Manager (Er) vs Smt. Preeti Singh
2021 Latest Caselaw 8441 MP

                                          1



THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH,
                   AT JABALPUR

                             (DIVISION BENCH)
                             W.A. No. 619 of 2020

             Manager (ER) & others                                 ....Appellants

             `                         -Versus-
             Smt. Preeti Singh                                     ...Respondent
      ---------------------------------------------------------------------------------
      Coram :
              Hon'ble Mr. Justice Ravi Malimath, Chief Justice.
              Hon'ble Mr. Justice Vijay Kumar Shukla, Judge.
      ---------------------------------------------------------------------------------
      Presence :
              Shri Aditya Adhikari, Senior Advocate with Shri Eijaz Siddiqui,
              Advocate for the appellants.
              Shri K.C. Ghildiyal and Shri Anoop Shrivastava, Advocates for
              the respondent No.1.
      ---------------------------------------------------------------------------------

                               JUDGMENT(Oral)

(08/12/2021)

Per : Ravi Malimath, Chief Justice

The case of the petitioner is that her husband was working with the

Indian Oil Corporation namely the appellant herein. He died in service

on 22.05.2013 on account of an accident. He survived by his wife and

minor three year old son as on that date. Seeking appointment on the

ground of the death of her husband while in service, she made an

application to the respondent/employer. The same was rejected.

Questioning the same, the instant petition was filed.

The learned Single Judge by the impugned order quashed the order

of rejection and directed the employer to consider the case of the

petitioner for compassionate appointment subject to her fulfilling other

conditions. Questioning the same, the respondent/employer is in appeal.

Shri Aditya Adhikari, learned Senior Counsel for the appellants

contends that the order passed by the learned Single Judge is incorrect.

That, the clause on which the re-employment was sought for does not

include a widow. In the absence of including a widow, an appointment

could not be made. He further submits that the clause relied upon by the

petitioner is part of a memorandum of settlement dated 12.04.1990

arrived at between the employer and the employees. That, it was a

memorandum of settlement with various clauses. The same contained

Annexure-1 wherein Option No.3 was for employment on the death of an

employee. Since, the same does not include a widow, it cannot be

granted. That, such a scheme cannot be modified by the orders of the

Court. Hence, he relies on the judgments of the Hon'ble Supreme Court

reported in AIR 1959 Madras 441 (The Employees in the Caltex (India),

Ltd. Madras and another vs. The Commissioner of Labour and

Conciliation Officer, Government of Madras and another), (1978) 2 SCC

133 (New Standard Engineering Company Ltd. vs. N.L. Abhyankar and

others) and 2002 AIR SCW 630 (I.T.C. Ltd., Workers Welfare

Association and another vs. The Management of ITC Ltd. and others).

The same is disputed by the learned counsel for the respondent

who contends that the appointment sought for on the basis of a scheme.

That there has been only a typing error in not stating that the widow is

entitled, specially in view of the preamble to the settlement which

includes a widow. Therefore, the learned Single Judge was justified in

passing the impugned order. Hence, no interference is called for.

Heard learned counsels.

The memorandum of settlement arrived at between the employer

and employee was produced as Annexure-J4 in the writ petition. It

primarily reads that the employer does not have any pension scheme for

retiring workmen. That, the existing benefits are not adequate, therefore,

a demand for a suitable pension scheme has been made. It is under these

situations that a memorandum of settlement was arrived at. The same

contains Annexure-1 which is the "Scheme for Rehabilitation of the

Family of the Employee Dying or Suffering Permanent Total

Disablement While in Service". The preamble to Annexure-1 indicates

that the same will operate in the case of a death or permanent total

disablement of a workman while in service then the female spouse or the

dependent male spouse, as the case may be, may opt within six months of

the death of the employee, any of the following three options. Therefore,

the same clearly indicates that the widow or the widower is entitled to

claim the benefit of the rehabilitation scheme. Option-1 is for the

purposes of a monthly recurring superannuation and Option-2 is for full

salary till the notional date on which the employee would have retired on

attaining the age of superannuation. Both these options are not

applicable to the case on hands. What is applicable is Option No.3.

Option No.3 narrates eligibility of the son/daughter, which may also

include one who is adopted. Therefore, it is contended by the appellant

that it does not include a widow or a widower.

On considering the preamble to the memorandum of settlement,

the same would clearly indicate the inclusion of a female spouse or a

male spouse. The said words are absent in Option No.3. To a specific

question being asked as to whether the employer has deliberately and

intentionally denied the benefit to the widow or widower, the answer is in

the negative. Therefore, there is no conscious attempt not to include the

widow or the widower. That, from a harmonious reading of the preamble

to the settlement, the same would necessarily include not only the

dependent son and daughter but also the widow and widower. Therefore,

it would appear that it is only by an error of omission that the female or

male spouse has been left out in Option No.3. Therefore, we are of the

view that the same would have to be read-in into Option-3 of the

memorandum of settlement.

In our considered view, the contention of the appellants that there

can be no interference in the matter of settlement of dispute, is

undisputed. However, the reading of the word "female or male spouse"

does not amount to altering the terms of agreement between the employer

and the employees. It does not affect the employer in any manner

whatsoever. It is only a reading into the particular Option that is being

done by this Court. That does not affect the agreement under any

circumstances whatsoever. Hence, while upholding the order of the

learned Single Judge, we hereby declare that Option No.3 will also

include the male and female spouse of the deceased. Rest of the order of

the learned Single Judge is sustained.

The writ appeal is disposed off with the aforesaid direction. The

compliance be made within a period of three months from the date of

receipt of a copy of this order.

Pending interlocutory applications, if any, are also disposed off.

            (RAVI MALIMATH)                     (VIJAY KUMAR SHUKLA)
             CHIEF JUSTICE                              JUDGE

PK

     Digitally signed
     by PARITOSH
     KUMAR
     Date: 2021.12.10
     11:56:19 +05'30'