Central Administrative Tribunal - Allahabad
Smt. Rani Devi Widow Of Late Man Singh vs Union Of India on 23 September, 2011
RESERVED CENTRAL ADMINISTRATIVE TRIBUNAL ALLAHABAD BENCH ALLAHABAD ***** (THIS THE 23rd of September 2011) Honble Mr. A.K. Bhardwaj, Member (J) Original Application No.1031 of 2008 (U/S 19, Administrative Tribunal Act, 1985) 1. Smt. Rani Devi widow of Late Man Singh. 2. Ajai Singh, S/o Late Man Singh. Both resident of 60/64 Ajit Nagar Khuaspara, Kamalkhan, Jagner Road, Agra. .Applicants Versus. 1. Union of India, through General Manager, North Central Railway, Allahabad. 2. Maha Prabandhak Kendriya Rail Vidyutikaran (Core) Sangthan Nawan Yusuf Road, Allahabad. Respondents Present for Applicants : Shri B.K. Srivastava Dhiraj Srivastava Present for Respondents : Shri Anil Kumar Shri D.P. Singh O R D E R
Applicants have filed the present Original Application, making following prayers:-
(i) To issue necessary order or direction in the nature of certiorari quashing the impugned order dated 05.02.2008 (Annexure No.1 to this application), passed by Opposite Party No.2.
(ii) to issue necessary order or direction directing the opposite party NO.2 to appoint the applicant NO.2 on compassionate ground as peon within the reasonable time as prescribed by this Honble Tribunal.
(iii) To issue any other order or direction which this Honble Tribunal deem just and proper in the interest of justice.
2. It is stated by the applicant in her Original Application that in view of ailment, her husband had taken medical leave from respondents and being sick he passed away on 20.9.1997 before attaining the age of superannuation. After the death of her husband, applicant NO.1 namely Smt. Rani Devi made an application dated 31.8.2000 requesting respondents to consider her claim for employment on compassionate ground. Said application is placed by her on record as Annexure A-4 to the present Original Application. The detail of dependants of late Shri Man Singh mentioned in said representation read as under:-
izkfFkZuh ds ifjokj ds lnL;ksa dk uke 1- iRuh Jherh jkuh nsoh mez 35 lky 2- iq= vt; flag mez 17 lky 3- iq=h dq0 izfr mez 15 lky 4 iq=h dq0 fiz;k mez 13 lky 5 iq= e;ad flag mez 11 lky
3. Vide representation dated 23.01.2001, the applicant again reiterated her claim for compassionate appointment and balance amount of terminal dues, which she had not received on account of death of her husband. The representation dated 23.01.2001 made by applicant to Dy. Chief Project Manager (Electric), Railway Electrification, District Bilaspur, M.P. reads as under:-
izkfFkZ;k ds ifr Jheku~ jsy izcU/kd >kalh ds v/khu 16-10-86 ls fu;qDr gksdj [kyklh in ij dSUV LVsku vkxjk o >kalh o bVkjlh LVskuksa ij rSukr fd;s x;s FksA vkSj 20-12-89 rd dk;Z djus ds ckn og chekj gksus ij fpfdRlk vodkk ij jgs ftldh lwpuk izkFkZuk i=ks }kjk Hkstdj fpfdRlk vodkk ekWxs tkrs jgs fd blh chp 20-9-97 dks mudk fu/ku gks x;k rc 10-11-97 dks izkFkZuk i= jsy fujh{kd dks Hkstdj cdk;k ikouksa ds Hkqxrku dh ekWx dh ysfdu Hkqxrku ugh feyk rc 31-8-2000 dks i= egkizcU/kd egksn; bykgkckn dks Hkstk x;k FkkA ysfdu u dksbZ mRrj feyk u dksbZ Hkqxrku feyk gSA vr% bl izkFkZuk i= }kjk ns; ikouksa ds Hkqxrku vkSj e`rd vkfJr :Ik esa vius iq= dh fu;qfDr nsus dh izkFkZuk djrh gwWA esjh xjhch o vkfFkZd nkk dks n`Vxr j[krs gq;s ckdh ikouksa ,oa iq= dks fu;qfDr nsus dh d`ik djs vkidks vfr d`ik gksxhA
4. Having not received any response to either of application from the respondents, applicant pursued her claim through Jagdish Prasad, Vice President, Uttar Pradesh Trade Union Congress. He also made representation to Honble Minister, Ministry of Railways through registered post. Having failed in all her such attempts, applicant moved O.A. NO. 1474 of 2006 before this Tribunal, which was disposed of with a direction to respondents to decide the representation of applicant within a period of 4 weeks. Said order reads as under:-
Although counter has been filed in this case, the applicants counsel has stated that the applicant has sent several representations for compassionate appointment after the demise of her husband, who was working as Peon in the Engineering Department, but no reply has been received from the respondents. He has also stated that he will be satisfied if a direction is issued to the respondents to consider his case and inform her. The applicant may make a fresh representation giving all the facts to the department within a period of four weeks and the department is directed to examine the same in accordance with extant rules within 4 period of six weeks and inform the applicant of the status of the matter.
