.\n<\/p>\n
I
\n\thave considered submission made by learned advocate Mr. Dagli and
\n\talso perused award passed by Industrial Tribunal.  The reason is
\n\tgive by Industrial Tribunal in para 9 while framing issue.  The
\n\tdeceased workman Nansinh B Dabhi – Conductor was expired on
\n\t1\/12\/1997. On the basis of settlement arrived between recognized
\n\tUnion and Corporation, legal heirs of such deceased employee is
\n\tentitled for compassionate appointment. On 9\/2\/1998, an application
\n\twas made by respondent alongwith relevant record, but Corporation
\n\thas rejected it only on the ground that family is having income more
\n\tthan Rs. 2500\/-.  The consent letter was given by other remaining
\n\tlegal heir in favour of respondent. The Corporation has considered
\n\tincome of pension received by widow and son, which is go beyond
\n\tceiling of Rs. 2500\/- accepted by Corporation.\n<\/p>\n
Before
\n\tIndustrial Tribunal, statement of claim vide exh 8 was filed by
\n\trespondent workman. On behalf of Corporation, one Administrative
\n\tAssistant Shri Kishorkumar Natvarlal Mehta was examined.  He has
\n\tadmitted in cross examination that he was not having any information
\n\tabout compassionate appointment of legal heirs of deceased Nansinh.
\n\tBut he was having knowledge that settlement arrived between
\n\trecognized Union and Corporation and also having knowledge about
\n\tcircular exh 41 to 43.  The said circular would not be changed terms
\n\tand condition of settlement between parties.\n<\/p>\n
The
\n\tIndustrial Tribunal has considered one decision which relied by
\n\trespondent reported in case of  Gujarat State Road Transport
\n\tCorporation Vs. Rameshbhai M. Makwana reported in 2002 (3) GLH 282.
\n\tThe Industrial Tribunal has also considered settlement arrived
\n\tbetween recognized Union and Corporation u\/s 12 (3) of Industrial
\n\tDispute Act, 1947.  Such settlement is binding to both parties as
\n\tper decision of Apex Court in case of Mohan Mahato Vs. Central Coal
\n\tField Limited reported in 2007 (8) SCC 549.  The ceiling of income
\n\thas been removed w.e.f. 10\/3\/2000 and as per item no. 30 of
\n\tsettlement, during course of employment, in case if, any employee
\n\tdied then his legal heirs are entitled for compassionate appointment
\n\tfrom Corporation.  In the said settlement in fact, there is no
\n\tprovision pointed out, which specified income ceiling.\n<\/p>\n
Therefore,
\n\tIndustrial Tribunal has come to conclusion that right of respondent
\n\tarise as per section 30 of Settlement, which is binding to
\n\tCorporation. In section 30, there is no provision made which require
\n\tless than income of Rs. 2500\/-.  In fact, there is no income at all
\n\tmentioned in such settlement of section 30.  The subsequent
\n\tresolution or General Standing order, which has been issued, changed
\n\tterms of settlement then it is not binding to respondent as there is
\n\tno other settlement arrived for changing section 30, which was
\n\tproduced before Industrial Tribunal.\n<\/p>\n
According
\n\tto section 30 of settlement, time limit has been prescribed but
\n\tthere is no reference to have any particular amount of income which
\n\tis to be satisfied by legal heirs of deceased employee for claiming
\n\tcompassionate appointment.\n<\/p>\n
Considering
\n\tobservations and reasoning given by Industrial Tribunal.  The
\n\tsimilar aspect has been considered by this Court as well as Apex
\n\tCourt in such cases.  The relevant decisions are quoted as under:\n<\/p>\n
(*)\tIn
\n\tcase of Gujarat State Road Transport Corporation, Palanpuar Vs.
\n\tRameshbhai Mafatlal Makwana reported in 2002 (4) GLR 2923.\n<\/p>\n
\tThe relevant para 6 and 7 are quoted as under:\n<\/p>\n
(6). This Court
\nhas  considered  submissions  of  learned advocate Mr.Dagali.\n<\/p>\n
Looking  to  the clear language of Item No.30, there  is  no  mention
\n or  no  condition  is incorporated  that  in  case  when  any
\nemployee has died during the course of employment or  declared
\nunfit,  one family  member  or heir of the deceased is required to be
\ngiven  compassionate  appointment  so  far vacancy is available with
\nthe Corporation in Class III \/ IV category or  efforts  will  have
\nto  be  made  by  the petitioner Corporation to absorb such person.
