Writ Petition No.755 of 2004

9th March, 2016.

Petitioner Counsel: Shri A.C. DHARMADHIKARI
Respondent Counsel: Shri G.G. MODAK

Cases Cited:
LIC of India Vs. Anuradha, 2004(5) ALL MR 521 (S.C.)=2004 (10) SCC 1131 [Para 5]

JUDGMENT

JUDGMENT :- Heard Shri A.C. Dharmadhikari, advocate for the petitioner and Shri G.G. Modak, advocate for the respondent.

2. This case shows the apathy of the widow of an employee working in the executive cadre with the respondent - Corporation which is a Government of India Undertaking.

3. It is admitted fact that the petitioner's husband Mohammad Arif was appointed as Graduate Trainee Engineer with the respondent - Corporation on 21st September, 1988 and in due course of time held post of Senior Manager (Mines) which is an executive post. While posted at Tirodi Mines, Distt. Balaghat (Madhya Pradesh) he was missing since 20th November, 2000. According to the petitioner, Mohammad Arif had gone to duty on 20th November, 2000 and did not return. The facts on the record show that the officers of the respondent - Corporation had informed the petitioner by the communication darted 10th December, 2000 that Mohammad Arif had left the place of work on 20th November, 2000 and had not reported on duty thereafter. On receiving the communication the petitioner filed complaint dated 14th December, 2000 with the Commissioner of Police, Nagpur and a complaint with the police authorities at Balaghat on 15th December, 2000.

The petitioner had filed Writ Petition No.2945/2003 before this Court against the respondent - Corporation seeking directions against the respondent - Corporation to pay to the petitioner, the terminal benefits receivable by Mohammad Arif. The respondent - Corporation opposed the claim of the petitioner. This Court by the order dated 15th September, 2003 disposed the writ petition observing that the question of payment of family pension would not arise unless it is established that Mohammad Arif is dead and the petitioner is legally wedded wife of Mohammad Arif.

As the respondent - Corporation disputed the status of petitioner as legally wedded wife of Mohammad Arif and as the respondent - Corporation did not accept the claim of the petitioner for compassionate appointment on the ground that it cannot be treated that Mohammad Arif was dead, the petitioner filed Regular Civil suit No.780/2009 seeking declaration that Mohammad Arif suffered civil death as his whereabouts were not known for more than 7 years from 20th November, 2000. The Regular Civil Suit No.780/2009 came to be decreed by the 4th Joint Civil Judge, Junior Division, Nagpur on 30th April, 2010.

Though the petitioner appraised the respondent - Corporation about the decree passed by the Civil Court, the respondent - Corporation has not redressed the grievance of the petitioner.

In the meantime, the respondent - Corporation initiated an enquiry against Mohammad Arif because of his continuous absence, conducted ex-parte enquiry and issued order on 11th August, 2004 dismissing Mohammad Arif from service on the ground that he was unauthorizedly absent for 110 days.

The respondent - Corporation is denying the claim of petitioner for appointment on compassionate grounds for the reason that Mohammad Arif has not died during the course of employment, that Mohammad Arif was working in executive cadre and the rules do not enable the respondent - Corporation to provide compassionate appointment to the dependent of employee working in executive cadre and on the ground that Mohammad Arif being dismissed employee his dependent is not entitled for appointment on compassionate grounds.

4. In the above facts, the following points arise for our consideration:

(i) Whether the order issued by the respondent - Corporation on 11th August, 2004 dismissing Mohammad Arif from service is unsustainable ?

(ii) Whether the petitioner is entitled for appointment on compassionate grounds?

(iii) Whether the petitioner is entitled for any other relief ?

The petitioner had filed Writ Petition No.2945/2003 before this Court seeking direction against the respondent - Corporation for payment of family pension. The Writ Petition No.2945/2003 is disposed by this Court by the order dated 15th September, 2003 with the observations that the question of payment of family pension would not arise unless it is established that Mohammad Arif is dead and the petitioner is legally wedded wife of Mohammad Arif. The observations of this Court in the order given in Writ Petition No.2945/2003 show that the petitioner claimed that Mohammad Arif is dead and the respondent - Corporation disputed this fact. It is clear that respondent - Corporation was aware that Mohammad Arif was missing and that the petitioner claimed that he was dead. According to the respondent - Corporation the Enquiry Officer had tried to serve the notice on Mohammad Arif, however, the notice could not be served and, therefore, the Enquiry Officer proceeded ex-parte against Mohammad Arif and conducted enquiry and issued the order of dismissal. In our opinion, it was not proper on the part of the respondent - Corporation and the Enquiry Officer to proceed with the enquiry ex-parte against Mohammad Arif knowing fully well that his whereabouts were not known and that he was dead. Even if the submissions made on behalf of the respondent - Corporation that it had no alternative than to proceed with enquiry ex-parte against Mohammad Arif are to be accepted, in our view, efficacy of the order issued by the respondent - Corporation on 11th August, 2004 dismissing Mohammad Arif from service is lost in view of the decree passed by the Civil Court in Regular Civil No.780/2009 declaring that Mohammad Arif suffered civil death as his whereabouts are not known for more than 7 years from 20th November, 2000. The respondent - Corporation is aware about the decree and it has not challenged the decree. In these facts, we hold that the order issued by the respondent - Corporation on 11th August, 2004 dismissing Mohammad Arif from service pursuant to the findings given in the ex-parte enquiry, is unsustainable and cannot have any adverse effect on the claim of the petitioner.

