Madras High Court
M.G.Lalitha Pearson vs The Union Of India on 5 August, 2014
Author: R.Mahadevan
Bench: R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.08.2014 CORAM THE HONOURABLE MR.JUSTICE R.MAHADEVAN W.P(MD)No.5128 of 2010 and M.P(MD)No.3 of 2010 1.M.G.Lalitha Pearson 2.P.Lambert Jeba Prakash ... Petitioners Vs. 1.The Union of India, represented by its Secretary, Department of Atomic Energy, New Delhi. 2.The General Manager, Indian Rare Earths Ltd., Manavalakuruchi Plant, Manavalakuruchi - 629 252. Kanyakumari District. 3.The Deputy General Manager, Indian Rare Earths Ltd., Manavalakuruchi Plant, Manavalakuruchi - 629 252. Kanyakumari District. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, to issue a writ of Certiorarified Mandamus to call for the records relating to the impugned order issued by the second respondent, General Manager, vide MK/HRM.CG/2008/10256, dated 04.12.2008, and quash the same and further direct the respondents herein to provide with a suitable employment on compassionate grounds to the second petitioner in he second respondent Undertaking, namely, Indian Rare Earths Ltd., in commensurate with his qualification. !For Petitioners ... Mr.Issac Mohanlal for Mr.J.Shabu Jose ^For Respondents ... Mr.K.K.Senthilvelan Assistant Solicitor General of India for R.1 and R.3 Mr.Sanjay Mohan for Mr.S.Ramasubramaniam for R.2 * * * * :ORDER
Challenging the denial of appointment on compassionate grounds to the second petitioner, this writ petition has been filed seeking a writ of Certiorarified Mandamus to quash the impugned order passed by the second respondent in MK/HRM.CG/2008/10256, dated 04.12.2008, and consequently, direct the respondents herein to provide a suitable employment on compassionate grounds to the second petitioner in the second respondent Undertaking, namely, Indian Rare Earths Ltd., in commensurate with his qualification.
2. Short facts leading to the filing of this writ petition, are set out thus:
2.1. The first petitioner is the wife of late Pearson Benjamin and the second petitioner is their son. The said Pearson Benjamin was appointed as Junior Clerk in the second respondent organisation on 16.04.1979 and thereafter, he was promoted as Senior Clerk on 01.07.1986. According to the petitioners, he was in service between 16.04.1979 and 13.11.1989. To their shock, he was found missing from 14.11.1989, which necessitated them to lodge a complaint with the police and a case in Cr.No.1134 of 1989 on the file of the Inspector of Police, Vadasery Police Station, was registered on 31.12.1989. A final report was also filed by the police before the learned Judicial Magistrate No.II, Nagercoil, stating that he was undetectable and later, the said case was referred as undetectable case by order dated 22.02.1991.
2.2. Subsequently, the first petitioner informed the third respondent of the missing of her husband from 14.11.1989, through his communication dated 19.03.1990. Whereas the third respondent issued an order terminating the services of the first petitioner's husband with effect from 27.06.1990, for his unauthorised absence. Thereafter, the first petitioner made a representation dated 14.03.1992 to the second respondent seeking compassionate employment, which followed by several other representations and at the later point of time, she was advised to produce the orders from the competent Court.
2.3. Then only, she filed a suit in O.S.No.162 of 1998 before the II Additional District Munsif Court, Nagercoil, seeking declaration of the civil death of her husband and the same is allowed on 29.08.2000, by declaring the civil death of Pearson Benjamin, which emanated in filing S.O.P.No.7 of 2002 before the Principal Subordinate Court, Nagercoil, for Succession Certificate and ultimately, the said Certificate was also issued on 24.07.2003. 2.4. While so, the first petitioner alone with her two sons, filed another suit in O.S.No.482 of 2002 before the I Additional Judicial Magistrate Court, Nagercoil, praying for a declaration as to their legal heirship and entitlement to the family pension along with other benefits. The said relief was also granted to them by order dated 22.01.2007.
2.5. It is the specific case of the petitioners that even after the orders passed by the competent civil Courts, the representation submitted by the second petitioner seeking employment on compassionate grounds, did not evoke any positive response. Similarly, the representation sent to the third respondent on 19.08.2008, was replied stating that suitable decision would be taken. Thereafter, the impugned order came to be passed that the husband of the first petitioner was terminated from service with effect from 27.06.1990 and hence, the prayer for compassionate appointment cannot be considered.
Aggrieved over such refusal, the petitioners are before this Court.
