Delhi High Court
Ifci Limited vs The General Secretary All India ... on 29 April, 2013
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 21.02.2013
% Judgment delivered on: 29.04.2013
+ W.P.(C) 1991/2010 and C.M. Nos.3988/2010, 5327/2010 &
12294/2010
IFCI LIMITED ..... Petitioner
Through: Mr. Dinkar Singh, Advocate
versus
THE GENERAL SECRETARY
ALL INDIA IFC EMPLOYES ASSO. ..... Respondent
Through: Ms. S. Janani, Advocate
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J.
1. By the present writ petition, the petitioner IFCI Ltd. („IFCI‟ for short)
seeks the quashing of the award dated 16.10.2009 passed by the Central
Government Industrial Tribunal No. 1, Karkardooma Courts, Delhi (CGIT)
in I.D. No. 7/2006.
2. By the impugned award dated 16.10.2009, the CGIT held that the
scheme framed by the petitioner for appointment in clerical & subordinate
cadres of dependents of deceased employees of IFCI formulated on 1.1.1979
is subsisting, and directed the petitioner to consider the requests of the 5
dependents of ex-employees of IFCI i.e. Naresh Kumar, Rakesh Kumar,
Smt. K. Sampath, Vivek Kumar and Sanjay Kumar Ram for the appointment
on compassionate grounds under the said scheme dated 01.01.1979.
3. The background facts may first be noticed. Industrial Finance
Corporation of India („The Corporation‟ for short) was a statutory
corporation incorporated by the Industrial Finance Corporation Act, 1948.
The Board of Directors of the Corporation in its meeting held on 31.01.1979
approved the adoption of a scheme for appointment of dependents of
deceased employees of the Corporation on compassionate grounds, known
as the "IFCI's Scheme for appointment in Clerical and Subordinate Cadres,
of dependents of deceased employee of the Corporation on compassionate
grounds" (hereinafter referred to as the „Scheme‟).
4. As per the said scheme, the Board of Directors of the Corporation had
discretion to appoint the dependants (as defined in the scheme) of the
deceased employees of the corporation against existing vacancies only on
compassionate grounds. Admittedly, between 1981 to 1986, 19 dependants
of the ex-employees were given appointment in class-III and IV cadre on
compassionate grounds.
5. In the year 1985, the Corporation framed a contributory welfare
scheme known as "Disability and Financial Assistance Scheme" (DFAS).
The employees - to get covered under the Scheme, had to subscribe to the
Scheme and contribute under the Scheme in terms thereof. The scheme
provides additional financial assistance, over and above the normal retrial
benefits viz. provident fund, gratuity, family pension etc. to the next of kin
of the deceased employee of the Corporation. The financial assistance under
the DFAS was payable in lump sum, or in monthly payments as may be
decided in the corporation. The assistance under DFAS at present is to the
extent of Rs. 4000/- p.m. and is payable for a maximum period of 15 years,
or till the normal age of superannuation of the deceased employee,
whichever is earlier. The assistance under the DFAS ceases from the date
any dependent or relative of an employee/retired employee is employed in
the Corporation on compassionate grounds.
6. The petitioner submits that to provide timely succour to the
families/dependents of the deceased employees and to alleviate their
suffering, it also provides additional financial benefits known as
"Compassionate Gratuity". The amount payable towards compassionate
gratuity is one month‟s pay for every completed years of service or part
thereof, in excess of 6 months, subject to minimum of 2 months pay and
allowances drawn by the deceased employee at the time of his death, and
subject to a maximum of Rs 15000/-.
7. In July 1993, the Parliament repealed the "Industrial Finance
Corporation Act 1948" - the effect of which was that the character of the
Corporation changed from that of a statutory corporation to a Public Limited
Company i.e. IFCI Ltd. (IFCI) in which neither the Government of India nor
any of its specifically nominated body has any shareholding.