5. Now, the point arise as to whether the petitioner is entitled for appointment on compassionate grounds. Shri G.G. Modak, learned advocate for the respondent - Corporation has submitted that there is no rule which entitles the dependent of employee working in executive cadre to seek appointment of compassionate grounds. Shri Dharmadhikari, learned advocate for the petitioner has not been able to point out any rule entitling the petitioner to claim appointment on compassionate grounds.

However, the petitioner has pleaded that the respondent - Corporation has provided appointment on compassionate grounds to dependent of Shri Arun Kale who was working as Deputy Manager (Mines), dependent of Shri Vijay Bothare who was working as Manager (MECL), dependent of Shri Pramod Rao who was working as Manager (MECL) and dependent of Shri Deepak Rana who was working as Deputy Manager (Process). The respondent - Corporation has stated that there is no rule which entitles the dependent of employee working in executive cadre to seek appointment on compassionate grounds, however, Manganese Ore (India) Limited Executive's Association had taken up the matter with Chairman/Managing Director and because of his indulgence appointments were given to dependents of above referred employees who were working in executive cadre. The respondent - Corporation has pointed out that Shri Arun Kale died on 3rd June, 1997, Shri Vijay Bothare died on 20th June, 1998, Shri Pramod Rao died on 15th December, 2001 and Shri Deepak Rana died on 8th December, 2001. Mohammad Arif is reported to be missing from 20th November, 2000. If the respondent - Corporation had not disputed the claim of the petitioner, it would have been considered as per the policy applied in case of other employees who died during the period from 3rd June, 1997 till 18th December, 2001. The contention of the respondent - Corporation that the claim of the petitioner for appointment on compassionate grounds cannot be accepted, cannot be considered in view of the above facts and the respondent - Corporation cannot be permitted to discriminate the petitioner and deprive her of her bonafide claim which is made available to the dependents of other employees working in executive cadre.

Shri Modak, learned advocate submitted that though the dependents of other employees working in executive cadre are given appointment on compassionate grounds, the petitioner is not entitled for it as she has not been able to show that Mohammad Arif has died during the course of employment. We are not ready to accept this submission made on behalf of the respondent - Corporation. It is admitted fact that Mohammad Arif had reported on duty on 20th November, 2000 and it is undisputed that Mohammad Arif is missing from 20th November, 2000. According to the respondent - Corporation, Mohammad Arif had left the place of work on 20th November, 2000. The petitioner claims that Mohammad Arif has not returned after he went on duty on 20th November, 2000. Though the respondent - Corporation has shown zeal to conduct an ex-parte enquiry against Mohammad Arif and dismissed him from service, inspite of the knowledge that Mohammad Arif was missing and the petitioner claimed that he is dead, the respondent - Corporation has not made any attempt to bring on the record the fact that Mohammad Arif had left the place of work on 20th November, 2000. The facts on the record show that the respondent - Corporation has been opposing the claim of the petitioner on all possible grounds. The respondent - Corporation which is an undertaking of Central Government is supposed to be a model employer. It should have placed on the record sufficient material to show that Mohammad Arif had left the workplace on 20th November, 2000 and he is missing after living the place of work. The failure on the part of the respondent - Corporation to substantiate its stand that Mohammad Arif had left the place of work on 20th November, 2000 and after that he is missing, compel us to record the finding that Mohammad Arif is missing from the place of his work. Therefore, we are not inclined to accept the submission made on behalf of the respondent - Corporation that the petitioner is not entitled for appointment on compassionate grounds as she has failed to establish that Mohammad Arif died during the course of employment.

Shri Modak, has submitted that the petitioner will not be entitled for appointment on compassionate grounds and other benefits on the basis of the decree passed in Regular Civil Suit No.780/2009. It is submitted that the decree only shows that Mohammad Arif had suffered civil death and the effect of decree would be that Mohammad Arif will be discharged from the civil liabilities. The learned advocate argued that it cannot be said that the decree enables the petitioner to make claim for appointment on compassionate grounds and other terminal benefits. In support of this submission, the learned advocate has relied on the judgment given in the case of LIC of India V/s. Anuradha reported in 2004(10) SCC 1131 : [2004(5) ALL MR 521 (S.C.)]. The above judgment is not applicable. While considering the case of L.I.C. V/s. Anuradha, [2004(5) ALL MR 521 (S.C.)] (cited supra) the Hon'ble Supreme Court dealt with the contractual obligations of the parties. In the present case, the claim of the petitioner is not based on contractual obligations of the employer but it is based on the entitlement of the employee and his dependents as per the policy of employer.