2.6. Whereas the respondents 2 and 3 filed the counter affidavit, inter alia contending that due to the unauthorised absence of the husband of the first petitioner, disciplinary action was taken. On the basis of the orders of the civil Court, the first petitioner was paid a sum of Rs.15,770/- (Rupees Fifteen Thousand Seven Hundred and Seventy only). Likewise, the amount lying in the Provident Fund to the tune of Rs.1,61,531/- (Rupees One Lakh Sixty One Thousand Five Hundred and Thirty One only) was settled to them on 06.11.2003. As regards the family pension, since they had not submitted the pension form, the same was not able to be proceeded further. Insofar as the claim for appointment on compassionate grounds is concerned, the same was rejected for the reason that the husband of the first petitioner was terminated from service due to unauthorised absence. Hence, the respondents 1 and 2 opposed the relief sought for by the petitioners and prayed for the dismissal of the writ petition.
3. The learned Counsel for the petitioners submitted that the husband of the first petitioner, who was an employee of the respondents 2 and 3, found missing from 14.11.1989 and the complaint lodged by the first petitioner also closed as 'undetectable case' and thereafter, she made several representations to the authorities concerned seeking employment on compassionate grounds, to which, the respondents 2 and 3, without considering the claim of the first petitioner, passed the impugned order rejecting their claim. He further added that despite all her compliance of all legal requirements as directed by the respondents, the second respondent denied her claim.
4. Also, it is the main contention of the learned Counsel for the petitioners that the petitioners had obtained the orders from the competent civil Courts, besides legal heirship certificate and succession certificate, but the authorities did not at all consider the plight of the family of their erstwhile employee. It is also not disputed that the benefits to which they are entitled to, are given, except the employment on compassionate grounds, necessitating the petitioners to come before this Court for appropriate relief.
5. In support of his contentions, the learned Counsel for the petitioners placed reliance on the decision of the Honourable Apex Court in Syed Khadim Hussain v. State of Bihar and others reported in (2006) 9 Supreme Court Cases 195 and also the decision of this Court in N.Pankajam v. State of Tamil Nadu reported in (2006) 3 M.L.J. 702.
6. Per contra, the learned Counsel for the second respondent, reiterating the averments made in the counter affidavit filed by the respondents 2 and 3, submitted that the petitioners were not denied of their monetary benefits consequent to the termination of the employee and since the petitioners had not made out a case for appointment on compassionate grounds, such claim advanced on their side was categorically rejected by way of the impugned order, which does not warrant any interference at the hands of this Court. He also relied on the following decisions:
(i) Union of India and others v. Geeta Devi reported in (2002) 10 Supreme Court Cases 166.
(ii) L.I.C. of India v. Anuradha reported in AIR 2004 SC 2070.
(iii) K.Srinivasan v. Regional Manager (P & IR), LIC reported in (2008) 4 MLJ 631.
7. I have carefully considered the rival submissions and perused the materials available on record.
8. Admittedly, it is not disputed by the second respondent that the deceased husband of the first petitioner was the erstwhile employee under their concern. On coming to know about the missing of her husband, the first petitioner lodged a complaint with the police, which emanated in registering a case and ultimately, the same was closed as undetectable one. In such circumstances, the first petitioner being one of the legal heirs, approached the authorities for the benefits to which she is entitled to. Whereupon the said claim was rejected for want of legal heirship certificate and the succession certificate as well. Then only, she moved before the competent civil Courts and obtained the certificates required by the authorities and submitted the same to them.
9. It is not the stand of the petitioners that the monetary entitlements, sought to be paid to them, have not been settled at all. The main grievance of the petitioners is that the employment seeking under compassionate grounds, has been categorically rejected for the reason that the services of the husband of the first petitioner were terminated by the authorities for his unauthorised absence.
10. According to the petitioners, such refusal of employment on compassionate grounds to the one of the members of the family of the employee, whose death is declared as Civil Death by the competent civil forum, is not tenable and hence, the claim of the petitioners has to be considered by the authorities as per law.
11. Whereas the specific contention put forth by learned Counsel for the second respondent is that the respondent Management is duty bound to take action in accordance with the Standing Orders of the Company and therefore, the unauthorised absence of the husband of the first petitioner was taken into consideration and accordingly, proceeded with, ending in his termination. He further contended that though the statutory requirements regarding the settlement of monetary benefits, have been complied with by the petitioners, the claim for compassionate appointment was denied on the ground that the petitioners are not at all entitled to make such a claim since the husband of the first petitioner was terminated from the services even prior to the declaration of his civil death.
12. The learned Counsel for the petitioners relied on the decision of the Honourable Apex Court in Syed Khadim Hussain v. State of Bihar and others reported in (2006) 9 Supreme Court Cases 195. The said decision is not supporting the case of the petitioners, as the facts of the said case are dealing with the rejection of the application of the son of the deceased employee therein who died in harness in the year 1991, on the ground that he was 13 years. Whereas the facts revolved herein are different from that of the above decision.
