Karnataka High Court
Smt B Vijayakumari Pillai vs The Management Of Indian Institute Of ... on 2 May, 2012
Equivalent citations: 2012 LAB. I. C. 2541, 2012 (3) AIR KAR R 335, (2012) 4 KCCR 2651, (2012) 2 CURLR 529
Author: Aravind Kumar
Bench: Aravind Kumar
IN THE IIIGI-I (01 JRT oF KARNATAKA
AT BANGALORE
DAFED FillS THE DAY OF MAY, 2u 12
BE FORE:
TIlE HONBLE MR JFSTICE ARAVINI K[TMAR
)
WRI F PETITION NO.3355/2007
C!w
WRIT PETITION NO.5361/2006 (LT
ER)
IN WP NO 3355 OF 2007
B ETWEEN
SMT B VJJAYAKIJMARI PILLAI
W/O. SRI PRABHAKARAN PILLAI
AGEI) ABOUT 43 YEARS
R/AT NO. 144. II MAIN II CROSS
PAD MESI IWARI NAGAR
BANGALORE 560 049.
PETFFIONER
(1W SRI SUBI3ARAO & ( O, AD\ S.,)
AND
IHE MANAGEMEN[ OF
INDIAN INSTITIJF OF' SCILN( F
REP BY IFS RFGISTRAR
BANGJ ORE 510( 12
(Wi SRI TAT BTDkIRACFi\\LNLA A0.AD\.)
11115 \kkII PE'IlrION IS FIT LI'
JNI)LR RIlC1 5 22
01 FIT C ONSW[i lION OF IM)1A
I R\J\O lu CF \SII [HF
A\ \RD ) OW I XIFNI 01 DISAI I OW1N( ILL
VIOLATIVE OF THE PROVISIoNS OF THE I.I)ACT 1
ATJ ALSO)
VIOLATIVE OF ARTICLES 14 16 AND 21 OF E
CO\S FBI HO\ OF iNDIA Ar\D [)IRECL 1HE 1RES
\ DEN PO 1
TO PAY FULL BACKWAGES WITIT CONTINUITY OF SERVICE
AND CONFIRMATION FROM THE DATE OF INITIAL
APPOIN FME\ I V\F GRA\ I ALL E ( (Y\SFQI. EN I L\.L
BENEFITS.
IN WP NC) 536 2006
BETWEEN
THE MANAGEMENT OF
INDIAN INSTITUTE OF SCIENCE
BANGALORE560 012.
REPRESENTED
BY ITS REGISTRAR PETITIONER
(BY SRI PA[)UBIDRI RAGHAVENDRA RAO. j\DV.)
AND
SMT B V1JAYAKUMARI PILLAI
W/O. M.VENKATAKRISHNAN
AGED ABOUT 43 YEARS
R/ANOE. 19. NORTH SECTION
LANE. ITI ToWNSHIP,
BA
A
T LORE NC -5600
'16
(BY SRI M /S SUBBRAO & CC).. ADVS
THIS WRJT PETITI ON IS FILET) UN DER API] C LES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING 'IC)
CALL FOR THE RECORDS FROM THE PRESIDING OF FIC ER
flf I L LAL I zDOI A (;F RI \( U iR[
3
L N
1
ID2JO. 52/97 ON HER F1L.E, AND cLASHiNG H ER ORDER
OF LA EN NEMBFR DT 1 2 fl5 VIDE NN'G
3
a
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 25.02.2012 AND COMING
ON
FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COU
RT
MADE THE FOLLOWING:
ORDER
These two writ petitions are filed calling in question award dated 01.12.2005 passed by Principal Labour Cou rt, Bangalore in I.D.No. 52/1997 whereunder dispute raised has been allowed in part by setting aside the order of termination dated 07.05.1997 with a direction to the management to reinstate petitioner to her original post with continuit y of service and without back wages.
2. W.P.5361/2006 is filed by the management of Indian Institute of Science (hereinafter referred to as 'managem ent' for sake of convenience) being aggrieved by the award abov e referred to whereunder it has been directed to reinstate the petitioner to her original post with continuity of service.
art-.
3 W.P.No.3355/2007 Is filed by Smt.l).Vijayakumarl Pillal ihervinalter referred to ac emplo cc' fbi the sake 01 convenience) lwing aarleved by the award abo ve i eferred to the extent of disallowing back wages.
