Patna High Court
Steel Authority Of India, Ltd. vs Genda Sharma And Ors. [Alongwith ... on 18 August, 1998
Equivalent citations: 1998(3)BLJR2034
JUDGMENT
S.K. Chattopadhyaya and Loknath Prasad, JJ.
1. As common question of law is involved in all these appeals and the civil review application, they have been heard together and with the consent of the parties, are being disposed of at this stage.
2. Before considering the argument advanced by the learned Counsel, factual background is necessary to be stated.
3. The appellant, Steel Authority of India Ltd. (in short to be referred as 'SAIL') has impugned the order of the learned Single Judge dated 26.11.1996 passed in CWJC Nos. 3396, 3478, 3393 and 3481 of 1996 (R) respectively by approaching this Court in LPA Nos. 3, 9, 11 and 12 of 1997 (R), by reason of which the writ Court has allowed the said writ applications by quashing the order of termination/dismissal of the respective petitioners.
4. The respondents in LPA filed separate writ applications assailing the order of their dismissal from service, who were admittedly appointed on compassionate ground. Facts of these cases are almost similar and as such, without detailed deliberation on facts, it is suffice to state that after due enquiry and interview the' writ petitioners were appointed on compassionate ground by the authorities. Such appointments of the petitioners were never questioned from any corner including SAIL. However, only after an order passed by Hon'ble Mr. Justice Nagendra Rai on 7.2.1995 in CWJC No. 2615/93 (R), the petitioners' appointment was subject to further scrutiny. At this juncture the facts in CWJC No. 2615/93 (R) may be noted. One Awadhesh Singh filed the aforesaid writ application for a direction on the respondents to consider his case for appointment on compassionate ground. His case was, inter alia, that "he was entitled for appointment on compassionate ground as has been given to similarly situated persons. His father died on 26.10.1987 and according to the provisions of the SAIL, the petitioner filed an application. Awadhesh Singh being a Commerce Graduate, was interviewed for the purpose of junior teacher but even then no offer was given to him for such appointment. He could learn from the concerned office of the respondents that as his brother was already employed, he would not get any employment on compassionate ground. Awadhesh Singh represented the matter to the higher authority by submitting that several other persons, whose family members are already in employment, have been appointed on compassionate ground. He also gave names of such persons before the respondents as well as before the Writ Court in his counter-affidavit. The SAIL took the stand that though there is a provision of employment on compassionate ground to one of the direct dependant of the deceased employee, who died in harness, but a restriction has been imposed that if anyone of the dependants of such employee is already in employment of the respondent-company, the aforesaid facility of providing employment to other dependant on the death of the employee cannot be given. The writ Court dismissed the said writ application on the ground that as one of the members of the family of the petitioner was already in employment, he cannot claim appointment on compassionate ground. It appears that on submissions made by the writ petitioner before the writ Court that other persons, whose family members were already in employment, were also appointed on compassionate ground by the authority, the writ Court directed the Chairman of SAIL to look into the matter by observing that "if he finds that its own policy is being violated by its own officers, then he should take steps against these officers in accordance with law and will see that the illegal appointments, which have been made, should be cancelled.
5. It is only after this direction/observation in the case of Awadhesh Singh, the respondents, without ascertaining the facts, issued show cause notice to the writ petitioners (respondents in LPAs) informing them that pursuant to the order of this Court, a high-level committee was formed to go into the matter relating to appointment on compassionate ground and the Committee found that the petitioners had secured employment as the dependant of the deceased employee on compassionate ground by suppressing the facts that one of the family members was already in employment. The writ petitioners filed their show cause but the disciplinary authority, not being satisfied, submitted its report and subsequently the writ petitioners were dismissed from service with immediate effect. In their show cause, it was specific stand of the writ petitioners that one of their family members was appointed during the life time of their father and after the death of their father in harness, they applied before the respondents for appointment on compassionate ground as per the rules and guidelines of the SAIL. Hon'ble Mr. Justice M.Y. Eqbal, who heard the aforesaid writ petitions, by a reasoned order, allowed the said writ applications holding, inter alia that there was no policy decision or rule framed by the respondent, authorities under which employment cannot be provided to a dependant in case one of the family members is already in employment. His Lordship further found that the petitioners were not appointed in violation of any rule which attracts the observation, although not directory in nature, made in CWJC No. 2615/83 (R), and, thus the authorities' contention that they have proceeded against the petitioners because of the direction given by this Court has no leg to stand. This order dated 26.11.1996 has been impugned by the appellants in the instant appeals.