\nThus,  the  provision is very clear and there is no such condition
\nincorporated by  the Corporation and if any administrative
\ninstruction or direction by way of GSO or  by  way  of  any  circular
\nimposing certain   conditions not in  terms  of  the settlement,
\nnullify  the  object  of  the  settlement  or nullify  the
\nprovisions of the settlement or nullify the effect  of  the
\nsettlement  which  is  contrary  to  the settlement  and  therefore,
\nsaid  instructions  and\/or administrative guidelines cannot be  given
\n legal  effect because   the  settlement  under  Section  12[3]  of
\nthe Industrial Disputes Act, 1947, is like an award  and  the same
\nis binding to the petitioner and any breach thereof amounts to
\ncriminal  offence  under  Section  29  of  the Industrial Disputes
\nAct,  1947.   Therefore, claim which has  been  made  by  the
\nrespondent  workman  under  the provisions  of  the  settlement
\ncannot be rejected on the
\n    ground of having income in  the  family.    \tThis  is  not proper ground or ground \tprovided under the settlement and therefore,  \trejection  of  claim of the respondent by the  \tpetitioner  Corporation  is  illegal. The \ttribunal   has considered  this  aspect in \tpara-8 and came to conclusion that while \tarriving at settlement with the consent of \tthe Corporation and Union and therefore, any \tchange if it  is to be brought into effect, \tanother settlement is required to be  arrived \tbut by virtue of administrative circular,  \tthe Corporation cannot impose any condition  \tcontrary  to the  settlement which curtail \tthe right as provided under the settlement.  \tIt is also observed by the Tribunal that \twhile issuing this administrative   \tinstructions  or Circular prescribing ceiling \tof income of the family, the Union was \trequired to be consulted and the Union ought \tto have  been  taken  into  confidence  but \tfor the purpose, there was no such evidence  \tproduced  by  the  petitioner Corporation.    \tThe   tribunal  has  also  observed  that \tsettlement having legal effect and such \tsettlement cannot be  violated  by  the   \tCorporation by  issuing   such administrative  \tinstruction and therefore, application of      \tthe  respondent  cannot  be  rejected   based   \ton such administrative circulars.     \tTherefore,  ultimately  the\ttribunal has \tconsidered that the  demand  raised  by  the      \trespondent  is  legal  and  valid,  and  \trequires  to  be accepted.  Therefore, the \ttribunal has rightly passed the\taward. The   \tcontention  raised  by   learned   advocate \tMr.Dagali  that  at  the most the tribunal \tcan direct the petitioner  Corporation  to  \treconsider  the  matter  for giving  \tcompassionate appointment but the Tribunal \tcannot direct  the  petitioner  Corporation   \tto appoint   the dependent of  the  deceased  \tworkman. This  contention\t cannot be accepted \tby this Court on the ground that  from 1989 \tupto 2002, the respondent remained without \tany job. Now after more than twelve  years,  \tif  the  tribunal  is directed  by  this \tCourt to reconsider the matter, it can  \tpresume that another number of years  will  \tpass  on  for arriving  a  fresh decision and \ttherefore, ultimately the purpose  for  \tcompassionate  appointment   as   per   the \tsettlement, will  be frustrated.  Therefore, \taccording to my opinion, the tribunal has  \trightly  passed  the  award granting  \tcompassionate  appointment  in  favour  of  \tthe respondent workman.\n<\/p>\n
      #.  Similar aspect and the contentions as \traised  by  the Corporation  before  this \tCourt, has been considered in a decision of \tGUJARAT S.T.  CORPORATION V.   DINESHBHAI  M.      \tPANCHAL<\/a>  by  this Court which is reported in \t1995 [2] GLH 854. The relevant observations \tmade in para-5, 6, 7,  15, 16 and 17 are much \trelevant with the facts of the present  case \tand therefore, same are referred as under :-\n<\/p>\n
       “5.\tBy  referring  to  and  relying  \tupon the aforesaid decisions, Mr.Rathod, \tlearned  advocate for the respondent \tsubmitted that certain facts are admitted \tfacts in the case for the respondent to seek \tan employment on  compassionate  grounds. The \ttribunal may have observed about any abstract              \tproposition  of  law  but decided the dispute \tand\/or reference on certain facts  which  \tcannot  be assailed  of by the petitioner and \tif those facts are appreciated in proper and \tright  perspective, there is nothing left for \tthis Court to interfere with the order of the \tTribunal.  He has submitted that  there  are  \tcertain  Settlements  besides a policy \tadopted by the petitioner – Corporation to \tprovide employment to the dependent of a  \tretired\temployee  and  \/  or  an  employee  \twho  died  in harness.   In  the  instant  \tcase  the   employee Manilal  Nanjibhai \tPanchal died while in service, leaving behind \thim his widow, three  sons  and  a  daughter.   \tAccording  to  him,  the two sons had \tseparated from the deceased employee  during  \tthe\tlift of   their   father,   i.e.    the  \tdeceased employee.  At the time of demise  \tthe  family  of the  deceased  consisted of \this widow, unemployed son and a daughter.    \tBefore  the  Tribunal  the dependent \tunemployed son of the deceased employee had  \tdeposed  that  he  was living with his widow              \tmother and his sister and that  his  brother  \thad separated  from  the  family long back \tand it was stated  that  both  the  said  \tbothers  had  been jointly contributing \tRs.200\/- per month.  Besides such  income  \tthere  is  no  other  provision and source    \tand    under    these     circumstances \tconsideration of appointment on \tcompassionate grounds was a must.  He has  \tdemonstrated  before Court  by  pointing  out \tmaterials on record that the   evidence   of   \tthe   respondent   remained unchallenged  and  \tthere is no suggestion even at the time of \tcross examination of  the  respondent that  \tthe respondent had other income or that the              \tfamily of the deceased employee had other \tsources for survival.\n<\/p>\n
     6.This Court has patiently  considered  the              \tsubmissions made on behalf of the\trespective \tparties.   With  great  anxiety  this  Court  \thas considered  the  material  on record in \tdepth and details.   In  order  to  avoid   \tany necessary controversy  this  Court  finds  \tcertain admitted facts which  would  be  very  \tmuch  pertinent  to observe.  The  employee  \tconcerned, viz.  Manilal Nanjibhai Panchal \tdied on 28-3-1987.  As per  the evidence \tadduced, two sons of Manilal Panchal had  \tbeen  living separately even during the life \ttime of said Manilal Panchal.  The meagre \tcontribution by the brothers to the  \tfamily,  \tcomprising  of widow  of Manilal Panchal, \tunemployed son and the daughter, having no \tother  source  of  income  is also not in \tdispute.  The evidence adduced by the \trespondent herein goes unchallenged.  There \tis no\tcross examination about the \tavailability of funds and  against  the \tpitiable financial condition of the family \tleft the deceased.\n<\/p>\n
     7.Under  this  background,  there   is   an              \tobligation for appointment  on  compassionate
\n\tgrounds.  The settlement as referred  to  by  \tthe petitioner  Corporation  refers  to  \tparagraph  3 wherein it is provided –\n<\/p>\n
   One member of the family of the retired  \temployee of  the  Corporation  will  be \tpermitted to apply directly in S.T. subject \tto  the  condition  that there  is  no  other \tearning member in the family ….”\n<\/p>\n
    Similarly, in para-4 of  the  Settlement  it  \thas been provided as under :-\n<\/p>\n
   “Similarly, if an employee of the Corporation \tdies or becomes  permanently  disabled while \tin service and there is no other earning  \tmember  in the  family,  one  member  of his\/ \ther family can directly apply for a suitable \tpost in S.T.,  when names  for  such  vacancy \tare called for from the Employment Exchange.  \t…”\n<\/p>\n
    Admittedly, there is policy of the \tCorporation \tto provide employment on \tcompassionate grounds. The policy has been \tliberalised from time to time.\n<\/p>\n
    15.\tBy looking at the principles of  law \tand
\n   the  ratio  arrived  at in the aforesaid \treported decisions it is not in doubt that in  \tappropriate cases  where  there is hardships \tand the rules do not  prohibit,  there  may  \tbe appointment on compassionate grounds.    \tThe aforesaid decisions referred to and \trelied upon by the petitioner and the \trespondent, only lead to the conclusion  that              \teach case has to be considered on its own \tmerits. Any  observations  by  the  tribunal  \tcontrary to proposition of law and\/or  \tcontrary  to  the observations  made  by  the  \tApex Court of the Country and high  Courts,  \tdoes  not  change  the position of law.  The \tdecision of the Tribunal so far  as  its  \tconclusions is concerned, may be considered, \tbut  if  there  is  no  other  reason \tcontrary  to law, it is not certainly binding \tand it becomes reckoning force.\n<\/p>\n
     16.\tRegard  being  had  to  the  materials on
\n    record and the  circumstances  of  the  case,  \tit transpires  that  after  the  demise  of  \tManilal Nanjibhai Panchal the family of the  \tdeceased  is under  duress  and the financial \tcondition of the family is pitiable and that \tthere  should  hardly bed  any  delay in \tconsidering the appointment of the applicant  \ton  compassionate  grounds.    The facts  are  \tsimple  and  clear and the conclusion arrived \tat by the Tribunal is  most  justiciable.  It  \tis also fairly conceded by Mr.Rathod, learned              \tadvocate for the respondent that there cannot  \tbe any  retrospective employment nor the \tquestion of any compensation arises from 1988 \tas observed by the Tribunal. Having anxiously \tgone through the decision of the Tribunal, \tthis Court approves the decision of the \tTribunal so far as the giving of the  \temployment within 30 days of the publication              \tof the award of the Tribunal is concerned.    \tBut the  question  of  payment of any \tcompensation or for any  retrospective  date  \tfor  reckoning  the services from 1988 does \tnot arise.\n<\/p>\n