8. In 1996, the Board of Directors of IFCI appointed an Expert
committee to advice the management on the future corporate strategy to be
adopted by it for its sustainability in the financial market. The Board of
Directors of IFCI decided not to make any appointment in Class-III and IV
cadres which were overstaffed. On 26.03.1999, the Board of Director of the
petitioner company decided that no appointments on compassionate grounds
shall be made. To achieve optimum manpower utilisation, no further
recruitment in Class III and IV cadres was envisaged and there was a
complete ban in recruitment to Class III and IV. The petitioner also bought
VRS in the year 2000, 2001, 2003/2004 and finally in 2008 to bring down
the size of its manpower for its sustainability.
9. The General Secretary of All India Finance Corporation Employee
Association (AIIFCEA) vide their letter dated 30.10.2000 raised an
industrial dispute regarding the denial of appointment to the dependants of
the deceased employees on compassionate grounds.
10. In response, the stand of the petitioner was that it had not been
making recruitment of workman staff (Class-III and IV staff) for the last five
years in the view of surplus strength in those cadres. It was also their stand
that IFCI has not been making compassionate appointments of the kin of the
deceased employees, as dispensation in such cases is being offered under the
DFAS.
11. The conciliation officer by the report dated 31.01.2002 referred the
matter to the appropriate Government for taking their decision. The
appropriate Government, on 07.11.2002 refused to refer the dispute for
adjudication. Being aggrieved by the decision of the appropriate
Government, three dependants of the deceased employees of IFCI filed writ
petitions bearing nos. 1925 of 2003, 2128 of 2003 and 3151 of 2003.
12. In these petitions, on 23.12.2005, this Court issued a writ of
Mandamus to the appropriate Government to make reference of the dispute
raised by the petitioners before it for adjudication.
13. The Central Government, in compliance of the command of the court,
made the following reference for adjudication;-
"Whether the demand made by the All India Industrial Finance
Corporation Employees Association for appointment of
dependants on compassionate grounds by the management of
Industrial Finance Corporation of India Limited in respect of 7
employees who died in harness, as contained in their demand
letter dated 30th October, 2000 is legal and justified? If not, to
what relief the disputant union is entitled?"
14. The CGIT vide the impugned Award dated 16.10.2009 declared that
the demand made by the respondent Association for appointment on
compassionate grounds in respect of Naresh Kumar, Rakesh Kumar, K
Sampath, Vivek Kumar and Sanjay Ram Kumar is legal and justified, and
also directed the IFCI to consider their request for appointment on
compassionate grounds within a period of 30 days from the date the award
becomes enforceable. It was also held that Mahendar Singh was not entitled
to appointment on compassionate grounds, as he was overage on the date of
his application.
Submissions of the Petitioner:
15. Learned counsel for the petitioner submits that the scheme was a
result of the petitioners‟ unilateral act. The petitioner was neither enjoined
to do so by any law, or by any settlement, or any award or any order of any
court. The petitioner, in support of its submission places reliance on the
circular dated 3rd March, 1979. The said circular communicates the approval
of the Board of Directors of the Corporation for the appointment of the
dependants of deceased employees of the corporation. The petitioner
submits that the said letter manifests that the scheme of providing
compassionate employment was adopted by the Management/Board of
Directors of their own, and the same does not constitute a bipartite
settlement between the parties. The submission of the petitioner is that there
was no settlement arrived at in the present case as defined in Section 2(p) of
the Act of which the Scheme was a result. Learned counsel submits that
while passing the impugned Award, the learned CGIT has completely
overlooked the legal requirements of a "settlement", as defined in the Act.
Only a settlement arrived at in terms of Section 2(p) of the Act would bind
the petitioner management by virtue of Section 19 thereof. Section 2(p) of
the Act defines a settlement to mean, "a settlement arrived at in the course
of conciliation proceeding and includes a written agreement between the
employer and workmen arrived at otherwise than in the course of
conciliation proceeding where such agreement has been signed by the
parties thereto in such manner as may be prescribed and a copy thereof has
been sent to an officer authorised in this behalf by the appropriate
Government and the conciliation officer."