4. Heard SrLMohan Rao, learned counsel appeari ng for petitioner management and SrI.KSubba Rao.
learned senior counsel appearing for the respondent employ ee.
5 It is the contention of Mr.Mohan ltio that management is not an Industry' within mea ning of ceetlon 2(j) of Industrial Disputes Act. 1947 (hercin ( aftet referred to as Act for the sake of brevity) and as ,uch pro vision' ol A t are not applicable Flaborating his ubmission in this i egan he nuld tonti nd that managtment nctt tution is of iink iiil and nwrn ?Ional it qx rt'uiee cin wig an esta cli ' ii 'Ties fu th gord of rite and a aaton it , icutifie )rgjni.at or rirpkte vi, .tplxnnt.. d n' i PInpurdi 1' i' i i c't'rk i ilir t t i ite for .' r.i.p'l' rib 4 " in Tx i ci " z ic it f I 5 4 her husband while In harness since there was no regular post and as on the date of her appointment there was no 5% vacancy available to appoint her as regular employee on compassionate grounds and in the meantime she got remarried and her need for compassion got vanished. He would contend that finding of the Labour Court that breaks intermittently given Is artificial and procedure adopted by the management amounted to unfair labour practice by treating her appointment as permanent and declaring her termination as ifiegal as erroneous without considering the grounds urged by Management. He would also contend that Labour Court erred in not considering the fact of remarriage by employee which fact had been suppressed by her: Non consideration of the fact that children born to her through deceased employee Prabhakaran Pillal were being paid family pension has resulted In serious error committed by the Labour Court; the fact of employee getting remarried would automatically disentitle her to become eligible to service benefits and leave concession through her husband Sri.M.V.Krishnan arid this r 6 fact has been lost sight of by the Labour Court: he would further contend Labour Court committed a serious error in holding that employee was carrying on the work of perennial nature and finding of Labour Court that appointing staff for perennial work was not permissible and on these grounds he seeks for setting aside the award of the Labour Court In its entirety and prays for dismissal of the dispute and writ petItion No.3355/2007 filed by the employee.
He would rely upon the following Judgments in support of his case:
(l)1997LLR401 -para8.l2andl3 Physical Research Laboratory vs. K.G.Sharma (2) (2009)65CC 481 -para 11 and 12 Santosh Kumar Dubey vs. State of Uttar Pradesh and others (3) (2008) 8 5CC 475 para
-
(4) (2009) 7 5CC 205 para 29
-
General Manager. Uttaranchal Jal Sansthan vs. Laxmi Dcvi and others 7 K (5)(2011)7SCC 397 -pan (6)A1R2009SC2534-para 19 MIs. Eastern Coalfields Ltd. v. Anil Badyakar & Ors.
(7) (2005) 5 SCC 1 - para
6. Per contra Sri.K.Subba Rao, learned senior counsel appearing for the employee would not only support the award of the Labour Court to the extent of relief granted to the employee but he would also contend that when Labour Court held that there Is violation of section 2SF read with section 2(oo) of Industrial Disputes Act. It ought to have granted the consequential relief In its entirety; he would contend that employee was appointed on compassionate ground and it was not on temporary basis and accordingly Labour Court ought to have granted all consequential benefits: he would contend that several others appointed on compassionate grounds have since been appointed on regular basis and some of them who have remarried are not terminated and they have continued to hold the post and same yardstick Is to be 8 4 applied to the employee In question: On these grounds he seeks for award of back wages by allowing the writ petition filed by employee.
7. In reply to the arguments advanced by Sri.Mohan Rao he would submit that remarriage is not a ground for terminating and at no point of time the employee was Informed or intimated that her employment would come to an end after six months. He would contend that there was no material placed regarding management not being an industry' and such contention should not be examined by this court for the first. time. He would contend that management being satisfied that employee has to be given appointment on compassion on the death of her husband she has been provided with such a employment and once a person is appointed on compassionate ground the penury or the financial condition which will have to be looked into will be the one prevailing as on the date of appointment and no subsequent event can be taken into consideration. He would 4r' 9 A contend that section 25G and 25J are squarely applicable to the facts of the case by bringing to the notice of the court paragraph 9 of the claim statement and contending that plea raised by employee has not been denied by the management In Its counter statement and as such It deserves to be accepted. On these grounds he seeks for allowing the writ petition 3355/2007 and prays for dismissal of W.P.5361/2006. In support of his submission he has relied upon the following Judgments:
(I) AIR 1988 SC 37 Christian Medical college Hospital Employees' Union and another vs. Christian Medical College Vellore Association and others (2) (1994) 2 LU 462 (M.P) - para 12 Suresh Chandra Mathe vs. Jiwaji University, Gwalior & Om.
