Shri Sukhbir Singh & Anr. vs Union Of India & Anr.
2009 Latest Caselaw 1386 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

+                    Writ Petition (Civil) No.7347/2009

                                       Date of Decision : 15.4.2009

SHRI SUKHBIR SINGH & ANR.                          ......Petitioners
                                     Through : Mr.Anuj Aggarwal,
                                     Advocate.


                                 Versus

UNION OF INDIA & ANR.                              ...... Respondents
                                     Through     :  Mr.O.P.Gaggar,
                                     Advocate.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment?                        YES
2.    To be referred to the Reporter or not ?             YES
3.    Whether the judgment should be reported
      in the Digest ?                                     YES

V.K. SHALI, J. (Oral)

1. The petitioner by the present writ petition has challenged

the order dated 9th January, 2007 passed by the Ministry of

Labour/Shram Mantralaya, Government of India by virtue of

which the respondent no.1 has observed that prima facie the

Ministry does not consider this a dispute fit for adjudication to be

referred to the industrial tribunal on the ground that the request

of compassionate appointment was duly considered by the

respondent/Bank and in order to tide over the financial condition

of the family, a lump sum financial relief of Rs.5,75,000/- was

offered to the family of the deceased employee as per the policy of

the respondent/Bank which was not accepted by the family. It

was further observed in the said order that the compassionate

appointment is granted a welfare measure and cannot be said to

be conferring a vested right in the dependency of the deceased

employee and therefore, the dispute raised was found to be not

maintainable.

2. The main contention of the learned counsel for the

petitioner has been that the question as to whether the petitioner

no.2 is entitled to be appointed on compassionate ground or not

is a matter to be considered by the Industrial adjudicator and it

cannot be preempted by respondent no.1 by refusing to refer the

dispute for industrial adjudication.

3. The objection raised by the learned counsel for the

respondent was regarding maintainability of the writ petition on

the ground of inordinate delay in assailing the order dated 9th

January, 2007 was sought to be answered by the learned

counsel for the petitioner by placing reliance in case titled Ajaib

Singh Vs. Sirhind Cooperative Marketing-cum-Processing

Service Society Limited & Anr. (1999) 6 SCC 82, wherein the

Apex Court in the facts of that case had held that even the seven

years long delay in seeking a reference of a dispute regarding

termination of services could not be a ground for refusing to refer

the dispute for the purpose of industrial adjudication. Reliance

in this regard was also sought to be placed on Division Bench

judgment of this Court in LPA No.384/2008 in case titled DDA

Vs. Sudesh Kumar & Anr. It was also observed that the

provisions of Article 137 of the Limitation Act, 1963 which

prescribes a three years period of limitation is not applicable to

the proceedings under the Industrial Disputes Act. Before

dealing with the submissions raised by the learned counsel for

the petitioner, it would be pertinent to give the brief facts of the

case.

4. Sh.Dharam Singh, son of Late Sh.Chottu Ram was working

as a regular Safai Karamchari with the Union Bank of India-

respondent no.2. It is alleged that he died on 23rd October, 2001

on account of cardiac arrest leaving behind his widow

Smt.Darshi Devi aged 60 years and two sons namely Sh.Satbir

and Sh.Sukhbir and two daughters namely Rakjumari aged 30

years and Nirmala aged 26 years. On 25th February, 2002, an

application is purported to have been made by the petitioner

No.2, Sh.Sukhbir Singh to the respondent no.2 for appointment

on compassionate ground. On 18 th August, 2003, the said

application for appointment on compassionate ground was

rejected by the respondent no.2/Union Bank of India and in lieu

thereof the petitioner was offered a financial relief of

Rs.5,75,000/-. It was alleged that since the respondent /Bank

failed to consider the request of the petitioner favourably for

appointment on compassionate ground, the Delhi Labour Union

espoused the cause of the petitioner and served a legal demand

notice upon the respondent no.2 on 13th January, 2005. As

respondent no.2 did not respond favourably an industrial dispute

was raised by filing a statement of claim in the month of March,

2005 before the Conciliation Officer. The Conciliation Officer in

its report had observed that Delhi Labour Union has no locus

standi to raise the dispute and accordingly, submitted a report to

the appropriate authority. After expiry of more than a year of the

submission of the Conciliation report the impugned order dated

9th January, 2007 was passed rejecting the prayer of the

petitioner to have the dispute referred to the industrial

adjudicator and the reasons which were given in the said order

by the bank were reproduced. The said reasons are reproduced

as under:

