Krishna Kumar Sharma vs Union Of India & Ors
2021 Latest Caselaw 213 Cal

18-01-2021
 ct no. 13
  Sl.7
    sp

                            WPA 1192 of 2020

                       Krishna Kumar Sharma
                             -Versus-
                        Union of India & Ors.



             Mr. Shuvasish Sengupta,
             Mr. Suryaneel Das,
             Mr. Suman Majumder
                                           ...for the petitioner

             Mr. Shankar Ranjan Sen
                                         ...for the respondents

The instant writ petition is taken up for

hearing and disposal.

Since all relevant facts are available on

record and detailed arguments have been

advanced in fact and in law by the learned

counsel for the railways Mr. Shankar Ranjan

Sen, affidavits are not called.

The writ petitioner sought compassionate

employment on account of the death of his

younger brother Mukesh Sharma on September

22, 2013. Prior thereto, on January 4, 2013 and

May 4, 2013, the mother of the petitioner

received ex gratia and compensation payment of

Rs. 10 lakhs and Rs. 1,02,000/-, respectively

from the railway Suraksha Kalyan Nidhi. On

being queried, both counsel for the railways as

well as the petitioner submitted that the ex

gratia was not in lieu of compassionate

employment. There is, therefore, no ambiguity in

this regard.

The application for compassionate

employment was rejected initially on 30th June,

2016 by the railways which was challenged

before this Court. By an order dated June 18,

2019 passed in WP 3314 (W) of 2019, by a Co-

ordinate Bench of this Court, the decision of the

railways was set aside. Fresh consideration was

directed to be made by the General Manager of

the East Central Railway, Hajipur.

By an order dated July 12, 2019, the

General Manager of the East Central Railway,

Hajipur once again rejected the petitioner's

application for compassionate employment.

Counsel for the petitioner would argue

that the report of the Welfare Inspector based on

which the General Manager is required to take a

decision dated January 30, 2013, clearly

specified that the petitioner was a daily wager. It

is also stated in the writ application that the

petitioner did odd jobs as an electrician. The

petitioner must, therefore, be deemed as

dependent on the income of the deceased

brother.

It is further submitted that as the Welfare

Officer's report, the father and mother of the

petitioner are senior citizens. The father had

retired from service long ago. It is therefore

argued that the impugned order is wholly

arbitrary and perverse and is liable to be

rejected.

Per contra, counsel for the railways has

argued at length and raised a number of

questions. He firstly argued on the point of

territorial jurisdiction of this Court. The death of

the petitioner occurred at Kokarajhar, Assam

and the petitioner applied for compassionate

employment at Hajipur, Bihar. He therefore

submits that this Court may not have territorial

jurisdiction to entertain this application.

It appears from the record that the

petitioner was serving as Commanding Officer at

8BN, RPSF, Chittaranjan in West Bengal at the

time of his death. The issue of jurisdiction was

not raised before the Co-ordinate Bench (supra).

This Court, therefore, is of the view that there is

territorial jurisdiction to entertain the instant

writ application.

Counsel for the railways next argues that

the Circular dated July 8, 2014 being RBE No.

70/2014, could not have been invoked to claim

any rights against the railways since it has no

retrospective effect. He relied upon a decision of

the Hon'ble Supreme Court in the case of

Indian Bank and Ors. vs. Promila and Anr.

reported in (2020) 2 SCC 729, Paragraph 19 of

the said decision is set out hereunder.

Para 19: We may also notice that though the subsequent Schemes were not applicable, even if benefit was sought to be given of those Schemes, initial non-disclosure and subsequent disclosure by Respondent no. 1, of her employment and her emoluments would disentitle her under those Schemes, too. Thus, when the appellant was calling upon the respondents to apply under the subsequent Schemes, that could have been beneficial to the respondents only if they were entitled to any of the benefits under that Scheme. That could not happen because the benchmark provided in those subsequent Schemes took the emoluments of respondents beyond the prescribed limit, so as to disentitle them from both, compassionate employment and ex gratia payment.

A plain reading of the first four lines of the

paragraph 19 and the circular dated 08.07.2014

indicates that there is no bar to apply the same

to the petitioner. The circular dated 08.07.2014

came into force while the petitioner's case was

being considered. Even the General Manager in

the impugned order has applied the said

Circular. The issue as regards the inapplicability

was not even raised before the Co-ordinate

Bench (supra).

This Court is therefore of the view that the

date of benefits of the Circular dated July 18,

2014 can be given to the petitioner.

Counsel for the Railways next argues that

the Welfare Officer has relied upon the

certificate issued by Anumandal Padadhikari,

Nagar Untari in the vicinity of the area where

the petitioner was living. He submits that the

financial condition of the family could not have

been assessed by him. This Court finds that the

financial certificate has been supported by the

Mukhia/Pradhan of the Gram Panchayat.

This Court is of the view that at a village

level the only authorities to give any decision or

certificate as regards the income of a person

could only be the persons under the local Gram

Panchayat or the Officials under the local

authorities. Admittedly the village authorities

have given such a certificate. This Court,

therefore, does not find any infirmity in the

income certificate of the village authorities as

relied upon by the welfare officer.

On the contrary, this Court notices the

findings of the enquiry of the Welfare Inspector

dated January 30, 2013 as follows:-

"Shri Krishna Kumar Sharma elder brother

of Late Mukesh Sharma is a deserving candidate

for appointment in Railway on compassionate

ground. The application together with the

documents collected during the enquiry

containing pages 1 to 92 is enclosed herewith for

kind perusal and further necessary action

please."

Counsel for the railways next argues that

since the application was made in the year

2013, and the certificate of the Welfare Officer

was also of the same year, allowing a prayer for

compassionate employment seven years

thereafter, would not be appropriate.

It is evident and clear that the first order

of rejection of compassionate employment was

passed on June 30, 2016. The said order was

challenged before this Court in the year 2019 in

the earlier writ petition before the Co-ordinate

Bench (supra). The railways did not urge any

point of delay before the Co-ordinate Bench. It

would therefore be a case of a continuing cause

of action which arose originally in the year

2013 and later in 2016 when his application

was first rejected and culminated in the

impugned order passed in the year 2019. The

argument of the Railways thus cannot be

accepted.

The counsel for the railways also argues

that since the petitioner received an ex gratia of

Rs. 10 lakhs and a further sum of Rs. 1 lakh

odd in the year 2013, the family of the petitioner

cannot be deemed to be in any destitution or

penury. This Court notes that the report of the

Welfare Officer indicates 8 members in the

family of the deceased. It is unlikely that any

amount of ex gratia or compensation would

address the continuing needs of the family

members of the deceased, who were dependent

on his income.

Counsel for the railways lastly argues that

the petitioner has about four children and by no

stretch of imagination, can it be presumed that

he was running a family maintaining his wife

and children for the last so many years on a

daily wage.

This Court is of the view that the

argument is presumptuous and is not

supported by any findings or documents.

For the reasons stated herein above, this

Court is of the view that the impugned order

cannot be sustained. The order is dehors the

report of the welfare officer. The impugned

order dated 12th July, 2019 is quashed and set

aside.

The petitioner shall be given appointment

on compassionate grounds by the East Central

Railways in any post in terms of their relevant

Rules and commensurate with his educational

qualifications, within a period of two months

from the date of communication of a copy of this

order.

With the aforesaid directions, the instant

writ petition is disposed of.

There shall, however, be no order as to

costs.

Urgent photostat certified copy of this

judgment, if applied for, be given to the parties

upon compliance of all formalities.

(Rajasekhar Mantha, J.)