(3) (1994) 2 Lii 236 (Kerala) - para5 T.Rajan and State and Ors.
(4) (1995) 1 LU 944 (M.P) - para 13 Ramkishan vs. Sanirat Ashok Technical InstItute, Vidisha
-
(5) AIR 2010 SC 1116 pan 17 Haijinder Slngh vs Punjab State Warehousing Corporation (6) AIR 1955W 425 pan 14 Sangram Slnghvs. Election Thbunal Kotah and another m sm 2003 SC' 3553 (8) Unreported judgment In WA905/99 dated 21.01.2002 (9)1978 Lab IC 467 AIR 1978 SC 548
8. HavIng heard the learned advocates appearing for parties and on perusal of the impugned award as also record, secured from the labour Court and the case lan cited at the bat I im of thc considered n that following points ansc for my msaderation (fi Wlctl i pett Ii36 2 6 amey ndin I t itt f c n in industry kit ci t c sector ftaactsnaim.pgs
(ii) Whether the peiitioneremp1ovee in W.P .3355/2007 has an indefeasible right to cia im ap poinment on compassionate ground in Indian Institut e of Science on account of death of her husband Sri. Prabhakaran Pillai?
and, if so, whether it continued thereaft er?
(iii) Whether award of the Principal Labour Court. Bangalore passed in I.D.No.52/97 dated 01.12.
2005 is to be set aside or affirmed or modified?
(iv) What order?
BRIEF BACKGROUND OF THE CASE:
9. The husband of the petitioner (in W.P,No, 3355/2007) by name Sri. Prabhakaran Pillai was appointed as a mechanic in the Ind ian Institute of Science originally on temporary basis and subsequently he was confirmed. He expired during Ju.iy I 991.
. Driring his life time he had married •Stnt.DVijavakumari Pillai and from the said marriaqe they had two childrei.t a..nd at tue time w.hen SrLPx. hhakaran Pilial expired, childre n were agpa 8 years 7 it Pt P Cii trB dcmne ci I husband 12 I. petitioner submitted an application for appointment on compassionate grounds and she was appointed as a temporary clerk in the institution on 26.08.1991 on a consolidated salary of 1,400/- and she worked upto May 1997 with break in service. The management by order dated 07.05.1997 informed that her services are being discontinued and terminated as per section 2(oo) (bb) of the Industrial Disputes Act, 1947. Aggrieved by the said action, employee raised a dispute by filing petition under section 10(4-A) of the Industrial Disputes Act, before the Labour Court, Bangalore.
Respondent-management on service of notice appeared and filed its statement of objections denying the averments made in the claim statement. Before the Labour Court the employee got herself examined and on behalf of the management the Deputy Financial Controller appeared as a witness and was examined as MW-I. Documentary evidence was tendered by both the parties. Labour Court on the basis of the pleadings of the parties framed following Issues for its determination:
13I, (1)Whether the first party proves that she is workman as defined under Industrial Disputes Act?
(2) Whether the second party was justified in terminating the services of first party?
(3) To what reliefs the first party is entitled to?0
10. On evaluation and scrutiny of evidence Labour Court held that first party Is a workman and second party was not justified in terminating the services of first party and directed reinstatement to her original post with continuity of service and without back wages and consequential benefits.
RE POINT NO.1:-
11. The management of Indian Institute of Science who is petitioner in W.P.3355/2007 raised a contention before the Labour Court In Its counter statement specifically contending that it was started In the year 1901 as a public charitable trust and it has been functioning as an 4r 14 autonomous body under the provisions of the scheme framed under the provisions of Charitable Endowments Act, 1890 and It Is an institute for higher learning and research and It Is a deemed university for the purpose of awarding degrees. As such It was contended that activity carried out by it cannot be termed as an activity which come under the definition of 'Industry' as defined under the Industrial Disputes Act and In view of the same application is not maintainable. The Institute sought for this issue being tried as a preliminaiy Issue. However, no issue came to be framed by the Labour Court and management also did not seek for reframing/recasting of the Issues after issues were framed.