16. Learned counsel submits that since the learned CGIT has fallen in
error on this fundamental premise, the impugned Award cannot be sustained
on this short ground.
17. Learned counsel further submits that there were no vacancies in the
cadre of Class IV viz. peon cum chowkidar, sweeper etc. Rather, a policy
decision had been taken by the Management not to make recruitment in
Class III and IV cadres because of overstaffing. The petitioner submits that
the Voluntary Retirement Schemes were introduced in the years 2000, 2001,
2003, 2004 and 2008 to bring down the number of employees to the desired
level, and around 245 employees belonging to Class III and Class IV cadres
opted for the same.
18. The Ld. Counsel also submits that the petitioner is not violating any
of the provisions of the Contract Labour (Abolition and Regulation) Act,
1970 (CLRA Act for short) and it is not violating the notification of the
Government of India dated 09.12.1976. According to the petitioner, the said
notification is almost 30 years old and the same has been amended by the
Government of India a number of times. Moreover, when the CLRA Act
was enforced, modern buildings with high quality finishes were not
conceived. Also, when the said notification was issued, the multi storeyed
buildings were not in existence. In April 2000, the petitioner apprised the
Government of India about the facts and circumstances to seek exemption in
respect of the various provisions of the CLRA Act to the high tech multi
storeyed office building of the Petitioner. Ld. Counsel also submits that the
building of the petitioner has high quality finishes which require
mechanical/specific equipment for cleaning. The cleaning and maintenance
is outsourced to a specialized agency having skilled manpower to operate
specialized machinery and perform such functions.
19. Placing reliance on Union Bank of India vs. M.T Latheesh (2006) 7
SCC 350 and Savitri Devi vs. Union of India., the Ld. Counsel for the
petitioner submits that the dependants are receiving financial benefits under
other schemes as well. Hence, they are not entitled to claim compassionate
employment. The petitioner also provided the details of the dependants and
the benefits received by them.
Sl. Name of the Name of the Date of Remarks
No. dependants deceased death of the
employee employee
1. Naresh Late Sh. 26.04.1996 Employee died
Kumar (son) Banarasi 2months before
Ex-Peon the date of
superannuation
( DRO) i.e 30.06.1996.
Being CPF optee
not eligible for
pension.
Financial
assistance under
the DFA scheme
was not availed
by her.
2. Rakesh Late Shri 18.04.1997 Family pension of
Kumar (son) Pratap Rs. 3815/- is
Singh Ex- being paid at
Subedar present. Earlier
(HO) the family pension
was paid at an
enhanced rate
upto
18.04.2004(Rs.
4947/- last
drawn). Financial
assistance under
the DFA scheme
was not availed
by her.
3. Mahender Late Sh. Jai 07.06.1993 Employee died 11
Singh (son) Narain months before the
Singh Ex- date of
Peon (HO) superannuation
i.e. 31.05.1994.
Being CPF optee
not eligible for
pension.
Financial
assistance under
the DFA scheme
was not availed
by her.
4. Mrs. Renuka Late Sh. 08.04.1998 Family pension of
Sampath K.Sampath, Rs. 4065/- is
(wife) Ex-Assistant being paid at
present. Earlier
(Chennai) the family pension
was paid at an
enhanced rate
upto
08.04.2005(Rs
5485/- last
drawn). In
addition financial
assistance of Rs.
4000/- pm is also
being paid to her
under the DFA
scheme till the
date of
superannuation.
5. Vivek Kumar Late Sh. 19.11.1998 Family pension of
(son) Bhagwaan Rs. 4518/- is
Dass Ex- being paid at
Assistant present. Earlier
(DRO) the family pension
was paid at an
enhanced rate
upto 18.11.2005
(Rs. 5458/- last
drawn). Financial
assistance under
the DFA scheme
was not availed
by her.
6. Sanjay Late Sh. C.L. 15.05.2000 Family pension of
Kumar Ram Ra Ex- Rs. 3491/- is
(son) sweeper being paid at
present. Earlier
(Kolkata) family pension
was paid at an
enhanced rate
upto 15.05.2007
(Rs. 5062/- last
drawn). In
addition, financial
assistance of Rs.