    17.\tIn the result, this petition fails to the
\n  \textent that the order of the Industrial\tTribunal so far as directs that employment be  \toffered  to Dinesh  Manilal  Panchal  in\teither Grade III or Grade IV according to    \this educational qualification in  the S.T.  \tCorporation within 30 days of the  \tpublication  of  the  award  is  not \tdisturbed and  is  confirmed.  However, so \tfar as the  direction  for  payment  of  \tRs.5,000\/- as special compensation having    \tdelayed in implementing the settlement to  \tthe  claimant  is concerned,  the  same is \tnot sustainable and that direction is \tquashed. Considering the facts and \tcircumstances  of  the case, there will a \tspecial costs of Rs.3,500\/-  payable  by  the  \tpetitioner Corporation  to  the  claimant for \tthis petition. The order of costs made by the  \tTribunal  in  the Reference is  maintainable.    \tRule is discharged subject to aforesaid \tobservations.”\n<\/p>\n
\t(*)\tIn case of Gujarat
\n\tState Transport Corporation Vs. Kalubhai H. Valand
\n\treported in 2002 (4) GLR, 2953.  The relevant para 5 is
\n\tquoted as under:\n<\/p>\n
5.\tIn the facts of
\nthe present case, the father was admittedly discharged on the  ground
\nof permanent disability  without and   before being offered any
\nalternative job. The policy or practice of the management of not
\nallowing compassionate appointment in case  the employee had refused
\nto accept an alternative job is not placed on record in black and
\nwhite.  And  the petitioner  has  also  failed  to  show  any
\nco-relation between the provision for recategorisation  and the
\nbenefit of compassionate    appointment.  Therefore, it is difficult
\nto infer that one  benefit  could  be  set  off      against  the
\nother  by or in the name of implementing an obscure management
\npolicy.  Instead, a conjoint  reading of  the relevant Clause No.2 of
\nSchedule II of the Labour Settlement for the period  from  1.8.1970
\nto  31.7.1973, Clause No.30(7) of the Settlement for the period from
\n1.8.1987 to  31.7.1992  and G.S.O.  No.361 of 1973 indicates a
\nbeneficial scheme under which the effort is  made to facilitate
\ncontinuation of  employment of an employee  who  is rendered unfit
\ndue to visual deficiency or accidental  injuries,  and  such
\nemployee is to be discharged  on  the  ground of unfitness as a last
\nresort when he refuses to do  alternative  work  that  may  be
\nassigned to him.  However, once an employee is discharged      on
\nthe  ground  of permanent disability, the question of giving
\ncompassionate appointment  to an eligible heir arises and the issue
\nwhether the disabled employee had accepted the alternative work or
\nnot does not in any  way enter  into  the  consideration  of  an
\napplication  for compassionate appointment.  Therefore, the policy,
\nif any, as  canvassed  on  behalf of the petitioner, has no basis,
\nexpress  or  by  necessary  implication,  in  the provisions made for
\ncompassionate appointment.  And the argument that the privilege and
\nfacility of compassionate appointment was or was likely  to  be
\nabused  cannot be accepted  when  the petitioner had consistently
\nfailed to link up recategorisation and compassionate appointment in
\nthe successive settlements as also avoided  to  put  such policy into
\n black  and white for uniform application in      all such cases.\n<\/p>\n
\t(*)\tIn case of Gujarat
\n\tState Road Transport Corporation Vs. M. I. Pathan & Anr reported
\n\tin 2000 (4) GLR 3137.  The relevant para 3 and 5 are quoted
\n\tas under:\n<\/p>\n
3.I
\nhad perused the entire Award and  gone  through Item No.  30  of  the
\n Settlement.  Mr.  Vaishnav pointed out that there is one G.S.O of
\nthe year 1992 wherein  the said ceiling  of  Rs. 1,000\/= has been
\nenhanced to Rs.1,500\/=, however, Mr. Vaishnav   submitted    that
\nconsidering  the  undisputed  right  that in case if any employee is
\ndeclared `unfit’ during  the  course of his employment  and  he  is
\nunable to perform his duty on the
\n 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
\nTribunal 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.\n<\/p>\n
5.\tNow,  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,<\/a> reported in AIR (1957) SC 110.\n<\/p>\n
\t(*)\tThe Zharkhand High
\n\tCourt in case of Sukhu Manjhi vs. Central Coalfields Limited &
\n\tOrs reported in 2010 LabIC 378.  The relevant para 16 and 17
\n\tare quoted as under:\n<\/p>\n
 16.\tThe
\n\tDivision Bench of this Court, in the case of Lakhan Kumar Vs.
