Satya Pal Singh vs The Management Of Mcd & Anr
2010 Latest Caselaw 2609 Del

                    *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             W.P.(C) 2810/2002

%                                                 Date of decision: 17th May, 2010

SATYA PAL SINGH                                                  ..... Petitioner
                              Through:      Mr. Rajiv Aggarwal & Mr. Anuj
                                            Aggarwal, Advocates.

                                         Versus

THE MANAGEMENT OF MCD & ANR.             ..... Respondents
                Through: Mr. Gaurang Kanth with Ms. Sudershani
                         Ray, Advocates for R-1/MCD.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
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                Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner by this writ petition impugns the award dated 2 nd February,

2000 on the following reference:-

"Whether Shri Satyapal Singh is entitled to be appointed on compassionate grounds and if so, what directions are necessary in this respect?"

2. The petitioner had claimed compassionate appointment with the respondent

MCD on the ground that his father was in the employment of MCD as a

Mali/Beldar; that the father died on 28th April, 1990 leaving behind a widow aged

about 54 years, three sons including the petitioner and a married daughter; that the

petitioner being the youngest son, in May, 1990 itself applied for compassionate

appointment but the same was rejected by respondent no.1 MCD vide letter dated

3rd June, 1991. Industrial dispute was raised by the petitioner leading to the award

aforesaid. The Labour Court found that one of the brothers of the petitioner was

employed with Delhi Water Supply & Sewage Disposal Undertaking and the other

was a daily wager in C.S.C. Deptt. of MCD; the widow of the deceased was also

getting pension and was also found to be selling milk from which she was earning

Rs.300/- p.m. The respondent no.1 MCD contested the dispute by contending that

the case did not fall under the instructions of the Central Government for granting

appointment on compassionate grounds.

3. The Industrial Tribunal however found that the order of the respondent no. l

MCD rejecting the claim of the petitioner for appointment on compassionate

grounds was not a speaking order. The Industrial Tribunal was thus of the opinion

that the respondent MCD should consider the case properly and should pass a

speaking order. The impugned award thus directs the respondent no.1 MCD to

consider the case of the petitioner for appointment and also gives opportunity to

the petitioner to file afresh representation to the respondent no.1 MCD in this

regard. While directing so, the Industrial Tribunal referred to MCD Vs. Bhori Lal

(1999) V AD (Delhi) 65 and to LIC Vs. Asha Ramchhandra Ambekar (1994) 2

SCC 718 laying down that the Court is not empowered to direct the management

to provide employment on compassionate ground and that the Tribunal can only

direct the management to consider the case as per the policy.

4. Aggrieved from the award aforesaid, the present writ petition was filed. The

petitioner has inter alia pleaded in the writ petition that as per the judgment of the

Supreme Court in Bidi, Bidi Leaves' and Tobacco Merchants Association Vs.

The State of Bombay AIR 1962 SC 486, the Tribunal has very wide powers.

Reliance is also placed on The Bharat Bank Ltd. Vs. Employees of the Bharat

Bank Ltd. (1950) I LLJ 921 (SC) where also the Supreme Court held that the

Labour Court should not bind themselves as per the contract and could go beyond

that and pass an award according to social justice and equity. Attention in this

regard is also invited to Rohtas Industries Ltd. Vs. Brijnandan Pandey (1956) 2

LLJ 444 (SC) and to The Premier Automobiles Ltd. Vs. Kamlekar Shantaram

Wadke of Bombay (1975) 2 LLJ 445 (SC).

5. Notice of this writ petition was issued on the aforesaid contentions in the

writ petition and also in view of the submission that despite the direction given by

the Tribunal, the respondent no.1 MCD had till then not considered the case of the

petitioner for compassionate appointment. The respondent no.1 MCD has however

placed before this Court a copy of its Memorandum dated 18th April, 2002

whereby the request of the petitioner was considered (as directed by the award

aforesaid) and rejected. In the said Memorandum, it has been stated that as per the

Government policy, compassionate appointment can be given to the son or

daughter or near relative of a government servant who dies in harness leaving his

family in immediate need of assistance, when there is no other earning member of

the family. It is recorded in the said Memorandum that the family of the deceased

has its own house to live and one of the sons of the deceased is employed with the

CSE Deptt. of MCD itself and the deceased has left no specific liability and the

family is not in distress. It is also recorded that a period of more than ten years had

passed since the demise, thereby defeating the very purpose of immediate relief to

the bereaved family. The respondent no.1 MCD thus again rejected the case of the

petitioner for compassionate appointment. Inspite of opportunity no response has

been filed by the petitioner to the same.

6. The counsels for the parties have been heard.

7. The counsel for the petitioner, besides the judgments aforesaid has mainly

relied on the recent dicta of the Division Bench of this Court in DDA Vs. Sudesh

Kumar (2009) 3 AD (Delhi) 96. The Division Bench in the said judgment negated

the plea that the Industrial Tribunal ought not to have issued the mandate to the

management to appoint on compassionate basis. The counsel for the petitioner has

contended that in view of the said judgment of the Division Bench, the impugned

award of the Industrial Tribunal on the premise that the Industrial Tribunal has no

power to direct compassionate appointment is liable to be reversed and the

petitioner is entitled to an order of compassionate appointment.

8. However, a perusal of the impugned award shows that the Industrial

Tribunal has not returned any finding therein of a case for compassionate

appointment being made out, as was done in the case aforesaid before the Division

Bench and as was the case in MCD Vs. Smt. Bhateri W.P.(C) No.2082/2002

decided on 5th May, 2010 by the undersigned. The award in the present case

proceeds merely on the premise that the order of the respondent no.1 MCD

rejecting the case of the petitioner for compassionate appointment was a non-

speaking order. Owing thereto the respondent no.1 MCD was directed to

reconsider the matter.

9. Upon the same being pointed out, the counsel for the petitioner states that

the matter be remanded to the Tribunal for consideration afresh as to whether a

direction is to be issued to the respondent no.1 MCD or not.

10. I am, however, not inclined to so remand the matter. A period of 20 years

has passed since the incident on the basis whereof the claim for compassionate

appointment is made. The Supreme Court recently in Eastern Coalfields Ltd. v.

Anil Badyakar AIR 2009 SC 2534 has held that compassionate appointment is not

a vested right which can be exercised at any time in future; compassionate

appointment cannot be claimed and offered after a lapse of time and after the crisis

is over. The compassionate appointment is intended to enable the family to tide

over the sudden crisis or distress. In the present case for nearly 20 years the family

has pulled on, apparently without any difficulty. In this background, I am not

inclined to remand the matter to the Tribunal as claimed.

11. Before parting with the case, I may also notice that besides in Asha

Ramchhandra Ambekar (supra), the Supreme Court in State of H.P. Vs. Jafli

Devi (1997) 5 SCC 301 and in Union of India Vs. Bhagwan Singh (1995) 6 SCC

476 and a single judge of this Court in MCD Vs. Bhori Lal MANU/DE/0514/1999

have also held that courts are not empowered to give direction for compassionate

appointment and are only entitled to direct consideration for compassionate

appointment. It would thus appear that recent judgment of the Division Bench in

Sudesh Kumar (supra) is against the grain of said judgments.

There is no merit in this petition; the same is dismissed. No order as to

costs.

RAJIV SAHAI ENDLAW (JUDGE) 17th May, 2010 pp