Central Administrative Tribunal - Cuttack
R Patra vs Steel Authority Of India on 5 April, 2019
CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH OA No. 187 of 2018 Present: Hon'ble Mr. Gokul Chandra Pati, Member (A) Ramakanta Patra, aged about 35 yearts, S/o late Kishore Chandra patra, resident of Qr. No. B/445, Fertilizer Township, Rourkela-7, Dist. - Sundargarh.
......Applicant VERSUS
1. Steel Authority of India Ltd. Represented by its Chairman, Ispat Bhawan, Lodhi Road, New Delhi - 110003.
2. The Managing Director, Rourkela Steel Plant, AT/PO - Rourkela, Dist. - Sundargarh.
3. The General manager (F&A), Rourkela Steel Plant, AT/PO - Rourkela, Dist. - Sundargarh.
4. The Executive Director (P&A), Rourkela Steel Plant, AT/PO - Rourkela, Dist. - Sundargarh.
......Respondents.
For The applicant : Mr.R.Acharya, counsel
For the respondents: Mr.R.K.Kanungo, counsel
Heard & reserved on : 15.3.2019 Order on :05.04.2019
O R D E R
Per Mr. Gokul Chandra Pati, Member (A)
The OA is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs :
"(i) The order of rejection passed by the respondent No.4 vide order No. 727 dated 18.10.2008 under Annexure-2 and subsequently order of rejection dated 6,.2.2018 communicated by the Assistant Manager (Personnel) S&S, RSP on dated 9.2.2018 under Annexure 1 be quashed.
(ii) Issue direction to the respondent No.1 to provide employment under compassionate ground in favour of applicant according to his qualification in view of clause 3.4.5.1 (f) of the Memorandum of Settlement dated 25.7.2001.
(iii) The respondents may kindly be directed to pay heavy cost to the applicants due to their unlawful action by not following their own Rules & Regulations under Annexure-9 and memorandum of settlement dated 25.7.2001 and passing the order of rejection without any reasoned order which creates unnecessary litigation on the part of the applicant by wasting valuable time of this Hon'ble Tribunal."-2-
2. In this case, the applicant's father was an employee of Rourkela Steel Plant under the SAIL (in short RSP). On 8.1.2005, the applicant's father met with a road accident while going to RSP to attend to his duty and he died in the hospital on the same day. An application for compassionate appointment of the applicant was filed on 21.2.2005, which was rejected on 8.4.2005. A writ petition was filed challenging the decision. The writ petition was disposed of by Hon'ble High Court directing the respondents to reconsider and pass a reasoned order. The reasoned orders dated 14.7.2008 (Annexure-A/4) and 18.10.2005 (Annexure-A/5) were passed by the respondent no. 3 and 4 respectively, rejecting the application for compassionate appointment of the applicant, who filed another representation dated 31.10.2008 before the MD of the RSP and also filed a writ petition No. 17113 of 2008 before Hon'ble High Court. This petition was withdrawn on 19.3.2012 by the applicant with liberty to file the same before the Tribunal. In the meantime the workman compensation case filed by the applicant's mother was finalized with direction to the respondents to pay a compensation to the family of the ex-employee. The respondents challenged the order unsuccessfully in Hon'ble High Court. Then the order for compensation was complied by the respondents.
3. The applicant also filed the OA No. 70/2016 claiming compassionate appointment as per the section 3.4.5 (f) of the memorandum of settlement dated 25.7.2001(in short 'MOS'). Tribunal disposed of the OA with direction to the respondents to reconsider the case of the applicant in terms of the para 3.4.5(f) of the MOS and pass a speaking order. In compliance, the respondent no.4 has passed the order dated 6.2.2018, communicated through the letter dated 9.2.2018 (Annexure-A/1), rejecting the case for compassionate appointment of the applicant.
4. Being aggrieved, the applicant has filed this OA challenging the order dated 6.2.2018 mainly relying on the circular dated 10.2.1984 of the respondents and the para 3.4.5 (f) of the MOS dated 25.7.2001which provide for the facility of the compassionate appointment. It is also the case of the applicant that the reasons mentioned in the impugned order at Annexure-A/1 had been earlier examined by the Tribunal in the light of the judgment of Hon'ble Apex Court in the case of Balbir Kaur vs. SAIL & other, (2006) 6 SCC 493 while directing the respondents to reconsider the case and hence, the order of rejection at Annexure- A/1 is not maintainable.