"It is reported that the request for appointment on compassionate grounds was duly considered by the bank and in order to tide over the financial condition, a lump sum financial relief of Rs.5,75,000/- was offered to the family of the deceased employee as per the policy which was not accepted by his family. Since appointment on compassionate grounds under the scheme a welfare measure, this cannot be a vested right of a dependent of a deceased employee. In the circumstances, the dispute raised is found to be not maintainable."

5. Though the impugned order was passed on 9th January,

2007 but it was alleged that the said order could not be

challenged on account of extreme financial distress and poverty

of the petitioner and the same could be done now in the month of

January, 2009 i.e. after expiry of almost two years.

6. I have considered the submissions made by the learned

counsel for the petitioner and gone through the record. The first

point which comes in the way of the petitioner is inordinate delay

and laches. There is no dispute about the fact that the Apex

Court has repeatedly held that although there is no specific

period of limitation prescribed for invoking the writ jurisdiction of

the Court but at the same time it must be done as expeditiously

as possible. No straight jacket formula or time frame can be

prescribed for assailing an order before the High Court which

may constitute inordinate delay. Reliance in this regard is placed

on State of M.P. Vs. Bhailal Bhai AIR 1964 SC 1006 in which it

observed as under:

"the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the Legislature as the time within which the relief by a suit in the Civil Court must be brought may ordinarily be taken to be a reasonable standard by which the delay is seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a Civil action for the remedy but where the delay is more than the period it will almost always be proper for the Court to hold that it is unreasonable."

7. Coming back to the facts of the case, there is no dispute

about the fact that the impugned order is passed on 9th January,

2007 and the same is assailed only after expiry of two years in

2009. The reasons given by the petitioner for not challenging the

order earlier is the financial distress. The petitioner has not

given the details of the fact that in case he was unable to

challenge the order earlier on account of financial distress as to

how he suddenly after expiry of two years he overcame that

disability and challenged this order.

8. The learned counsel for the petitioner has placed strenuous

reliance on the judgment of the Apex Court in Ajaib Singh's case

(supra) wherein it has been held that Article 137 of the

Limitation Act, 1963 is not applicable to the proceedings under

Industrial Disputes Act and accordingly, in the facts of the said

case a long delay of seven years was held not to be a ground for

refusing to refer the dispute to the industrial adjudicator by the

appropriate Government. I have gone through the said authority.

The facts of the case were totally distinguishable from the facts of

the present case.

9. In the instant case, the petitioner is claiming appointment

on compassionate ground which repeatedly the Apex Court has

held is not as a matter of right and that the appointment on

compassionate ground is not a normal course of the recruitment.

In the case reported, the services of the petitioner were

terminated in 1974 and notice of demand was issued in 1981

whereupon a reference to the industrial adjudication was sought.

The dispute was not referred by the appropriate Government to

the industrial adjudicator and the High Court also did not agree

to the submission of the petitioner in the said case to have the

matter referred to the industrial adjudicator on account of delay

of nearly seven years. It was in this background of the facts of

the case that the Apex Court had observed that Article 137 of the

Limitation Act does not apply to the industrial proceedings and

further it was observed that even though there may be delay in

having the dispute referred to the industrial adjudicator, the

learned Labour Court or the Industrial Tribunal, as the case may

be, is well within its power to mould the relief and deny the

benefit of back wages to the aggrieved workman in case it comes

to a finding that his termination is illegal or unjustified.

Therefore, the facts of the reported case are totally

distinguishable from the facts of the present case and merely

because the delay of 7 years in the said case was not considered

to be inordinate cannot be said to be a yard stick which can be

applied to the facts of the present case.

10. On the contrary, if the delay is condoned in the present

case, it will have another dimension of the matter. This is that

there is another string of authorities by the Apex Court that the

compassionate appointment is granted as a succour to the family

of the deceased in time of need. Reliance in this regard is placed

on Umesh Kumar Nagpal Vs. State of Haryana 1994 (4) SCC

138 and State of Haryana Vs. Hakim Singh 1997 (8) SCC 85.