In view of the fact that such a plea having been raised and same Is found In the counter statement this court has fonnulated Point No.1 for adjudication and as such point No.1 Is taken up for consideration first as it would have a direct bearing on the maintainability of claim petition.
Learned advocates have also addressed arguments In extenso on this issue as already obsen'ed herein above and to answer 15 a the point formulated and arrive at a conclusion It would be necessary to extract the defInition of Industry' as defined under the Industrial Disputes Act, namely sectIon 20) which reads as under:
20) "Industry" means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency.
including a contractor) for the production supply or distribution of goods or senrices with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious In nature), whether or not, (1) any capital has been invested for the purpose of carrying on such activity; or (il) such activity is carried on with a motive to make any gain or profit, and includes-
(a) any activity of the Dock Labour Board established under section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948);
(b) any activity relating to the promotion of sales or business or both carried on by an establishment, but does not include (1) any agricultural operation except where such agricultural operation Is carried on in an integrated manner with any other activity (being any such activity as is referred to in the 1bre&oin pro\isions of this clause) and such other activity is the predominant one. Explanation. For the purposes of this subclause, aricu1tura1 operatlon does not include any activity carried on in a plantation as defined in clause (fl of section 2 of the Plantation Labour Act, 1951 (69 of 1951): or (2) hospitals or dispensaries; or (3) educational, scientific, research or training institutions; or (4) institutions owned or managed by organisations wholly or s ubstantiallv engaged in any charitable, social or philanthropic service; or (5) khadi or village industries: or (6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic ener&v and space: or (7) any domestic service; or (8) any activity being a profession j.ractised by an individual or body of individuals, if the nuniher of persons employed, by the individual or body of individuals in relation to such profession is less than ten; or 9 cli 0 Ii 3 llrR I by a cooperaiJve socletv or a Club or any ot.her like bcdy of individuals, if the number of persons employed by the co opernove society, c tub or other 1..ike 1 body of Individuals In relation to such activity Is less than ten;"
12. The learned advocates have relied upon judgments on this Issue which would throw light on the definition of the word industry' and the manner In whIch it Is to be Interpreted and applied In a given situation. They are as under:
(1) 1978 Lab I.C 467 = AIR 1978 SC 467 -
(II) (1994) 2 LId 462 Suresh Chandra Mathe vs.
-
Jiwaji University. Owallor & Ors.
12. It Is therefore clear that education is a kind of service, although sublime service, and that University Is an "lndustnf' within the meaning of Section 20) of the Industrial Disputes Act, 1947. The further question whether a clerk of the University. like the petitioner, was a "workman" under SectIon 2(s), admits of no doubt. A person employed to do clerical work Is expressly mentioned in the definition of a . Pausing here It may be mentioned that a t "workman' new definition of "Industry" has been given by Act 46 of 1982 whereby a new Clause (I) will take the place of Clause 0). from a date to be notified upon enforcement of Section 2(c) of the Act. When that new definition will get substituted, educatIonal, scientific, research and training Institutions will cease to fall within the purview of "Industry" by virtue of Clause (3) of that definition. Till that happens, a University will continue to be held to be an "Industry".
18 4(iii) (1995) 1 LU 944 - Ran-ikishan vs. Samrat Ashok Technical Institute, Vidisha
13. ConsiderIng the provisions of law as they stand today. the educational service is not only an Industry but is the mother of Industries and the respondent is, therefore, held to be an Industry.
(iv) (1997) LLR 401 -PhysIcal Research Laboratory vs. KLG.Sharma
8. Therefore, the question whether PRL Is an 'industry' under the I.D. Act will have to be decided by applying the above principles; but. at the same time It has to be kept In mind that these principles were formulated as this court found the definition of the word 'Industry' as vague and "rather clumsy. vapourous and tall-and-dwarf'. Therefore, while Interpreting the words 'undertaldng' calling and 'service' which are of much wider import, the principle of 'noscitur a socils' was applied and It was held that they would be 'Industry' only if they are found to be analogous to trade of business. Furthermore an activity undertaken by the Government cannot be regarded as 'industry' If it Is done In discharge of its sovereign function, one more aspect to be kept In mind is that the aforesaid principles are not exhaustive either as regards what can be said to be sovereign function or as regards the other aspects dealt with by the court.