6. In Civil Review No. 15/97 (R) the petitioner Awadhesh Singh prayed for a review of the order dated 7.2,1996 passed in CWJC No. 2615/93 (R), by reason of which learned Judge had refused the prayer of the petitioner for appointment on compassionate ground. However, as there are divergent views expressed by other learned Single Judges allowing different writ petitions on the same ground, Hon'ble Mr. Justice Nagendra Rai, who passed the order dated 7.2,1995, referred this Civil Review application to the Division Bench for disposal with the aforesaid LPAs.
7. In the aforesaid premises the only question has to be considered as to whether the appointments of the respondents of these LPAs were in violation of any of the Rules of the SAIL or its Unit, namely, Bokaro Steel Plant,
8. Mr. Marathia, learned Sr. Counsel appearing on behalf of the appellant-SAIL, has contended with reference to Annexure-A in LPA No. 12/97 (R) that appointment on compassionate ground is provided according to this letter dated 14th August, 1984, and as such, the respondents cannot make a grievance that there was no such Rule by which they can be protected. Mr. Marathia, however, fairly submits that the respondents were terminated/dismissed on the basis of the order of this Court dated 7.2.1995 passed in CWJC No. 2615/93 (R) and the appellant will be benefited in future if on consideration of the entire facts this Court lays down a firm guideline.
9. Mr. P.K. Sinha, learned Sr. counsel appearing on behalf of the respondents, on the other hand, has urged that at this stage the appellant cannot be allowed to canvass that SAIL has a policy by which appointment on compassionate ground cannot be made where any other family member of the deceased employee is already in employment. Giving an example, he submits, that if during life time of the employee-father, his son is appointed in any of the Units of the SAIL by virtue of his own merit, it cannot be said that his appointment was on compassionate ground. Therefore, learned Counsel continues, if the employee dies in harness another direct dependant of the deceased employee is definitely entitled to get appointment on compassionate ground under Rules prepared by the SAIL. Referring to the memorandum of agreement dated 18,5.1995, Mr. Sinha submits that if policy is there then it must be given effect to and appointment of such nature cannot be termed merely as appointment on compassionate ground rather such appointment is under an agreement by which the SAIL binds itself.
10. The SAIL has various plants in India and Bokaro Steel Plant is one of its Units (to be referred as 'BSL' in short) which has its own Service Rules and Certified Standing Orders framed under the Industrial Employment (Standing) Order 1946 which governs all its employees who are employed by BSL. Moreover, a memorandum of agreement signed on 5th of July, 1989 contains various clauses and under Clauses 8.10.4. where an employee dies due to an accident, one of his dependants would be offered an employment. Subsequently, another memorandum of agreement was signed on 18th May, 1995 in which the National Joint Committee of the Steel Industry made a specific provision regarding measures of Social Security for various conditions of services, namely, regarding superannuation, benefit fund and L.I.C. scheme etc. Clauses 3, 4, 5,1(f) of the said agreement of 1995, which is relevant for our consideration, reads thus-
In case of death or permanent total disablement due to accident arising out of and in course of employment, employment to one of his/her direct dependants will be provided.
Though, Mr. Marathia has faintly urged that this agreement came into operation with effect from 18.5.1995 and as such, cannot be given retrospective effect, but has fairly conceded that there is no such averment by the appellant in this regard. He has failed to point out that this agreement of 1995 has been modified at any stage. Above all, this agreement does not indicate that the same has only prospective effect.
11. This brings us to the definition of family as contemplated under the SAIL Conduct, Discipline and Appeal Rules, 1977. Rule 3 (J) defines "family", which reads thus:
(J) "Family" in relation to an employee includes-
(i) the wife or husband, as the case may be of the employees, whether residing with him or not but does not include a wife or husband, as the case may be, separated from the employee by a decree or order of a competent Court.
(ii) son or daughter or step-son or step-daughter of the employee and wholly dependent on him but does not include a child or step-child who is no longer in anyway dependent on the employee or of whose custody the employee has been deprived or under any law:
(iii) any other person related, whether blood or marriage to the employee or to such employee's wife or husband and wholly dependent on such employees.
This definition is exhaustive inasmuch as not only son or daughter but also the step-son and step-daughter of the deceased employee who is wholly dependant on him comes under the definition of family. It only restricts a child or step child who is no longer in any way dependent on the employee or whose custody the employee has been deprived by or under any law. From a bare perusal of this provision, it is clear that son or daughter, who is employed under the appellant SAIL or in any of its Units and has got the employment on his own merit, will be deemed to be no longer dependent on the employee.
(Emphasis added)
12. Thus, where brother of the writ petitioners were appointed by SAIL and are no longer dependent on their fathers, such employment, in our view, cannot debar a 'wholly dependent' of the deceased to get employment on compassionate ground.