11. In the instant case, the father of the petitioner died in the

year 2001 while as the petition has been filed after a gap of

almost eight years and in case they have been able to tide over

initial period of eight years, there is no justification for granting

this appointment on compassionate ground to the petitioner at

that late stage. In addition to this, the petitioner has of his own

stated that he has a brother, namely Sh.Satbir Singh, but it has

not been stated as to what Sh.Satbir Singh was doing and what

his source of income. Similarly, about the two daughters aged

26 years and 30 years, it is also not stated whether they are

married or unmarried. Therefore, all these aspects have been

kept under wraps by the petitioner deliberately only to get a

reference made to seek compassionate appointment.

12. For these reasons, I am satisfied that the present writ

petition itself is hit of inordinate delay and laches and does not

deserve to be entertained. Even on merits as has been observed

hereinabove, the facts of the case are such that the petitioner

cannot claim the reference of the dispute to the industrial

adjudicator for adjudication as ex facie facts are so apparent that

in a case of this nature, compassionate appointment cannot be

granted and especially when the petitioner has been offered a

sum of Rs.5,75,000/- which he has refused to accept only in way

and vain hope of getting compassionate appointment. The

aforesaid amount by any stretch of imagination cannot be said to

be a small amount to take over the family distress even if it is

assumed to be there.

13. The second point which has been raised by the learned

counsel for the petitioner is that it is only the industrial

adjudicator which can decide the question of compassionate

appointment and not the appropriate Government by refusing to

refer the same to the industrial adjudicator. Reliance in this

regard is placed on observations passed in case DDA Vs.

Sh.Sudesh Kumar & Anr. in LPA No.384/2008 of this Court. I

have gone through the said authority also. There is no

proportion of law laid down in the said case that it is only the

industrial adjudicator which can decide the question of

appointment on compassionate ground. The facts of that case

clearly show that a reference was made to the industrial

adjudicator as to whether Sh.Sukhbir Kumar in the said case is

entitled to appointment on compassionate ground and if so,

what directions are necessary. The learned Labour Court

passed an order for appointment of Sh.Sukhbir Kumar on

compassionate ground, which was challenged by the DDA before

the learned Single Judge which dismissed the writ petition

against the Industrial Tribunal award dated 30.7.1998. It was in

this background that the Division Bench had observed that in

the interest of maintaining the industrial peace, the industrial

adjudicator had directed appointment of a candidate on

compassionate basis on industrial dispute being espoused by the

Trade Union and no infirmity in the judgment of the learned

Single Judge was found and accordingly, the case was dismissed.

There is admittedly no proportion of law laid down that the

appropriate Government cannot refuse to refer the dispute to the

industrial adjudicator in case the respondents have given cogent,

reasonable, just and fair ground for refusing the appointment on

compassionate ground. A perusal of the reasons given by the

respondent no.2 coupled with the facts as detailed hereinabove

namely lapse of time in approaching the Court, lack of details of

the family members, factum of having overcome the initial shock

of death of Sh.Dharam Singh coupled with the factum of offer to

provide a financial relief of Rs.5,75,000/- to the family in lieu of

employment in terms of the policy, were valid ground for refusing

to refer the dispute.

14. For these reasons mentioned above, I do not find any

merit in the present writ petition. Accordingly, the same is

dismissed however, as the respondent/Bank had offered a lump

sum financial relief of Rs.5,75,000/- to the family of the deceased

employee in terms of the policy was not availed of by the

petitioners. It is directed that respondent no.2 shall release the

aforesaid amount to the family of the deceased employee after

getting the necessary formalities completed from them within

four weeks from the date of completion of such formalities.

15. Accordingly, the respondent no.2 is directed to sent a

letter to the family of the deceased employee within two weeks

requiring them to complete the formalities and release the

aforesaid amount within four weeks after completion of the said

requirement. With these directions, the writ petition is dismissed

as not having any merit.

No order as to costs.

V.K. SHALI, J.

APRIL 15, 2009 RN