6. Though it is found that the petitioner was entitled for appointment on compassionate grounds, the question is whether it would be appropriate to direct the respondent - Corporation to give appointment to the petitioner at this stage. The record shows that Mohammad Arif is missing since 2000. The purpose of providing appointment on compassionate grounds is to lend support to the deceased emplolyee's family or dependent in destitution. The appointment having been denied to the petitioner for more than 15 years, the very object of providing appointment on compassionate grounds is frustrated and it would not be appropriate to direct the respondent - Corporation to consider the claim of the petitioner for appointment on compassionate grounds after period of more than 15 years. Moreover, the age of the petitioner, as reflected from the record, is now about 48 years. The learned advocate for the petitioner has submitted that her age now is 53 years. In these circumstances, we are of the view that it would not be proper to direct the respondent - Corporation to give appointment to the petitioner on compassionate grounds.

7. Now It is to be considered as to whether the petitioner is entitled for any other relief. We have recorded that the respondent - Corporation has deprived the petitioner of her legitimate claim of appointment on compassionate grounds by raising improper defence. The respondent - Corporation perhaps was right in opposing the claim of the petitioner in 2003, however, in our view, the respondent - Corporation could not have conducted the ex-parte enquiry against Mohammad Arif and should not have issued dismissal order knowing that Mohammad Arif was missing and the petitioner claimed that he was dead. We find that the respondent - Corporation further opposed the claim of the petitioner for appointment on compassionate grounds raising the point that there is no rule which enables the dependent of employee working in executive cadre to claim appointment on compassionate grounds, when as a matter of fact, the respondent - Corporation has given appointment to the dependents of employees who were working in executive cadre and who died during the period between 1997 to 2001. We further find that the respondent - Corporation denied the claim of the petitioner for appointment on compassionate grounds raising the point that Mohammad Arif has not died during the course of employment, without conducting any enquiry as to whether Mohammad Arif is missing from the place of work and whether it can be said that he died during the course of employment. Even after the respondent - Corporation is made aware about the decree passed by the civil Court in Regular Civil Suit No.780/2009 declaring that Mohammad Arif has suffered civil death, the respondent - Corporation has not taken any step to redress the grievance of the petitioner. The above facts show insensitive attitude of the respondent - Corporation towards the widow of its employee and this is not expected from the respondent - Corporation which is supposed to be a model employer being an undertaking of the Central Government.

In the facts of the case, we are of the view that the petitioner is entitled for compensation and the other reliefs which are discussed in the operative order.

We are conscious that this Court should be loathe in granting compensation in lieu of appointment on compassionate ground, however, in the peculiar facts of this case we are compelled to direct the respondent - Coporation to pay compensation to the petitioner in lieu of appointment on compassionate ground. As recorded earlier, the petitioner has lost the company of her husband in 2000, her claim for terminal benefits was opposed by the respondent - Corporation on the ground that the terminal benefits cannot be paid unless it is proved that Mohammad Arif has died and that the petitioner was his legally wedded wife. At that stage, the respondent - Corporation was not at fault and looking to the situation prevailing at that time, in our view, the respondent - Corporation had rightly not considered the claim of the petitioner. However, after the petitioner got decree in Regular Civil Suit No.780/2009 on 30th April, 2010, in our view, the respondent - Corporation should have considered the claim of the petitioner. There is no explanation or justification by the respondent - Corporation for its dormancy in the matter and its insensitivity towards widow of a confirmed employee. The respondent - Corporation has not taken any steps in the matter for more than 5 years and 8 months after the decree is passed by the Civil Court. As recorded earlier, the petitioner is now aged about 53 years and the appointment on compassionate ground will not be purposeful and, therefore, we are directing the respondent - Corporation to pay compensation to the petitioner in lieu of appointment on compassionate ground.

8. Hence, the following order:

(i) The claim of the petitioner for appointment on compassionate grounds is rejected.

(ii) The respondent - Corporation is directed to pay lumpsum compensation of Rs.12,00,000/- (Rs. Twelve Lakhs Only) to the petitioner. This amount shall be paid till 30th April, 2016. If the amount is not paid till 30th April, 2016, the respondent - Corporation will be liable to pay interest on the above amount at the rate of 9% per annum, the interest being chargeable from 9th March, 2016.

(iii) The amount deposited by the respondent - Corporation as per the orders passed in this writ petition would be retained by the petitioner and the amount of Rs.12,00,000/- is in addition to that amount.

(iv) The respondent - Corporation shall give all the benefits to the petitioner for which the petitioner is entitled, treating that Mohammad Arif was in service till 20th November, 2000 and he suffered death during the course of employment on 20th November, 2000. The benefits and emoluments shall be made available to the petitioner with interest at the rate of 9% per annum from 1st May, 2010 i.e. immediately after the decree is passed in Regular Civil Suit No.780/2009, till the amount is paid to the petitioner.

(v) The petition is partly allowed in the above terms.

(vi) In the circumstances, the parties to bear their own costs.

Petition partly allowed.