Telangana High Court
Gogula Lakshminarayana vs The Chairman And Managing Director on 2 February, 2024
1
THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
WRIT PETITION No.29313 of 2018
ORDER:
This writ petition is filed seeking the following relief :-
" ..... to issue a writ, order or direction and more
particularly one in the nature of Writ of Mandamus
declaring the acts, deeds and things of the
respondents in issuing notice vide Ref.No.
RG2/OC3EP(O)/WO/520, dated 22.01.2018 in
rejecting the depending employment to the 2nd
Petitioner as illegal, arbitrary and violative of rights
guaranteed by the Constitution of India against to
the Mines Act 1952 and its Rules, 1955 and National
Coal Wages Agreement (NCWA) and consequently
declare that the petitioners are entitled for statutory
benefits under Mines Act 1952 and its Rules 1955
and National Coal Wages Agreement (NCWA)
inclusive of dependent employment to the 2nd
petitioner .......".
2. Heard learned counsel appearing for the petitioners and
the learned Standing Counsel appearing for the respondents.
3. Learned counsel appearing for the petitioners submits that
the 1st petitioner is the father and the 2nd petitioner is the son of the
1st petitioner. The 1st petitioner joined in the service of the
respondent Company and worked as a Trammer at Godhawarikhani,
RK-8 Incline, vide EC bearing No.1103770 at Ramagundam Area. At
the time of joining in the respondent Company, the respondents
wrongly mentioned the date of birth of the 1st petitioner in the service
register maintained by them. In those circumstances, the 1st
petitioner filed W.P.No.25975 of 2010 challenging, the respondents
action in mentioning his date of retirement as 04.08.2010. This Court
vide WPMP No.33171 of 2010 in WP No.25975 of 2010 dated
25.10.2010 directed the respondent Company to continue the
employment of the 1st petitioner till the date of his retirement i.e., till
May, 2017. Thereafter, the 2nd respondent issued proceedings dated
05.07.2012 declaring the 1st petitioner as unfit for the service of the
respondent Company and accordingly terminated him from the service
of the respondent Company with effect from 06.07.2012 on medical
grounds.
4. Learned counsel appearing for the petitioners further
submits that as per the Mines Act, 1952 and its Rules 1955, the 1st
petitioner is entitled to statutory benefits, inclusive of dependent
employment to the 2nd petitioner and, therefore, the 1st petitioner
submitted an application to the General Manager, Ramagundam,
requesting to provide dependent employment to the 2nd petitioner and
thereafter, the respondents have forwarded the said application for
considering the dependent employment to the 2nd petitioner. While so,
on 12.05.2015, the 2nd petitioner sought information from the
respondents under the Right to Information Act request as to why they
are not providing dependent employment to him, for which the
respondents have issued proceedings dated 17.08.2015 stating that
since W.P.No.25975 of 2010 filed by the 1st petitioner is pending. They
will consider the request of the 2nd petitioner after disposal of
W.P.No.25975 of 2010.
5. Learned counsel appearing for the petitioner further
submits that this Court disposed of W.P.No.25975 of 2010 vide order
dated 07.04.2016 by observing that the 1st petitioner was declared as
medically unit on 04.07.2012 and his age was also determined as 25
years as on 21.10.1975 and also by observing as follows :-
"By virtue of the interim order, the petitioner continued
in service, was declared as medically unfit for his job and
was terminated from the services of the company with
effect from 04.07.2012. When the writ petition is taken
up for consideration, it is not disputed by the learned
Counsel appearing on either side that the petitioner was
found medically unfit by the competent Medical Board
and his services were terminated accordingly with effect
from 04.07.2012. The petitioner is not in service as on
today.
In the circumstances, the determination of age of
superannuation is of no relevance and not necessary.
The Writ Petition thus become infructuous.
The writ petition is accordingly dismissed as
infructuous."
6. Learned counsel for the petitioners further submits that
the petitioners made representations before the respondents on
06.07.2016 and 09.02.2018 requesting to provide dependent
employment to the 2nd petitioner. However, the respondents have
issued proceedings dated 22.01.2018, stating their applications for
dependent employment were rejected on the advice of the Additional
General Manager (Law) on the ground of pendency of the case before
this Court. Aggrieved thereby, the petitioners have filed the present
petition.