13. From the impugned orders it appears that counsel appearing on behalf of the SAIL before the writ Court had very candidly submitted that there was no such policy of SAIL as mentioned in order dated 7.2.1995. The SAIL has not come forward with a plea that subsequently memorandum dated 18th May, 1995 has been given a go-by and now the office communication dated 14th August, 1984 will govern the cases of such employment. Referring to letter of 14th August, 1984 issued by Mr. M.R.R. Nayar, Director (Personnel) of SAIL (Annexure-1 to LPA No. 12/97 (R), though Mr. Marathia has tried to impress upon the Court by submitting that this was the policy decision which is still in vogue, but in our considered opinion, this internal communication cannot override the various clauses of the agreement of 1995. It is not clear under what circumstances such letter of 1994 was issued by Mr. Nayar and that too even without referring to Clauses 3, 4, 5,1(f) of the agreement. Similarly, this letter, in our opinion, directly goes against the definition of family as given in Conduct, Discipline and Appeal Rules, 1977 because the letter says that if one dependent of the employee is already in the employment of the Company, it would not, therefore, be necessary to provide employment an additional dependent'. On the other hand, as noticed above, if son or daughter or even step-son or step-daughter of the deceased employee is wholly dependent on him, he/she will be provided employment on compassionate ground on the basis of the Agreement of 1995. Though, it is not very clear, but we are of the view, that by letter dated 14.8.1984 Mr. Nayar intended to suggest that if the wholly dependent of a deceased employee has already been appointed on compassionate ground, no additional appointment on the same ground may be made. Thus, in our considered opinion, this letter of Mr. Nayar does not help the appellant, rather fortifies the contention of the respondents.
14. The legal position on this subject has been set at rest by the Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana, reported in JT 1994 (4) SC 138, wherein their Lordships have given a guidelines, which is as follows-
One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much a less a post for post held by the deceased. What is further, mere death of an employee is harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Class III and IV are the lowest post in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The proviso of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought tc be achieved, viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute.The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the earstwhile employment which are suddenly upturned.
15. From the aforesaid observation, it is clear that Government or the public authorities, before appointing a dependant of an employee dies in harness, must consider the financial condition of the deceased family. If it is found that inspite of death of the employee, while in service, the family can be maintained through other sources, the appointment on compassionate ground should not be granted. Similarly, in a given case, where a son or daughter of the deceased employee has been appointed on his/her own merit but the said son/daughter is maintaining the family even after the death of his/her father, in our opinion, no appointment on compassionate ground is permissible in law. On the other hand, if a son/daughter, after getting employment on his/her merit during the life time of his/her father, lives separately without extending any help to his/her family after the death of such employee, can it be said that even under this circumstances, the wholly dependant of a deceased employee is debarred from getting employment on compassionate ground? We are of the view that such wholly dependant is entitled to get the employment on such humanitarian ground. The whole object of granting compassionate employment, as observed by the Apex Court, is to enable the family to tie over certain crisis.
16. On this background of legal position, if we consider the facts of the present case, it will appear that before giving employment to the respondents of these appeals, the concerned authorities made enquiry and after being satisfied issued appointment letter. Moreover, before giving such employment the respondents were subjected to selection test and training. It is not the case of the appellant that after direction of this Court dated 7th February, 1995, they made any further enquiry and found that any of the brother/sister of the respondents, who have been appointed on their own merit, are maintaining the family even after the death of their father in harness. Only because the brother. of the respective respondents have been appointed on their own merit, in our view, cannot be a ground to dismiss/terminate the respondents, who were appointed purely on compassionate ground. It appears that the order of this Court dated 7th February, 1995 passed in CWJC No. 2615/93 (R) has been misinterpreted by the authority and, thus, has committed illegality in terminating/dismissing the services of the respondents.
17. The decision in the case of Life Insurance Corporation of India v. Asha Ramchandra Ambekar (Mrs.) and Anr. , on which strong reliance has been placed by Mr. Marathia, in our opinion, is distinguishable from the facts and circumstances of the present case. In the case of L.I C. (supra), it held that Courts cannot order appointment on compassionate ground dehors the provision of statutory regulation and instructions. Clauses 2(iii) of the Life Insurance Corporation Recruitment (of Class 111 and Class IV Staff) Instructions, 1979, inter alia, states that the relation shall be admissible only where none of the members of the family-widow, son or unmarried daughter is gainfully employed. Similarly, Clauses 4 of the amended circular No. 2D/636/ASP/87 dated January 20, 1987, reads thus-
4.Where any member of the family is employed, no appointment may be made on compassionate grounds.
