State Of M.P. vs B.S. Bhadoriya on 16 April, 2014

[Cites 10, Cited by 4]

Supreme Court - Daily Orders

State Of M.P. vs B.S. Bhadoriya on 16 April, 2014

2. This appeal has been preferred against the impugned judgment and order dated 6.7.2012 passed by the High Court of Madhya Pradesh (Gwalior Bench) in Writ Appeal No. 363 of 2012, by which and whereunder, the High Court upheld the judgment and order dated 6.5.2011 passed by the learned Single Judge of the High Court in Writ Petition No. 5109 of 2005 issuing direction to the present appellant to consider the case of the respondent herein for compassionate appointment.

3. Facts and circumstances as per the records available giving rise to this appeal are that:

A. The father of the respondent no.1 was appointed as a Surveyor 1 on 28.11.1967 in the Agricultural Department. He abstained from duty w.e.f. 6.1.1975 and after about 20 years of his abandonment from service voluntarily, his murder was committed on 6.11.1996.

B. On the date of death i.e. 6.11.1996 of the said incumbent, the respondent was 11 years of age and he applied for appointment on compassionate ground on 9.8.1999 claiming to be of 18 years of age and having passed the tenth class examination. However, the present appellant has denied the factum of receiving of any such application.

C. It appears that an application for the same relief was filed in 2001 and as it remained pending, the respondent approached the High Court by filing Writ Petition No. 2030 of 2004 which stood disposed of vide order dated 16.5.2005 with a direction to the appellant-State to decide his claim. When this case was considered, the State/Authority made it clear that it had never received any application dated 9.8.1999 and the application was filed at a belated stage which was not maintainable as per the directions contained in circular dated 23.7.2001 which provided that no application for compassionate appointment would be considered after a lapse of 7 years from the date of the death of the incumbent.

D. The said order was again challenged by the respondent by filing 2 Writ Petition No. 5109 of 2005 and the State Government in its Counter Affidavit submitted before the High Court that application dated 9.8.1999 for compassionate appointment was never received. More so, if he was 11 years of age in 1996, he could not have completed 18 years of age in 1999 and as his father remained absent from duty since 1975 till he was murdered in 1996, he could not be treated to have been in service even after about two decades’ of absence.

E. The High Court allowed the Writ Petition No. 5109 of 2005 vide order dated 6.5.2011 issuing direction to the appellant to consider his application for appointment on compassionate ground. F. Aggrieved, the appellant preferred the Writ Appeal No. 363 of 2012 before the High Court of Madhya Pradesh (Gwalior Bench), which stood dismissed vide order dated 6.7.2012.

Hence, this appeal.

4. We have heard learned counsel for the parties and perused the record. In view of the facts mentioned hereinabove, there is no denial by the respondent that his father remained absent from duty from 1975 till his death in 1996. Therefore, the first question arises as to whether a person absent from duty for about two decades can claim to 3 be in service though his services had not been terminated by passing any order.

5. This Court considered the issue in Vijay S. Sathaye v. Indian Airlines Limited & Ors., (2013) 10 SCC 253, and after placing reliance upon a large number of earlier judgments of this Court held:

"13. In Jeewanlal (1929) Ltd. v. Workmen, AIR 1961 SC 1567, this Court held as under:

"6. ... there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is in- tended to be abandoned by the employee." (See also Shahoodul Haque v. Registrar, Coop. Societ- ies, AIR 1974 SC 1896)

14. For the purpose of termination, there has to be pos- itive action on the part of the employer while abandon- ment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as "retrenchment" from service. (See State of Haryana v. Om Parkash, (1998) 8 SCC 733)

15. In Buckingham and Carnatic Co. Ltd. v. Venkatiah, AIR 1964 SC 1272, while dealing with a similar case, this Court observed:

"5. ... Abandonment or relinquishment of ser- vice is always a question of intention, and, nor- mally, such an intention cannot be attributed to an employee without adequate evidence in that behalf."

A similar view has been reiterated in G.T. Lad v. Chemical and Fibres of India Ltd., AIR 1979 SC 582."

6. The Court came to the conclusion that absence from duty in the beginning may be a misconduct but when the absence is for a long period, it amounts to voluntary abandonment of service and in that 4 situation, the bonds of service come to an end automatically without requiring any order to be passed by the employer.

7. Thus, in view of the above, there could be no justification for the respondent to insist that his father was in service till the date of his murder in 1996.