12. PRL is an institution under the (inverument of liidias Department of Space. It is cruaged in pure research work is already stated earlier. The purpose of the research is to acquire knowledQe about the formation arid evolution of the universe but the know1ede thus acquired is not intended for sale. The Labour Court has recorded a categorical finding that the research work carried on by PRL is riot connected with production supply or distribution of material oo(ls or services. The material on record further discloses that PRL is conducting research not for the benefit or use of others. Though the results of the research work done by it are occasionally 1 )ublishe(l they have never been sold, There is rio material to show that the knowledge so acquired by PRL is marketable or has any commercial value. IT has not been pointed out how the knowledge acquired by PRL or the results o.f the research occasion ally published by it will be useful to persons other than discloses that the object type of study. The material discloses that the object with which the research activity is undertaken by PRL is to obtain knowledge for the benefit of the Department of Space. Its object S hot to render services to others non in fact ii does so expect an an in(hirect manner.
i3 it is nobody s that PRL is engaged ira an aci ivitv vhich can b called business trade or rnanufa( tui, Neit1ur tiom the nature of its orgailisation nor from e nat itt in hara r of the i( ti it arricd r h it. it m h said 10 he UI uiideriaki it' ai1aiouus to hisin $ r Ir id It is ii t engagul m a mrneicia1 lilditsu-lal a1t it -[11(1 it t am lOt DC tlt scribcd is an ( Oflflflhi( V riti Lie ir J eolnrrlCr( lal € 0t( rprI( as It N not its object to pi odu nU listi ib ire e r i Cs hi rH]I1 'atlsf\ xrara n1 n u1 of rh I -€ Ii t 0 t U 11 1. t t€ ' 1 ii 0
4. discharging Governmental functions and a domestic enterprise than a commercial enterprise. We are. therefore. of the opinion that PRL is not an Industry even though it Is carrying on the activity of research In a systematic manner with the help of its employees as It lacks that element which would make It an organisation carrying on an activity which can be said to be analogous to the carrying on of a trade or business because it is not producing and distributing services which are Intended or meant for satisfying human wants and needs, as ordinarily understood.
13. The Constitutional Bench in Rajappa's case has held that if triple tests namely (I) Systematic activity (Ii) organised by co-operation between employer and employe e (the direct and substantial element is chemerical), (lii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services gear ed to celestial bliss), there is an "industry" in that enterprise .
Thus, if these triple tests are fulifiled an establishm ent cannot be exempted from the ambit of definition of 2Q) of the Industrial Disputes Act. This dicta laid down by the Constitutional Bench Is binding on this court and requires to 21 be implicitly followed to which proposition there cannot be any different view.
14. The Honble Supreme Court in the case of Physical Research Laboratory Vs K.G.Sharma reported in 1997 LLR 401 by following the judgment in Rajappa's case has also considered as to whether department of space of the Government of India. engaged in pure research in spac e science which research work was not connected with production. supply or distribution of material goods or services which does not have any commercial value could be still called as business or trade to bring within the purview of the definition of ind 3 ustry and has been held that even though said Laboratory was carrying on the activity of research in a systematic manner with the help of its employees, it was held that it lacks the element which mak e it an organisation carrying on an activity which can be said to be analogous to the carrying on trade or business because it is not producing or distributing services which are intended 1----
or meant for satisfying human wants and needs as ordinarily understood.
15. Thus, keeping in mind the principles enunciated in the above judgments when facts on hand are examined the following would emerge.