\n\tCentral Coalfields Limited and Others in L. P. A. No. 780 of 2004 :
\n\t2006 (3) AIR  Jhar R 34 (Annexure 13), has held that the case of
\n\tminor has been specifically provided for in para 9.5.0 of National
\n\tCoal Wage Agreement and the intention of the respondent Company in
\n\tmaking the said provision is that those who are minors at the time
\n\twhen their parents in employment died, should be provided with
\n\temployment once the minor attains the age of majority.  It has
\n\tfurther been held that the objection taken in that case that the
\n\tapplication was made after four years from the date of death of his
\n\tfather was highly technical and was also not supported by the Scheme
\n\tsince it does not in any way indicate that the minor has to apply
\n\twithin six months from the date of death of the deceased.\n<\/p>\n
The
\n\t\tdecision of the Division Bench in the case of Sushi Kumar Vengra
\n\t\tVs. Union of India and others (supra) relied on by the respondents
\n\t\tin the present case was also considered in this decision of the
\n\t\tDivision Bench and the same was distinguished holding that the fact
\n\t\tof the said case was on a quite different footings.\n<\/p>\n
17.\tParas
\n\t\t10, 11 and 16 of the judgment of the Supreme Court, in the case of
\n\t\tMohan Mahto Vs. M\/s Central Coalfield Ltd and Ors (2007 (4) JLJR
\n\t\t144 (SC) : 2008 (1) AIR Jhar R 650), are very much relevant to be
\n\t\tnoticed for deciding the points raised in this writ petition and as
\n\t\tsuch, they are quoted herein below.\n<\/p>\n
In
\n\t\tpara   11 of the said judgment, it has been held that:\n<\/p>\n
 The
\n\t\tright to obtain appointment on compassionate grounds emanates from
\n\t\tthe settlement.  Settlement is defined in Section 2 (p) of the
\n\t\tIndustrial Disputes Act to mean a settlement arrived at in the
\n\t\tcourse of conciliation proceeding and includes a written agreement
\n\t\tbetween the employer and the workmen arrived at otherwise than in
\n\t\tthe course of conciliation proceeding where such agreement has been
\n\t\tsigned by the parties thereto in such manner as may be prescribed
\n\t\tand a copy thereof has been sent to an officer authorized in this
\n\t\tbehalf by the appropriate Government and the conciliation officer.\n<\/p>\n
In
\n\t\tpara 10 of the said judgment, it has been held that:\n<\/p>\n
\t\tA settlement
\n\t\twithin the meaning of sub section (3) of Section 18 of the
\n\t\tIndustrial Dispute Act is binding on both the parties and continues
\n\t\tto remain in force unless the same is altered, modified or
\n\t\tsubstituted by another settlement.  No period of limitation was
\n\t\tprovided in the settlement. We would assume that the respondent had
\n\t\tjurisdiction to issue such circular prescribing a period of
\n\t\tlimitation for compassionate ground.  But, such circular was not
\n\t\tonly required to be strictly complied with but also was required to
\n\t\tbe read keeping in view the settlement entered into by and between
\n\t\tthe parties.  The expanding definition of workman as contained in
\n\t\tSection 2 (s) of the Industrial Disputes Act would confer a right
\n\t\tupon the appellant to obtain appointment on compassionate ground,
\n\t\tsubject, of course, to compliance of the conditions precedent
\n\t\tcontained therein.\n<\/p>\n
In
\n\t\tpara 16 of the said judgment, it has been held that:\n<\/p>\n
\t\tIt is neither in
\n\t\tdoubt nor in dispute that the case for grant of compassionate
\n\t\tappointment of a minor was required to be considered in terms of
\n\t\tsub clause (iii) of Clause 9.5.0 of the N.C.W.A. – V.  In terms of
\n\t\tthe said provision, the name of the appellant was also to be kept
\n\t\ton a live roaster.  He was to remain on the live roster till he
\n\t\tattained the age of 18 years.  Respondents did not perform their
\n\t\tduties cast on them thereunder.  It took an unilateral stand that
\n\t\tan application has been filed in the year 1999 in the prescribed
\n\t\tform.  For complying with the provisions of a settlement which is
\n\t\tbinding on the parties, bona fide or otherwise of the respondent
\n\t\tmust be judged from the fact as to whether it had discharged his