8. Even otherwise, the pleadings taken by the respondent before the High Court had been that he was 11 years of age in 1996 when his father was murdered. We fail to understand as to how he could become major in 1999 and submit an application for appointment on compassionate ground. The High Court at all brushed aside the facts of the case and dealt with the case in an unwarranted manner and had been directing the appellant to consider the case of the respondent.

9. In MGB Gramin Bank v. Chakrawarti Singh, AIR 2013 SC 3365, this Court held:

"5. Every appointment to public office must be made by strictly adhering to the mandatory requirements of Art- icles 14 and 16 of the Constitution. An exception by providing employment on compassionate grounds has been carved out in order to remove the financial con- straints on the bereaved family, which has lost its bread- earner. Mere death of a Government employee in har- ness does not entitle the family to claim compassionate employment. The Competent Authority has to examine the financial condition of the family of the deceased em- ployee and it is only if it is satisfied that without provid- ing employment, the family will not be able to meet the 5 crisis, that a job is to be offered to the eligible member of the family. More so, the person claiming such appoint- ment must possess required eligibility for the post. The consistent view that has been taken by the Court is that compassionate employment cannot be claimed as a mat- ter of right, as it is not a vested right.

The Court should not stretch the provision by lib- eral interpretation beyond permissible limits on humanit- arian grounds. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such a case pending for years.

6. In Umesh Kumar Nagpal v State of Haryana & Ors., (1994) 4 SCC 138, this Court has considered the nature of the right which a dependant can claim while seeking employment on compassionate ground. The Court ob-

served as under:

"The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased..... The exception to the rule made in favour of the family of the de- ceased employee is in consideration of the ser- vices rendered by him and the legitimate expect- ations, and the change in the status and affairs of the family engendered by the erstwhile employ- ment which are suddenly upturned....... The only ground which can justify compassionate employ- ment is the penurious condition of the deceased’s family. The consideration for such employment is not a vested right. The object being to enable the family to get over the financial crisis."

(Emphasis added)

7. An ‘ameliorating relief’ should not be taken as open- ing an alternative mode of recruitment to public employ- ment. Furthermore, an application made at a belated stage cannot be entertained for the reason that by lapse of time, the purpose of making such appointment stands evaporated."

6 (See also: State of Gujarat v. Arvindkumar T. Tiwari, (2012) 9 SCC 545)

10. In Smt. Sushma Gosain & Ors. v. Union of India & Ors., AIR 1989 SC 1976, this Court held as under:-

"It can be stated unequivocally that in all claims for ap- pointment on compassionate ground, there should not be any delay in appointment. The purpose of providing ap- pointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. Such appointment should, therefore, be provided imme- diately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment, supernumerary post should be cre- ated to accommodate the applicant."

The aforesaid judgment was approved and the principle laid down therein was reiterated by this Court in Smt. Phoolwati v. Union of India & Ors., AIR 1991 SC 469.

11. Be that as it may, undoubtedly, the father of the respondent remained absent from duty from the year 1975 and there is no denial of this fact by the respondent in the pleadings taken by him. Even his father died about 18 years ago. There could be no reason to grant any indulgence at such a belated stage.

In view of above, the appeal succeeds and is allowed. The judgment and order passed by the courts below are set aside. No costs.

.................................J. 7 (Dr. B.S. CHAUHAN) ..................................J. NEW DELHI; (J. CHELAMESWAR) April 16, 2014.

ITEM NO.1A                    COURT NO.4             SECTION IVA
(For orders)

              S U P R E M E      C O U R T   O F    I N D I A
                              RECORD OF PROCEEDINGS

Civil Appeal No.__________/2014

Arising out of Petition(s) for Special Leave to Appeal (Civil) No(s).34238/2012 STATE OF M.P. & ORS. Petitioner(s) VERSUS B.S. BHADORIYA Respondent(s) Date: 16/04/2014 This Petition was called on for pronouncement of order today.

For Petitioner(s) Mr. Mishra Saurabh,Adv. For Respondent(s) Mr. Nikilesh Ramachandran,Adv.

UPON hearing counsel the Court made the following O R D E R Hon’ble Dr. Justice B.S. Chauhan pronounced the judgment of the Bench comprising of His Lordship and Hon’ble Mr. Justice J. Chelameswar.

Leave granted. Appeal is allowed in terms of the signed order.

       (O.P. SHARMA)                       (M.S. NEGI)
     COURT MASTER                   ASSISTANT REGISTRAR
          (Signed order is placed on the file)




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