Calcutta High Court (Appellete Side)
Sunny Harijan vs Eastern Coalfields Limited & Ors on 31 July, 2023
67.
31.7.2023
S.D.
W.P.A. 2169 of 2023
Sunny Harijan
Vs.
Eastern Coalfields Limited & Ors.
Mr. Nirmalendu Ganguly
Mr. Anshunath Chakraborty
..For the petitioner
Mr. Syed Nurul Arefin
Mr. Syed Moyeenul Arefin
...for the ECL Authorities
Mr. Kallol Guha Thakurata
Md. Wasim Rahaman
...for the CMPFO
The petitioner's case is that his father did not attend his
duties as an employee of Eastern Coalfields Limited (ECL)
because he became ill in 2012. Thereafter, the petitioner's
father tried to join his duties in 2013 but without any reason he
was not allowed to join the same.
Mr. Ganguly, learned counsel appearing on behalf of
the petitioner makes two-fold prayer before this Court. He
submits that the petitioner should have been given
compassionate appointment in place and stead of his father.
Furthermore, he submits that the petitioner is entitled to the
retiral benefits of his father since he could not have been
dismissed/removed from service without conducting proper
disciplinary proceedings.
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Mr. Arefin, learned counsel appearing on behalf of the
ECL submits that the petitioner's father was absenting himself
from service without any information to or permission of the
competent authority since 2008. He was charge-sheeted on
November 28, 2008 having habitual low attendance/habitual
absence from duty without any sufficient cause. The
petitioner's father absented himself from duty beyond 10 days
without sanctioned leave. Five enquiry notices were sent to
the residential address of the petitioner's father on January 12,
2009, March 4, 2009, May 11, 2009, July 14, 2009 and
September 15, 2009. Petitioner's father did not attend the
enquiry proceedings on the aforesaid dates. The petitioner's
father also did not reply to the said notices. Therefore, an ex
parte enquiry proceedings were held in December 20, 2009
andthe charges against the petitioner's father was proved.
Initially, the petitioner's father's increments were
stopped. Thereafter, the petitioner's father was terminated
from service with effect from March 15/17, 2010. The
petitioner's father made a Mercy Petition before the
authorities concerned. He was called for personal hearing on
September 10, 2013 vide notice dated August 26, 2013.
Mr. Arefin submits that even though the said Mercy
petition has been rejected, the authorities are unable to
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produce the order rejecting such Mercy petition. However,
after such rejection, there was no challenge to the said order of
rejection by the petitioner's father who died on February 12,
2021. It is after the death of his father, the petitioner is now
seeking to challenge the same for the first time on December 6,
2022.
Considering the rival submissions of the parties and the
materials placed on record, this Court is of the view that a
prayer for compassionate appointment can not be made at
such a belated stage. The principle behind providing for
compassionate appointment is to provide immediate succor to
the bereaved family, the breadwinner of which has died
suddenly or incapacitated. Beneficial reference may be made
in the judgment of the Apex Court passed in Civil Appeal
Nos. 8842-8855 of 2022 (State of West Bengal vs. Debabrata
Tiwari & Ors.).
As far as the retiral benefits of the petitioner's father is
concerned, this Court is of the view that the same has to be
disbursed to the petitioner. Admittedly, the petitioner's father
joined service on December 6,1990. He remained in service till
2009. The Mercy petition of the petitioner's father was
considered in 2013. The petitioner's father may have been
terminated from service but his retiral dues cannot be
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withheld by the ECL unless the termination is in the nature of
'dismissal' which is not the case here.
Since the respondent/ECL could not produce the
rejection order of the mercy prayer of the petitioner's father,
this Court directs retiral benefits to be computed and granted
from the date of his appointment in 1990 till September 2013
(the date of rejection order) in favour of the petitioner within
three months from the date of the order, upon compliance of
all the necessary formalities by the petitioner within one
month from date. The petitioner will be entitled to interest @
6% p.a. from the date on which the Mercy petition of the
petitioner's father was rejected till the entirety of the dues are
disbursed.
With the directions aforesaid, W.P.A. 2169 of 2023 is
disposed of.
All parties shall act on the server copy of this order
duly downloaded from the official website of this Court.
Urgent photostat certified copy of this order, if applied
for, be given to the parties upon compliance of all the
formalities.
(Lapita Banerji, J.)