13. More so, the facts in the decision of this Court relied upon by the petitioners in N.Pankajam v. State of Tamil Nadu reported in (2006) 3 M.L.J. 702, are different from that of the present case before this Court, as the name of the employee therein was removed from the roll before the declaration of death from the civil Court. Here, the termination order came to be passed well before the declaration by the civil Court. Therefore, the decisions relied on the side of the petitioners, are in no way relevant to the facts of the case on hand.
14. On the other hand, the learned Counsel for the second respondent cited the decision of the Honourable Apex Court in Union of India and others v. Geeta Devi reported in (2002) 10 Supreme Court Cases 106, wherein it is held as follows:
"3. It is clear from the narration of the facts that the services of the husband of the respondent were terminated w.e.f. 23-9-1982. If that is so, question of giving any other relief as sought for by the respondent would not arise at all. The Tribunal ignoring these aspects of the case has given the relief in question, which we think is not in order. Therefore, the order made by the Tribunal is set aside and the application filed by the respondent shall stand dismissed. The appeal is allowed accordingly."
15. This Court, in yet another decision in K.Srinivasan v. Regional Manager (P & IR), LIC reported in (2008) 4 MLJ 631, while referring to Sections 107 and 108 of the Indian Evidence Act, 1872 and the decision of the Honourable Apex Court in N.Jayalakshmi Ammal v. R.Gopala Pathar reported in AIR 1995 SC 995 : 1995 Supp (1) SCC 27 : (1995) 1 MLJ 88, has held at paragraph 13, as under:
"13. In this case, the Civil Court has given a finding that the petitioner's father is deemed to be dead from the date of the plaint that is 20.7.2000 and not from any anterior date. The said finding having become final, no other date as claimed by the petitioner can be taken as the date of death of the petitioner's father and the petitioner also not proved the said fact and only on presumption the deemed date of death was fixed. Hence the respondents are justified in rejecting the claim of the petitioner seeking compassionate appointment to his brother, on the ground that before the date of the presumptive death of petitioner's father, he reached the age of superannuation and therefore there is no provision to give compassionate appointment to the petitioner's brother.
There is no merit in the writ petition and the same is dismissed. No costs. Connected miscellaneous petition is also dismissed."
16. Further, it could be seen that in the suit instituted by the first petitioner along with her sons, in O.S.No.482 of 2002, on the file of the I Additional Judicial Magistrate Court, Nagercoil, for declaration of their legal heirship and entitlement to claim pension and other benefits as well, the first petitioner herself claimed that the date of death of her husband was 29.08.2000 and in the very same suit, the learned I Additional Judicial Magistrate, Nagercoil, had recorded the submissions of the first petitioner that her husband was terminated from service on 27.06.1990 for his unauthorised absenteeism. Since the first petitioner had taken such a stand before the trial Court that her husband was terminated from service with effect from 27.06.1990, she cannot now claim appointment on compassionate grounds, which, is untenable in the eye of law. Moreover, the learned I Additional Judicial Magistrate had also framed an issue regarding the termination of the husband of the first petitioner and ultimately, held that his termination was justifiable, which, was not appealed of by the first petitioner before any appellate fora.
17. This Court finds that the husband of the first petitioner was found missing from 14.11.1989 and the civil death of her husband was declared by the civil Court on 29.08.2000. According to the respondents 2 and 3, the services of the husband of the first petitioner were terminated on 27.06.1990. Hence, even before the date of declaration of civil death of the husband of the first petitioner, his services were terminated. In such circumstances, it is not for the petitioners to claim any employment on compassionate grounds except the terminal benefits, pension, etc. Therefore, the rejection of the claim of the petitioners for employment on compassionate grounds, is sustainable in law.
18. At this juncture, the learned Counsel for the second respondent while declining to accept the claim of the petitioners for compassionate appointment, fairly submitted that considering the plight of the family of the petitioners who were left in the lurch and are longing for employment all along, the second respondent would offer to pay one time lump sum to the petitioners, as had been done in the case of P.Leela v. The Chairman and Managing Director, Indian Rare Earths Ltd., Mumbai - 28 and another [W.P(MD)No.6871 of 2012, decided on 30.07.2012]. The said submission of the learned Counsel for the second respondent, is placed on record.
19. In fine, this writ petition fails and the same stands dismissed. Consequently, the connected miscellaneous petition is dismissed. No costs.
Index : Yes / No 05.08.2014 Internet : Yes / No rsb To 1.The Secretary, Union of India, Department of Atomic Energy, New Delhi. 2.The General Manager, Indian Rare Earths Ltd., Manavalakuruchi Plant, Manavalakuruchi - 629 252. Kanyakumari District. 3.The Deputy General Manager, Indian Rare Earths Ltd., Manavalakuruchi Plant, Manavalakuruchi - 629 252. Kanyakumari District. R.MAHADEVAN,J. rsb PRE-DELIVERY ORDER MADE IN W.P(MD)No.5128 of 2010 and M.P(MD)No.3 of 2010 05.08.2014