7. Learned counsel appearing for the petitioner further
submits that the respondents have erroneously passed the impugned
order rejecting the case of the 2nd petitioner and, therefore,
appropriate orders be passed in the writ petition by setting aside the
impugned order dated 22.01.2018 and direct the respondents to
provide dependent employment to the 2nd petitioner.
8. Per contra, learned Standing Counsel appearing for the
respondents Company submits that the respondents have filed
counter stating that the 1st petitioner filed W.P.No.25975 of 2010
before this Court challenging the proceedings dated 04.08.2010 issued
by the 4th respondent therein, wherein and whereby the 1st
petitioner's age was determined as 25 years as on 21.10.1975 and the
date of retirement as 21.10.2010. The 1st petitioner also filed WPMP
No.33171 of 2010 in W.P.No.25975 of 2010 seeking a direction to the
respondents to continue the petitioner in service based on the date of
birth recorded in B register of the respondent Company by suspending
operation of the proceedings dated 04.08.2010 issued by the 4th
respondent. The 1st petitioner also filed WPMP No.38506 of 2015 in
W.P.No.25975 of 2010 seeking a direction to the respondents to
provide dependent employment to his family members under the
Dependent Employment Scheme.
9. Learned Standing Counsel appearing for the respondents
submits that in W.P.No.25975 of 2010 itself, the 1st petitioner sought
a direction to the respondents to provide dependent employment to
the 2nd petitioner. Once the 1st petitioner sought dependent
employment, the said writ petition was dismissed as infructuous and
cannot be considered for a second time. If the petitioners file any writ
petition, it amounts to resjudicata. Hence, the present writ petition is
not maintainable and the same is liable to be dismissed. In support of
his contention, learned Standing Counsel relied upon a judgment of
the Hon'ble Apex Court in G.SAMBATH KUMAR Vs. SECRETARY,
EMPLOYMENT AND TRAINING DEPARTMENT AND OTHERS 1,
wherein this Court held as follows :-
"5. This Court is of the opinion that consideration for
appointment on compassionate ground is to be construed
as violation of Articles 14 and 16 of the Constitution of
India and is only in the nature of concession and therefore
does not create a vested right in favour of the claimant. A
compassionate appointment scheme is a non-statutory
scheme and is in the form of a concession and it cannot be
claimed as a matter of right by the claimant to be enforced
through a writ proceeding. A compassionate appointment is
justified when it is granted to provide immediate succor to
the deceased employee. Mere death of a Government
employee in his harness, it does not entitle the family to
claim compassionate employment. The competent authority
has to examine the financial condition of the family of the
deceased employee and only if it is satisfied that without
2017 SCC Online Mad 36718
providing employment, the family will not be able to meet
the crisis, that a job is to be offered to the eligible member
of the family of the deceased employee.
6. The concept of compassionate appointment has been
recognized as an exception to the general rule, carved out in
the interest of justice, in certain exigencies, by way of a
policy of an employer, which partakes the character of
service rules. That being so, it needs little emphasis that the
scheme or the policy, as the case may be, is binding both on
the employer and the employee. Being an exception, the
scheme has to be strictly construed and confined only to
the purpose it seeks to achieve.
7. The philosophy behind giving compassionate
appointment is just to help the family in harness to get over
the immediate crisis due to the loss of sole breadwinner.
This category of appointment cannot be claimed as a matter
of right after certain period, when the crisis is over. More
so, the financial status of the family is also to be looked into
as per the scheme framed by the employer while giving
compassionate appointment and such appointment cannot
be conferred contrary to the parameters of the scheme.
8. It is pertinent to note the fact that in a liberalized world
as of today, there are plenty of avenues of employment
available to the general public. Most of the people are not
entirely dependent on the income of a single member of the
family. Keeping this new social structure in mind, it would
be seemingly right for the Courts to ensure that there is no
abuse of the scheme of compassionate appointment either
by the employer or by the applicant/claimant."