4000 pm is also
being paid to her
under the DFA
scheme.
20. The Ld. Counsel also submits that the petitioner, after 1996, has not
appointed anyone on compassionate grounds. Reliance is also placed on the
minutes of meeting dated 26.03.1999 of the meeting of the Board of
Directors of IFCI, wherein the management recorded that after due
consideration of Memorandum no. 209/98-99 dated 15 March, 1999 on the
subject, and in the light of the changed environment, it is not in favour of
making any new appointments on compassionate grounds.
21. Placing reliance on, A.P.S.R.TC and ors. Vs. Kaiser Begum (1998) 9
SCC 398 and Eastern Coalfields Ltd. vs. Anil Badyakar and Ors. (2009) 13
SCC 112 and the ld. Counsel submits that the claimant cannot claim
compassionate appointment as a matter of right.
Submissions of Respondent:
22. Learned counsel for the Respondents AIIFCEA submits that the
Management has engaged persons on contract basis for the job of sweeping,
cleaning, dusting and watch and ward duties inside its office premises.
However, the jobs of cleaning, sweeping, dusting and watch-and-ward of
office premises are perennial in nature and demand permanent appointment.
The engaging of persons on contract basis by the petitioner is to circumvent
the labour laws. Such contractual engagements are prohibited by the
Ministry of Labour, Govt. of India vide notification dated 09th December
1976.
23. Ld. Counsel also submits that the appointment of the dependents of
the deceased employees of the corporation on compassionate grounds is a
service condition as per the provision of the bipartite settlement dated 05th
September, 1990, entered into between IFCI and the respondent Union,
wherein it was agreed that the "Welfare schemes of the corporation shall be
re-modelled to bring them at par with the schemes prevalent in the
Industrial Development Bank of India (IDBI) and the revised schemes shall
be made operative by the 1st January,1991 and during the interregnum, the
existing schemes in this regard shall continue to operate."
24. Ld. Counsel submits that the Management had adopted the scheme of
appointment of dependants of the deceased employees on compassionate
grounds as a result of collective bargaining and the same was not a unilateral
act of the management. In support of her submission, learned counsel places
reliance on the letter dated 19.09.1979 issued by the Deputy General
Manager Shri M.N Khushu. In the said letter, the management stated "We
have already met the following demands of the association, while the rest of
the demands made in the said charter of demands are under our
consideration." The said letter also included an assurance to make suitable
provisions in the Promotion Rules for creating job opportunities for the
dependants of the employees who die in harness and in this connection
Adm. Circular no. 9/79 dated 3 March, 1979 has already been issued.
25. In support of her submission, the counsel places reliance on Clause
8(2) of the DFAS, which provides that the assistance under the scheme will
cease from the date any dependant or relative of the employee is employed
in the corporation on compassionate grounds. This clause indicates that the
DFAS contemplated making of compassionate appointments by the
management even after the implementation of the said DFAS.
26. It is also the submission of the Ld. Counsel for the Respondent that
the Management cannot unilaterally withdraw the Scheme for providing
compassionate appointment without complying with Section 9A r/w 4
Schedule of the Industrial Disputes Act, 1947 (the Act) as the same is a
service condition.
27. Having considered the rival submissions and perused the impugned
Award & the record, I am of the view that impugned Award cannot be
sustained and is liable to be set aside. Section 9A of the Act reads as
follows:
"9A. Notice of change.- No employer, who proposes to effect
any change in the conditions of service applicable to any
workman in respect of any matter specified in the Fourth
Schedule, shall effect such change,--
(a) without giving to the workmen likely to be affected by such
change a notice in the prescribed manner of the nature of the
change proposed to be effected; or
(b) within twenty- one days of giving such notice:
Provided that no notice shall be required for effecting any such
change--
(a) where the change is effected in pursuance of any settlement
or award; or
(b) where the workmen likely to be affected by the change are
persons to whom the Fundamental and Supplementary Rules,
Civil Services (Classification, Control and Appeal) Rules, Civil
Services (Temporary Service) Rules, Revised Leave Rules, Civil
Service Regulations, Civilians in Defence Services
(Classification, Control and Appeal) Rules or the Indian
Railway Establishment Code or any other rules or regulations
that may be notified in this behalf by the appropriate
Government in the Official Gazette, apply."