5. The respondents have filed the Counter to oppose the OA. It is averred that the impugned order dated 6.2.2018 is in compliance of the order dated 12.12.2017 (Annexure-A/11) of the Tribunal in OA No. 70/2016 and it is also in accordance with the MOS dated 25.7.2001. The judgment of Hon'ble Apex Court -3- in the case of SAIL & another vs. Awadhesh Singh and others has been cited in para 5 of the Counter to strengthen the respondents' stand in the matter. The Counter has also referred to the some other cases as listed below in support of the respondents' case:-
(i) SAIL & another -Vrs- Awadhesh Singh.
(ii) LIC of India - vs- A.R. Ambekar, reported in (1994)2 SCC -718.
(iii) SAIL -vrs- Madhusudan Das and Others, reported in JT 2008 (12) SC 642.
(iv) State of Jammu & Kashmir and others -vs- Sajad Ahmed Mir, reported in 2006 Lab. IC 3988.
6. It is further averred in the Counter that the death of the applicant's father was due to fainting attack and lack of consciousness and it was not associated with employment or during the course of employment. The findings on workman compensation are for the purpose of the W.C. Act and it is not binding while deciding the claim for compassionate appointment. The claim is also not admissible as per the circular dated 1.1.1996 (Annexure-R/2) since there was no history of prolonged treatment of the applicant's father in the hospital of the RSP.
7. I have heard learned counsels for both the sides and also perused the pleadings on record. Learned counsel for the respondents filed a copy of the MOS dated 25.7.2001 alongwith the copy of the judgment in the following cases relied upon by him at the time of hearing. The applicant has mainly relied on the para 3.4.5 (f) of the MOS dated 25.7.2001 and the award on workman compensation in support of his claim for compassionate appointment.
8. Although the basic facts are undisputed, there is dispute as to whether the death of the applicant's father due to road accident can be treated as the death due to accident in course of the employment as claimed by the applicant. The respondents have relied on the judgment of Hon'ble Apex Court in the case of SAIL & another vs. Awadhesh Singh and others reported in (2001) 10 SCC 621, in which it has been held as under on the issue of enforceability of the MOS provisions under Article 226:-
"6. Having regard to the submissions made by the learned Counsel for both parties, the only question that comes up for our consideration is whether under the Memorandum of Agreement it is permissible for a dependent of the deceased to claim an appointment on compassionate ground even when no other dependent of the deceased is already in service. Be it stated that the Memorandum of Agreement in question is not a statutory scheme and therefore would be unenforceable in an application under Article 226 of the Constitution of India. The Memorandum of Agreement for appointment on compassionate ground had been evolved by the employer so that on the sudden death of an employee his dependents would not be on the roads as destitutes and can maintain themselves if an appointment is given to any one of the dependents of the deceased. Such a scheme cannot at all be conceived if some other dependent of the deceased is already in service. The very purpose for which such scheme had been evolved would get frustrated if a claim on priority basis is made by a dependent of the deceased notwithstanding the fact that other dependent of the deceased is already in service......."-4-
9. It is noticed that the applicant had challenged the order dated 18.10.2008 (Annexure-A/5) passed by the respondent no. 4 i.e. ED (P& A) in W.P. (C) No. 17113 of 2008 before Hon'ble High Court which was withdrawn by the applicant on 19.3.2012 with liberty to file before the appropriate authority, as stated in para 4.11 of the OA. Thereafter, the applicant pursued the matter by filing a case before the competent authority under the Workmen's Compensation Act and he was awarded a compensation amount which has been paid by the respondents after their writ petition filed before Hon'ble High Court challenging the order for payment of compensation was dismissed. Then the applicant approached the Tribunal by filing the OA No. 70 of 2016 claiming the compassionate appointment by challenging the order dated 18.10.2008 of the ED (P&A).
