Chattisgarh High Court
M/S Bhilai Steel Plant vs The General Secretary on 26 April, 2024
Neutral Citation
2024:CGHC:14717
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (L) No. 51 of 2023
Judgment Reserved on : 01.04.2024
Judgment delivered on : 26.04.2024
M/s Bhilai Steel Plant, Through its General Manager (Personal),
SAIL PO- Bhilai, District Durg (C.G.)
---- Petitioner
Versus
The General Secretary, Steel Employees Union, Bhilai (INTUC)
Qtr No. 8/B, Street No.- 24, Sector-1, Bhilai, District Durg (C.G.)
491001 Regarding : Deepanjan s/o Late Dileep Kumar Purkait.
---- Respondent
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For Petitioner : : Mr. Ashish Surana, Advocate.
For Respondent : Mr. Vivek Sharma, Advocate.
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Hon'ble Mr. Justice Naresh Kumar Chandravanshi
CAV JUDGMENT
1. This petition has been preferred under Article 226/227 of the Constitution of India assailing the order dated 17.10.2022 passed by Central Government Industrial Tribunal - cum - Labour Court, Jabalpur {henceforth, "CGIT"} in Case No. CGIT/LC/R/28/2017, whereby the application filed by respondent for grant of compassionate appointment has been allowed and the petitioner-Management has been directed to provide employment to Deepanjan, s/o. Late Dileep Kumar Purkait {ex-employee of Bhilai Steel Plant}, within 30 days from the date of publication of award in official gazette and he has also been held entitled Neutral Citation 2024:CGHC:14717 2 to obtain litigation cost of Rs.10,000/- from the petitioner - Management.
2. Essential facts leading to file instant petition are that one Shri Dileep Kumar Purkait P. NO. 940626 was working as Staff Attendant in Medical Department of Bhilai Steel Plant. Consequent upon, recommendation of Medical Board dated 14.10.2009, he was declared Permanent Medical Unfit (PMU) due to Chronic Renal failure on 16.10.2009, therefore, his name was struck off from the rolls of BSP on 21.10.2009. He was informed by the petitioner - Management that he could avail the benefit of Employee Family Benefit Scheme (EFBS) but, vide application / letter dated 26.10.2009, instead of availing aforesaid benefit, he requested to provide compassionate appointment to his dependent son Deepanjan Purkait after he become major, as at the time of filing application dated 26.10.2009, his son was minor. Thereafter, workman Dileep Kumar Purkait expired on 6.2.2010. After his death, his widow filed an application on 10.1.2012 with the Personal Department of the Management stating aforesaid facts and requested that since her son will be attaining maturity on 28.06.2012, on completing 18 years of age, he be given compassionate appointment in place of his medically disabled father - Dileep Kumar Purkait. This application was returned to her by the Personnel Manager with an endorsement to submit the same after completion of 18 years of age. According to the Workman Union, the son of the deceased workman Deepanjan Purkait and his mother kept requesting for compassionate appointment, but petitioner - Management finally informed them by letter dated 25/26.07.2012 stating that their prayer for compassionate appointment could be considered Neutral Citation 2024:CGHC:14717 3 only within six months of being declared permanently unfit, but as per Scheme for Providing Compassionate employment in Permanent Medical unfit cases, dated 23.5.2009 (henceforth "Scheme, 23.5.2009), applicable at that time, dependent son of deceased employee must have minimum qualification of matriculation and the application from the dependent should reach Recruitment Section of BSP within six months of declaration of PMU due to diseases specified in the scheme alongwith all educational and other certificates, which have not been fulfilled in case of son of deceased-workman, hence, his prayer for compassionate appointment could not be considered. Thereafter, the respondent -Union invoked conciliation, which was failed, hence, Government of India, Ministry of Labour, vide order dated 31.3.2017, referred the Labour dispute to the CGIT, Jabalpur for adjudication. 2.1. Both the parties appeared before C.G.I.T., Jabalpur and respondent filed his statement of claim claiming therein that Deepanjan Purkait is entitled to grant compassionate appointment 2.2 Petitioner-Management by submitting its reply before C.G.I.T., Jabalpur has sated that compassionate appointment is given as per prevailing scheme for grant of aforesaid appointment, but if case of claimant is not covered under the Scheme, dependent employment cannot be given. It has further been stated that in the instant case, since Deepanjan Purkait, s/o Dileep Kumar Purkat (deceased workman) was not having requisite minimum qualification of matriculation as per Scheme of compassionate appointment notified on 23.05.2009 and his application was not fulfilling the terms of Clauses 1 and 7 of aforesaid Neutral Citation 2024:CGHC:14717 4 Scheme, therefore, he was declined to grant compassionate appointment, because as per aforesaid scheme of the Petitioner-Company, Compassionate Appointment can be considered only within six months of declaration of Permanent Medically Unfit and that the applicant claiming compassionate appointment must fulfill the conditions of qualifications and age. In the instant case, applicant Deepanjan Purkait matriculate on 20.05.2010 and had completed 18 years of age on 27.6.2012. Thus, since the applicant had neither attained the age of 18 years, nor was a matriculate, qualifying under the Scheme within the period of six months as mentioned in the Scheme, his case was not covered for compassionate appointment.
