Municipal Corporation Of Delhi vs Raj Pal S/O Late Shri Ram Saroop
2006 Latest Caselaw 1852 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the award dated 1.10.2001 whereby the Industrial Tribunal-III, Delhi directed that the respondent Raj Pal be appointed as LDC or on any other equivalent post on compassionate ground within thirty days of publication of award.

2. Briefly, the facts are that one Mr. Ram Saroop, father of Raj Pal/Respondent was working as Beldar with the petitioner. He died on 15.12.1991 leaving behind two sons, wife and a daughter. His daughter was already married and his two sons were working as labourer. After the death of Sh. Ram Saroop, Raj Pal/Respondent made an application for getting appointment as LDC on compassionate ground. His application was rejected vide order dated 23.11.1993. After rejection of application Raj Pal raised an industrial dispute which was referred by the Appropriate Government in the following terms for adjudication to the Industrial Tribunal:

Whether Shri Raj Pal, s/o Late Shri Ram Saroop deceased workman is entitled to be appointed on compassionate ground and if so, what directions are necessary in this respect?

3. In the statement of claim respondent pleaded that his father was appointed as Beldar in 1979, who expired on 15.12.1991. The family was not in a position to give any support to Smt. Bhagwati Devi, widow of the deceased. Raj Pal was matriculate and fulfillled the qualification for the post of LDC. He made an application for compassionate appointment as LDC, or on equivalent post on regular basis. The application was rejected, hence the writ petition. MCD took the stand that the applicant was not fit for appointment on compassionate ground as LDC. His application was considered on merits as per standing instructions of MCD and was rejected. There was no relationship of employer and employee, therefore, no dispute could have said to arisen and such a dispute could not be referred. There was no proper espousal of the case of the respondent. On the basis of proceedings the Tribunal framed the following issues:

1. As per the terms of reference.

2. Whether there is a proper espousal? (OPW)

3. Whether the applicant/claimant is not a workman (OPW)

4. Weather the claimant is not maintainable for the reasons stated in para Nos. 3 and 4 of the preliminary objections of written statement (OPW)

4. The Tribunal in respect of Issue No. 3 held that the respondent was not a workman, but he was the legal heir of the deceased workman. The issue was redundant. However, in next breath, Tribunal observed that the issue is answered in favor of the claimant. Regarding objection of MCD that the respondent was already employed and living independently of his father, the Tribunal observed that the claimant was having meagre income of about Rs. 450/- p.m. This income cannot be said to be sufficient for family of three members. The other brother Nepal Singh was also earning an income of Rs. 450/-. In view of the fact that the income of two brothers was meagre, the objection of MCD that they were employed and having sufficient income to sustain themselves and not entitled to compassionate appointment was baseless.

5. The Tribunal in respect of the right of the respondent to be appointed on compassionate ground observed that though MCD in its letter rejected the application of the respondent but gave no reasons. The reason of sons of deceased being employed was not a valid version though both the sons of the deceased were earning hands, however, in view of the fact that both sons were earning Rs. 450/- p.m. each, it cannot be expected that family income was sufficient. The claimant was high school pass and the work of labour which he was doing, amounted to under employment. So, it cannot be said that deceased did not leave his family in harness. It was the obligation of the employer to render assistance in the need of the employee when the bread earner expired. Tribunal relied upon SAIL v. T.K. Meenakshi and Ors. FJR Vol .97 (2000) SC 43.

6. It is argued by the Counsel for MCD that both the sons of deceased filed their affidavits by way of evidence admitting that both were living independently and earning their livelihood. Neither of the sons was entitled for compassionate employment and that at the post of clerk. The conclusion arrived at by the Tribunal that the income was not sufficient to support the family was not a valid conclusion. The wife of the deceased was receiving family pension besides the fact that an amount Rs. 30,000/- as terminal benefit was given to her and she had a house of her own to live in. At the time of death of deceased Ram Saroop, both his sons were earning so, it cannot be said that he left his family in harness.

7. It is argued by the counsel for the respondent that this Court should not interfere with the award, since this Court is not sitting in appeal over the orders of Tribunal. Under Article 226, this Court can set aside the award only if the award is perverse or it suffers from the error of jurisdiction.

