Madras High Court
The Deputy Director Of Public ... vs N.Vijaya on 23 February, 2022
Writ Appeal No.678 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN
AND
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
Writ Appeal No.678 of 2021
The Deputy Director of Public Health
and Preventive Medicine,
Institute of Public Health,
Poonamallee,
Chennai 600 056. ... Appellant
vs.
1. N.Vijaya
2. N.Sandiya
3. N.Anandan
4. N.Surya ... Respondents
Writ Appeal filed under Clause 15 of Letters Patent against the order
dated 21.01.2020 passed by this Court in W.P.No.29753 of 2008.
For Appellant : Mr.U.M.Ravichandran,
Special Government Pleader
For Respondents : Mr.B.Balachander
*****
Page No.1 of 8
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Writ Appeal No.678 of 2021
JUDGMENT
(Judgment of the Court delivered by S.VAIDYANATHAN,J.)
Challenging the order dated 21.01.2020 passed by this Court in
W.P.No.29753 of 2008, Respondent in the Writ Petition has come up with
the present Appeal.
2. The deceased Nagarajan, who originally filed W.P.No.29753 of
2008 before this Court, was appointed as Mazdoor at the Institute of Public
Health, Poonamallee on 14.03.1986, pursuant to the death of his mother, on
compassionate ground. After putting in about 22 years of service, he was
terminated from service, for the reason that, he suppressed the employment of
his brother before getting compassionate appointment. Challenging the order
of termination dated 04.08.2008, the deceased Nagarajan filed the said Writ
Petition. During the pendency of the Writ Petition, he died in the year 2014.
Thereafter, Petitioners 2 to 5, who are his wife and children, were impleaded
as parties, to contest the said Writ Petition.
3. The learned Single Judge held that, terminating a person after 22
long years of service is illegal and arbitrary. Following the ratio laid down
by the Apex Court in the case of Union of India vs. K.P.Tiwari reported in
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Writ Appeal No.678 of 2021
(2003) 9 SCC 129, the learned Single Judge categorically held that, it would
not be appropriate to disturb the appointment of the deceased Nagarajan and
to uproot his livelihood. In such view of the case, and taking note of the fact
that, Nagarajan was 57 years old at the time of filing the Writ Petition, the
learned Single Judge set aside the termination order dated 04.08.2008 passed
by the Respondent therein and directed the Respondent to disburse the
terminal benefits due to the deceased Nagarajan, to his legal heirs, within a
period of twelve weeks from the date of receipt of a copy of the order.
4. Learned Special Government Pleader appearing for the
Appellant drew the attention of this Court to G.O.Ms.No.560, Labour and
Employment Department, dated 03.08.1977 and stated that, as per the said
Government Order, it is the responsibility of the official Respondents to
satisfy themselves about the indigent circumstances of the family before the
appointment is offered on compassionate ground. He contended that, the
deceased Nagarajan had obtained appointment on compassionate ground by
suppressing the fact that, his brother was employed as Mazdoor in the very
same Department.
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Writ Appeal No.678 of 2021
5. Heard the learned counsel on either side and perused the
material documents available on record.
6. A reading of G.O.Ms.No.560, Labour and Employment
Department, dated 03.08.1977, makes it clear that, the dependent of a
Government Servant, who died in harness leaving his family in indigent
circumstances, is eligible to avail the concession granted in the Government
Order read above, even when there is already an earning member in the
family, if in the opinion of the Appointing Authority, the family is in indigent
circumstances. The Government Order further states that, before deciding
the indigent circumstances of the family, the Appointing Authority should
take into account the number of dependents left, the movable and immovable
assets and liabilities left by the deceased Government Servant, the income of
the earning member in the family, as also his liabilities. However, it is stated
in the Government Order that, the said concession should not be granted to
more than one dependent in the family of the deceased Government Servant.
7. Even assuming for the sake of argument that, when a family
member of the deceased Government Servant is already in Government
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Writ Appeal No.678 of 2021
employment and that, after the demise of the Government servant, yet another
family member is not entitled to be appointed in the vacancy of the deceased
Government servant on the ground of compassionate appointment, such
appointment to another family member of the deceased Government servant
can be considered, taking note of the indigent circumstances of the family.
8. In the case on hand, the deceased Nagarajan has put in about 22
years of service and having allowed him to continue in service for more than
two decades, the Appellant ought not to have terminated him from service on
the ground that, his brother is already in service. Relying upon the decision
rendered by the Apex Court in K.P.Tiwari's case (supra), wherein, it has
been held that, it would not be appropriate to disturb the appointment of the
employee and to uproot his livelihood, the learned Single Judge has rightly
interfered with the termination order passed against the deceased Nagarajan
and directed the Respondent therein to disburse the terminal benefits due to
the deceased employee, to his legal heirs. Moreover, the deceased Nagarajan
was 57 years old at the time of passing the termination order and that, he died
in the year 2014 during the pendency of the Writ Petition. Hence, the
question of reinstatement of the employee does not arise.
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Writ Appeal No.678 of 2021
9. In view of the aforesaid discussion, this Court finds no reason to
interfere with the order of the learned Single Judge, more so, in the light of
the Government's Letter in Memo No.34107/N1/77-1, dated 04.05.1978,
which states that, even if an earning member is in the family, if in the opinion
of the Appointing Authority, a family is in indigent circumstances,
appointment can be made on compassionate basis to one more dependent of
the deceased Government servant.
10. Taking note of the fact that, the employee is no more, this Court
holds that, the entire period of service of the deceased Nagarajan from
the date of his initial appointment till the date of his death, shall be taken
into account as continuous service for the purpose of granting Gratuity
and pensionary benefits and that, all the terminal benefits shall be settled
to the legal heirs of the deceased employee within a period of three
months from the date of receipt of a copy of this judgment.
11. It is made clear that, if pension is applicable to the deceased
employee, the eligible legal heirs of the deceased employee would be entitled
to family pension on and from the date of demise of the employee. However,
backwages to the deceased employee are deprived.
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Writ Appeal No.678 of 2021
The Writ Appeal is dismissed with the above direction. No costs.
Consequently, connected C.M.P.No.3706 of 2021 is closed.
[S.V.N.,J.] [M.S.Q.,J.]
23.02.2022
Index : Yes/No
Speaking Order : Yes/No
(aeb)
To:
The Deputy Director of Public Health
and Preventive Medicine,
Institute of Public Health,
Poonamallee,
Chennai 600 056.
https://www.mhc.tn.gov.in/judis
Writ Appeal No.678 of 2021
S.VAIDYANATHAN,J.
AND
MOHAMMED SHAFFIQ,J.
(aeb)
Judgment in
W.A.No.678 of 2021
23.02.2022
https://www.mhc.tn.gov.in/judis
