Municipal Corporation Of Delhi vs Bhori Lal & Another
1999 Latest Caselaw 566 Del

ORDER

A.K. Sikri, J.

1. This petition is directed against the award dated 6.4.96 passed by Sh. Dharam Paul Arora, Presiding Officer, Industrial Tribunal No. III Delhi whereby the Industrial Tribunal has directed the MCD to appoint Sh. Bhori Lal, respondent No. 1 to the post of Baildar on compassionate ground.

2. One Sh. Chunna Ram was working with MCD as Baildar in the Engineering Department at Karol Bagh Zone as regular employee. He died on 9.2.87 while in the employment. After his death, his son Sh. Bhori Lal respondent No. 1 herein, moved an application with the petitioner seeking appointment on compassionate grounds. The application was rejected by MCD.

Accordingly, respondent No. 1 raised Industrial Dispute,which was referred to the Tribunal for adjudication as per Notification No. P26 (1573) /89-lab./13021-26 dated 5.5.89. The terms of reference is as under:-

"Whether Sh. Bhori Lal is entitled to be appointed as Baildar in place of his deceased father late Sh. chunna Ram on compassionate ground and, if so, what directions are necessary in this respect?"

3. On reference of the aforesaid dispute to the Industrial Tribunal, the Industrial Tribunal adjudicated the same and gave impugned Award dated 6.4.96.

4. A perusal of the Award shows that the case of Bhori Lal was that his father died on 9.2.97 leaving behind his family in harness; there being no earning member and, therefore, he had made a request in writing by an application to the management for being considered for the appointment on compassionate grounds. He had complied with the requirements. He had produced School Leaving Certificate as per which his date of birth is 30.5.54 but his request was wrongly rejected. On the other hand the case of the MCD was that deceased chunna Ram had five sons and one daughter and out of this Sh. Bhori Lal was the eldest son who was gainfully employed. Other sons except fifth one who was minor was gainfully emloyed. It was also the case of the MCD that Sh. Bhori Lal was not residing with Sh. Chunna Ram during his life time and his name was made to be entered into the Ration Card after the death of Sh. Chunna Ram and, therefore, according to MCD he was not a member of the family of Chunna Ram. After discussing the evidence on the lines of stand taken above, the Tribunal in Para-14 of the Award observed as under:

The fact of Municipal Corporation of Delhi also considering the appointment of son or daughter or Municipal servant as per Government of India instructions adopted by the Corporation vide Resolution No. 1282 dated 31.3.80 and subsequent amendments in the instructions from time to time are being followed, considered and made. As per these instructions appointment are rather being made to be considered to be given to wife or son or daughter of the employee who died in harness including death by suicide in the event of there being no other earning members of the family.

The very purpose of such appointment has been to provide an assistance to the family of deceased employee. It is admitted fact that the wife of Sh. Chunna Ram employee of the management died during the very right time of Sh. Bhori Lal himself. From the matter on record it is admitted rather there is no dispute of Sh. Bhori Lal the applicant to be an eldest son of deceased employee Sh. Chunna Ram. As per statement of Sh. Ram Avtar Verma the claim of Sh. Bhori Lal was disallowed on the ground of his two sons member of the family of deceased employee Sh. Chunna Ram. There is no paper on record either to show or say so that the reasons having arrived at in not considering the applicant Sh. Bhori Lal application for the appointment on compassionate ground to have communicated to the applicant so far. In the absence of any reason to have been communicated to the applicant/claimant relating to results of his application for compassionate appointment. I find that the Act of the management for not considering his application on compassionate ground was Act of arbitrariness. As per letter of the management dated 25.8.87 the applicant/claimant was desired to submit the origi-

nal ration card so that the matter be further considered. The requisite information was furnished by the pplicant/claimant in view of his letter to the management on 7.12.87. It is true that the name of claimant has been added in the ration card and after the death of the head of the family Sh. Chunna Ram but that does not disentitle the claimant/applicant from being considered for appointment on compassionate ground specially when it is admitted fact that Sh. Chunna Ram employee of the management died leaving behind five sons including the present applicant/claimant and a daughter and further of there being no dispute about the present applicant/claimant to be the eldest son of deceased workman Sh. Chunna Ram. It is true in the ocular evidence it has been brought on record by the management that the applicant/ claimant is in gainfully employment but in the same submitted of ocular evidence it has also been stated that deponent deposing the said statement does not know as to where the applicant is gainfully employed and what emoluments are being paid to him. The ocular evidence of both the witnesses examined by the management is based on the enquiry said to have been made by other and not made by any of these two management witnesses. The officers having made the enquiry in the said matter have not been examined by the management at all. There non examined rather with holding of the same is sufficient to draw inference against the correctness of the facts being made to be believed. Thus after considering all the material on record in find that the management has not brought on record anything to show that either the claimant or any other family members of deceased employee Sh. Chunna Ram to be in any gainfully employment so far. As per Govt. of India instruction dated 30.6.87 which are being followed by the management in toto I find that the claimant/applicant was/is eligible under the rules to be considered for appointment on compassionate ground on the death of deceased employee Sh. Chunna Ram of the management. The claim of the applicant has not been considered in pusuance of the instruction and the same has been refused in arbitrary and unjustified reasons without communicating grounds of its refusal to the applicant. The claim of the claimant of his to be considered for appointment on compassionate ground on the death of his father Sh. Chunna Ram deceased employee of the management under the of his to be not a members of the family of deceased Sh. Chunna Ram through not communicated to the claim not at all is Act of the management to be unwarranted and unjustified being against the provision of law. Thus I find that the claimant applicant is entitled to the appointment and to be considered for the same on the compassionate ground to which he is entitled.