\n\t\tduties thereunder or not.  In this case, not only it failed and\/or
\n\t\tneglected to do so, but as indicated hereinbefore, it took an
\n\t\tunholy stand that the elder brother of the appellant being
\n\t\temployed, he was not entitled to appointment on the compassionate
\n\t\tground.  Thus what really impelled the respondent in denying the
\n\t\tbenefit of compassionate appointment to the appellant is, therefor,
\n\t\topen to guess.  We expect a public sector undertaking which is a
\n\t\t‘State’ within the meaning of Article 12 of the Constitution of
\n\t\tIndia, not only to act fairly but also reasonable nor bona fide.\n<\/p>\n
The
\n\t\t\tSupreme Court after considering the case of Umesh Kumar Nagpal Vs.
\n\t\t\tState of Haryana reported in 1994 (4) SCC : 1994 AIR SCW 2305
\n\t\t\twhich has been relied by the respondents in the present case,
\n\t\t\tdistinguished the same.\n<\/p>\n
(*)\tIn
\n\tcase of S. C. Rupchandani Vs. Chairman, State Bank of India,
\n\tMumbai & Ors reported in 2008 (5) GLR 4018.  The
\n\trelevant observation made in para 9 is quoted as under:\n<\/p>\n
 9.
\n\tLearned counsel for the respondent Bank has placed heavy reliance
\n\tupon the policy produced at page 101 of the petition, especially in
\n\tPara no. 1, 2 and clause (e) of the said policy under title
\n\t Financial Condition of the family  for resisting this petition,
\n\twhich is said to be the codification of the existing policy from
\n\t5\/12\/1996. Petitioner has also placed reliance upon the policy which
\n\twas existing prior to 5\/12\/1996 and it was in operation when the
\n\tpetitioner retired on 19\/6\/1996. The relevant policy which is said
\n\tto have been codified vide document dated 5\/12\/1996 refers to a
\n\tcommunication received from Government of India, Ministry of Finance
\n\tin the letter dated 28\/11\/1994 and the same was for the first time
\n\timplemented or effected in the policy which is said to be codified
\n\tw.e.f. 5\/12\/1996. The question arise as to why was there the
\n\trequirement for codifying the policy. It is not the case of the
\n\trespondent Bank that the policy which is relied upon by the
\n\tpetitioner was not in the vogue at the relevant time nor is it the
\n\tcase of the Bank that the Government of India’s letter referred to
\n\tin the codified policy dated 5\/12\/1996 had been taken into
\n\tconsideration while framing the policy on the earlier occasion. In
\n\tfact the policy of offering employment to the dependant of deceased
\n\temployee was in vogue and the same was extended to  the employees
\n\twho were made to retire on account of medical grounds. The
\n\tpetitioner has in fact cited example of one Mr.K.A. Trivedi, Mr.
\n\tD.R. Joshi, Mr. Javed Akhtar,Mr. R.A. Koteshwar, Mr. R.N. Daoo etc.
\n\twho were admittedly in a better financial position than the
\n\tpetitioner, and yet their dependents were offered employment to
\n\twhich the Bank has simply replied, stating that their cases were
\n\t‘peculiar’ and therefore the benefit of compassionate employment was
\n\taccorded to them. The Bank has not taken a stand that in those
\n\temployees’ cases compassionate appointment to the dependants were
\n\tgiven wrongly or through any mistake. Had it been the case of the
\n\tBank that these employees who have been named herein above and who
\n\thave said to be in better position than that of the petitioner were
\n\twrongly or through mistake given the benefit then it could have been
\n\tsaid that, as the Bank had realised the mistake the petitioner can
\n\tnot be permitted to agitate and rely upon same mistake so as to
\n\tcompel the Bank to perpetuate the same mistake once again. But in
\n\tthe instant case on the contrary the Bank has not denied the
\n\tassertion of the petitioner that those employees were on a better
\n\tfooting financially than the petitioner, but a defence is put up
\n\tthat on account of ‘peculiar’ circumstances of their cases their
\n\tdependents were given appointments. It was bounden duty cast upon
\n\tthe Bank  when confronted with  an assertion of discrimination to
\n\texplain the ‘peculiar cirsumtances’ warranting according of benefit.