3. After recording evidence of the parties and after hearing them, learned CGIT, Jabalpur vide its impugned award dated 17.10.2022 allowed the application /claim of Deepanjan Purkait and granted him relief, as has been mentioned in opening paragraph of the judgment.
4. Feeling aggrieved & dissatisfied with the aforesaid impugned award, the petitioner-Management has preferred instant petition.
5. Learned counsel appearing for the petitioner-Management, while referring to its grounds raised in the instant petition, would submit that at the time of declaration of Permanent Medical Unfit to workman Dileep Kumar Purkait i.e. on 16.10.2009, Scheme for providing compassionate appointment in permanent Medical Unfit cases, dated 23.05.2009 was applicable. As per aforesaid scheme, dependent of only those employees, who have been declared permanent medical unfit for the Neutral Citation 2024:CGHC:14717 5 notified diseases, could have been given compassionate employment when they were fulfilling all the terms of the Scheme. As per terms of aforesaid scheme, such aspirant/applicant must have minimum qualification of matriculation and his application should reach Recruitment Section of BSP within six months of declaration of Permanent Medical Unfit of deceased workman. But in instant case, Dileep Kumar Purkait, father of applicant was declared medically unfit on 16.10.2009, within six months of aforesaid period, neither his son Deepanjan Purkait was having requisite qualification nor attained the age of majority and, therefore, his application could not have reached to the Recruitment Section, thus, as per prevailing Scheme dated 23.5.2009, he was not entitled to get compassionate appointment, but learned CGIT, Jabalpur without adhering terms of Scheme, dated 23.5.2009 has recommended to grant compassionate appointment to applicant Deepanjan Purkait, which is erroneous, perverse and not in accordance with law. He would further submit that the petitioner -Management acted as per established Scheme and it could not have acted beyond the same, as it is legal duty of the petitioner -Management to treat every employee equally and any favourable treatment to one would be a discrimination against the other because by passing any principle and pleading any new opportunity for deviation would create havoc in the Institution. It is settled proposition of law that compassionate appointment can be given only under the terms of prevailing Rule and even directing to grant compassionate appointment flouting the prevailing scheme / Rule even on sympathetic ground have been deprecated by the Apex Court, but in the instant case, learned CGIT, Neutral Citation 2024:CGHC:14717 6 Jabalpur has passed impugned award on the basis of assumptions, benevolence, sympathy and compassion, but such consideration could not be taken against the prevalent Scheme in the Petitioner- Management. Thus, award passed by CGIT, Jabalpur is perverse and illegal, hence, it is liable to be set aside.
6. Per contra, learned counsel appearing for the Respondent would submit that when deceased - workman Dileep Kumar Purkait declared PMU, at that time, his son Deepanjan Purkait was minor and subsequently, he obtained requisite qualification and attained the age of majority, therefore, impugned award passed by the CGIT, Jabalpur, being well reasoned and well merited, does not call for any interference by this Court, hence, this petition is liable to be dismissed.
7. I have heard learned counsel appearing for the parties and perused the material available on record including record of CGIT, Jabalpur with utmost circumspection.
