C/LPA/1152/2021 ORDER DATED: 16/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1152 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 10657 of 2019
=======================================================
SHREE VIDHYUT KAMDAR SANGH,
NOW KNOWN AS SHREE VIJLI KARMACHARI MAHA MANDAL
Versus
GUJARAT URJA VIKAS NIGAM LIMITED
=======================================================
Appearance:
MR TR MISHRA(483) for the Appellant(s) No. 1
MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
=======================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 16/03/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. The present appeal has been filed by the appellant
- original petitioner under Clause 15 of the Letters Patent against the oral order dated 09.07.2019 passed by the learned Single Judge in Special Civil Application No.10657/2019.
2. Heard learned advocate, Mr. T.R. Mishra for the appellant and learned advocate, Mr. Dipak R. Dave for the respondent.
3. Learned advocate for the appellant, Mr. T.R.
Mishra submitted that the appellant, who is the registered trade union, has raised industrial dispute for the grant of compassionate Page 1 of 6 Downloaded on : Tue Mar 21 20:33:47 IST 2023 C/LPA/1152/2021 ORDER DATED: 16/03/2023 appointment, which was referred to the Industrial Court, Vadodara in Reference (IT) No.239/2012 to the effect that the Industrial Dispute has to decide it as to whether the General Standing Order No.295 (hereinafter referred to as "GSO-295" for short) can be modified by subsequent office orders by changing income criteria of the family and all the persons whose applications are denied on the ground of income criteria should be paid salary, incentives and seniority by the respondent or not. Learned advocate further submits that the appellant filed statement of claim before the Industrial Tribunal, wherein it was stated that the Reference involves three workmen and these three persons have been denied compassionate appointment in view of the GSO-295. It is submitted that in the year 1982, there was no income limit prescribed for the compassionate appointment in GSO-295, however, GSO-295 was modified from time to time and lastly, the same was modified vide Circular dated 29.12.2009 prescribing the income limit of the family of the deceased persons to the extent of Rs.5,000/-. Learned advocate pointed out that the Presiding Officer of the Industrial Tribunal, by impugned judgment and award dated 03.11.2018, after considering the evidence produced before him, held that the Reference was not maintainable because what is referred to the Tribunal for adjudication was with regard to as to whether income limit can Page 2 of 6 Downloaded on : Tue Mar 21 20:33:47 IST 2023 C/LPA/1152/2021 ORDER DATED: 16/03/2023 be decided by issuing Circular and thereby changing the GSO but in the statement of claim, grievance was made with regard to three persons on the ground of denying compassionate appointment due to income limit of the family of the deceased persons.
4. It is submitted that the petitioner, therefore, challenged the award dated 03.11.2018 passed by the Tribunal by filing captioned petition and the learned Single Judge, vide impugned order dated 09.07.2019, dismissed the said petition filed by the appellant - original petitioner and, therefore, the present appeal has been filed.
5. Learned advocate has assailed the impugned order by contending that GSO-295 has statutory force and it cannot be modified without following provision of law without issuing notice under Section 9(A) of the Industrial Disputes Act, 1947 and without issuing General Standing Order modifying GSO-295, income could not have been altered/ changed by the respondent. Learned advocate would therefore submit that GSO-295 is still in operation and it could not have modified the income criteria for by issuing circular for compassionate appointment.
6. Learned advocate has referred to the order dated 14.07.2017 passed by the learned Single Judge of this Court in Special Civil Application No.13494/2014, copy of which is placed on record at Page No.45 of the compilation, and submitted that in similar type of case, this Court directed Page 3 of 6 Downloaded on : Tue Mar 21 20:33:47 IST 2023 C/LPA/1152/2021 ORDER DATED: 16/03/2023 the respondent authorities to consider the case of the petitioner for compassionate appointment as per GSO-295, which was in vogue at the time of death of the employee. Learned advocate, therefore, urged that this appeal be entertained.
7. On the other hand, learned advocate, Mr. Dipak Dave has opposed this appeal and referred to the reasoning recorded by the learned Single Judge. Learned advocate submitted that the learned Single Judge has not committed an error while dismissing the petition filed by the appellant - original petitioner. Learned advocate has also referred to the order dated 03.11.2018 passed by the Presiding Officer of the Industrial Tribunal. Learned advocate has also submitted that the facts of the case of Special Civil Application No.13494/2014 are totally different. Learned advocate, therefore, urged that this appeal may not be entertained.
8. Having heard learned advocates for the parties and having gone through the material placed on record, it would emerge that the Industrial Tribunal has, after considering the oral as well as documentary evidence led by the parties, considered the object of GSO-295. The Tribunal has also considered the provision of Section 37A of Settlement and the Circular issued by the respondent, by which, the income criteria has been increased/ changed and, thereafter, the Tribunal has dismissed the Reference, against which, the appellant - original Page 4 of 6 Downloaded on : Tue Mar 21 20:33:47 IST 2023 C/LPA/1152/2021 ORDER DATED: 16/03/2023 petitioner filed captioned petition. The Tribunal while rejecting the Reference, has also considered the facts of three persons, whose cases have been espoused by the appellant - Trade Union and, thereafter on merits also, it has been observed that the family of the concerned deceased workmen have sufficient source of income.
9. We have also considered the reasoning recorded by the learned Single Judge. The learned Single Judge has referred to the decision rendered by the Division Bench of this Court in case of Paschim Gujarat Vij Company Ltd. Vs. Kalyanji Somchand Maheshwari in Letters Patent Appeal No.561/2011. In the said judgment, the Division Bench has observed in Paragraph No.7 as under,
7. The Apex Court in catena of decisions has held that compassionate appointments are made to meet exigencies of the family and is not a source of recruitment. In the case of State Bank of India and Another v. Raj Kumar (2010) 11 SCC 661, the Apex Court held in para 8 as under:
"It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependents Page 5 of 6 Downloaded on : Tue Mar 21 20:33:47 IST 2023 C/LPA/1152/2021 ORDER DATED: 16/03/2023 of employees, who die in harness, do not have any special claim or right to employment, except by way of concession that may be extended by the employer under the rules or by a separate scheme to enable the family of the deceased to get over the sudden financial crisis...."
10. The learned Single Judge has also considered the decision rendered in case of State Bank of India & Anr., Vs. Raj Kumar, reported in (2010) 11 SCC 661, wherein it has been observed that no compassionate appointment can be given to the persons, who have sufficient source of income as such persons do not have right or claim to employment except by way of concession that may be extended by the employer under rules or by separate scheme to enable the family of the deceased to get over the sudden financial crisis.
11. We have also gone through the reasoning recorded by the learned Single Judge and we are of the view that no error is committed by the learned Single Judge while dismissing the petition. Hence, no interference is required in the present appeal. Accordingly, present appeal stands dismissed.
Sd/-
(VIPUL M. PANCHOLI, J.) Sd/-
(HEMANT M. PRACHCHHAK, J.) Gautam Page 6 of 6 Downloaded on : Tue Mar 21 20:33:47 IST 2023