Madras High Court
R.Sathiyabama vs The Managing Director on 22 January, 2011
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/01/2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.7255 of 2009 R.Sathiyabama .. Petitioner Vs. 1.The Managing Director, Tamilnadu State Transport Corporation, Bye Pass Road, Madurai Division, 2.The General Manager, Tamilnadu State Transport Corporation (Administration), Division 5, Virudhunagar, Virudhunagar District. 3.The Branch Manager, Tamilnadu State Transport Corporation (Division 5) - Virudhunagar Thiruchuli Road, Aruppukottai, Virudhunagar District. .. Respondents This writ petition has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents to consider the representation, dated 20.06.2009. !For Petitioner ... Mr.V.Bharathidasan ^For Respondents... Mr.N.Asaithambi - - - - :ORDER
The petitioner who is the wife of late N.Radha, who was working as a Driver in the respondent Tamil Nadu State Transport Corporation at Virudhunagar, has filed the present writ petition seeking for a direction to consider her representation, dated 20.6.2009 and to pass an appropriate order.
2.When the matter came up on 31.7.2009, this court directed the Standing Counsel for the respondent Corporation to take notice. On taking notice, the second respondent has filed a counter affidavit, dated 23.11.2010.
3.Heard the arguments of Mr.V.Bharathidasan, learned counsel appearing for the petitioner and Mr.N.Asaithambi, learned counsel for the respondents.
4.It is the case of the petitioner that her husband was working in the Corporation as a driver from the year 1993. On 15.10.1999, his services were terminated on the ground that he had color blindness. Though her husband made a representation for an alternate employment, the same was not considered. He also sent a representation on 1.12.1999 to provide an employment. On 19.3.2001, the second respondent sent a communication asking the petitioner's husband to appear with a view to provide an alternate employment. Though he had appeared, there was no response from the department. Since his representation was not considered, he filed a writ petition being W.P.(MD)No.1363 of 2007 to dispose of his representation, dated 23.9.2006. The said writ petition came to be disposed of on 21.2.2007 directing the respondents to pass an appropriate order on his representation. Even before his representation could be disposed of, the petitioner's husband died on 16.11.2009. Therefore, the petitioner sent a further representation, stating that she had passed Plus 2 standard and has got a daughter aged 4 years old and a son aged 9 years old. Therefore, she should be provided an employment on compassionate grounds by representation, dated 20.6.2009. It is this representation, the petitioner wanted the corporation to dispose of.
5.In the counter affidavit, it was stated that the petitioner's husband was discharged from service on 15.10.1999 on account of unfitness to work as a driver and all his terminal benefits were also duly settled. When he sought for an alternate employment, he was asked to appear before the Corporation vide its letter, dated 19.3.2001. In the meanwhile, the Government had banned the fresh recruitment in the Corporation. When the petitioner's husband filed a writ petition to consider his representation, this court directed the Corporation to consider his representation. The Corporation held that his claim was belated and a communication to that effect was sent to him, which was returned by the postal authorities that the petitioner's husband has expired. It was also claimed that the scheme for compassionate appointment is available only to the legal heirs of the employee who dies in harness. But at the time of death of her husband, he was not in employment. Hence, the petitioner's claim cannot be considered. The terminal benefits due to her husband were also settled by the Corporation. Since the petitioner's request was only her representation to be considered and the respondents also have come up with the counter denying her claim, it is not necessary to give a direction as sought for.
6.The question to be considered in this writ petition is whether the petitioner's grievance can be entertained by the Corporation?
7.In paragraph 7 of the counter affidavit, it is stated that compassionate appointment shall be given only to the legal heirs of the employee, who dies in service. But in the present case, the petitioner's husband was discharged on 15.10.1999 on ground that he had colour vision eye defect. Such termination itself is questionable because under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, such a termination is prohibited. The petitioner's husband was entitled to be continued in service with alternate employment.
8.In the present case, merely because he was settled with dues due to poverty or penury cannot disqualify him from claiming such benefit. In fact, this court in W.P.(MD)No.1363 of 2007 by an order, dated 21.2.2007 directed the representation of the petitioner's husband to be considered. Though it is claimed that the said representation was rejected, a copy of the rejection letter was not produced along with the counter affidavit. In any event, it is open to the petitioner now to challenge the rejection made by the respondent Corporation in not granting an alternate employment to her husband on account of Section 47 of the Disabilities Act. In the present case, if Section 47 of the Disabilities Act is applied, then the termination of the petitioner's husband was invalid as there is statutory prohibition from doing so. Therefore, it can be safely held that the petitioner's husband was deemed to be in service on the date of his death on account of the prohibition contained under Section 47 of the Disabilities Act. Therefore, when he died on 16.11.2009, it should be deemed that he was in employment. Hence, there was no difficulty in considering the case of the petitioner for compassionate appointment as if the petitioner's husband was in service at the time of his death.