8. It is not in dispute that, workman Dileep Kumar Purkait was declared permanently medical unfit on 16.10.2009 due to Chronic Renal Failure and as per prevailing Scheme for providing compassionate appointment in permanent medical unfit cases notified on 23.5.2009, his case was fit for grant of compassionate appointment to his dependent family members / son- Deepanjan Purkait, in case of fulfillment of requisite terms as provided in aforesaid scheme. According to petitioner Management, applicant - Deepanjan Purkait was not having requisite qualification and application with all necessary documents was not Neutral Citation 2024:CGHC:14717 7 submitted by him within six months from declaration of permanent medical unfit to his father, as per Scheme, 2009, therefore, his application was rejected.
9. It will be expedient for this Court to extract the relevant clause of the Scheme / Policy dated 23.05.2009. Clause 1 and 7 are reproduced below :-
"1. The dependent of ex-employee applying for compassionate employment must have the minimum qualification of Matriculation.
2. The application from the dependent should reach Recruitment Section of BSP within six months of declaration of Permanent Medical Unfit due to diseases specified in the scheme along with all educational and other certificates. The condition will be applicable in all those cases whether date of declaration of Permanent Medical Unfit is on or after 20.5.2009."
10. From bare perusal of the Scheme, particularly, Clause 1 and 7 of it and having considered the facts & record of the case in hand, it is evidently clear that within six months of declaring permanent medical unfit of his father, applicant - Deepanjan Purkait was not having requisite minimum qualification of matriculation and he was minor also. Record also revealed that applicant Deepanjan Purkait matriculate on 20.5.2010 and had completed 18 years of age on 27.06.2012. Although, his father has sent application on 26.10.2009 for grant of compassionate appointment to his son Deepanjan Purkait, but at that time, he was not fulfilling criteria specified in Scheme, 2009 with respect to compassionate appointment in respect of educational qualification / age.
Neutral Citation 2024:CGHC:14717 8 Thereafter, his mother sent an application on 10.01.2012 for grant of compassionate appointment to him, but till date period of six months, as provided in Clause 7 of the Scheme, was elapsed. Thus, aforesaid facts clearly shows that within six months from the date {16.10.2009} of declaration of permanent medical unfit to Workman - Dileep Kumar Purkait, his son - Deepanjan Purkait was not having requisite qualification and the application for grant of compassionate appointment was not filed within six months from the date of declaration of permanent medical unfit to Workman - Dileep Kumar Purkait alongwith all requisite / necessary documents as provided in the Scheme, 2009, therefore, declining by petitioner-Management to grant compassionate appointment to Deepanjan Purkait is not found perverse or illegal.
11. Learned C.G.I.T., Jabalpur has observed that Scheme, 2009 is silent about the course of action to be adopted when the dependents are minor or do not possess minimum qualification for compassionate appointment. Therefore, learned C.G.I.T., Jabalpur allowed the application filed by respondent - Union relying upon the judgment rendered by the Apex Court in the matter of State of Himachal Pradesh Vs. Shashi Kumar1, wherein it has been observed that when all the dependents are minor, the time limit for submission of application may be extended till they attain the age of majority, but aforesaid observation has been made by Hon'ble Apex Court on the basis of prevailing Rules framed by State of Himachal Pradesh, which was applicable in that case, whereas, in the instant case, there is no such Rule in Scheme, 2009. Consequently, learned CGIT, Jabalpur, considering benevolence of 1 (2019) 3 SCC 653 Neutral Citation 2024:CGHC:14717 9 respondent - Union, has passed impugned award based upon sympathy and compassion, which has been deprecated by the Apex Court in case of LIC of India v. Asha Ramchhandra Ambedkar 2, wherein it has been pointed out that the High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds, when the regulations framed in respect thereof do not cover and contemplate such appointments. Thus, view taken by CGIT, Jabalpur is totally misconceived.
12. Hon'ble Supreme Court in case of Bhawani Prasad Sankar Vs. Union of India and others3 has observed as under :-
"15. Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee's family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the 2 (1994) 2 SCC 718 3 (2011) 4 SCC 209 Neutral Citation 2024:CGHC:14717 10 case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve."