10. The applicant has enclosed a copy of the order dated 12.12.2017 of this Tribunal in the OA No. 70/2016 at Annexure-A/11 of the OA, in which the respondents were directed to reconsider the case of the applicant with the following observations:-
"10. Taking a comprehensive view of the present O.A. it is quite obvious that Sri K.C.Patra had died on his way to duty. While riding the bike his head reeled and he fell down unconscious on the road. The judgment of the Hon'ble Supreme Court in SAIL & Another vs. Awadhesh Singh &Ors. (2001) 10 SCC 621 had specifically stated that a Memorandum of Agreement is not a statutory scheme and would be unenforceable in an application under Article 226 of the Constitution of India. However, the point in dispute in the above case was whether the Memorandum of Agreement with the National Joint Committee for Steel Industry permits an appointment on the death of an employee to one of the dependents of the deceased employee if some other dependent of the deceased employee is already in service. The facts in the present case are different. No other employee of the applicant's family is inservice and therefore, the issue of compassionate appointment to the applicant no.2 due to the death of his father while going to duty is quite open. The Memorandum of Settlement between the Management of RSP and Rourkela Shramik Singh quite clearly stipulates that when an employee dies while going to work his ward should be eligible for compassionate appointment (Section-3.4.5.1.(f)]. The applicant No.2 is eligible for compassionate appointment under the Memorandum of Settlement dated 25.7.2001 read with the Policy of 1984.The applicants have relied on the judgments of Hon'ble Supreme Court in BalbirKaur and Another vs. SAIL & Ors. (2000) 6 SCC 493, JagmohanLal vs. Union of India (O.A.No.332/ 00016/2016 disposed of on 25.2.2016 by CAT, Lucknow Bench). In BalbirKaur case (supra), the Hon'ble Supreme Court had analyzed in detail the compassionate appointment policy of SAIL. Para-11 of the judgment reads as follows:
"11. Turning on to the factual aspects once again, it is not that compassionate appointments have never been effected. Steel Authority of India was in fact providing compassionate employment to one dependant of an employee dying in harness or permanently disabled. As a matter of fact on 22.9.1982 the respondent Steel Authority, further issued the circular pertaining to appointments on compassionate grounds. The circular however for the first time introduced categorization of compassionate employment as First Priority Cases, Second Priority Cases and Third Priority Cases. The circular reads as below:
"The system of compassionate appointments was reviewed in a meeting of the Advisory Committee recently. On the lines of the discussions, the system may be operated in future as given below:
1. First Priority Cases:
(a) Employment of a dependant of an employee who dies owing to an accident arising out of and in the course of employment.
b) Employment of a dependant of an employee who dies in a road accident while on duty or while coming to or going back from duty.
The existing practice will continue".
-5-11. I have taken note of the case laws cited by the respondents on compassionate appointment. In a catena of judgments, the Hon'ble Supreme Court has reiterated that compassionate appointment cannot be given as a matter of right and should be given to deserving cases to tide over the immediate needs of the family. However, the authorities of SAIL in their wisdom have introduced the compassionate appointment scheme for the wards of the employees dying in harness.
In Haryana SEB vs. NareshTanswar (1996) 8 SCC 23, Santosh Kumar Dubey v. State of UP, (2009) 6 SCC 481, Haryana SEB vs. Krishna Devi (2002)10SCC 246, State of U.P. vs. ParasNath 1998, (1998) 2 SCC 412 and National Hydroelectric Power Corporation vs. Nanak Chand (2004) 12 SCC 487, the Hon'ble Apex Court had recognized the need for providing compassionate appointment when the family of the deceased is in dire needs. In State Bank of India vs. Anju Jain (2008) 8SCC 475, the Hon'ble Supreme Court had pertinently observed the following.
"Appointment on compassionate ground is never considered a right of a person. In fact, such appointment is violative of rule of equality enshrined and guaranteed under Article 14 of the Constitution. As per settled law, when any appointment is to be made in Government or semi-Government or in public office, cases of all eligible candidates must be considered alike. That is the mandate of Article 14. Normally, therefore, State or its instrumentality making any appointment to public office, cannot ignore such mandate. At the same time, however, in certain circumstances, appointment on compassionate ground of dependents of the deceased employee is considered inevitable so that the family of the deceased employee may not starve. The primary object of such scheme is to save the bereaved family from sudden financial crisis occurring due to death of the sole bread earner. It is thus an exception to the general rule of equality and not another independent and parallel source of employment".
12. The case of the applicant no.2 is squarely covered by the judgment in BalbirKaur case (supra) where the applicant comes under the First Priority Cases and therefore, the three conditions mentioned in the circular of 1.1.1996 are not applicable to this case. The Respondents are accordingly directed to reconsider the case of the applicant no.2 applying the provision as stipulated in Section 3.4.5.1 (f) of the Memorandum of Settlement dated 25.7.2001 and pass appropriate orders within a period of eight weeks from the date of receipt of this order."
11. It is seen from the order dated 12.12.2017 (A/11) of the Tribunal that although the order dated 18.10.2008 was prayed to be quashed in the OA No. 70/2016, it was not quashed while directing the respondents to reconsider the case. Hence, the said order dated 18.10.2008 cannot be quashed as a relief in the present OA.
