Calcutta High Court (Appellete Side)
Smt. Subhadra Halder vs Union Of India on 13 December, 2011
Author: Ashim Kumar Banerjee
Bench: Ashim Kumar Banerjee
1
Form No. J.(2)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashim Kumar Banerjee
And
The Hon'ble Ms. Justice Shukla Kabir (Sinha)
W.P.C.T. No. 315 of 2010
Smt. Subhadra Halder
-VS-
Union of India
And
W.P.S.T. No.283 of 2011
Smt. Dipa Banerjee
-VS-
The State of West Bengal & Ors.
For the Petitioner : Mr. Sanjoy Ghosh
(In W.P.C.T.315 of 2010) Mr. Hiranmoy Paik
For the Respondent : Mr. Jyotiris Chakraborty
(In W.P.C.T.315 of 2010)
AND
For the Petitioner : Mr. Swapan Kumar Banerjee
(In W.P.S.T.283 of 2011) Mr. Kunal Gangully
2
For the State : Mr. Pratik Prakash Banerjee
(Junior Standing Counsel)
(In W.P.S.T.283 of 2011) Mr. Ayan Banerjee
Heard on : December 1, 2011.
Judgment on : December 13, 2011.
ASHIM KUMAR BANERJEE.J:
We heard the above two matters separately. Both these matters would
involve identical question of law. Hence, we have decided to dispose of the
same by this common judgment and order.
FACTS
W.P.C.T. 315 OF 2010 One Ranjit Kumar Halder was a machine man in Government of India Press. He died on March 3, 1998 in harness after rendering thirty-four years six months and twelve days. He was fifty-eight years old, as appears from the death certificate.
Ranjit left him surviving Subhadra as his widow as also one Khokon Halder his minor son aged about fifteen years old. Khokon applied for 3 compassionate appointment in 2001 after attaining majority. The authority rejected such prayer on the ground that the deceased employee rendered thirty-four years six months and twelve days service. The family received Rs.2,36,140/- as terminal benefit apart from extension of family pension facility to the extent of Rs.2400/- as also Dearness Allowance thereon. The authority observed that the family was above the poverty level so fixed by the Planning Commission. The family owned immovable property valued at Rs.8000. Subhadra approached the Tribunal. The Tribunal vide judgment and order dated June 8, 2005 rejected the said application. Subhadra contended before the Tribunal that she could not approach Tribunal earlier due to financial stringency. She prayed for condonation of delay if any. On merits, she contended that her married daughter was turned out of her house in April 2002 along with her three minor children. Hence, the financial condition became precarious. The respondent however opposed such prayer by contending that at the time of death of the concerned employee only two dependent members being the widow and the only son constituted the family. Subsequent change in constitution of the family could not be an additional ground. The respondent contended that the authority considered the case under the guidelines of the Government framed for compassionate appointment that did not call for any interference. 4 We also find from the judgment of the Tribunal that the Assistant Labour Welfare Commissioner visited the house of the family on May 23, 2001 and found that the family had cultivable land yielding Paddy for consumption. The house was however without any electricity or any modern amenities. The deceased employee had six children out of them five daughters had already been married leaving only the applicant and her son to constitute the family. He recommended the case for absorption.
The Tribunal held that the prayer was considered under the appropriate scheme. The authority passed a speaking order that did not call for any interference. The Tribunal however observed that the authority may consider his application for few years in case his turn would come. The respondent authority accepted the said decision. However, the applicant approached us by filing the above petition.
W.P.S.T. 283 OF 2011 The petitioner Dipa Banerjee was the widow of one Manoj Banerjee working as a Constable under the Bengal Police. While he was posted at Purulia he suffered an accident while on duty. He died on January 30, 2007 when he 5 succumbed to the injury. On May 31, 2007 Dipa applied for compassionate appointment. On January 6, 2006 the Superintendent of Police, Purulia forwarded the said application to the appropriate authority for consideration. He also sent a reminder on June 5, 2008 but in vein. Dipa made direct representation to the Inspector General of Police, West Bengal on June 18, 2009 but in vein. Being aggrieved by such non-action on the part of the authority she approached the Tribunal by filing O.A. No.695 of 2010. The Tribunal dismissed the said application. The learned advocate for the respondent contended Before the Tribunal that she was found ineligible under the exempted category vide G.O. dated April 2, 2008 and August 14, 2008 as applicable, by the Superintendent of Police, Purulia. The learned advocate contended that she did not satisfy the condition laid down in the applicable Government Order and as such she was not eligible for compassionate appointment. The Tribunal considered the law on the subject in detail and ultimately held that the applicant was not entitled to such relief. The Tribunal however discarded the contention of the respondent that the notification of 2008 would prevail. The Tribunal observed that the notification prevalent on the date of death would prevail. The Tribunal however observed that after taking into account the terminal benefit as well as the family pension the applicant had not been able to establish that the 6 condition of the family was penurious that would need immediate assistance through compassionate appointment. The Tribunal also observed, since the applicant could survive for four and half years after the death the same could not be considered to exist as on the date of disposal of the Tribunal application.
Being aggrieved, both the petitioners approached us by filing the above two petitions.
LAW ON THE SUBJECT Three decisions of our Court were relied upon to support the contention of the petitioner.