13. In V. Sivamurthy v. State of A.P.4, Hon'ble Supreme Court has summarised the principles relating to compassionate appointment as follows :-
"18. (a) Compassionate appointment based only on descent is impermissible. Appointments in Public Service should be made strictly on the basis of open invitation of applications and comparative merit, having regard to Articles 14 and 16 of the Constitution of India. Though no other mode of appointment is permissible, appointments on compassionate grounds are a well- recognised exception to the said general rule, carved out in the interest of justice to meet certain contingencies.
(b) Two well recognized contingencies which are carved out as exceptions to the general rule are :
(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the bread-winner while in service.
(ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the bread winner.
Another contingency, though less recognized, is where land holders lose their entire land for a public project, the scheme provides for compassionate appointment to members of the 4 (2008) 13 SCC 730 Neutral Citation 2024:CGHC:14717 11 families of project affected persons. (Particularly where the law under which the acquisition is made does not provide for market value and solatium, as compensation).
(c) Compassionate appointment can neither be claimed, nor be granted, unless the rules governing the service permit such appointments.
Such appointments shall be strictly in accordance with the scheme governing such appointments and against existing vacancies.
(d) Compassionate appointments are permissible only in the case of a dependent member of the family of the employee concerned, that is spouse, son or daughter and not other relatives. Such appointments should be only to posts in the lower category, that is, Classes III and IV posts and the crises cannot be permitted to be converted into a boon by seeking employment in Class I or II posts."
14. In Union of India & Another v. V.R. Tripathi 5, the Hon'ble Supreme Court observed in paragraph 13, which reads as under :-
"13. The policy of compassionate appointment is premised on the death of an employee while in harness. The death of an employee is liable to render the family in a position of financial hardship and need. Compassionate appointment is intended to alleviate the hardship that the family of a deceased employee may face upon premature death while in service. Compassionate appointment, in other words, is not founded merely on parentage or descent, for public employment must be consistent with 5 (2019) 14 SCC 646 Neutral Citation 2024:CGHC:14717 12 equality of opportunity which Article 16 of the Constitution guarantees. Hence, before a claim for compassionate appointment is asserted by the family of a deceased employee or is granted by the State, the employer must have rules or a scheme which envisage such appointment. It is in that sense that it is a trite principle of law that there is no right to compassionate appointment.
Even where there is a scheme of compassionate appointment, an application for engagement can only be considered in accordance with and subject to fulfilling the conditions of the rules or the scheme. The submission which has been urged on behalf of the Union of India by the learned Additional Solicitor General is premised on the basis that there is no right to compassionate appointment. There can be no doubt about the principle that there is no right as such to compassionate appointment but only an entitlement, where a scheme or rules envisaging it exist, to be considered in accordance with the provisions."
15. In State of Himachal Pradesh and Another v. Parkash Chand 6, the Hon'ble Supreme Court has held that direction to consider application for compassionate appointment of dependents of deceased employee dehors policy is impermissible, and observed as under:
"9. The High Court has observed that the State should consider cases for appointment on compassionate basis by dealing with the 6 (2019) 4 SCC 285 Neutral Citation 2024:CGHC:14717 13 applications submitted by sons, or as the case may be, daughters of deceased government employees, even though, one member of the family is engaged in the service of the Government or an autonomous Board or Corporation. This direction of the judgment of the High Court virtually amounts to a mandamus to the State Government to disregard the terms which have been stipulated in Para 5(c) of its Policy dated 18-1- 1990. The Policy contains a limited exception which is available only to a widow of a deceased employee who seeks compassionate appointment even though one of the children of the deceased employee is gainfully employed with the State. The basis for this exception is to deal with cases where the widow is not being supported financially by her children.
10. In the exercise of judicial review under Article 226 of the Constitution, it was not open to the High Court to rewrite the terms of the Policy. It is well settled that compassionate appointment is not a matter of right, but must be governed by the terms on which the State lays down the policy of offering employment assistance to a member of the family of a deceased government employee. Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138; SBI v. Kunti Tiwary, (2004)7SCC 271; Punjab National Bank v. Ashwini Kumar Teneja, (2004) 7 SCC 265; SBI v. Somvir Singh, (2007) 4 SCC 778; Mumtaz Yunus Neutral Citation 2024:CGHC:14717 14 Mulani v. State of Maharashtra, (2008) 11 SCC 384; Union of India v. Shashank Goswami, (2012) 11 SCC 307; SBI v. Surya Narain Tripathi, (2014) 15 SCC 739; and Canara Bank v. M. Mahesh Kumar, (2015) 7 SCC 412.