\n\tOnly some explanation is found in case of Shri. Joshi and Shri.
\n\tTrivedi. The fact remains that no explanation except peculiar
\n\tcircumstances is coming up so far as Mr. Javed Akhtar,Mr. R. A.
\n\tKoteshwar and Mr. R.N. Daoo, who were admittedly holding higher
\n\tposition than the petitioner were beneficiaries of the policy. They
\n\twere far higher than the petitioner in position. As it is stated
\n\therein above it is not the case of the Bank that through mistake or
\n\tthrough inadvertence employment was given to their dependants.
\n\tJuxtaposing this fact with the fact of requirement of codifying the
\n\tpolicy as it is submitted by learned counsel for the Bank in the
\n\tdocument dated 5\/12\/1996 specifically introducing clause of taking
\n\tinto consideration the financial status will all the more make it
\n\tclear that atleast when the petitioner retired from service of the
\n\tBank on medical ground i.e. 19\/6\/1996 the policy in vogue relied
\n\tupon  by the petitioner was being operative and implemented and at
\n\tthat time the consideration of financial status was not one of the
\n\tfactor for denying the benefit of compassionate appointment. The
\n\tDivision Bench decision in respect of Gujarat Maritime Board
\n\t(supra) is binding on this Court wherein the decision of the Apex
\n\tCourt in case of Umesh Kumar Nagpal (supra) is considered and
\n\tthereafter the Court has permitted the contention of the Gujarat
\n\tMaritime Board in respect of passage of time and non applicability
\n\tof the policy to the  deceased at the relevant time. The Apex Court
\n\tdecision in case of MUKESH KUMAR V. UNION OF INDIA & ORS,
\n\treported in 2007 AIR SCW 5556; and in case of ABHISHEK KUMAR V.\n<\/p>\n
\tSTATE OF HARYANA & ORS, reported in 2006 (13) SCALE, 658 helps
\n\tthe case of the petitioner.\n<\/p>\n
(*)\tThe
\n\tDivision Bench of Delhi High Court has considered such industrial
\n\tdispute relating to compassionate appointment of son of deceased
\n\temployee in case of Delhi Development Authority Vs. Sudesh
\n\tKumar and Anr reported in 2009 (II) LLJ 641.  The relevant
\n\tpara 8, 9 and 10 are quoted as under:\n<\/p>\n
 8.\tOur
\n\tattention was drawn to a direct decision on this point delivered by
\n\ta single Judge of this Court in Delhi Municipal Worker Union (Regd)
\n\tVs. Management of M. C. D. and Others 1999 -II-LLJ 856 (Del).  The
\n\tfacts were  almost identical.  In that case also a Beldar working in
\n\tMCD had expired and his widow had applied for appointment of her son
\n\ton compensate grounds.  The claim was rejected by the management and
\n\tthe matter was taken up by the Municipal Workers Union and the
\n\tquestion arose as to whether the dispute falls within the definition
\n\tof ‘industrial dispute’ within the meaning of Section 15.  The
\n\tlearned single Judge following a judgement of the Supreme Court in
\n\tKyas Construction Company (pvt) Limited vs. its Workmen 1958   II-
\n\tLLJ- 660 has held that a dispute relating to the compassionate
\n\tappointment raised by the son of a deceased employee was an
\n\tindustrial dispute within the meaning of said Section.  In Kyas
\n\tConstruction Company (Pvt) Limited v. Its Workmen (Supra), the
\n\tSupreme Court<\/a> has reiterated that an industrial dispute need not be
\n\ta dispute between the employer and his workman and that the
\n\tdefinition of the expression ‘industrial dispute’ is wide enough to
\n\tcover a dispute raised by the employer’s workmen with regard to non
\n\temployment of others who may not be employed workmen of others who
\n\tmay not be employed workmen at the relevant time.\n<\/p>\n
9.\tOur
\n\tattention was drawn to the judgment of the Madras High Court in
\n\tManagement Southern  Textiles Limited, Coimbatore vs. United
\n\tTextiles Labour Association and others 1983-I- LLJ- 435, wherein it
\n\thas been held that a dispute relating to fixation of a ratio between
\n\tthe heirs and the dependents of the workmen and the outsiders, in
\n\tthe matter of recruitment, would constitute an ‘industrial dispute’
\n\tbecause the workmen as a class have a community of interest in the
\n\temployment of their heirs and dependents. The Court further held
\n\tthat heirs and dependents of the workmen would fall within the ambit
\n\tof the expression ‘any person’ and, therefore, the dispute is an
\n\t‘industrial dispute’.\n<\/p>\n
10.\tMr.\n<\/p>\n
\tBirbal, however, sought to rely upon a recent judgment of the
