Madras High Court
P.Venkatesan Alias Thirumaran vs The Commissioner Of Municipal ... on 2 August, 2013
Bench: N.Paul Vasanthakumar, P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/08/2013 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR.JUSTICE P.DEVADASS Writ Appeal (MD)No.14 of 2012 P.Venkatesan alias Thirumaran S/o. late Palani, 52/B, Municipal Colony, Nettu Theru, Dindigul - 1, Dindigul District. .. Appellant Vs 1.The Commissioner of Municipal Administration, 'Ezhilagam', Chepauk, Chennai - 5. 2.The Commissioner, Dindigul Municipality, Dindigul. ... Respondents Writ Appeal filed under Clause 15 of Letters Patent to set aside the order dated 12.09.2007 made in W.P.(MD)No.849 of 2007. !For Appellant ... Mr.R.Rengaramanujam ^For Respondent No.1 ... Mr.A.K.Baskara Pandian Special Government Pleader For Respondent No.2 ... Mr.P.Srinivas :JUDGMENT
(Judgment of the Court was made by P.DEVADASS, J.) With the leave of the Court Venkatesan @ Thirumaran, son of Mariyayee, the petitioner in W.P.(MD) No.849 of 2007, preferred this Writ Appeal as against the Writ Court's denial of appointment to him on compassionate ground.
2. Noticing the following factual matrix becomes necessary for the disposal of this Writ Appeal:
(i) One Palani was in the service of second respondent/Dindigul Municipality, as a Scavenger. His wife is Mariyayee (writ petitioner). Their son is Venkatesan @ Thirumaran (appellant). From 22.12.1987, Palani was missing. In spite of hectic search, he could not be found. On 12.2.1988, his wife complained to Dindigul Town Police. On 15.2.1988, she had informed it to the second respondent. However, second respondent initiated disciplinary action as against her husband for unauthorised absence. Notice of enquiry could not be served on him. On 7.1.1993, second respondent dismissed him from service. On 1.12.1995, after enquiry, Tahsildar, Dindigul, confirmed missing of the said Palani from 22.12.1987. On 1.6.1996, Palani's wife issued legal notice to the second respondent demanding disbursement of death benefits and the appointment of appellant on compassionate ground, since her husband suffered legal death.
It was acknowledged by the second respondent. However, there was no action.
(ii) In the circumstances, in O.S.No.40 of 1997, in the Court of District Munsif, Dindigul, Palani's wife sought for a declaration that her husband was dead and also certain other reliefs. On 17.12.1998, the learned District Munsif declared that Palani suffered legal death. On 30.3.2001, it was also confirmed by the learned Principal District Judge, Dindigul, on appeal in A.S.No.209 of 1999.
(iii) On 7.5.2001, enclosing the Judgments of the Civil Courts, Mariyayee stated to the second respondent that in spite of her continuous request for disbursement of death benefits and appointment on compassionate ground to her son, no action was taken and wanted immediate action. Again, on 15.10.2003, she gave another application. But, they did not evoke any response from the second respondent.
(iv) In the circumstances, in this Court, she filed W.P.No.37759 of 2004. On 20.12.2004, this Court directed the second respondent to dispose of her representation dated 15.10.2003 on merits within a prescribed time.
(v) On 31.5.2005, the second respondent passed order rejecting her application, since already her husband was dismissed from service.
(vi) In the circumstances, in this Court, she filed W.P.(MD)No.849 of 2007. On 12.9.2007, the Writ Court noticing that since Palani already suffered legal death, which was also affirmed by the Civil Courts, he cannot be dismissed from service on account of unauthorised absence, directed disbursement of death benefits to his wife. However, the Court refused the relief of appointment on compassionate ground to her son, since the death was more than 20 years ago.
3. Since on 20.1.2008, the writ petitioner Mariyayee passed away, with the leave of this Court, her son appealed as against denial of appointment on compassionate ground to him.