10. With regard of suppression of facts, learned Standing
Counsel relied upon the judgment of the Hon'ble Apex Court in
K.D.SHARMA Vs. STEEL AUTHORITY OF INDIA LIMITED AND
OTHERS 2, wherein the Hon'ble Apex Court held as follows :-
"37. In Kensington Income Tax Commrs. [(1917) 1 KB 486 : 86 LJKB 257 :
116 LT 136 (CA)] Viscount Reading, C.J. observed: (KB pp. 495-96)
"... Where an ex parte application has been made to this Court for a rule nisi
or other process, if the Court comes to the conclusion that the affidavit in
support of the application was not candid and did not fairly state the facts,
but stated them in such a way as to mislead the Court as to the true facts, the
Court ought, for its own protection and to prevent an abuse of its process, to
refuse to proceed any further with the examination of the merits. This is a
power inherent in the Court, but one which should only be used in cases
which bring conviction to the mind of the Court that it has been deceived.
Before coming to this conclusion a careful examination will be made of the
facts as they are and as they have been stated in the applicant's affidavit, and
everything will be heard that can be urged to influence the view of the Court
when it reads the affidavit and knows the true facts. But if the result of this
examination and hearing is to leave no doubt that the Court has been
deceived, then it will refuse to hear anything further from the applicant in a
proceeding which has only been set in motion by means of a misleading
affidavit."
(2008) 12 Supreme Court Cases 481
38. The above principles have been accepted in our legal system also. As
per settled law, the party who invokes the extraordinary jurisdiction of this
Court under Article 32 or of a High Court under Article 226 of the
Constitution is supposed to be truthful, frank and open. He must disclose all
material facts without any reservation even if they are against him. He
cannot be allowed to play "hide and seek" or to "pick and choose" the facts
he likes to disclose and to suppress (keep back) or not to disclose (conceal)
other facts. The very basis of the writ jurisdiction rests in disclosure of true
and complete (correct) facts. If material facts are suppressed or distorted, the
very functioning of writ courts and exercise would become impossible. The
petitioner must disclose all the facts having a bearing on the relief sought
without any qualification. This is because "the court knows law but not
facts".
11. Per contra, learned counsel appearing for the petitioners
placed reliance on para 9.4.0 (i) of National Coal Wage Agreement-VI,
which reads as follows :-
"9.4.0.Employment to one dependent to a worker who is permanently
disabled in his place:
The disablement of the worker concerned should arise from
injury or disease, be of a permanent nature resulting into loss
of employment and it should be so certified by the Coal
Company concerned.
and contends that in terms of the above said provision, since the 1st
petitioner was declared unfit to be continued in service, the 2nd
petitioner is eligible for dependent employment.
12. This Court, having considered the rival submissions made
by the learned counsel for the respective parties, is of the considered
view that though W.P.No.25975 of 2010 filed by the 1st petitioner was
dismissed as infructuous vide order dated 07.04.2016, the fact
remains that knowingly or unknowingly, WPMP No.38506 of 2015
about dependent employment to the 2nd petitioner was not discussed
anywhere. At the same time, the 2nd petitioner has also not raised
with regard to providing of dependent employment to him at the time
of passing of the final order dated 07.04.2016 in W.P.No.25975 of
2010. In the present writ petition, the petitioners also did not state
anything with regard to the filing of the above WPMP No.38506 of
2015 in W.P.No.25975 of 2010, which is nothing but suppression of
facts. Further, as per the judgment of the Hon'ble Apex Court in
G.SAMBATH KUMAR's case (1 supra), the entire issue is with regard
to compassionate appointment, but in the present case, the issue is
with regard to dependent employment. In the said circumstances, the
respondents have issued proceedings dated 22.01.2018 stating that in
view of pendency of W.P.No.25975 of 2010, they cannot provide
dependent employment to the 2nd petitioner. However, the
respondents did not assign any reasons for rejecting the petitioner's
case to provide dependent employment to the 2nd petitioner.
13. In the above facts and circumstances, this writ petition is
disposed of directing the 2nd petitioner to make a fresh representation
before the respondent Company seeking dependent employment
within a period of eight weeks from the date of receipt of a copy of this
order. Upon such representation being made, the respondents are
directed to consider the case of the 2nd petitioner for providing
dependent employment, if he is otherwise eligible, and pass
appropriate orders in accordance with law within a period of two
months thereafter. No costs
Pending miscellaneous applications, if any, shall stand closed.
______________________________________
NAMAVARAPU RAJESHWAR RAO, J
Date: 02.02.2024
Prv