Interpreting these instructions, their Lordships, inter alia, held that the Corporation cannot be directed by issuing mandamus to do a thing which is per se illegal. However, in the present case, as noticed above, the facts are otherwise. The Rule 3 (J)(ii) of Conduct, Discipline and Appeal Rules of the SAIL contemplates that son or daughter and even step-son or step-daughter of deceased employee, who is wholly dependent on him, comes within the definition of family. However, this definition does not include the child or step child, who is no longer a dependant of the employee. Thus, in our view, the very definition makes a distinction with the aforesaid circulars of the Life Insurance Corporation. In our opinion, the authorities were under a legal obligation to make a thorough enquiry as to whether the respondents were wholly dependent on the deceased employee or not. Admittedly, even the further enquiry report does not reveal that respondents, who were appointed, were not at all wholly dependent on their deceased father.
18. In a recent decision, in the case of Indian Bank v. K. Usha and Anr. reported in JT 1998 (1) SC 265, the Supreme Court had occasion to interpret Clauses 10 of the Scheme of Amalgamation and the Settlement of 1982 arrived at between the management of Transferor Bank and the Union of its employees. Their Lordships considering the terms of the agreement inter alia, have observed as follows-
Now it is obvious that the claim of the respondents flows from 2 (p) settlement under I.D. Act entered into by the transferor company with its earstwhile employees through their Union and the liability arising under the settlement which is sought to be enforced against the appellant-Bank, obviously is not a monetary liability or a crystallised liability, but it is purely a contractual liability having a binding legal force under Section 18(1) of the l.D. Act.
In the case of Messrs Biny Ltd. v. Management of Binny Ltd. , three Hon'ble Judges of the Supreme Court, after consideration of the provisions of scheme of amalgamation of companies concerned, made the following observation-
...it is a trite law that in matters of welfare legislation, especially involving labour, the terms of contracts and the provision of law should be liberally construed in favour of the weak...
Having reiterated the said observation, their Lordships in Indian Bank case (supra), held as follows:
In this connection, we must also have to keep in view the settled legal position that while construing any scheme in connection with the question of providing compassionate appointments to the heirs of deceased employee who was the bread-winner and whose exit had left his heirs in the lurch and in precarious and vulnerable economic position a construction which fructified such a welfare measure has to be preferred as compared to another construction which stultifies such a benevolent welfare measure.
19. In the back ground of this settled principle, the facts of the appeals in hand are to be considered. In the instant appeals, when admittedly there was an agreement between the appellant and the Union in 1995, the appellant cannot get any assistance from the letter of Mr. Nayar as indicated above.
20. Having considered the pros and cons of the entire facts, we are of the view that no case has been made out by the appellant for interfering with the impugned judgment dated 26.11.1996 passed in the aforesaid writ application and thus, the appeals are dismissed having no merit.
21. In Civil Review No. 15/97 (R), the writ petitioner. Awadhesh Singh prayed for reviewing the order dated 7.2.1995 passed by the learned Single Judge in CWJC No. 2615/93 (R) on the ground that as appointment of some persons on compassionate ground have been held to be valid by this Court inspite of the fact that their other family members are in employment and, therefore, the case of the petitioner should also be reviewed as there cannot be inconsistent orders of this Court on the same point. Learned Single Judge, relying on the submission on behalf of the SAIL that there is a policy decision in this regard, has held that the petitioner was not entitled to get such appointment. However, as because there were divergent views expressed by other learned Single Judges of this Court, by order dated 21.3.1997, Hon'bie Mr. Justice Nagendra Rai referred the review application to the Division Bench for hearing alongwith the aforesaid LPAs.
22. While considering the points raised in these appeals, we have already held that the letter of Mr. Nayar dated 14th August, 1984 cannot be considered as a policy decision and so cannot override the terms of memorandum of appeal dated 18th May, 1995 and the definition of family as defined in Conduct, Discipline and Appeal Rules, 1997. Moreover, before the writ Court counsel appearing on behalf of the SAIL reiterated that there was no such policy of the SAIL as mentioned in the order dated 7.2.1995. Under these circumstances, we are of the view that the Civil Review application must be allowed by reviewing the order dated 7.2.1995 passed by Hon'ble Mr. Justice Nagendra Rai in CWJC No. 2615/93 (R).
23. In the result, Civil Review application is allowed. However, as it is well settled that the Court cannot issue a writ of mandamus directing the appointment on compassionate ground but can only direct the concerned authority to consider the claim of the person seeking such appointment, we direct the SAIL and/or BSL to consider the claim of the writ petitioner, namely, Awadhesh Singh according to the observation made above.