w w w . L a w y e r S e r v i c e s . i n



Bhupendra Singh v/s The Kisan Cooperative Sugar Mills Limited & Another

    Writ Petition (S/S) No. 1945 of 2019

    Decided On, 29 December 2021

    At, High Court of Uttarakhand

    By, THE HONOURABLE MR. JUSTICE SHARAD KUMAR SHARMA

    For the Petitioner: Monika Pant, Advocate. For the Respondents: T.A. Khan, Senior Advocate, Ravi Shankar Kandpal, Advocate.



Judgment Text

1. One Late Mr. Diwan Singh, who was appointed as a permanent “labourer” in the Sugar Mill of the respondent, as back as on 18th February 2005, has had met with the sad demise on 1st March 2018. After the death of father of the petitioner on 01.03.2018, he submits that since he was qualified, and was holding a graduation degree having completed the same in the year 2017, had extended his candidature to be considered for the grant of compassionate appointment on 9th March 2018, but when despite of his consistent efforts, which has been made before the respondents for considering his claim for compassionate appointment, when the same was not reckoned by the respondents, the petitioner had filed a writ petition being WPSS No. 380 of 2019, "Bhupendra Singh & Another vs. Kisan Cooperative Sugar Mills Limited & Another".

2. The said Writ Petition came up for consideration before the co-ordinate bench of this Court on 7th March 2019, and the coordinate Bench of this Court had disposed of the Writ Petition with the direction to the General Manager, Kisan Cooperative Sugar Mill, Nadehi, to decide the claim of the petitioner for the grant of compassionate appointment, as it has been claimed by the petitioner in the representation, which was submitted before the respondents, and decision was thus directed to be taken within a period of six weeks’ from the date of the production of a certified copy of the order.

3. In compliance of the said judgment, the petitioner had represented his case before the respondents, and the respondents on considering the claim of the petitioner had rejected the same vide their Letter No.14, dated 16th April 2019.

4. Primarily, if the contents and the logic, which has been assigned in the impugned order, is taken into consideration, the reason which has been assigned by the learned Senior Counsel for the respondents, for dis-entitling the petitioner to be considered for the grant of compassionate appointment is on the ground that (1) the father of the petitioner was a habitual drunker, and on previous occasions, and number of times earlier, the respondents/employer, had cautioned him with regards to his habit of drinking, and causing disturbances in the functioning of the Sugar Industry, and in relation there to, it is stated that various proceedings were also undertaken by issuing cautioning letter to the late father of the petitioner, to mend his ways and to do away with the ill habit of drinking, and the second reason, which has been taken by the respondents, for denying to consider the appointment of the petitioner is for the reason being that there was a ban imposed in the recruitments which were to be granted on compassionate grounds. However, there was no material on record, as such, to substantiate the aforesaid fact and arguments, and that the cause of death which has chanced of Late Mr. Diwan Singh, was on account of his drinking habits.

5. The respondents submits that if the policy, which governs the conditions for grant and consideration of compassionate appointment i.e. Policy dated 16th October, 2010, as made applicable on the petitioner by the Sugar Industry in its Clause (ga), it provides the conditions and circumstances too under which a candidate can be held to be disentitled to be considered for the grant of compassionate appointment, in an event, if the cause of death is on account of the circumstances which has been narrated in Clause (ga), of the Policy dated 16th October, 2010 relied by the Learned Senior Advocate for the respondents, which is extracted hereunder:-

“Language”

6. The learned Senior Counsel for the respondents submitted that in the said Clause, the word "durwasano", which has been used, therein, would always be related to a cause of death, when it is caused on account of an ill habit of excessive consumption of liquor, which an employee is carrying, and on its establishment to be proved by facts, the employee and dependants would be disentitled to be considered for appointment on compassionate grounds. In fact, this particular aspect of an ill habit, which is alleged to be creating a bar in considering the petitioner’s claim for appointment on compassionate grounds, the burden to prove the same, that the late father of the petitioner, who was alleged to be habitual of drinking, and that his death was caused on account of the ill habit. In fact Clause (ga), if it is scrutinized, the disentitlement would be an aspect, which would always be a subject matter of consideration, which has to be scrutinized by the employer themselves on an enquiry to be conducted by them. It is rather they who would have to discharge their burden to substantiate the implications of Clause (ga), for or before disentitling to be considered for appointment on compassionate grounds, if there was any bar created, that the cause of death was on account of the ill habit of the deceased employee.