28. The fundamental flaw in the impugned Award appears to be that the
learned CGIT has proceeded on the basis that the parties arrived at a binding
settlement where under the Scheme was implemented by the Management.
A perusal of the impugned Award shows that the Industrial Finance
Corporation Employees‟ Association served a charter of demands on
16.4.1977 on the Management. One of the demands related to grant of
compassionate appointment to the dependents of the employees of the
management dying in harness. A perusal of the record shows that the Board
of Directors of the petitioner management, in its meeting held on 31.01.1979
approved the adoption of the Scheme with effect from 01.01.1979. The
impugned Award also shows that on 18.09.1979, a letter was written by the
President of the Union to the Management, wherein the Union emphasised
on resumption of talks on the charter of demands. In response, the union
was informed that the Management had already issued circular No. 9/1979
on 03.03.1979 formulating the scheme and implementing the same with
effect from 01.01.1979. The learned CGIT, on the basis of the response of
the petitioner management concludes that the Scheme had been adopted at
the instance of the Union and, consequently, it was a binding settlement as it
was a result of collective bargaining.
29. I have already noticed hereinabove the definition of expression,
"settlement" as contained in Section 2(p) of the Act. For an agreement to be
a "settlement" within the meaning of the Act, either the same should have
been arrived at in the course of conciliation proceedings, or if not so arrived
at during conciliation proceedings, it should be a written agreement between
the employer and the workman, which should have been signed by the
parties thereto in the prescribed manner, and a copy thereof should have
been sent to the officer authorised - in this behalf, by the appropriate
government and the conciliation officer. It is not even the respondent‟s
case that the Scheme was a part of settlement arrived at in the course of
conciliation proceedings, or that it is contained in a written agreement
between the petitioner-Management and the respondent Union. It is also
not the respondent‟s case that the requirements of section 2(p) with regard to
signature and lodgement of the settlement with the authorised officer or the
conciliation officer has been complied with.
30. Reference may also be drawn to the Fourth Schedule to the Act. The
said Schedule enlists the condition of service - for change of which, notice
is to be given. Section 9(A) of the Act provides that no employer, who
proposes to effect any change in the conditions of service applicable to any
workman in respect of any matter specified in the Fourth Schedule, shall
effect such change without giving 21 days notice to the workman likely to
be affected by the change in the prescribed manner, unless the change is
affected in pursuance of a settlement or Award, or where the workmen likely
to be affected by the change are persons to whom the rules mentioned in
Section 9(A) [proviso (b)] are applicable. A perusal of the Fourth Schedule
shows that a change in the Scheme applicable for making compassionate
appointments is not one of the conditions of service for which a prior notice
under Section 9(A) is required to be given.
31. Merely because the Management may have formulated the Scheme on
the demand of the workers‟ union would not elevate the status of the
Scheme to that of a binding settlement under the Act.
32. Section 19, insofar as it is relevant reads as follows:
"19(1) A settlement shall come into operation on such
date as is agreed upon by the parties to the dispute, and if no
date is agreed upon, on the date on which the memorandum of
the settlement is signed by the parties to the dispute.
(2) Such settlement shall be binding for such period as is
agreed upon by the parties, and if no such period is agreed
upon, for a period of six months (from the date on which the
memorandum of settlement is signed by the parties to the
dispute), and shall continue to be binding on the parties after
the expiry of the period aforesaid, until the expiry of two
months from the date on which a notice in writing of an
intention to terminate the settlement is given by one of the
parties to the other party or parties to the settlement."