11. For the above reasons, we are of the view that the judgment of the High Court is unsustainable. The High Court has virtually rewritten the terms of the Policy and has issued a direction to the State to consider applications which do not fulfill the terms of the Policy. This is impermissible."
16. Recently, in the matter of Bank of Baroda & others v. Baljit Singh7, Hon'ble Supreme Court while considering similar issue has observed as under :-
"12. It is necessary to reiterate that the appointment of a candidate on compassionate basis does not create any vested right and that it is only when a candidate is covered under all clauses of the Scheme applicable at the relevant point of time that he / she could be considered for compassionate appointment.
13. In Balbir Kaur and Another vs. Steel Authority of India Ltd.8, it was observed that, xx xx xx xx xx xx Since appointment on compassionate basis is an exception to the general rule for appointment by an open invitation, the exception has to be 7 (2023) SCC Online SC 745 8 (2000) 6 SCC 493 Neutral Citation 2024:CGHC:14717 15 resorted to only when the candidate and his family is in penury so as to provide immediate succcor on the death of the employee in harness. The same has been observed in General Manager (D & PB) vs. Kunti Tiwary9. In N.C. Santhosh v. State of Karnataka10, a three Judge Bench of this Court reiterated that appointment on compassionate basis is a concession and not a right and the criteria laid down in the Rules and Schemes applicable must be satisfied by all aspirants. Therefore, the case for compassionate appoinment has to be considered in accordance with the prevalent scheme. Similarly, in State of Himachal Pradesh Vs. Shashi Kumar (supra), this Court has observed that compassionate appointment being an exception to the general rule, the dependents of deceased government employee are made eligible by virtue of the policy of compassionate appointment and they must fulfill the terms of the policy which are framed by the State/Employees.
14. xx xx xx xx In a similar vein, in Indian Bank vs. Promila11, it has been observed that eligibility for compassionate appointment must be as per the applicable scheme and the courts cannot substitute a scheme or add or substract from the terms thereof in exercise of judicial review. The aforesaid dicta would also apply to a suit filed seeking the relief of compassionate appointment."
9 (2004) 7 SCC 271 10 (2019) 7 SCC 617 11 (2020) 2 SCC 729 Neutral Citation 2024:CGHC:14717 16
17. Thus, as per law laid down by Hon'ble Apex Court in afore-cited cases, it is abundantly clear, that, compassionate appointment is an exception to the general rule of appointment, therefore, compassionate appointment can be given only by strict compliance of prevailing Rules / Schemes framed by the Government / Employer. Even any sympathetic consideration dehoring Rules / Scheme has not been appreciated by the Apex Court. Rather from aforesaid case law, it is manifest that compassionate appointment can be granted only if a requisite conditions as envisaged under the Policy / Rule / Scheme in question are fulfilled.
18. In instant case, as discussed above, it is found that applicant Deepanjan Purkait, son of deceased/workman Dileep Kumar Purkait was not fulfilling requisite criteria of Rules 1 and 7 of the Scheme 2009, despite that learned C.G.I.T., Jabalpur has passed the impugned award in his favour on the ground of benevolence and taking sympathetic approach, which is not permissible under the Law / Scheme.
19. In view of the foregoing discussion, the writ petition is allowed. Impugned order dated 17.10.2022 passed by Central Government Industrial Tribunal - cum - Labour Court, Jabalpur in Case No. CGIT/LC/R/28/2017 is set aside. However, this order shall not preclude applicant - Deepanjan Purkait / his family members to get benefits of Employee Family Benefit Scheme [EFBS], if otherwise they are entitled in accordance with applicable law / Rules.
Sd/-
(Naresh Kumar Chandravanshi) Judge Amit/-
Neutral Citation 2024:CGHC:14717 17