Central Administrative Tribunal - Cuttack
Mina Pan vs Union Of India & Ors. on 3 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
T.A.No. 13 of 2010
(Arising out of WP ( C) No.9367 of 2007)
Cuttack,this the 3rd day of November, 2010
Mina Pan . Applicant
Versus
Union of India & Ors. . Respondents
C O R A M
THE HONBLE MR.C.R.MOHAPATRA, MEMBER (ADMN.)
O R D E R
This case having being transferred under section 29 of the A.T. Act, 1985 from the Honble High Court of Orissa has been registered as TA No. T.A.No. 13 of 2010 (Arising out of WP ( C) No.9367 of 2007). In this case, the prayer of the Applicant is to quash the order of rejection of his prayer for providing employment assistance, on compassionate ground, after the premature death of his father on 10-07-1993 and to direct the Respondents to reconsider his case for appointment on compassionate ground in any class IV post. The reason of rejection in the impugned order under Annexure-5 reads as under:
In compliance with the order of Honble High Court of Orissa dated 17.4.2007 passed in case No. WP (C) 2621/2007, your representation dated 22.3.205 was examined. As per Rules of NALCO employment on compassionate ground is considered only in accidental death case which comes under the category of arising out of land in course of employment as pr provisions of Workmens Compensation Act.
You are well aware that your father died of illness at home and the same was not an accident arising out of and in course of employment. Moreover, he has not reported physically even for a ingle day as an employee although he was treated as an employee by virtue of an award passed by Industrial Tribunal in ID Case No.35/87. Hence, it is not possible to provide any employment to you as requested by you in your representation. In other words, the order of rejection speaks of two reasons one is that as per the Rules of NALCO, employment on compassionate ground is considered only in accidental death case which comes under the category of arising out of and in course of employment as per provisions of Workmens Compensation Act and the other one is that the father of the applicant has not reported physically even for a single day as an employee although he was treated as an employee by virtue of an award passed by Industrial Tribunal in ID Case No.35/87.
3. The main thrust or limb of arguments taken by the Respondents/ NALCO in their reply filed on 23.11.2008 is that the case of the Applicant does not stand on similar footing as the persons who have been provided employment in complying with the award passed by Industrial Tribunal in ID Case No. 35 of 1987. His case also does not fall in Scheme of compassionate appointment formulated by the NALCO as he is not a land oustee or substantially affected person. The Rehabilitation Policy governing the field envisages for providing appointment on compassionate ground in case of death arising out of and in course of employment. In the instant case as the father of applicant died out of prolonged illness and that too at his home and that the father of the applicant though provided employment in terms of award passed by the Industrial Tribunal in ID Case No. 35 of 1987 but he could not join the post as by that time he expired there was no injustice or discrimination caused in rejecting the case of the applicant for providing employment.
However, it has been admitted by the Respondents in their counter that during 1986, the father of the applicant along with several others raised an Industrial Dispute before the Labour Authorities making demand for regularization of their services in NALCO and on failure of he conciliation proceeding the matter was referred to the Government which ultimately ended with a reference in the Industrial Tribunal vide ID Case No. 35 of 1987 and the dispute was decided in favour of the claimants including the father of the applicant vide award dated 27.4.1993. It has also been admitted by the Respondents/NALCO that the said award of the Industrial Tribunal was upheld by the Honble High Court of Orissa vide order dated 5.3.1997 in OJC No. 4182 of 1993 and thereafter by the Honble Apex Court in SLP ( C) No. 12065 of 1997. Review preferred by the Respondents/NAL before the Honble Apex Court was also dismissed on 15.01.1998. Consequent upon the dismissal of the SLP and Review, in compliance of the order of the Industrial Tribunal, the Respondents/NALCO issued order of appointment to all the beneficiaries in the award including the father of the petitioner on 07.03.1998 but as the father of the applicant died on 10.7.1993 while other similarly situated employees enjoyed the fruits of the award, the father of the applicant could not avail of the said opportunity. The Respondents/NALCO disputed the allegation of the applicant that the order of appointment of his father was intentionally and deliberately sent in wrong address. It h as been contended that the said order of appointment of his father was sent with the address available in their office. Accordingly, Respondents/NALCO objected to the prayer of the applicant and has prayed for dismissal of this case.
4. Applicants contention in the rejoinder is that the father of the applicant was deemed to be a regular employee of the NALCO as the award of the Industrial Tribunal is dated 27.4.1993 and the date of the death of the father of the Applicant was 10.07.1993. According to the Respondents/NALCO, they have, pursuant to the order of the Industrial Tribunal, confirmed by the Hnble Apex Court, issued the order of appointment in favour of claimants including the father of the applicant. But while others enjoyed the fruits of the benefit, the father of the applicant did not get the benefit as he was no more alive by the time the order of appointment was issued in favour of the father of the Applicant. He has also questioned the order of rejection being contrary to the provisions of the scheme for providing appointment on compassionate ground of the NALCO and accordingly, reiterated his prayer made in the Petition.
5. Heard Mr. Tripathy, Learned Counsel for the Applicant and Mr. Rath, Learned Counsel appearing for the Respondents/NALCO and perused the materials placed on record.