33. For Section 19 to apply, the settlement has to be one in terms of the
definition contained in the Act. Since the Scheme in question is not a
settlement as defined in the Act, it cannot be said that the said Scheme shall
continue to bind the petitioner-Management unless the provisions contained
in Section 19 are complied with. It is clear that the Scheme was formulated
by the Management unilaterally - though on the demand of the workers
union. It did not attain the status of a binding settlement as the conditions in
Section 2(p) of the Act are not satisfied. On this short ground, the impugned
Award is liable to be set aside.
34. From the record, it is clear that the petitioner Management faced
financial crisis, inter alia, on account of the excessive staffing. It is also
clear that the petitioner - Management decided to get rid of the excess work
force by resort to Voluntary Retirement Scheme on repeated occasions. In
such circumstances, the decision of the petitioner to not make compassionate
appointments cannot be faulted. The decision to do away with the Scheme
for compassionate appointments cannot be said to be irrational or arbitrary
decision. I may now look at the individual cases of five dependents, in
respect of whom, the CGIT has directed consideration of their cases for
compassionate appointment.
35. Shri Naresh Kumar is the son of late Shri Banarasi, ex-Peon (DRO).
Late Shri Banarassi died on 26.04.1996 i.e. two months before the date of
his superannuation on 30.06.1996. In my view, in any event, it would defeat
the objective of the Scheme if the dependent son, daughter or widow of the
deceased workman is granted employment on compassionate basis in a case
of this kind. The deceased employee had served practically for the entire
tenure that he could have served. It is not a case where the deceased
employee can be said to have died leaving behind small children who may
still be receiving education. An employee who has reached nearly the age
of superannuation before his death would, in the normal course, have settled
the affairs of his/her children. Moreover, by the time the reference was
answered by the learned CGIT on 16.10.2009, nearly 13 and a half years had
passed. The purpose of grant of compassionate appointment is to provide
immediate succour to the family of the deceased. Obviously, the said
objective did not survive by the time the impugned Award came to be
passed.
36. In the case of Shri Rakesh Kumar son of late Shri Pratap Singh, ex-
Subedar (HO), the position is that late Shri Partap Singh died on 18.04.1997.
His family was drawing family pension of Rs. 4,947/- up to 18.04.2004 i.e.
for about 7 years till after the death of late Shri Partap Singh. Thereafter, the
family pension stood reduced to Rs. 3,815/-. In this case as well, the
direction issued by the learned CGIT to consider his case came to be passed
on 16.10.2009 i.e. nearly 12 and a half years after the demise of late Shri
Partap Singh when the objective of providing compassionate appointment
did not survive.
37. Smt. Renuka Sampath, widow of late Shri K. Sampath, ex-Assistant
who died on 08.04.1998 was drawing family pension of Rs. 5,485/- up to
08.04.2005 i.e. for the first 7 years which stood reduced to Rs. 4,065/-
thereafter. She was also drawing the additional financial assistance of Rs.
4,000/- per month under the DFA Scheme up to 31.12.2012, which was the
normal date of superannuation of late Shri K.Sampath, had he not died in
harness. Therefore, for the first 7 years, she was drawing an amount of
nearly Rs. 9,500/- per month. It could not be said that her income from
family pension and from the additional financial assistance was not
sufficient at the relevant time. Even in her case, the direction for
consideration of her case for compassionate appointment came nearly 11
and a half years after the demise of late Shri K.Sampath, by when the said
objective did not survive.
38. In the case of Shri Vivek Kumar, son of late Shri Bhagwaan Dass, ex-
Assistant (DRO), who died on 19.11.1998, family pension of Rs. 5,458/-
was drawn for the first 7 years i.e. up to 18.11.2005, where after it continues
to be paid @ Rs. 4,518/-. In his case as well, the direction to consider his
case for compassionate appointment has come to be issued nearly 11 years
after the demise of late Shri Bhagwaan Dass.