With this the O.A. is disposed of. No order as to costs
5. In compliance of the aforementioned order passed by this Tribunal, respondents passed order dated 5.2.2008, taking the view that in terms of Indian Railway Establishment Manual Vol. 1, 1989 Edition page 168, having remained absent from service for the period from 21.12.1989 to 20.9.1997, husband of the applicant was deemed terminated. Para 1502 (4), Chapter XV of aforementioned Manual provides for termination of service of temporary Railway Servant and period of notice. Said para 1502 (4) read as under:-
The service of any of the Railway servants mentioned in Clause (1), (2) and (3) who is entitled to a notice of stipulated period may be terminated forthwith and on such termination, the Railway servants shall be entitled to claim a sum equivalent to the amount of his pay plus allowance for the stipulated period of notice at the same rates at which he was drawing them immediately before the termination of his service or, as the case may be, for the period by which such notice falls short of the stipulated period of notice.
Note - The appointing authorities are empowered to reduce or waive, at their discretion, the stipulated period of notice to be given by Railway servant but the reason justifying their action should be recorded. This power cannot be redelegated.
6. In note given below said para, it is provided that no notice of termination will be necessary in a case where temporary railway servant is deemed to have resigned his appointment and ceased to be in employment if such person remained absent on extraordinary leave beyond a limit of five years.
7. Respondents have tried to justify the impugned order dated 5.1.2008 by filing a detailed counter reply. In their reply, they have stated that applicant has not filed the present O.A. within the period of limitation prescribed in section 21 of Administrative Tribunals Act, 1985. In para 8 of their reply, respondents have stated that the documents, submitted by applicant on 4.1.2008 shows that Late Man Singh, her husband was a casual labour with temporary status, while the medical card filed by her as Annexure 2 to the Original Application reflects that he was working as Chaukidar. It is also stated by respondents that the applicant has not submitted any documentary evidence to substantiate that her husband was a confirmed employee.
8. As far as plea of applicant of delay is concerned, it is true that applicant made her first representation to respondents only on 31.8.2000 i.e. after approximately 3 years from the date of death of her husband. The period of limitation prescribed in section 21 of the Administrative Tribunals Act, 1985 for approaching this Tribunal is one year from the date of cause of action or one and half year from the date of making the representation in terms of section 21 of the Administrative Tribunals Act, 1985. Even otherwise also in the case of Umesh Kumar Nagpal Vs. State of Haryana and others JT 1994(3) SC 525, Honble Supreme Court has laid down following the important principle regarding compassionate appointment.
(i) Only dependents of an employee dying in harness leaving his family in penury and without any means of livelihood can be appointed on compassionate ground.
(ii) The posts in Group C and D (formerly classes III and IV) are the lowest pots in non-manual and manual categories and hence they alone can be offered on compassionate grounds and no other post, i.e., in the Group A or Group B category is expected or required to be given for this purpose as it is legally impermissible.
(iii) The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and to relieve the family of the deceased from financial destitution and to help it get over the emergency.
(iv) Offering compassionate appointment as a matter of course irrespective of the financial condition of the family of the deceased or medically retired Government servant is legally impermissible.
(v) Neither the qualifications of the applicant (dependent family member) nor the post held by the deceased or medically retired Government servant is relevant. If the applicant finds it below his dignity to accept the post offered, he is free not to do so. The post is not offered to cater to his status but to see the family through the economic calamity.
(vi) Compassionate appointment cannot be granted after lapse of a reasonable period and it is not a vested right which can be exercised at any time in future.
(vii) Compassionate appointment cannot be offered by an individual functionary on an ad hoc basis.
(Swamys Complete Manual on Establishment and Administration for Central Government Offices) As can be seen from the principle laid down by Honble Supreme Court, compassionate appointment cannot be granted after lapse of reasonable period and it is not vested right, which can be exercised at any time in future.