12. In compliance of the order dated 12.12.2017 of the Tribunal, the respondent no.4 has reconsidered the case of the applicant and rejected the claim of compassionate appointment vide the impugned order dated 6.2.2018, which is communicated vide letter dated 9.2.2018 (Annexure-A/1). In the impugned order dated 6.2.2018, the following grounds have been mentioned while rejecting the applicant's claim for compassionate appointment:-
"Following the death of the employee, the applicants, namely his widow and son filed representations dtd.21.02.2005 and 08.03.2005 claiming employment in RSP on compassionate ground. They took a plea that the employee was suffering from heart ailment and died due to the same. The request was examined and regretted vide letter dtd. 06.04.2005 of RSP. After about three years, the son of the deceased employee, Sri Ramakanta Patra, being aggrieved with the decission filed a writ petition vide W.P.(C ) No.86/2008 before the Hon'ble High Court of Orissa. The Hon'ble High Court disposed of the case vide order dtd. 18.02.2008, which was later on modified vide order dtd. 01.07.2008. Pursuant to the said orders, the then Executive Director (P & A) considered the case of the applicant and disposed of the representations with a reasoned order dtd. 16.10.2008 with observations that the applicant's case is not covered by the Circular of the Company dated. 01.01.1996.-6-
The applicants have accepted the decision and they have not challenged the above order. However, it appears, at a subsequent stage, i.e, in the year 2016, the applicants filed Original Application before the Hon'ble Central Administrative Tribunal, Cuttack Bench, Cuttack re-agitating their claim of compassionate appointment in RSP, but altogether on a different premises of payment of employees' compensation to the widow pursuant to the order dtd. 08.10.2015 of the Hon'ble High Court of Orissa in FAO No.204/2014.
Employment on compassionate ground is a source of out of turn employment, where regular selection process is dispensed with and therefore, while considering the same in the light of the provisions of the Memorandum of Settlement, it is to be seen whether such compelling circumstance exist so as to show favour at the cost of several other meritorious candidates.
In the instant case, already more than thirteen years have passed since the death of the employee and after about ten years of disposal of their case, the applicants at a belated stage have come up with prevaricating stand by taking clue of payment of employees compensation by RSP in the year 2014.
In the above facts and circumstances, I do not find it to be a fit case to allow compassionate appointment to Sri Ramakanta Patra in RSP in terms of clause 3.4.1(f) of the Memorendum of Settlement dated 25.7.2001. Thus the case of Sri Patra is reconsidered and stands disposed of."
13. From the above order, it is seen that the issue of delay in approaching the appropriate forum for claiming compassionate appointment has been raised. It is noticed that after withdrawing the W.P. (C) No. 17113 of 2008 from Hon'ble High Court with liberty to pursue the matter in appropriate forum, the applicant had filed the case under the Workmen's Compensation Act, 1923 and he was awarded the compensation which was upheld in the Writ Petition filed before the Hon'ble High Court. Thereafter, the applicant was paid the said compensation. Then he again came up with the claim for compassionate appointment in the OA No. 70/2016 and vide order dated 12.12.2017, the Tribunal directed the respondents to reconsider the case without quashing the order of rejection dated 18.10.2008. It is noted in the order dated 12.12.2017 that although compassionate appointment cannot be claimed as a matter of right, but it can be considered when the family of the deceased in dire needs. In this case, it is noted that the applicant remained silent about the claim for compassionate appointment after withdrawing the W.P. (C) No. 17113 of 2008 and he preferred to pursue the claim for workmen's compensation which has been paid to him as per the award and after receiving the compensation, the applicant filed the OA No. 70/2016. It is also noted that there is nothing on record to show that the family of the deceased employee was facing the dire financial hardship as the applicant chose to pursue the claim for compensation first and only after getting the required compensation, he started pursuing the claim for compassionate appointment by filing the OA No. 70/2016.
14. In the circumstances as discussed above, I do not find any reason to disagree with the reasons mentioned in the impugned order dated 6.2.2018, communicated vide letter dated 9.2.2018 (Annexure-A/1). Further, there is -7- nothing on record to prove that the family of the deceased employee in this case was in facing financial distress for which the compassionate appointment of the applicant is necessary in the light of the para 11 of the order dated 12.12.2017 of the Tribunal as extracted in para 10 above. Therefore, I am of the considered opinion that there is no case for interfering in the matter and the OA is accordingly dismissed. There will be no order as to cost.
(GOKUL CHANDRA PATI) MEMBER(Admn.) K.B.