5. After stating that Sh. Bhori Lal was entitled to be considered for appointment on compassionate grounds, in Para-16 positive directions are given to MCD to give appointment to him within the period of two months from the date of Award becomes enforceable.

6. Assailing the aforesaid Award Ms. Anjana Gosain made the following submissions:

1. Two sons of the family of the deceased were in the employment and merely because MCD had not communicated to Sh. Bhori Lal stating the reasons for rejecting his application of appointment on compassionate grounds, the Industrial Tribunal could not direct that Sh. Bhori Lal be given the appointment.

2. Even if the conclusion of the Industrial Tribunal was correct that the case of Sh. Bhori Lal was not considered properly or no reasons were given while rejecting his application, the Tribunal could only give the directions to MCD for consideration of the case of Sh. Bhori Lal and could not give positive direction mandate for appointment itself.

3. Even the perusal of the Award would show that in Para-14, the Tribunal observes that Sh. Bhori Lal is entitled to be considered for appointment on compassionate grounds. However, in the concluding Para-16 instead of directing MCD to consider the case the Tribunal gives the mandate to give him the appointment which is contrary to Tribunals own observation in para-14

7. The parties have filed office Memorandum dated 30.6.87 issued by Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training which lays instructions for compassionate appointment of son/ daughter/near relative of deceased Government Servant. It is the common case of the parties that these instructions are applicable to MCD. These instructions are even referred to in the impugned Award.

8. It is not disputed that as per the aforesaid instructions, Sh. Bhori Lal being son of deceased could move an application for appointment on compassionate grounds. It is submitted by Sh. Rajiv Aggarwal, counsel for the respondent No. 1 that even if there was earning member in the family, still Sh. Bhori Lal could be given appointment as is clear from Para-e under the Head "Eligibility", which reads as under:

"In deserving cases even where there is an earning member in the family, a son/daughter/near relative of deceased Government Servant, leaving his family in distress may be considered for appointment with the prior approval of the Secretary of the Department concerned who before approving the appointment will satisfy himself that the grant of concession is justified, having regard to the number of dependents, the assets and liabilities left by the deceased Government Servant, the income of the earning member as also his liabilities including the fact that the earning member is residing with the family of the deceased Government servant and whether he should not be a source support to the other members of the family."

9. A perusal of the aforesaid para world show that even as per this para it is for the employer to consider the case of a particular applicant for appointment. Not only this while examining the application, the employer will have regard to various considerations like number of dependents, assets and liabilities left by the deceased Government Servant,income of the earning member as also his liabilities including the fact that earning member is residing with the family of the the deceased Government Servant and whether he should be a source of support to the other members of the family.

10. In catena of judgments, Hon'ble Supreme Court has held that it is not the right of the person to get appointment on compassionate basis. It is also held that the employer while considering the application of the dependent of deceased employee will have regard to various factors which are enumerated above and it is for the employer to consider those aspects and court's should not give directions for appointment.

11. In Umesh Kumar Nagpal Vs. State of Haryana and Others 'ble the Supreme Court has held that object of compassionate appointment is to enable the penurious family of the deceased employee to tide over the sudden financial crisis and not to provide employment. It is emphasised in the said judgment that as rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit.

No other mode of appointment nor any other consideration is permissible. Neither the Government nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exceptions is in favour of the dependents of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependents of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family tide over the sudden crisis. In the same judgment Hon'ble the Supreme Court has further held that mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. It must be remembered in this connection that as against the desti-

tute family of the deceased there are millions of other families which are equa lly, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.

12. In Life Insurance Corporation of India Vs. Asha Ramchhandra Ambekar (Mrs.) (1994) 2 Supreme Court Cases 718 Hon'ble Supreme Court held that courts cannot order appointment on compassionate grounds dehors the provisions of statutory regulations and instructions. Following observations of the Hon'ble Supreme Court are worth quoting:

"The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. The courts should endeavour to find out whether a particular case in which sympathetic considerations are to be weighed falls within the scope of law. Disregardful of law, however, hard the case may be, should never be done. In the very case itself, there are regulations and instructions governing the matter. The court below has not even examined whether a case falls within the scope of rele vant statutory provisions. The appellant Corporation being a statutory Corporation is bound by the Life Insurance Corporation Act as well as the Statutory Regulations and Instructions. They cannot be put aside and compassionate appointment be ordered."