4. According to the learned counsel for the appellant, in view of the legal death of appellant's father, second respondent has been continuously asked to provide appointment to the appellant on compassionate ground. In the facts and circumstances of the case, denial of such a relief on the ground that the death of his father was more than 20 years ago, will not arise. The learned counsel also contended that in N.PANKAJAM Vs. STATE OF TAMIL NADU AND ANOTHER [2006 (3) MLJ 702], under similar circumstances, this Court directed appointment on compassionate ground to the wife of a person, who suffered civil death. In the circumstances, the learned counsel for the appellant contended that refusal of the Writ Court to direct the respondents to appoint the appellant on compassionate ground is unsustainable.
5. According to the learned counsel for the second respondent, as per Government Order, appointment on compassionate ground should be sought for within three years of death of the person. However, in this case, this was not done. Further, as per letter dated 29.5.2007 of the first respondent, appointments on compassionate ground shall be made on the basis of seniority of the applicants.
6. The learned Special Government Pleader also reiterated the above submissions.
7. We have anxiously considered the rival submissions, perused the records and also the impugned order of the Writ Court.
8. Appellant's father Palani was an employee of second respondent as a Scavenger. He was missing from 22.12.1987. Police complaint was also given. In spite of diligent search, the missing man was not found for more than 7 years. It was claimed that he suffered civil death.
9. In LIC OF INDIA Vs. ANURADHA [2004 SC 2070], it was held that such death of a person have to be proved by way of a suit in a civil court.
10. On 17.12.1998, in O.S.No.40 of 1997, the learned Principal District Munsif, Dindigul, declared him dead. On 30.2.2001, in A.S.No.209 of 1999, the next Appellate Court (Principal District Court, Dindigul) also confirmed it.
11. From 22.12.1987, Palani was missing. On 1.6.1996, through a Lawyer notice, the writ petitioner sought for appointment of appellant on compassionate ground, since her husband suffered civil death. Such was also her prayer in O.S.No.40 of 1997 and in A.S.No.209 of 1999. Further, on 7.5.2001 and on 15.10.2003 also, she made similar request.
12. In this case, appointment on compassionate ground was not sought on the natural death of an employee. It was sought on the civil/legal/presumptive death of an employee. In such circumstances, the contention as to not having applied for appointment on compassionate ground within three years of death will not arise.
13. As per the appellant's Transfer Certificate, he was born on 12.5.1974. So, he has not crossed the eligible age limit. Further, on 17.7.2009, the Tahsildar, Dindigul, certified that the appellant's family is in indigent circumstances.
14. In N.PANKAJAM Vs. STATE OF TAMIL NADU AND ANOTHER [2006 (3) MLJ 702], one of us (Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR), considered the plea of the wife of a person, who suffered civil death and directed her appointment on compassionate ground. My learned Brother also noticed G.O.4(D) No.17, Labour and Employment (D1) Department, dated 8.5.1996, whereunder one R.Bhuvaneswari, daughter of one S.N.Radhakrishnan, who suffered civil death, was appointed on compassionate ground.
15. The civil death of the said Palani from 18.12.1998 was accepted by the Government only on 5.3.2010 in G.O.Ms.No.82, Municipal Administration and Water Supply Department and sanctioned family pension and other retirement benefits.
16. Thus, in the facts and circumstances of this case, the appellant is eligible to be appointed on compassionate ground.
17. The first respondent's letter dated 29.5.2007 addressed to the Commissioners of Municipalities was to prepare seniority of applicants, who are eligible to be appointed on compassionate ground on the basis of date of death and also laid down certain other conditions. This letter is of the year 2007 and the appellant became eligible to be appointed on compassionate ground very much earlier, since his father suffered legal death long back, as early as on 18.12.1998 as per the said Government Order from which date the mother of the appellant was given all other benefits. Therefore, the seniority mentioned in the said letter cannot be made applicable to the appellant.
18. In view of the foregoings, the Writ Court's refusal to grant him the relief of appointment on compassionate ground is unsustainable.
19. In the result, this Writ Appeal is allowed. The order of the Writ Court, dated 12.9.2007, so far as denying the relief of appointment on compassionate ground to the appellant is set aside. The respondents are directed to appoint the appellant in a suitable post on compassionate ground. It is made clear that this exercise shall be completed within two months from the date of receipt of a copy of this Judgment. No costs.
smn2 To
1.The Commissioner of Municipal Administration, 'Ezhilagam', Chepauk, Chennai - 5.
2.The Commissioner, Dindigul Municipality, Dindigul.