16. The Indian Institute of Science was founded under the Charitable Endowments Act (VI of 1890) and the properties and funds was endowed by its founder. the late Mr.JNTata which caine to be vested in the trust under a vesting order dated 27M5. 1909 as published in the Official Gazette by Go ci nment of India. Under the said Act the Government of India settled a scheme for administration of trust which came to be modified from time to 1mw and the heme m opration at present has been pprocd by G t rome t f Ii dma C r 22 05 196? vhk Ii is in force aT id voguc
17. The Indian Institute of Science is governed by 'theme approved by the Government of India. regulations approved by the Visil or (the I louble Prt siclent ol India ) tnd bye laws framed by the Council The otject of the establishment of the said institute is as per clause 3.1 which reads as under:
"The objects of the institute shall be (a) to provide for advanced instructions and to conduct original investigations in all branches of knowledge and. in particular in such branches of knowledge as or likely to promote the material and industrial welfare of India, (b) to establish and maintain chairs and lectureships in science. arts and technology, (c) to provide suitable libraries, laboratories and equipment. (d) to co operate as far as possible with 'mcli recognised Institutions as exists or are found in founded In future for cognate objects m India. and (e) to do all such things as or net essarv or conducive to the attainment of all or any of the nt4cc ts of the institute"
18. Tht m lirutt for is functi mirig has adopted the rules iullowtci tn ..onrnmtnt ci h (ha In respe of I ', mploec" by ay oft -soltitic it prsed 1 y tht B.i id ft is tiM dspit Ii I In is ink ii N iri ' I Thunan Rst.uru i)e.-r,ptaie "ii. (a' t'lMtI 4 1 '( i I Jt I ( ens I I V 24 b established for higher learning and to conduct research. In this background the point formulate d hereinabove namely as to whether the institute would be an Industry' as defined under the Industrial Disputes Act.
requires to be examined.
Honble Apex Court in K.G.Sharma's case referred to supra keeping in mind the dicta laid dow n in Rajappa's case held that doctrine of 'noscitur a sods ' is applicable since the definition of the word industry' being vague and rather clumsy, vaporous and tall-and dw
- arf while interpreting the words undertaldng', calling' and servlce' which are of wider import and held if they are analog ous to trade or business then It would come within the defini tion of industry' and not otherwise. In this background it wa s held that an activity undertaken by the Government cannot be regarded as industry' if it Is done in discharge of Its sovereign functions.
The Indian Institute of Scienc e is a premier Institute established for the purposes of dev elopment of pure science and related research activities. Th e objects of the trust under clause 3.1 of the scheme would cle arly go to establish it is a 4'--.
forum established for conduethig original Invest 1gatlon' In all hnuiclies ol knowledge and such branches of know ledge which are likely to promote material and Industrial welfare of India and the knowledge so acquired In this process Is for the betterment of a society as a whole and the knowledg e so acquired In this process Is not a product which beco mes marketable and neither It is a saleable commodity Such knowledge which would emerge from conducting labo ratory tests or result of a research has no nexus to supp ly or distribution of material goods or services. The activity carried on is not for the benefit of any particular Individua l or an Institution but it Is for the benefit of the society as a vhole and its object is not to render services to othc rs. It is not enaaged In an activity which can be called bu$ness trade br niaxiufact' 're slutt it is not cuipaged In my coninierd al or mdi tialit cnc lx cntfal'ndt Th aiqon of utbe e c 1 ic mu u niur. ni 1 io nternal r t-ntaprise as 1LS ''hp-ct I., produrt arid distnbiite Sc n' c [4 1(1 r, %itI.n' the ''ii--d. f li. n--urnc-r -'n'iu'iu't 1 Vi h ; I U I matter. I am of eoiisideied view I hat the act ivilv carried on hy ihe institute cannot be held to fall within the delinition of 'industry' AcordinIv Point No. I is ansxvtrcd by hold ing I hat Indian Instii me of Science is nor an indu stry' as (leliiiCd under Industrial I)ispiites Act. 1947.
NOTE:
Since, point No. I is answered in favour of Indian Iiistitiite of Science, claim petition will have to 1w necessarily held not maintainable However, in jew of the tact that learned Advocates ha e addressed argu ments on all the issues points 2 to 1 formulated hereinabove for ( onsider atioir b this Court is riso delv d upon and arlswt ied as under
RE: POINT NO2 AND 3:
l) H 1 Ccii Ii a tuitlOl t 1 ii H a I Jr slititt
f I i I t I ii ic \'i t (I Ipha ( ri P a 1ikar art
Pillal in laniI 1 Sail nax aku a tr El ml r'ir d. I CI
a it tt I a I c iiHflwU II t s St t 1' C
she was appointed as a temporary employee and on account ol her re inan-Iagc to another person 11w iiet'd for assistance by way of appointment on ground compassion vanished. It Is also contended that family pension was being paid to her children born to her through deceased employee SrI.Prabhakaran Pillai and she has also drawn family pension from the institute. It Is also contended by the learned counsel for management that penury or financial distress of Smt.Vijavakumarl Pillal did not continue and wife of the deceased employee to claim appointment on compassionate ground is not a indefeasible right vested to her.