9. Further in the case of Union of India and Ors. Vs. Durairaj JT 2011 (3) SC 254, Honble Supreme Court ruled that the Tribunal cannot be found justified even in issuing directions to the Administrative Authorities to decide representation in stale cases. Relevant portion of judgment reads as under:-
13. It is well settled that anyone who feels aggrieved by non-promotion or non-selection should approach the Court/Tribunal as early as possible. If a person having a justifiable grievance allows the matter to become stale and approaches the Court/Tribunal belatedly, grant of any relief on the basis of such belated application would lead to serious administrative complications to the employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted to others over the years. Further, where a claim is raised beyond a decade or tow from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches.
14. This is a typical case where an employee gives a representation in a matter which is stale land old, after two decades and gets a direction of the Tribunal to consider and dispose of the same; and thereafter again approaches the tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action). This Court had occasion to examine such situations in Union of India Vs. M.K. Sarkar 2010 (2) SCC 58 and held as follows:
The order of the Tribunal allowing the first application of Respondent without examining the merits, and directing Appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. x when a belated representation in regard to a stale or dead issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the dead issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a courts direction. Neither a courts direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
A Court or Tribunal, before directing consideration of a claim or representation should examine whether the claim or representation is with reference to a live issue or whether it is with reference to a dead or stale issue. It is with reference to a dead or stale issue or dispute, the Court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the Court or Tribunal deciding to direct consideration without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the Court does not expressly say so, that would be the legal position and effect.
We are therefore of the view that the High Court ought to have affirmed the order of the Tribunal dismissing the application of the Respondent for retrospective promotion from 1976, on the ground of delay and laches.
10. In the case of C. Jacob Vs. Director of Geology and Mining and another (2008) 10 Supreme Court Cases 115, Honble Supreme Court has not appreciated the attitude of Tribunal of passing the order directing the Authorities to decide the representations of Government servant made after long delay. Relevant portion of said order reads as under:-
9. The Courts/Tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any decision on rights and obligations of parties. Little do they realize the consequences of such a direction of consider. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to consider. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.
10. Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
11. When a direction is issued by a Court/Tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the Court or Tribunal, such an order does not revive the stale claim, nor amount to some kind of acknowledgment of a jural relationship to give rise to a fresh cause of action.
11. In the case of Ratan Chandra Sammanta and Ors. Vs. Union of India and Ors AIR 1993 SC 2276, the Honble Supreme while dealing with delay and latches viewed as under:-
5. Two questions arise, one, if the petitioners are entitled as a matter of law for re-employment and other if they have lost their right, if any, due to delay. Right of casual labourer employed in projects, to be re-employed in Railways has been recognized both by the Railways and this Court. But unfortunately the petitioners did not take any step to enforce their claim before the Railways except sending a vague representation nor did they even were covered in the scheme framed by the Railways. It was urged by the learned counsel for petitioners that they may be permitted to produce their identify cards etc., before opposite parties who may accept or reject the same after verification. We are afraid it would be two dangerous to permit this exercise. A writ is issued by this Court in favour of a person who has some right. And not for sake of roving enquiry leaving scope for maneuvering. Delay itself deprives a person of his remedy available in law. In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well. From the date of retrenchment if it is assumed to be correct a period of more than 15 years has expired and in case we accept the prayer of petitioner we would be depriving a host of others who in the meantime have become eligible and are entitled to claim to be employed. We would have been persuaded to take a sympathetic view but in absence of any positive material to establish that these petitioners were in fact appointed and working as alleged by them it would not be proper exercise of discretion to direct opposite parties to verify the correctness of the statement made by the petitioners that they were employed between 1964 to 1969 and retrenched between 1975 to 1979.
12. In the writ petition No. 28590 of 2010 (Raj Kumar Prajapati Vs. Union of India and Ors.) Honble Allahabad High Court viewed that in the matters of compassionate appointment, where the dependants approach the Court for alternative source of employment in financial distress, the parameters for condonation of delay under sub-section (3) of Section 21 have to be different than the delay caused by a person, who is in service. Said order read as under:
Court No. - 29Case :- WRIT - A No. - 28590 of 2010 Petitioner :- Raj Kumar Prajapati Respondent :- Union Of India And Others Petitioner Counsel :- Om Prakash Mishra(Nandan) Respondent Counsel :- A. S. G. I.,A.K.Misra,S.C. Hon'ble Sunil Ambwani,J.
Hon'ble Mrs. Jayashree Tiwari,J.