6. By filing copy of the Scheme of compassionate appointment formulated by the NALCO specifying the circumstances under which request of compassionate appointment can be provided to one of the members of the deceased family vis-`-vis the order of rejection under Annexure-5, it was contended by Learned Counsel for the Applicant that the Respondents rejected the claim of the applicant on misinterpretation of the scheme envisaging appointment on compassionate ground and thereby causing miscarriage of justice to the Applicant in the decision making process of the matter. More illustratively, by drawing my attention to various provisions of the scheme it was contended by the Learned Counsel for the Applicant that the Respondents rejected the case of the applicant on the ground that the death of his father was not accidental in course of employment and he died due to prolonged illness in his house though the scheme is not confined giving consideration to the case of compassionate appointment to such extent only. Further contention of the Learned Counsel for the Applicant that posthumous regularization in the circumstances has the sanction of law and delay in regularization of his father pursuant to the order of the Industrial Tribunal should not stand as a bar for the applicant to get the employment on compassionate ground. By drawing my attention to the various provisions in the scheme, it was reiterated by Learned Counsel for the Respondents that there is no wrong in the decision making process of rejecting the claim of the applicant as the father of the applicant did not die in accident while remaining in the office. Hence, this OA is liable to be dismissed.
7. Further proceeding to record the view on the matter, it is worth mentioning that the object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the crisis due to death of the bread earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to 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 for giving gainful appointment to one of the dependents of the deceased who may be eligible for such appointment. The provision is in consonance with the right to life enshrined in Article 21 of the Constitution of India. It is seen that keeping in mind the aforesaid in view, as a matter of policy, the National Aluminum Company Limited issued guidelines for appointment on compassionate ground vide Inter Office Memo No.CHRD-II/3241 dated 02-04-1996. It reads as under:
From time to time requests are made by the dependents of deceased employees for providing employment in the Company. Considering the limitation in manpower and other related factor it is not possible to provide employment of the dependants of the deceased employees in all cases. As a part of social security measures for the employees, NALCO Superannuation Benefit Scheme has been introduced with effect from 1.4.95 and all the employees irrespective of their status will be covered under the Scheme. The details of the scheme will be getting the assured benefit under the Scheme as pension which will help the families to overcome the economic crisis. In the light of the above, the matter related to employment on compassionate ground has been thoroughly examined and the following guidelines have been made:
(i) The employment on compassionate ground will be considered only on accidental death cases which comes under the category of arising out of and in course of employment as per provision of Workmans Compensation Act.
(2) The compassionate employment may be offered after being satisfied that there is no other means of livelihood of the family of the deceased employee.
(3) The compassionate employment can be confined to the post in non-executive category at induction level and against available vacancy.
(4) The dependant wife/son/daughter of the deceased, may be considered for employment provided he/she meets the minimum requisite qualification for the post as specified under the Recruitment Rules for non-executives.
(5) Relaxation in age and experience may be considered if required.
The request for providing employment to other cases of death of the employee in harness falling within period from 1.4.95 till implementation of the NALCO Superannuation Benefit Scheme may also be considered on case to case basis keeping in view the guidelines as enumerated above. Since the object is to enable the family to get over the financial crisis facing at the time of the death of the sole bread earner, the compassionate employment may be provided within a reasonable period.
8. It is the stand of the Respondents Department that the provisions made in clause 2 to 5 cannot be read in isolation. It is consequential to the provision made in sub paragraph 1 and, therefore, as the death of the father of the applicant was not due to accident in course of employment, the applicant is not entitled to appointment on compassionate ground. This was strongly opposed by Learned Counsel for the Applicant that in absence any such provision that the employment on compassionate ground will be considered only on accidental death cases which comes under the category of arising out of and in course of employment as per provision of Workmans Compensation Act provided (2) The compassionate employment may be offered after being satisfied that there is no other means of livelihood of the family of the deceased employee; (3) The compassionate employment can be confined to the post in non-executive category at induction level and against available vacancy (4) The dependant wife/son/daughter of the deceased, may be considered for employment provided he/she meets the minimum requisite qualification for the post as specified under the Recruitment Rules for non- executives (5) Relaxation in age and experience may be considered if required, it is not correct to say that the instruction provides that appointment can be provided only in case the death is by way of accident in course of employment. I agree with the argument advanced by Learned Counsel for the Applicant in absence of any such express provision stated above. The above conditions are mutually exclusive and do not flow from condition (1) above. Hence it is held that denial of appointment on compassionate ground to the applicant on the ground that the death of his father was not on accident in course of employment is not in accordance with the instructions available on the subject in the field. Similarly, it is found that by the order of the Industrial Tribunal confirmed by the Honble Apex Court, the Respondents issued the order of regularization of the father of the applicant. But as the father of the applicant did not live by that time he could not enjoy the fruit of such regularization whereas other similarly situated employees who were regularized along with the father of the applicant joined their employment. Hence, the father of the applicant must be construed as deemed to have been regularized in the post by the order of the Respondents. In the light of the discussions made above, the order of rejection under Annexure-5 dated 5-6-2007 is quashed. The Respondents are herby directed to consider the case of the applicant for providing employment on compassionate ground within a period of 60 days from the date of receipt of this order and their decision communicated to the applicant in a well reasoned order within the above period.
9. With the aforesaid observation and direction, this OA stands allowed. No costs.
Sd/ (C.R.Mohapatra) Member (Admn.)