8. While considering the compassionate appointment of a person after death of an employee, MCD is to consider the financial condition of the family taking into account the income of the family from all sources and other factors showing the financial status of the family. It has not been denied by the respondent that the deceased and his family were living in own house at the time of his death and both his sons were gainfully employed. It is obvious that the sons would be earning according to their capabilities. Suddenly after the death of father, one of the sons cannot claim that his capability has now increased and he has become competent to be appointed as clerk, because he is matriculate. The Tribunal has not taken into account the fact that after the death of the deceased, the family was paid terminal benefits and widow was being paid family pension. Each family has its own standard of living and is supposed to live within the sources and income which is normally earned by its members. The family of the deceased belonged to a poor class family, deceased himself was a labourer and his two sons were also working as labourers. The Tribunal was to consider the condition of harness keeping in view the class of economy to which the family belonged. When an employee dies any one of the dependents can forward an application for appointment on compassionate ground. The right that goes to the applicant is to get a preferential treatment against the general candidate subject to the discretion of the employer. The possession of relevant qualification does not create any vested right to get an appointment to the post for which he fulfillls the qualification. A Tribunal cannot order appointment of person on compassionate ground to a post higher than the one held by the deceased on the basis of qualification. The appointment on compassionate ground is generally done in the case of grave financial crisis and against the vacancy which fell vacant in that quota. Tribunal has ordered for appointment of the respondent as LDC or equivalent post without caring whether there existed any post or not. Moreover, every matriculate is not capable of being appointed as a clerk. A person for being appointed as a clerk has to qualify a competition examination by which his competence to become a clerk is tested. Mere fulfillling the qualification does not reflect competency of a person to be appointed to a post. If this principle is followed, then a graduate would be eligible to be appointed as an IAS/IPS and a law graduate would claim to be appointed as a judge on compassionate grounds.

9. MCD had declined to give appointment to the respondent taking into account following factors:

1. Family Pension

2. Terminal Benefits i.e. Gratuity, Provident Fund etc.

3. Deceased had its own house

4. Daughter of the deceased was already married

5. Both the sons of the deceased were gainfully employed

10. The scheme of compassionate appointment is an exception to the general rule of appointment and has to be applied cautiously. The observation of the Tribunal that MCD has rejected the application of appointment without any reason were contrary to the facts. MCD had considered all the relevant factors.

11. In Umesh Kumar. Nagpal v. State of Haryana and Ors. Supreme Court considered the case of compassionate appointment and the factors necessary for being taken into account before offering compassionate appointment. Supreme Court held that mere death of an employee does not entitle his family to compassionate employment and the authority concerned must consider as to whether the family of the deceased employee is unable to meet the financial crisis resulting from the employee's death. Supreme Court observed as:

The whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee is 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 jobs is to be offered to the eligible member of the family. The posts in classes III and IV are the lowest posts in non manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency.

12. In Punjab National Bank and Ors. v. Ashwini Kumar Taneja 2006 AIR SCW 4602 the compassionate appointment sought by the respondent was denied by the bank on the ground that there was no financial hardship to the family. The High Court directed the respondent bank to consider his case for compassionate appointment holding that the retiral benefits received by the heirs of the employees would not justify the rejection of the application for compassionate appointment. Supreme Court allowed the appeal filed by the bank and observed as under:

Appointment on compassionate ground is not a source of recruitment but merely an exception to the requirement of making appointments on open invitation of application on merits. Basic intention is that on the death of the employee concerned his family is not deprived of the means of livelihood. The object is to enable the family to get over sudden financial crisis.

The High Court's view that the retiral benefits were not to be taken into consideration while dealing with request for compassionate appointment is contrary to the decision in Kunti Tiwary case . In the instant case, there was a scheme called "Scheme for Employment of the Dependants of the Employees Who Die while in the Service of the Bank - Service on Compassionate Grounds" operating in the appellant Bank which provided for considering the case for compassionate appointment provided the family was without sufficient means of livelihood specially keeping in view : family pension, gratuity, provident fund and the amounts received under various other specified heads. Therefore, the view taken by the High Court cannot be sustained

13. In Union Bank of India and Ors. v. M.T. Latheesh 2006 AIR SCW 4626, on an appeal by the Union Bank against the judgment of Division Bench of Kerala High Court ordering bank to grant employment to the respondent on compassionate grounds, Supreme Court observed that if the application submitted by the respondent is rejected by the bank after proper consideration in the light of the relevant parameters, the bank cannot be said to have acted in an arbitrary manner. Supreme Court also observed that the specially constituted authorities in the rules or regulations were better equipped to decide the case on facts of each case and the objective finding arrived at by the bank should not be disturbed. The bank found the respondent ineligible for appointment to the service. The High Court found him eligible and ordered the appointment, this was against the law laid down by the Supreme Court. Supreme Court observed that the principles regarding compassionate appointment being an exception to the general rules were well settled. The appointment has to be allowed only in warranting situation and circumstances existing in granting appointment and guiding factor should be the financial condition of the family. The respondent is not entitled to claim relief under the new scheme because financial status of the family was much above the criteria fixed for this action.

14. I consider that the order of Tribunal that the income of the two brothers, was not sufficient to maintain family cannot be sustained in view of the fact that the same brothers by their own income were maintaining their families even before the death of the father. After the death of father the family got terminal benefits and family pension.

15. Looking into the circumstances I consider that the order of Tribunal was perverse being contrary to settled positions of law. The Tribunal could not have directed for the appointment of the respondent as LDC. Accordingly, I allow this writ petition. The order of the Tribunal dated 1.10.2001, is set aside.