We have heard learned counsel for the petitioner. No one appears for the respondents.
The petitioner's father late Shri Punnu Lal died on 24.2.2003 in harness serving as Worker Ticket No.2085 Group Yard leaving behind his widow; three sons aged 38 years, 34 years and 26 years and a daughter aged 14 years. On 27.2.2003 the Officer Commanding, Central Ordinance Depot, Chivaki Allahabad sent a letter to the widow for full cooperation. The petitioner made an application for compassionate appointment. It is alleged that the financial condition of the family was not such that the widow could have maintained the family out of terminal benefits and family pension.
The application remained pending at various stages of consideration for several years. It is alleged that the petitioner was assured for favourable consideration and that he kept on meeting the concerned authorities from time to time. The original application was filed in the year 2009 in the Tribunal. The application has been rejected on the ground of inordinate delay.
We have considered the reasons given by the Tribunal in the matter of condonation of delay and find that the Tribunal has not addressed itself to the relevant grounds such as the poverty, repeated attempts requesting for compassionate appointment, representation and the assurance given by the respondents for favourable consideration by the Board of Officers.
In the matters of compassionate appointment, where the dependents approach the Court for alternative source of employment in financial distress, the parameters for condonation of delay under sub-section (3) of Section 21 have to be different than the delay caused by a person, who is in service. In the present case the Tribunal has stated in para 4 of the judgment that it is not in a position to condone the delay as the representation was filed in the year 2003 and the petitioner slept over the matter for a period of six years. The Tribunal failed to consider that the application was made in the same year in which the employee had died in harness. There was no delay in making the application. Thereafter the petitioner was repeatedly approaching the authorities. The social condition of the petitioner and the reliefs sought by him, are required to be considered in exercising the powers to condone the delay. The discretion under sub-section (3) of Section 21 is to be exercised in the context of the relief, in which delay is sought to be condoned.
The writ petition is allowed. The impugned judgment of the Tribunal dated 25.3.2010 is set aside. The Central Administrative Tribunal will decide the matter afresh in accordance with law on its merits.
Order Date :- 28.1.2011 SP/
13. In the present case, applicant has not filed any Application for Condonation of Delay. Thus, being bound by the aforesaid decision of Honble Supreme Court, I reject the claim of the applicant for compassionate appointment. However, I do not accept the contention of applicant that in terms of para 1502 (4) of IREM Vol-1, the services of applicant would be deemed to be terminated even in absence of a specific order to such effect. Said note only provides that no temporary railway servant who is deemed to have resigned his appointment and ceased to be in employment for remaining absent or on extraordinary leave beyond a limit of five year would be required to be served notice of termination. In other words, said note only deals with the circumstances in which no notice of termination is required to be served on a person remained absent on extraordinary leave beyond a period of five years. In any case, a formal order treating his service as deemed terminated is required to be passed. If respondents did not pass such order during life time of Late Man Singh terminating his relation with the respondents i.e, whether the same were casual labour or regular employee, they are expected to examine their record and having examined such record, they should have come to a independent conclusion. Respondents have retaliated to representations made by applicant like a private litigant. As has been held by Honble Gujarat High Court in the case of Mahendra Ashabhai Patel Vs. Union of India & Ors. 1997 (2) ATJ HC (Gujarat) 389. Honble Gujarat High Court viewed that pension under the Scheme cannot be denied on account of limitation. Again in the case of Shakuntala Devi Vs. Union of India, 1996 (1) ATJ CAT (Lucknow) page 520, this Tribunal viewed that right to get the pension is recurring cause of action and cannot be rejected as barred by limitation. Again in the case of N. Gopalakrishnan Vs. The U.O.I and Ors. 2001 (2 ) ATJ CAT (Ernakulam) 287, the Coordinate Bench of this Tribunal viewed that a pensioner gets a separate cause of action every month to have his due pension, thus the question of limitation to reject the claim for pension does not arise.
14. Accordingly, I deem it appropriate to direct the respondents to examine the nature of employment of Late Shri Man Singh and also find out whether during his life-time, respondents have passed any order terminating his services. If it is found that Late Shri Man Singh was regular employee of the respondents and no order terminating his services was passed during his life-time, they shall examine the claim of the applicant for person. They will also work out the benefit payable to the applicant on account of death of Late Shri Man Singh. If any amount is payable to her, same would also be released within a reasonable time limit.
15. O.A disposed of. No costs.
Member (J) Manish/-
??
??
??
??
14