7. Learned Senior Counsel for the respondent had rather, during the course of his argument, attempted to shift the burden of proof of ill habits to be a cause of death, on the applicant of the deceased employee, to prove the fact that the cause of death was other than the reasons, which has been given, on account of the ill habit of drinking. The petitioner's application for the grant of compassionate appointment, would be rather calling upon and duressing the petitioner to lead the negative evidence, that the cause of death of the father of the petitioner was because of his ill habits. This couldn't be a case or a rightful interpretation of clause (ga), because the petitioner cannot be called upon by the employer to lead a fact and establish evidence against themselves, which is otherwise not available with them, because, according to the petitioner’s case, the cause of death of the father of the petitioner was on account of his natural death, and it was not because of the ill health, which has been sought to be attracted by the implications of the clause (ga) of the policy dated 6th October 2010.

8. Hence, this contention of the respondent and their counsel that it was rather the burden, which is to be discharged by the petitioner, that the cause of death happens to be otherwise other, than the ill habit, in fact, was not required to be shouldered upon by the petitioner, but it was rather the burden was to be discharged by the respondents/employer, and in the absence of having established to the contrary, the claim of the petitioner for being considered for grant of compassionate appointment, could not be denied on that ground alone. Secondly, the learned Senior Counsel for the respondents has submitted that on account of issuance of the Office Memorandum dated 12th June, 2018, there was a complete ban, which was imposed in grant of the compassionate appointment.

9. On the second aspect as argued regarding ban in appointment. This Court is of the view that the implications of restrictions in appointment on compassionate ground are flowing from the Office Memorandum dated 12th June, 2018, the same would not be attracted in the instant case for the reason being, that, admittedly the late father of the petitioner had met with the sad demise on 1st March, 2018. The petitioner was an applicant, and had submitted the application for consideration for grant of compassionate appointment on 9th March, 2018, but merely because of the fact that some codal formalities were required to be fulfilled by the petitioner of supplying the requisite documents, which the respondents had called upon from the petitioner, at a much later stage, to supply those documents, the date of the submission of the documents would be dealt to be in continuation to the initial application for compassionate appointment dated 9th March, 2018, hence will not attract the restrictions of the Office Memorandum dated 12th June, 2018, because the procedure, which is being undertaken for consideration is not being barred by any of the conditions which has been imposed by the Office Memorandum dated 12th June 2018.

10. There is another reason and logic for not accepting the arguments of the learned Senior Counsel for the respondents, it is that the respondents since being an employer, and who is the authority, who under law is suppose to considered the application of the petitioner for the grant of compassionate appointment, always enjoys a dominant position, and if the employer enjoys the dominant position, and he keeps an application pending, for consideration for an indefinite period, and calls upon the proposed applicant/heirs to submit the requisite documents at a much later stage in order to fulfill these conditions for consideration of appointment on compassionate ground, at a belated stage, their own inaction or inability to take a decision within an appropriate time, will not attract the applicability of the subsequent change of conditions for the grant of compassionate appointment. Hence, merely because of the fact that the petitioner was called upon to supply necessary documents subsequent to the issuance of the Office Memorandum dated 12th June, 2018, would not debar the petitioner’s claim to be considered by the respondents, due to the ban which was alleged to have been imposed by the Office Memorandum dated 12th June 2018.

11. The learned Senior Counsel for the respondents had submitted that his contention stands supported by the principles, which has been laid down by the Hon’ble Apex Court in a judgment rendered in Civil Appeal No. 9280 of 2014, "N. C. Santosh Vs. State of Karnataka and others", and particularly, the learned counsel for the respondents had made a reference to paragraph nos.19 and 20 of the said judgment, which is extracted here under:-

“19. In the most recent judgment in State of Himachal Pradesh & Anr. Vs. Shashi Kumar 8 the earlier decisions governing the principles of compassionate appointment were discussed and analysed. Speaking for the bench, Dr. Justice D.Y. Chandrachud reiterated that appointment to any public post in the service of the State has to be made on the basis of principles in accord with Articles 14 and 16 of the Constitution and compassionate appointment is an exception to the general rule. The Dependent of a deceased government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State’s policy.

20. Applying the law governing compassionate appointment culled out from the above cited judgments, our opinion on the point at issue is that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of claim for compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. He is however disentitled to seek consideration in accordance with the norms as applicable, on the day of death of the government employee.”

12. In case, if the observations, which has been made by the Hon’ble Apex Court in the aforesaid judgment is considered into in its entirety, so far as the finding recorded in paragraph No.19, of the said judgment is concerned, it is only pertaining to the implications of Article 14 and 16, of the Constitution of India. It is being carved out as an exception to be considered, while granting the compassionate appointment under the said Policy or the Policy as would be applicable in the respondents/organization, but more relevant would be the observations which had been made in paragraph No.20, of the said judgment of the Hon’ble Apex Court, which has specifically observed that the consideration of the candidature of an applicant, who is an aspirant for the grant of compassionate appointment has had to be considered under the prevalent norms as applicable on the date of the consideration of the application and it should be the basis of the consideration of claim of compassionate appointment in accordance with the Policy Rules or Guidelines, which are prevalent at the relevant point of time. The subsequent Rules as enforced later would have no relevance.