If we look to Tapan Kumar Barman -VS- State of West Bengal & Ors.1 we would find that it was an ex parte decision as the State did not appear and the My Lords sitting in the Division Bench did not have the privilege to consider the State version. We also find that the decision in the case of Umesh Kumar Nagpal -VS- State of Haryana & Ors2 was not placed before Their Lordships, at least no such mention was made. In the 1 2009(1)CHN338 2 1994(4)SCC138 7 case of Rabin Routh -VS- State of West Bengal & Ors3, the Division Bench followed Tapan Kumar Barman (Supra). In fact, the decision was mainly based on Govind Prakash Verma -VS- Life Insurance Corporation of India & Ors4. Their Lordships, although considered Punjab National Bank & Ors. -VS- Ashwini Kumar Taneja5, could not lay hands on Nagpal (Supra) which was an authority on the issue. The decision in the case of Nazrul Islam & Anr. -VS- State of West Bengal & Ors6 was based on given facts. This decision was also based on the ratio decided in Govind Prakash Verma (Supra). If we look to Govind Prakash Verma (Supra) we would find that the Apex Court therein did not consider the earlier decisions on the issue, particularly the decision in the case of Nagpal (Supra). Their Lordships considered the rules of the Life Insurance Corporation of India and ultimately held that retiral benefit could not be the basis of order of rejection in case of compassionate appointment. That was also the consistent view of our Division Bench in those three cases referred to above. The other Apex Court decisions however held it otherwise. If we look to the latest one in the case of Bhawani Prasad Sonkar -VS- Union of India & Ors.7 we would find that the Apex Court laid down guidelines to be 3 CHN(4)2009748 4 2005(10)SCC289 5 AIR2004SC4155 6 2009(1) CHN 339 7 2011(4)SCC209 8 followed in case of compassionate appointment. It would be apt to reproduce the said guideline and paragraph 20 is thus quoted below :-
"Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind :
i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme.
ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time.
iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee's family at the time of his death or incapacity, as the case may be.
iv) Compassionate employment is permissible only to one of the dependents of the deceased/incapacitated employee viz. Parents, 9 spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Class III and IV ports."
We would also find that Nagpal (Supra) was considered along with other decisions on the issue. It is however true that Govind Prakash Verma (Supra) was not placed before Their Lordships. If we follow the latest one we would find a concrete guideline framed by the Apex Court. Neither the said guidelines give any scope to reject the application solely on the ground that the family received the post death benefit nor was it specific that the said amount should not be taken into account. We thus feel that neither Nagpal (Supra) nor Govind Prakash Verma(Supra) is inconsistent with each other. Taking a sum total, we feel that Article 14 and 16 of the Constitution read together would per se oppose the scope of compassionate appointment as it would foreclose the other eligible candidates to come within the zone of consideration infringing their Fundamental Right guaranteed under the Constitution. Such exception could only be made provided there was specific rule for the same in the particular department of the State and such rules would guide the service conditions of the deceased employee. Such rule could 10 only be used sparingly and that too, for extending support to the bereaved family faced with the untimely death of the sole bread earner leaving the family in a sudden precarious condition. To be specific, if the Rule provides the deponent could make an application immediately after the death and such application must be backed by concrete cogent evidence on the issue of acute financial stringency that the family suffered due to untimely death. APPLYING RATIO W.P.C.T. 315 of 2010 The concerned employee served the State almost his entire service career. When he died he left his widow and his only son. The subsequent unfortunate incident of married daughter coming back to the family could not be a ground to consider the same. The authority considered the issue in detail and ultimately rejected the prayer. We also find that there was no contemporaneous prayer for compassionate appointment made by the applicant. Pertinent to note, the application for compassionate appointment was made three years after the death of the concerned employee. The authority also communicated the rejection contemporaneously. She did not approach the Tribunal as against such rejection. The Tribunal rightly dismissed the application that does not deserve any interference by this Court.
11W.P.S.T. 283 OF 2011 Here the employee died at the age of forty-five years. He had fifteen years service left to his credit. The widow immediately applied for compassionate appointment. She was a housewife having two minor children. The authority, in our view, must consider the said application on merits applying the guideline prevalent as on the date of death of the concerned employee. While doing so the authority would also be entitled to take into account the financial benefit that the bereaved family got. We abundantly make it clear that we do not agree with the observation of the Tribunal made in paragraph 9 of the judgment and order impugned to the extent that since the lady could survive for four and half years there was no immediate need. The concerned employee died on January 13, 2007. She applied for compassionate appointment within four months. It was incumbent upon the authority to consider it on merits. From the records it appears that no formal communication was ever made to show that the authority at the appropriate level did consider the application on merit.
The judgment and order impugned in W.P.S.T. 283 of 2007 is thus set aside. The authority is directed to consider the issue on merits following the relevant circular prevalent on the date of death and dispose of the same by a 12 speaking order in case of refusal. Needless to say, the authority would consider the financial stringency as on the date of making of the application and not otherwise.
RESULT W.P.C.T. 315 of 2010 fails and is hereby dismissed without any order as to costs.
W.P.S.T. 283 of 2011 is disposed of accordingly without any order as to costs. DIRECTION Urgent Photostat copy will be given to the parties, if applied for. Shukla Kabir (Sinha), J:
I agree.
[ASHIM KUMAR BANERJEE,J.] [SHUKLA KABIR (SINHA),J.]