\n\tSupreme Court in Mukund Limited Vs. Mukand Staff and Officers’
\n\tAssociation AIR 2004 SC 3905 : 2004 II-LLJ- 327.  In that case, the
\n\torder of reference was relating to the dispute between the company
\n\tand the workmen employed under them. The question was whether the
\n\tTribunal could have adjudicated the issue of the salaries of the
\n\temployees who were not workmen under the Act.  The Court held that
\n\tthe award in favour of the non workmen can not be supported on the
\n\tground that the workmen can, in appropriate case, espouse the cause
\n\tof non workmen because under the definition of ‘industrial dispute’
\n\tunder Clause (k) of Section 2, the dispute may not only be related
\n\tto workmen but any person including non workmen, provided that there
\n\tshould be community of interest between the workmen and the non
\n\tworkmen; provisions, of Section 18 of the Act make the award not
\n\tonly binding on the workmen but also on the non workmen, who may be
\n\tin the employment on the date of the dispute or may have
\n\tsubsequently become employed in the establishment and that under
\n\tSection 18(3)(b) the Tribunal has power to summon parties other than
\n\tparties to the order or reference, to appear in the proceedings as
\n\tparties to the disputes; as the employees in whose favour the award
\n\twas passed by the Tribunal were admittedly belonging to the non
\n\tworkmen category.  Consequently, the Court held that the non workmen
\n\twere not necessary party to the dispute.  The Court, however,
\n\tclarified that the workmen in appropriate cases, can espouse the
\n\tcause of non workmen if there is community of interest between the
\n\tworkmen and the non workmen.  We fail to appreciate how this
\n\tjudgment is applicable to the facts of the present case.\n<\/p>\n
(*)\tIn
\n\tcase of Gujarat State Road Transport Corporation Vs. Dineshbhai
\n\tManibhai Panchal reported in 1995 (2) GLH 854.  The relevant head
\n\tnote is quoted as under:\n<\/p>\n
\t Industrial
\n\tDisputes Act, 1947   S.  10   Award by Industrial Tribunal
\n\tAppointment on compassionate ground   Tribunal directed the
\n\tpetitioner   Corporation to give employment to the respondent on
\n\tcompassionate ground in consonance with the settlement and policy of
\n\tthe Corporation and to relieve the family of the deceased employee
\n\tfrom economic distress   The above decision being just and in
\n\taccordance with law, does not warrant interference   It is,
\n\thowever held, that there can not be retrospective employment and no
\n\tpayment of compensation can be ordered for the lost days
\n\tTribunal’s directions in this regard are quashed.\n<\/p>\n
In
\n\tview of above referred decisions and keeping in mind facts of
\n\tpresent case, according to my opinion, Industrial Tribunal has
\n\trightly considered dispute raised by respondent, which has been
\n\treferred for adjudication is squarely covered being an industrial
\n\tdispute u\/s 2 (K) of I. D. Act,  1947.  In terms of settlement
\n\tsection 30 which was produced on record by respondent exh 16 where
\n\tthere is no terms or having any ceiling of income for getting
\n\tcompassionate appointment, then such condition can not be instead or
\n\tto be incorporated by issuing GSO which relied by Corporation.  The
\n\tIndustrial Tribunal has rightly ignored it and relied exh 16
\n\tsettlement u\/s  section 30.  On that basis, Industrial Tribunal has
\n\trightly granted relief in favour of respondent.  For that,
\n\tIndustrial Tribunal has not committed any error which would require
\n\tinterference by this Court while exercising power under Art. 227 of
\n\tConstitution of India.\n<\/p>\n
Hence,
\n\tthere is no substance in present petition. The present petition is
\n\tdismissed.\n<\/p>\n
\t\t\t\t\t\t\t\t(H.K.RATHOD,
\nJ)<\/p>\n
asma<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Gujarat vs Nansinh on 9 March, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print 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 ========================================================= 1 Whether Reporters of Local Papers may be allowed […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-17099","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nGujarat vs Nansinh on 9 March, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gujarat-vs-nansinh-on-9-march-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gujarat vs Nansinh on 9 March, 2010 - 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