Central Administrative Tribunal - Kolkata
Dinesh Ch Vishwakarma vs Steel Authority Of India on 24 March, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
No. 0.A. 350/00102/2017 Date of order; 24.3.202.3
Present : Hon'ble Mr. AnindoMajumdar, Administrative Member
1. Dinesh Chandra Vishwakarma,
Son of Late AnmolVishwakarma,
Aged about 54 years,
Residing at House No. RA-33,
Tara Shankar Sarani,
Bengali Ambuja Complex,
City Centre,
Durgapur -- 713216.
2. PurnimaKumariVishwakarma,
Daughter of Sri Dinesh Chandra Vishwakarma,
Aged about 24 years,
Residing at House No. RA-33,
Tara Shankar Sarani,
Bengal Ambuja Complex,
City Centre,
Durgapur -- 713216.
bees Applicants
1. The Chairman of Steel Authority
of India Limited,
Ispat Bhawan,
9, Lodi Road,
New Delhi ~ 110 003.
2. The IISCO Steel Plant,
Burnpur,
Asansol,
District -- Burdwan,
Pin Code ~ 713325,
West Bengal.
3. The Chief Executive Officer of
Steel Authority of India Limited,
NSCO Steel Plant,
Qian
10.
2 0.a. 102.2017
District - Burdwan,
P.O, & P.S. - Burnpur,
Pin Code -- 713325.
. The Deputy Manager (Personnel,
Legal & IR),
Steel Authority of India Limited,
ISSCO Steel Plant,
District --- Burdwan,
P.O. and P.S. - Burnpur,
Pin Code -- 713325.
. The Director of Medical and
Health Services,
Indian Iron and Steel Company Limited,
P.O. and P.S. Burnpur,
District - Burdwan,
| Pin Code -- 713325.
. The Deputy General Manager (Personnel),
Steel Authority of India Limited,
ISPAT Bhawan,
5, Lodhi Road,
New Delhi -- 110 003.
. The Deputy Manager (Personnel),
Recruitment and Welfare,
IISCO House,
50, Chowringhee Road,
Kolkata -- 700 071.
. The Senior Manager (PL),
Mt. -- I,
Steel Authority of India Limited,
IISCO Steel Plant,
District - Burdwan.
. The Deputy Manager (ME),
Steel M/C Shop,
Fitting Section,
Steel Authority of India Limited,
IISCO Steel Plant,
P.O. & P.S. Burnpur,
District - Burdwan,
Pin Code - 713325.
The Deputy General Manager (PR & PIO),
RTI Cell,
Public Relations Department,
Die of)
a 3 0.a. 102.2017
7, The Ridge,
Burnpur -- 713325.
bees Respondents
For the Applicants : Mr. J.R. Das, Counsel
For the Respondents : Mr. A.R. Mukherjee, Counsel
Mr. B.B. Bhula, Counsel
Mr. S.C. Prasad, Counsel
ORDER
This O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief: -
"(a) | Directions upon the respondents and each of them to quash, withdraw, rescind the letter of refusal dated 27% July, 2016 to the applicant No. ] herein failing which the same be quashed and/or set aside.
(b) To call upon the respondent authority to certify and produce all necessary records relating to this case before this Learned Tribunal so that justice may be administered.
(c) Directior. upon the respondent authorities to grant appointment to the applicant No. 2 on compassionate grounds in respondent No. 2 for provision to provide the same always existed under respondent No. 2 herein prior and post 2011.
(d) Directing the respondent No. 2 from filling in a vacancy commensurate to the educational qualification of the applicant No. 2 till the applicant No.
2 is given appointment on compassionate ground."
2. This matter pertains to compassionate appointment. In accordance with the orders of Chairman, CAT dated 10.9.2021, issued under sub- Section (6) of Section 5 of the Administrative Tribunals Act, 1985, this case can be taken up by a Bench consisting of a Single Member. Accordingly, this case is taken up for disposal by the Single Bench.
3. The facts, in brief, of the matter are summarized as below:-
4 0.a, 102.2017 3.1. Shri Dinesh Chandra Vishwakarma (Applicant No. 1) was appointed on 2.9.1981 to the post of Khalasi at the ITSO Steel Plant at Burnpur, Asansol, Dist. - Burdwan (WB).
3.2. On 13th September, 1997, while performing the job of cleaning scrap material at Fitting Section, he met with an accident at around 2.10 P.M. and was seriously injured. Subsequently, he received medical treatment at Burnpur Hospital and was subjected to prolonged treatment.