9.Even otherwise, the Supreme Court in V. Sivamurthy v. State of Andhra Pradesh reported in (2008) 13 SCC 730 dealt with the scope of employment on account of medical invalidation to be more necessity than the employment on account of dying in harness. The following passages found in paragraphs 26 to 30 may be usefully reproduced below:
"26.As an incidental reason for holding that compassionate appointments are not permissible in cases of medical invalidation, the High Court has observed that death stands on a "higher footing" when compared to sickness. The inference is compassionate appointment in case of medical invalidation cannot be equated with death-in-harness cases, as medical invalidation is not of the same degree of importance or gravity as that of death; and that as medical invalidation is not as serious as death-in-harness, exception can be made only in cases of employees dying-in-harness. But what is lost sight of is the fact that when an employee is totally incapacitated (as for example when he is permanently bedridden due to paralysis or becoming a paraplegic due to an accident or becoming blind) and the services of such an employee is terminated on the ground of medical invalidation, it is not a case of mere sickness. In such cases, the consequences for his family may be much more serious than the consequences of an employee dying-in-harness.
27*.When an employee dies in harness, his family is thrown into penury and sudden distress on account of stoppage of income. But where a person is permanently incapacitated due to serious illness or accident, and his services are consequently terminated, the family is thrown into greater financial hardship, because not only the income stops, but at the same time there is considerable additional expenditure by way of medical treatment as also the need for an attendant to constantly look after him. Therefore, the consequences in case of an employee being medically invalidated on account of a serious illness/accident, will be no less, in fact far more than the consequences of death-in-harness. Though generally death stands on a higher footing than sickness, it cannot be gainsaid that the misery and hardship can be more in cases of medical invalidation involving total blindness, paraplegia, serious incapacitating illness, etc.
28.Another observation made by the High Court in support of its conclusion is that "while considering the cases of sick employees, the court cannot lose sight of cases of sick unemployed". What the High Court apparently means is that if an exception is made for compassionate appointment in the case of an employee medically invalidated, it may account to hostile discrimination, as compassionate appointment is not extended in case of others who are equally sick but are not employees of the Government. But the same logic is applicable to death-in-harness cases also. It can equally be said that "while considering the cases of death of employees in service, the court cannot lose sight of cases of death of other unemployed poor". Members of the family of a deceased are thrown into penury and hardship not only where the deceased is a government servant, but also where they belong to weaker or poorer sections of the society. In fact in the case of death of government servants, there is at least family pension and terminal benefits. But in the case of death of anyone belonging to poorer and weaker sections, there is nothing at all to support their families. Should compassionate appointments be therefore stopped even in death-in-harness cases also? The issue is complex. Comparison with non-employed is neither logical nor sound.
29.When compassionate appointment of a dependant of a government servant who dies in harness is accepted to be an exception to the general rule, there is no reason or justification to hold that an offer of compassionate appointment to the dependant of a government servant who is medically invalidated, is not an exception to the general rule. In fact, refusing compassionate appointment in the case of medical invalidation while granting compassionate appointment in the case of death-in-harness, may itself amount to hostile discrimination. While being conscious that too many exceptions may dilute the efficacy of Article 16 and make it unworkable, we are of the considered view that the case of dependants of medically invalidated employees stands on an equal footing to that of dependants of employees who die in harness for the purpose of making an exception to the rule. For the very reasons for which compassionate appointments to a dependant of a government servant who dies in harness are held to be valid and permissible, compassionate appointments to a dependant of a medically invalidated government servant have to be held to be valid and permissible.
30.There are of course safeguards to be taken to ensure the scheme is not misused. One is to ensure that mere medical unfitness to continue in a post is not treated as medical invalidation for the purposes of compassionate appointment. A government servant should totally cease to be employable and become a burden on his family, to warrant compassionate appointment to a member of his family. Another is barring compassionate appointments to dependants of an employee who seeks voluntary retirement on medical grounds on the verge of superannuation. This Court observed in Ram Kesh Yadav8 as follows: (SCC p.535, para 9) "9. ? But for such a condition, there will be a tendency on the part of employees nearing the age of superannuation to take advantage of the scheme and seek voluntary retirement at the fag end of their service on medical grounds and thereby virtually creating employment by 'succession'. It is not permissible for the court to relax the said condition relating to age of the employee. Whenever a cut-off date or age is prescribed, it is bound to cause hardship in marginal cases, but that is no ground to hold the provision as directory and not mandatory."
10.It is advisable for the respondent Corporation to evolve a scheme for employment on compassionate grounds even in cases where persons were medically incapacitated and becomes burden of the family as directed by the Supreme Curt. But merely because the scheme is not available in the respondent Corporation, that need not negative the claim of the petitioner as this court is of the opinion that the discharge of the petitioner's husband was statutorily illegal. Therefore, by fiction, it can be deemed that he was in service at the time of death. There is no legal impediment in considering the case of the petitioner for employment on compassionate grounds.
11.This court is constrained to modify the relief claimed by the petitioner in the peculiar circumstances of the case. Hence the writ petition will stand allowed. A direction will issue to the respondent Corporation to consider the case of the petitioner for employment on compassionate grounds commensurate with her educational qualification on the premise that she is eligible for employment on compassionate ground. The order shall be passed within twelve weeks from the date of receipt of copy of this order. The result shall be communicated to the petitioner without fail. However, there will be no order as to costs.
vvk To
1.The Managing Director, Tamilnadu State Transport Corporation, Bye Pass Road, Madurai Division,
2.The General Manager, Tamilnadu State Transport Corporation (Administration), Division 5, Virudhunagar, Virudhunagar District.
3.The Branch Manager, Tamilnadu State Transport Corporation (Division 5) - Virudhunagar Thiruchuli Road, Aruppukottai, Virudhunagar District.