13. In the same judgment , it was further held that the High Court should not have directed the appointment on compassionate grounds. It should have merely directed consideration of the claim of the applicant.

14. The perusal of impugned Award shows that the learned Industrial Tribunal has not accepted the version of the MCD that to the effect that Shri Bhori Lal was gainfully employed. However, the entire Award is based only on the ground that Shri Bhori Lal being eldest son of the deceased had right to make an application and that no reasons were communicated by MCD to Shri Bhori Lal rejecting his claim. Even if this is to be accepted, the Tribunal could at the most give direction to the MCD to consider the application of Shri Bhori Lal on the basis of aforesaid considerations and could not give a mandate directing the petitioner to give appointment to Shri Bhori Lal. Thus I find force in the contention raised by Ms. Anjana Gosain, learned counsel for the petitioner.

15. Counsel for the respondent has argued that terms of reference clearly stipulate that Tribunal was asked to decide as to whether shri Bhori Lal was entitled to be appointed as Baildar in place of his deceased father on compassionate ground and, therefore, it was within the jurisdiction of the Tribunal to decide this question and it could give positive direction for appointment once it is held that he was entitled to appointment. It was also argued that the powers of Industrial Tribunal are wide enough and it can even create rights in favour of workmen. It was lastly argued that father of respondent No. 1 had died in the year 1987 and respondent was fighting to get appointment on compassionate ground for last 12 years and, therefore, in exercise of its extra-ordinary jurisdiction under Article 226 of the Constitution of India, this court should not interfere with the Award.

16. I am unable to agree with the contentions raised by the respondent. The terms of reference while stipulating as to whether Shri Bhori Lal is entitled to be appointed as Baildar on compassionate ground, further mentions as to what directions are necessary in this respect. Therefore, while answering the reference, the Tribunal could give direction that the application of Shri Bhori Lal should be considered by MCD. Even while deciding the question as to whether Shri Bhori Lal is entitled to appointment on compassionate ground or not, the Industrial Tribunal could do so only in terms of office Memorandum dated 30.6.87 and as per it is for the management to consider the application of the legal heir of deceased employee having regard to the considerations mentioned therein.

17. As noticed above, Industrial Tribunal has merely stated that the management has not communicated any reasons relating to the result of application of Shri Bhori Lal for compassionate appointment. Admittedly, even Tribunal has not itself gone into the question about the entitlement of Shri Bhori Lal to get the appointment on compassionate grounds having regards to the considerations stated in the office Memorandum dated 30.6.87. There is no discussion in the impugned Award about the income of the family/earning member, assets and liabilities lift by the deceased, whether earning member was residing, what were the terminal benefit paid to the deceased etc. In the case of Life Insurance Corporation of India Vs. Asha Ramchhandra Ambekar (Mrs.) (Supra) as already pointed out above, Hon'ble Supreme Court held that High Court should not have directed the appointment itself and it could only give directions to consider the claim of the appicant. In the same judgment Hon'ble Supreme Court reversed the direction of the High Court also on the ground that High Court had not examined whether the pre-conditions for compassionate appointment were satisfied and, therefore, High Court should have merely directed the em-ployer consider the claim of the candidate and should not have straight away directed the Life Insurance Corporation to give him compassionate appointment. Accordingly, it would have been appropriate, if the direction was confined to the consideration of the application of Shri Bhori Lal by MCD. When the Tribunal has not acted in accordance with law and the directions are against well settled laid down in various judgments quoted above, this court can interfere in exercise of its power under Article 226 of the Constitution of India.

18. The direction contained in para-16 of the impugned Award is, accordingly, set-aside and the Award is modified and direction is issued to the petitioner to consider the application of Shri Bhori Lal for compassionate appointment after taking into consideration all relevant factors. While considering the application of Shri Bhori Lal, it would be open to MCD to see the present condition of the family inasmuch as 12 years have elapsed since the death of Shri Chunna Ram, father of Shri Bhori Lal. As per the judgment of Hon'ble Supreme Court in Umesh kumar Nagpal Vs. State of Haryana and others (Supra) the whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. As per the said judgment, compassionate employment cannot be granted after elapse of reasonable period. It would be open to Shri Bhori Lal to make representation detailing all the facts and circumstances including present finan-

cial position of the family and representation, if any, would be given by Shri Bhori Lal within a period of two weeks and this representation would be decided by the MCD within a period of two months.

19. The writ petition is disposed of in the aforesaid terms. No costs.