13. Since at the time when the petitioner’s right matured to be considered for the grant of compassionate appointment it was as a consequence of his submission of his application on 9th March 2018, in view of the ratio laid down in paragraph No.20 of the said judgment of the Hon’ble Apex Court, as relied by the learned Senior Counsel for the respondents, that the conditions, which would be available for considering the candidature of the petitioner would be that of prior to 12th June, 2018, and not with the issuance of the Office Memorandum imposing the ban on the compassionate appointment.

14. In order to carve out an exception the learned Counsel for the respondent had draw the attention of this Court to the concluding lines of the paragraph No.20, of the judgment of the Hon’ble Apex Court, which was disentitling a candidate to be considered for seeking consideration in accordance with the norms as applicable on the date of death of the Government Employee. In case, if the said paragraph is taken into consideration, in the context of the controversy which was being dealt with by the Hon’ble Apex Court in the said judgment, it is rather based upon on an altogether a different set of circumstances, where the restrictions for the appointment was not similar to the one, which has been sought to be attracted in the instant case on account of the inferences drawn by the Office Memorandum dated 12th June, 2018.

15. The said judgment will have no direct bearing on the circumstances of the present case because in the said matter the Hon’ble Apex Court was ceased with the considering the implications of the Rules called as “Karnataka Civil Services Appointment on Compassionate Ground Rules 1996”, as amended with effect from 01.04.1999, and particularly, the aspect as envisaged, therein, under Rule 5, where the consideration was being made pertaining to, as to what implications would the entitlement of the candidate would be when he was a minor at the time when the employee has met with the sad demise, and whether he would be entitled to apply within one year from the date of the attainment of the majority or not.

16. Hence, the aspect considered by the Hon’ble Apex Court in the said judgment being distinct to the one at hand, I am of the view that the reasons, which has been assigned by the respondents in the order of rejecting the claim of the petitioner to be considered for the grant of compassionate appointment, is contrary to the basic principles of the welfare scheme as envisaged by the Policy dated 16th October 2010, as floated by the respondents, because the petitioner’s claim would be exclusively considered, based on the fact of the Rules, which had been prevalent at the time when the cause of action arisen for him i.e. on 1st March, 2018, or at the most on the date when the petitioner has applied for the grant of compassionate appointment i.e. on 9th March, 2018.

17. The argument of the learned Senior Counsel for the respondents as already observed above, that since the petitioner himself has to be blamed when he had not supplied the requisite documents, and the process of consideration of his application was pending consideration due to the non supplying of the requisite documents, which was sought, only after the enforcement of the Office Memorandum dated 12th June 2018, this Court is of the considered view, that once the process has already been put to motion and it stood initiated by the respondents by asking him to supply the requisite documents, the respondents/employer cannot be permitted to function on their own whims and fancies by calling upon the pro

Please Login To View The Full Judgment!

spective applicant for supplying the documents, at a later stage, and particularly that too subsequent to the enforcement of the Office Memorandum dated 12th June 2018, because it would otherwise widen the scope of arbitrariness in the exercise of powers of the respondents/employer, while enforcing the Office Memorandum dated 12th June 2018, in the light of the welfare Scheme of 16th October 2010. 18. In view of the aforesaid reasons, I am of the view that the reasons, which have been assigned in the impugned order dated 16th April 2019, rejecting the claim of the petitioner on the aforesaid two grounds are not sustainable. Hence, the impugned order is quashed. The respondents are directed to reconsider the application of the petitioner dated 9th March 2018, for the grant of compassionate appointment under the Policy dated 16th October 2010, without attracting the embargo of the Office Memorandum dated 12th June 2018, as well as that the cause of death of the father of the petitioner was on account of his ill habit, as it has been contemplated under Clause (ga) of the Policy as it has been sought to be made applicable by the respondents because the said fact has never been attempted to establish by the respondents, who were trying to draw the bar of considering the candidature of the applicant on account of the implications of Clause (ga) of the Office Memorandum dated 12th June 2018. 19. The writ petition is allowed. The impugned order is quashed. The matter is relegated back to the respondent No.2, to reconsider the application of the petitioner dated 9th March 2018, and take a decision on the same, as expeditiously as possible, but not later than two months from the date of the production of a certified copy of this judgment.
O R