Gujarat High Court
Chairman - Gujarat State Electricity ... vs Bharatbhai Shivabhai Machhi on 6 April, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1438/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1438 of 2016
In
SPECIAL CIVIL APPLICATION NO. 15550 of 2012
With
CIVIL APPLICATION NO. 2 of 2016
CHAIRMAN - GUJARAT STATE ELECTRICITY CORPORATION LTD
Versus
BHARATBHAI SHIVABHAI MACHHI
Appearance:
MS LILU K BHAYA(1705) for the PETITIONER(s) No. 1,2,3
MR KRISHNAN M GHAVARIYA FOR MR NISARG D SHAH(7299) for the
RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 06/04/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) 1 Heard learned counsels for the parties. 2 This appeal under Clause 15 of the Letters Patent is preferred against the judgment and order dated 30.08.2016 passed by the learned single Judge in Special Civil Application No.15550 of 2012 whereby the prayer of the writ petitioner came to be allowed by directing the Page 1 of 11 C/LPA/1438/2016 ORDER respondents to appoint him on compassionate ground and orders dated 29.05.2012 and 18.05.2012 denying such appointment came to be quashed and set aside.
2.1 By the above order, the learned Single Judge has considered the disease of father of the petitioner, who was suffering from Chronic Obstructive Pulmonary Disease (COPD), on par with other diseases which find place in the policy framed by the appellant - Corporation vide resolution No.5283 as modified and amended by circular dated 29.01.2010 which provided that legal heirs / dependents will be entitled for compassionate appointment in case of an employee suffer from cancer of any part of the body, retinal degeneration of both eyes, loss of vision of both eyes due to brain disease, complete heart failure of both ventricular along with congestive cardiac failure and enlarged heart with cardiac asthma, complete paralysis of both upper and lower limbs, and failure of both kidneys, by Page 2 of 11 C/LPA/1438/2016 ORDER taking recourse to interpretative process on the basis of principle of ejusdem generis and the word `like' which is included and precedes specific disease and it is further held that list of diseases cannot be treated as excessive to illustrate. Even decisions of the Apex Court in the case of Ramchand v. Randhir Singh [AIR 1995 SC 130] held to be applicable so far as interpretation of word 'like' is concerned. Considering policy and object of offering compassionate appointment and that employee was indisputably diagnosed with COPD which was akin of any other terminal diseases listed in the circular, the appellant Board was directed to confer compassionate appointment to son of the employee who was qualified to be appointed on ClassIV category having completed education up to Standard 8 and otherwise eligible. 3 Ms. Lilu K. Bhaya, learned counsel for the appellant, has taken us through the relevant Page 3 of 11 C/LPA/1438/2016 ORDER circulars of the appellant - Corporation viz. Resolution No.5283 dated 15.03.1986 and subsequent resolution No.3420645 dated 05.01.2010 and that disease viz. Chronic Obstructive Pulmonary Disease (COPD) would not fall in the category of terminal ailments. It is further submitted that even father of the respondent / original petitioner came to be retired on attaining the age of superannuation on 31.05.2012, and therefore, even keeping in mind the object of offering compassionate appointment, in the facts of this case, no benefits could have been accrued by learned Single Judge. 4 As against the above, learned counsel for the respondent original petitioner would contend that father of the petitioner, who was in service of the appellant - Board had suffered earlier due to acquisition of land for construction of power house and as per policy prevailing at that relevant point of time was offered job and continued in service and Page 4 of 11 C/LPA/1438/2016 ORDER thereafter contacted the disease like COPD. Even medical certificates and opinion of experts reveal that he was not able to do heavy work and virtually remained bed ridden. Further, immediately after attaining the age of superannuation the employee had died and upon retirement from service he received all retirement benefits admissible and permissible in accordance with law. That interpretation put forth by the learned Single Judge keeping in mind policy of the appellant - Corporation for giving compassionate appointment, provided benefits of compassionate appointment even to those employees who are visually impaired or even suffered paralysis and failure of kidneys, and therefore, in the case like an employee suffering from COPD capacity of functioning of lungs is virtually reduced to lowest, resulting into various complications. Even certain articles / research papers on the subject by experts are relied on and it submitted that order passed by the learned Single Judge contain an elaborate reasoning and Page 5 of 11 C/LPA/1438/2016 ORDER benefits were conferred considering all relevant material on record and the order passed by the learned Single Judge do not require any interference by this Court.