3.3. On 25/26.4.2001 the applicant was examined thereafter by the Medical Board at Burnpur Hospital, who observed as follows:-
"(i) The patient was operated for reconstruction of ligaments at Peerless Hospital, Calcutta on 17th January, 1998 and again for reconstruction on 11' July, 1998.
(ii) Operation was totally failure and patient has a totally non-functioning left leg below knee.
(iii) Patient even cannot stand without helper, can stand only with the help of crutches.
(iv) Totally flat leg below knee.
(v) Patient attended the Medical Board on 29th March, 2000 when his evaluation for fitness was made and Medical Disability Assessment-cum-Compensation Certificate issued in favour of the applicant stating, "Disability assessed 60% (sixty percent)."
3.4. The Sub-Divisional Hospital of Asansol assessed his permanent disability to the extent of 45% on 7.7.1999 but on further examination it was enhanced to 60%.
QS) 5 0.a. 102.2017 3.5. The Sr. Manager (PL) -- Mt. I informed him vide his letter dated 29.5.2000 that, "The Board is of the opinion that you are not fit for the job."And further stated that "you cease to have employer & employee relationship on the ground of medical unfitness from 29.3.2000.
3.6. The applicant then prayed for compassionate appointment in favour of his wife, who was about 30 years old but her prayer was never considered by the respondents. Thereafter, vide letter dated 20.12.2008, the Dy. General Manager (Personnel) informed the applicant that he was given Voluntary Retirement on grounds of medical unfitness even though he had not sought the voluntary retirement.
3.7. The applicant was not allowed the benefits of EFBS Scheme on the ground that he was not declared to be permanently totally disabled. Shri Viswakarma made an application dated 18.7.2016 seeking compassionate appointment for his daughter.
3.8. The respondents vide letter dated 28.7.2016 informed the applicant that no employment can be given to his dependent.
3.&. The applicants have submitted that the Hon'ble Apex Court has held that incapacity to earn is to be determined with reference to the work or job the workman was doing at the time of accident. Applicant No. 1 has submitted that as a result of the accident suffered at work he is able to walk only with the help of crutches which has rendered him unfit to perform any job of a similar nature. Applicant No. 1 has further submitted that the total disability i.e. 100% permanent disability has a different meaning under the "Workmen's Compensation Act" as compared to its meaning in normal usage. According to the Act, disability is om 6 0.a. 102.2017 determined with reference to the work that the worker was doing immediately before accident took place and if the resulting injury leaves him incapable of performing any work of a similar nature then his disability is considered as 100%.
The main submissions of the Respondents are:
4.1. The applicant was appointed on 2.9.1981 and thereafter he met with an accident on 13.9.1997. The Senior Manager, IISCO-
SAIL vide letter dated 29.5.2000 had conveyed the opinion of the Medical Board declaring him to be not fit for the job and thus the relationship of the respondent with the applicant ceased w.e.f. 29.3.2000 on grounds of being medically unfit.
4.2. The applicant had preferred a representation dated 13.7.2000 requesting the IISCO-SAIL authorities to provide him an alternative job and subsequently he made another representation dated 21.8.2000 requesting the respondent authorities to provide an employment to his wife in a suitable post.
4.3. The IISCO Steel Plant had issued a medical disability assessment cum compensation certificate dated 25.5.2001 and after considering members of the Medical Board, had assessed the applicant to be 60% disabled.
4.4. The applicant applied and was provided with final settlement benefits namely, Provident Fund, Gratuity, Leave Encashment, Compensation towards accident benefits.
4.5. After a,lapse of 16 years he made. a representation dated 18.7.2016 seeking employment for his daughter. He was informed, vide communication dated 28.7.2016 that since he was not declared 'permanent total disablement,' no benefits under 'Employee Family Benefits Scheme' (EFBS) could be granted to him.
Vom 7 0.a. 102.2017 4.6. The applicant has, relied upon circular dated 31.1.2012 which deals with guidelines and procedures with regard to compassionate appointment cases. However, the said circular does not apply to the employees of IISCO-SAIL and for the IISCO Steel Plant a separate circular dated 14.12.2010 was issued according to which in case of death or 'permanent total disablement' as per NJCS Agreement and Medical invalidation cases, the dependent family members/employees are encouraged to opt for benefits under 'Employee Family Benefits Scheme'. As per the said circular, compassionate appointment could only be provided to one of the dependent family members of an employee only in case of death or 'permanent total disablement' due to accident arising out of and in the course of employment.
4.7. Since Applicant No.1 does not fulfill the requisite eligibility condition which was prevalent at the relevant point of time for getting EFBS benefits or compassionate appointment, the impugned rejection letter dated 28.7.2016 does not suffer from any illegality or procedural infirmity.