20. Appointnwnt on compassionate ,around Is to enable imrnediat€ financial assistancc in a tamilv which has lo%t its bn ad irner in I ich appoir tnirit a) nn er t s un c of i titric t \pontmt 1 i mp ci r It a d a -
on',kl red a' i 'Ight of per n. In the i ornial uflUl c ' lit ii Tb.' appointinc lit I" lit. nndt ,t ha' P. 4 a. n.ru-l ui' t with Ia" (. .)sIlfli'--jjl alt" s P''' ah s.f ttl ''1,1 .Iu etc. cjt''eflSl' 'I would be violative of Article 1 4 of Constitution, Thus.
exception to the enerai rule of recruitment is traceable in the case of compassionate appointment. In this background the point formulated hereinabove requires to be answered. The Honble Supreme Court while considering the claim for compassionate appointment has laid down the contours under which such claim is to be examined and considered in the following Judgments:
(i) (2009) 6 5CC 481 Santosh Kumar Dubey vs. State of Uttar Pradesh and others
11. The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial 11 ard ship.
The benefit is given so that the family can tide over such financial constraints,
12. The request for appo.in ment on ccm.passionatc grounds should be. rc as onable and uroima1e 10 the rime of the death of the bread earner of the.. fa.mi.ly in.. asmuch as the very )nrpos( nf an ing such henfii ]L n iL 11 help available 11) the family to overcome ciidilc c.conomi.c crisis occu.rring in the family of the 29 deceased who has died in harness. But this. however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a rhht to get an appointment in ovcriiment service.
(ii) (2008) 8 sec 475 General Manager. State Bank of India and others vs. Anju Jam '31. We are of the view that both the Courts were wrong in granting relief to the writ petitioner. Appointment on compassion ate 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, J\t the same time, however, in certain circumstances, appointment on compassionate ground of dependents of deceased employee is. considered inevitable so that the family of the deceased employee may not starve. The primary obje .4 of such scheme is to save the bereaved family from sudden financial crisis occurring due at ii ht eau u w-i il hu m excepti.on to t.h.e general rule of equality and not another independent and parallel source of employment.
30V
21. Keeping the principles enunciated and laid In the above judgments by Hontle Apex Court when facts are examined it can be noticed that husband of Smt.Vijayakumari Pillai i.e.. Sri.Prabhakaran Pillai was working as an helper at the time of his demise on 21.07.91.
It is not in dispute that Indian Institute of Science has adopted the rules for compassionate appointment as prevalent in Government of India. These rules have also been produced and marked in evidence of MW-i as Ex-M- 1.
Though it has been contended by the employee that her appointment was on compassionate grounds her letter of appointment produced at Ex.W- 1 dated 23.08.91 would go to show that she was appointed as TEMPORARY CLERK' and not on compassionate ground. The application submitted by the employee seeking compassionate appointment has been produced by the management through its witness MW-i as Ex-M-3. The said witness who has been examined on behalf of the management namely MW-i has stated in his evidence by reiterating the contentions raised in the counter statement IC 31 V that at the time the employee submitted application seeking compassionate appointment there was no vacancy available and claim of the family members of employees who had expired in harness prior to death of Prabhakaran Pillai and who were senior to the deceased employee herein was pending consideration. This clearly goes to show that employee Smt.Vijayakumari P1161 was never appointed on compassionate grounds.
22. The office memorandum Ex-M-1 which relates to scheme of compassionate appointment adopted by the institute would go to show that institute is competent to appoint in relaxation of the procedure of regular recruitment such of those persons namely son, daughter, near relative of a employee who dies In harness leaving his family in Immediate need of assistance, in the event of there being no other earning member in the family. Appointment under such category is restricted to 3% which has been subsequently enhanced to 5% as admitted by MW- 1. It is 4,---.-.