5 Heard learned counsels for the parties and perused the record of the case, including impugned judgment and policy pertaining to grant of compassionate appointment as reflected in two resolutions of the appellant - Corporation viz. Resolution No.5283 of 15.03.1986 which came to be modified by resolution No.3420 dated 05.01.2010. Para 5 of the judgment dated 30.08.2016 read as under:
"5. The policy of the respondents for giving compassionate appointment has been translated into Resolution No.5283. It provides as under.
The Board approved that as a policy, dependents of employees suffering from terminal diseases like cancer of any part of the body, retinal degenration of both eyes, loss of vision of both eyes due to brain disease, complete heart failure of both ventricular Page 6 of 11 C/LPA/1438/2016 ORDER along with congestive cardiac failure and enlarges heard with cardiac asthama, complete paralysis of both upper and lower limbs, and failure of both kidneys, could be considered for complement in the Board subject to availability of vacancy and qualification requirements laid down and subject also to the condition that the family has no other source of income. Such appointments would be considered only if the sick employee is retired on these medical grounds.
5.1 The aforesaid policy was modified and amended by Circular dated 29th January, 2010. It was represented before the Court that diseases like Hemlplegia and Paraplagia were required to be incorporated in the aforementioned Board's Resolution as they were serious diseases. Hemlplegia is a disease whereunder a person suffers paralysis of one side of the body. The Paraplagia means paralysis of both the lower limbs. Accordingly the said diseases, namely Hemlplegia and Paraplagia were incorporated as the ailments in the policy for the purpose of giving compassionate appointment on condition that percentage of permanent disability must be more than 60%. It is the further case of the petitioner that benefit of the policy was granted to one Smt.Umaben M. Shah who was suffering from serious disease, even though the said disease was not covered as one mentioned in the Resolution No.5283.
5.2 Now, the stand of the respondent Corporation in denying compassionate appointment and refusing to apply Board's Resolution is that in the policy Page 7 of 11 C/LPA/1438/2016 ORDER Resolution the terminal diseases are specified and mentioned; they are cancer in any part of the body, retinal degenration of both eyes, loss of vision in both eyes due to brain disease, complete heart failure of both ventricular along with congestive cardiac failure, enlarged heart with cardiac asthama, complete paralysis of both upper as well as the lower limbs, and failure of both kidneys. It is the case that only in respect of employee who suffers from any of the said mentioned diseases, claim for compassionate appointment under the policy could be considered and if the employee is not suffering from any of the diseases mentioned, benefit would not liable to be accorded to him, treating him no covered under the policy."
5.1 Thus, learned Single Judge has basically relied on the word "like" which precedes the specific named diseases and considering dictionary meaning as reflected in Webster, Law Lexicon and inclusion of word "includes", "including", "such as" or "like" by taking recourse to the principle of ejusdem generis, disease of COPD was treated as terminal disease. 5.2 In our view, the resolution passed by the appellant - Corporation has specifically Page 8 of 11 C/LPA/1438/2016 ORDER described diseases, which could be termed as terminal diseases, but at the same time, non inclusion of COPD was not unintentional. Besides, as per the opinion of expert in the field viz. Pulmanologist or Bronchoscopist, such disease would at the most result into not able to perform heavy duties by the employee, but would not incapacitate permanently and no conclusion appears on record about nonavailability of treatment and the disease of COPD cannot be controlled. Be that as it may, by extending the benefits of compassionate appointment to the original writ petitioner - respondent herein exercise undertaken by the learned Single Judge though cannot be termed as such illegal, but scope of interfering with the policy decision of the appellant - Corporation, exercising powers under Article 226 of the Constitution of India is circumscribed and we find that decision taken by the Board or the appellant - Corporation ought not have been interfered by quashing and setting aside the impugned order and directing the Page 9 of 11 C/LPA/1438/2016 ORDER appellant to appoint the petitioner on compassionate ground.
6 In view of the above discussion, this appeal is allowed and judgment dated 30.08.2016 passed by the learned Single Judge in Special Civil Application No.15550 of 2012 is hereby quashed and set aside.
Before parting, it is to be noted that the respondent - writ petitioner has studied up to 8th Standard and as such remained unemployed and in view of the ailment of his father, who was suffering from COPD further study was not possible. Considering the peculiar facts of the case, if deemed proper, the appellant - Corporation may consider case of the respondent - writ petitioner for casual or dailyrated workman in any establishment of the Corporation without creating any right whatsoever for regularization or permanency in the post.
Page 10 of 11 C/LPA/1438/2016 ORDER
Consequently, Civil Application No.2 of 2016 stands disposed.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) P. SUBRAHMANYAM Page 11 of 11