39. In the case of Shri Sanjay Kumar Ram, his father late Shri C.L.Ram,
ex-Sweeper, passed-away on 15.05.2000, the family drew family pension @
Rs. 5,062 for the first 7 years i.e. up to 15.05.2007. They also drew
additional financial assistance of Rs. 4,000/- per month under the DFA
Scheme up to 31.05.2012 i.e. the date on which late Shri C.L.Ram, would
have superannuated had he been alive. For the first 7 years, the family of
late Shri C.L.Ram received income of over Rs. 9,000/- per month and
thereafter continued to receive income of nearly Rs. 7,500/- per month.
These incomes could not be said to be insufficient to tide over the financial
crisis caused by the demise of the deceased workman. The direction to
consider the case of Shri Sanjay Kumar Ram for compassionate appointment
came nearly nine and a half years after the demise of late Shri C.L.Ram, by
when the objective of making compassionate appointment had served itself
up.
40. However, I do not agree with the petitioner‟s submission that by the
introduction of the DFAS, the Scheme in question ceased to exist. As
pointed out by learned counsel for the respondent, the DFA Scheme itself
postulated that the benefit there under shall cease upon the grant of
compassionate appointment. The DFA Scheme was, therefore, to run in
tandem with the Scheme in question, and was not made to substitute the
same.
41. So far as the allegations with regard to breach of the provisions of the
Contract Labour Regulation Act are concerned, in my view, the same did
not fall for consideration before the learned CGIT. The learned CGIT was
required to answer the reference with regard to appointment of dependents
of the deceased employees of the petitioner - Management on
compassionate grounds. No dispute was raised by the respondent-Union
with regard to employment of contract labour by the petitioner -
Management, and no reference was made in that regard. It is well settled
that the Industrial Tribunal derives its jurisdiction from the reference made
by the appropriate Government, and its jurisdiction is limited to answering
the reference as made to it. If the respondent- Union was desirous of either
seeking amendment of the reference as made, or seeking any further
reference on the aspect of the breach of the provisions of the Contract
Labour Regulation Act, it was open to the respondent‟s - Union to take
appropriate steps in that regard. In my view, the observations made in the
impugned Award with regard to the alleged breach of the Contract Labour
Regulation Act were uncalled for, and made without jurisdiction. The said
observations cannot be sustained.
42. The observation made by the learned CGIT that the Scheme was
never withdrawn by the management is contrary to the record. The Scheme
was withdrawn by the Management by the Board Resolution dated
26.03.1999. The said resolution reads as follows:
"The Board considered the Memorandum No. 209/98-99 dated
the 15th March, 1999 on the subject. The Board after due
consideration and in the light of changed environment was not
in favour of any new appointment on compassionate grounds."
43. In A.P.S.R.T.C. and others Vs. Kaiser Begum, (1998) 9 SCC 398, the
respondent had applied for compassionate appointment, even though there
were no vacancies. The High Court directed that a post should be created by
the petitioner if there are no vacant posts, so that the respondent could be
appointed on compassionate grounds. The Supreme Court set aside this
decision of the High Court by holding that the High Court could not have
given such a direction which was contrary to the existing Scheme of
providing appointments on compassionate grounds. The case of the
petitioner is that it did not have any vacancy for appointment of the 5
dependents in question, as, at the relevant time it was overstaffed with class
III and class IV employees. This is evident from the fact that the petitioner
repeatedly had to resort to voluntary retirement Scheme to reduce its work
force as a part of its financial restructuring to sustain itself.
44. The Supreme Court in M/s Eastern Coalfields Ltd. Vs. Anil
Badyakar & Ors., (2009) 8 SCALE 474, has held that compassionate
appointment is not a vested right which can be exercised at any time in
future. The compassionate employment cannot be claimed and offered after
a lapse of time, and after the crisis is over. In that case, the employee had
died in harness in the year 1981. The provisional appointment granted to the
dependent was cancelled on the ground that after nearly 12 years from the
date of death of the employee, such an appointment could not have been
offered. The Supreme Court upheld that decision of the employer.
45. For all the aforesaid reasons, the writ petition is allowed and the
impugned Award is set aside leaving the parties to bear their respective
costs.
VIPIN SANGHI, J.
APRIL 29, 2013
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