5. Respondent No. 11 i.e. Employees Provident Fund Organization, have, inter alia, submitted that the EPFO is in no way related to this case.
6. Heard Ld. Counsels for the parties and perused materials and pleadings on record.
7. During hearing, Ld. Counsel for the parties reiterated the averments made by them in their pleadings.
8. The applicant was rendered unfit for duties on account of the injuries suffered by him while at work and is no longer in service since 29.3.2000. Thereafter, he had made an application for appointment of oe 8 0.a. 102.2017 his wife on compassionate grounds but the same was also not considered by the respondents. After a considerable period of time, Shri Dinesh Chandra Vishwakarma (Applicant No.1) submitted an application dtd. 20th July, 2016 for compassionate appointment of his younger daughter, Ms. Purnima Kumari Vishwakarma ((Applicant No.2) for appointment on compassionate ground. He has submitted that his daughter has a full time Diploma in Engineering from West Bengal Council of Technical Education.
9. The respondents in their reply have not explained what exactly is meant by "permanent total disablement". It is not clear from the material ou record as to what exactly constitutes "permanent total disablement". However, a plain understanding of the term "permanent total disablement" of the employee would mean that a person could be considered from suffering total permanent disability if he/she has become totally disabled due to his suffering bodily injury, adverse sickness or terminal disease on account of which he is physically incapable of being employed.
10. Valentine Law Dictionary defines "permanent total disablement" as one that "will remain with the person throughout his/her lifetime or he or she will not recover".
Insurance Companies have their own definiiions of what determine "permanent total disablement". According to some Insurance Companies, a permanent disability occurs when an individual has suffered injuries or illness and shows no signs of improvement and isconsequently unable to return to work.
The respondents in their averments have not defined what precisely constitutes "permanent total disablement".
eae) 9 0.a. 102.2017
11. The fact that Shri Dinesh Chandra Vishwakarma (applicant No. 1) was considered unfit for continuing in his job and also was not offered any alternative job. This implies that he is not in a position to perform any other work. In the absence of a clear-cut definition as to what constitutes "permanent total disablement", it would be unfair to deny Shri Viswakarma the benefits under EFBS or compassionate appointment to a member of his family of which he was the sole bread earner at the time of his accident. Although 'Shri Viswakarma has received benefits such as PF, Accidental benefits by way of compensation and other outstanding dues, he has suffered a loss of a regular stream of income following his accident.
It has been claimed by the respondents No. 2 to 10 that the applicant Shri Dinesh Chandra Viswakarma had sought voluntary retirement. However, there is no document on record to show that Shri Viswakarma had applied for voluntary retirement. Hence, it appears that the respondents had forcibly retired him. |
12. The Hon'ble Apex Court has in Civil Appeal No. 8842-8855 of 2022 dated 34 March, 2023 (The State of West Bengal v. Debabrata Tiwari & ors.), inter alia, has held that since compassionate appointment is not a vested right and the same is related to the financial condition and hardships faced by the dependents of the deceased government employee as a consequence of the death, a claim for compassionate appointment may not be entertained after a lapse of considerable period of time since the death of government employee.
13. Keeping in view the considerable period of time that has passed since Shri Vishwakarma was discharged from service, his application for compassionate appointment of his daughter (applicant No. 2) would ordinarily not be considered. However, it is a fact that his application for la 10 0.a, 102.2017 compassionate appointment of his wife was not earlier considered on account of the ground that he had not suffered from "permanent total disablement" even though the respondents have not precisely denied as to what constitute "permanent total disablement".
14. I am of view that the applications made by Shri Viswakarma for compassionate employment first for his wife and then later for his daughter have not been considered by the respondents in the true spirit of the scheme for compassionate appointment. The application of Shri Dinesh Chandra Vishwakarma (Applicant No. 1) for compassionate appointment for his daughter Purnima Kumari Vishwakarma (Applicant No.2), which had been earlier rejected by the respondents vide their order dated 28.7.2016 needs to be reconsideration by the Respondents.
15. The Respondents are accordingly directed to reconsider the application for compassionate appointment dated 18.7.2016 submitted by Shri Dinesh Chandra Vishwakarma for appointment on compassionate grounds for his daughter Miss Purnima Kumari Vishwakarma and communicate the decision on the same by way of a speaking order within eight weeks of receipt of this order under intimation to the applicants.
16. With these directions the O.A is disposed of. No costs.
(AnindoMajumdar) Administrative Member t sp