32K only on these criteria specified under the scheme being satisfied. a candidate would become eligible or in other worth entitled to seek appointment on compassion. Thus. the right of a near relative of the deceased to claim appointment on compassionate ground is circumscribed by the provisions of the scheme or in other words is restricted to the extent of application being considered and not for being appointed. It is in this background the right of an applicant to claim employment for being appointed on compassionate grounds will have to be understood.
23. A perusal of the records of the Labour Court would go to show that In the year 1993 i.e., 14.05.93 a letter came to be issued by the institute to the petitioner calling upon her to clarify her marital status to which she has replied on 24.05.93 (Ex-M-.7) declaring that she continues to be widow of late Srl.P.Prabhakaran Plliai. Thereafter on 2 1.06.93 a memo came to be Issued to her for suppression of facts since it was found by the institute that information ,1 furnished by her was false. Again a letter dated 12.07.93 came to be Issued to her by the Institute. Same was replied by her on 15.07.93 (Ex.M.9) and for the first time she stated that her 'Marriage has still not been legally solemnized'. In other words she admitted that she had remarried. Infact In letter dated 12.08.96 which Is said to be reply to the letter dated 12.01.94 she has stated that after her husband expired she got reman-led to one Srl.M.V.Krlshnan. However, In her cross examination dated 05.11.2001 she states that she had Intimated about her second marriage In writing to the second party-management. However, no such letter or intimation said to have been given to the institute was produced before the Labour Court by her. In the year 1993 I.e.. on 14.05.93 the employee was called upon to declare her marital status and by reply dated 24.05.93(Ex-M-7) she declared that her marital status continued to be widow of late SrLPrabhakaran Pillal (First Husband). However her reply dated 15.7.93 (Ex.M-9) being contrary to facts a memo came to be Issued on 2 1.06.93 (Ex.M-8) by the institute directing her to state the 4'---
34present marital status. This was followed by communication dated 12.07.93 which came to be replied by the employee on 15.07.93 (Ex.M9) whereunder she has stated that Marrlage has not been legally solemnized'. Again a letter 12.01.94 was issued by the institute to her by calling upon her to declare the family details to which she has replied on 12.08.96 (Ex M-10) declaring that after her husband Sri.Prabhakaran Pfflai expired she got remarried to one Sri.M.V.Krishnan. However she does not spedllr the date of marriage. In her cross examination dated 05.11.2001 she has stated she had Intimated about her second marriage to the institute in writing. However the said intimation was not produced before the Labour Court or before this court. This admission in her reply Ex-M-10 and admission in the cross examination dated 05.11.2001 would clearly go to show that Immediately on demise of Sri.Prabhakaran Pillal she has got remarried to Sri.M.V.Krlshnan. Thus, penury or financial distress under which the family members of the deceased were placed at the time of the death did not continue but got vanished or 35 extinguished or evaporated by virtue of her remarriage to SrI.M.V.Krlshnan working In Indian Telephone Industries.
Compassionate appointment being an appointment by deviating from the general recruitment rules and procedure it would be a concession In favour of dependents of a deceased employee in order to overcome the financial distress or the penury. In other words when the application for compassionate appointment is being considered the said condition has to be present and continuing. If the family of the deceased employee has tied over the crisis for a considerable period as In this case where the widow has got remarried the claim of appointment on compassionate ground would cease to exist. There would be no necessity for consideration of a application on compassionate ground since said situation does not exists and exercising compassion cannot be endless. In that view of the matter, Point No.2 and 3 has to be answered against the employee and in favour of the Institute.
36'V RE: POINT NO.4:
24. In view of the findings given by this court on Point No.1 to 3 In favour of the Institute, Point No.4 has to be necessarily answered in favour of the Institute and against the employee.
In the result following order Is passed:
ORDER
1. Writ petItion No.5361/2006 Is hereby allowed and award dated 01.12.2005 passed by the Principal Labour Court, Bangalore in I.D.52/ 1997. Annexure-A Is hereby quashed.
Rule made absolute.
2. Writ Petition No.3355/2007 Is hereby dismissed. Rule discharged.
3. No orderas to costs. BA/a JUDGE SBN