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



Smt B. Vijayakumari Pillai v/s The Management Of Indian Institute Of Science rep by its Registrar Bangalore


Company & Directors' Information:- H S MANAGEMENT INSTITUTE PRIVATE LIMITED [Active] CIN = U74140DL2005PTC141500

Company & Directors' Information:- A S INSTITUTE OF MANAGEMENT PRIVATE LIMITED [Strike Off] CIN = U80302DL2005PTC140941

    Writ Petition No.3355 of 2007 C/W Writ Petition No.5361 of 2006 (L-TER)

    Decided On, 02 May 2012

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE ARAVIND KUMAR

    For the Petitioner: Subbarao & CO., Advocates. For the Respondents: Padubidri Raghavendra Rao, Advocate.



Judgment Text

(Prayer: THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORDS FROM THE PRESIDING OFFICER OF THE PRL, LABOUR COURT, BANGALORE. IN ID.NO.52/97 ON HER FILE, AND QUASHING HER ORDER OF EVEN NUMBER DT. 1.12.05 VIDE ANN-A.)

1. These two writ petitions are filed calling in question award dated 01.12.2005 passed by Principal Labour Court, Bangalore in I.D.No.52/1997 whereunder dispute raised has been allowed in part by setting aside the order of termination dated 07.05.1997 with a direction to the management to reinstate petitioner to her original post with continuity of service and without back wages.

2. W.P.5361/2006 is filed by the management of Indian Institute of Science (hereinafter referred to as ‘management’ for sake of convenience) being aggrieved by the award above referred to whereunder it has been directed to reinstate the petitioner to her original post with continuity of service.

3. W.P.No.3355/2007 is filed by Smt. D. Vijayakumari Pillai (hereinafter referred to as ‘employee’ for the sake of convenience) being aggrieved by the award above referred to the extent of disallowing back wages.

4. Heard Sri. Mohan Rao, learned counsel appearing for petitioner management and Sri.K.Subba Rao, learned senior counsel appearing for the respondent employee.

5. It is the contention of Mr.Mohan Rao that management is not an ‘Industry’ within meaning of section 2(j) of Industrial Disputes Act, 1947 ((hereinafter referred to as ‘Act’ for the sake of brevity) and as such provisions of Act are not applicable. Elaborating his submission in this regard he would contend that management institution is of national and international importance carrying on research activities for the good of the nation and it is a scientific organization: Employee was appointed on a temporary basis as a clerk in the institute for six months with break in between on death of her husband while in harness since there was no regular post and as on the date of her appointment there was no 5% vacancy available to appoint her as regular employee on compassionate grounds and in the meantime she got remarried and her need for compassion got vanished. He would contend that finding of the Labour Court that breaks intermittently given is artificial and procedure adopted by the management amounted to unfair labour practice by treating her appointment as permanent and declaring her termination as illegal as erroneous without considering the grounds urged by Management. He would also contend that Labour Court erred in not considering the fact of remarriage by employee which fact had been suppressed by her; Non consideration of the fact that children born to her through deceased employee Prabhakaran Pillai were being paid family pension has resulted in serious error committed by the Labour Court; the fact of employee getting remarked would automatically disentitle her to become eligible to service benefits and leave concession through her husband Sri M.V. Krishnan and this fact has been lost sight of by the Labour Court; he would further contend Labour Court committed a serious error in holding that employee was carrying on the work of perennial nature and finding of labour Court that appointing staff for perennial work was not permissible and on these grounds he seeks for setting aside the award of the Labour Court in its entirety and prays for dismissal of the dispute and writ petition No.3355/2007 filed by the employee.

He would rely upon the following judgments in support of his case:

1.) 1997 LLR 401 – para 8, 12 and 13

Physical Research Laboratory vs. K>G. Sharma

2.) (2009) 6 SCC 481 – para 11 and 12

Santosh Kumar Dubey vs. State of Uttar Pradesh and others

3.) (2008) 8 SCC 475 – para

4.) (2009) 7 SCC 205 – para 29

General manager, Uttaranchal Jai Sansthan vs. Laxmi Devi and others

5.) (2011) 7 SCC 397 – para

6.) AIR 2009 SC 2534 – para 19

M/s. Eastern Coalfields Ltd. V. Anil Badyakar & Ors.

7.) (2005) 5 SCC 1 – para

6. Per contra Sri. K. Subba Rao, learned senior counsel appearing for the employee would not only support the award of the Labour Court to the extent of relief granted to the employee but he would also contend that when Labour Court held that there is violation of section 25F red with section 2(oo) of Industrial Disputes Act, it ought to have granted the consequential relief in its entirety; he would contend that employee was appointed on compassionate ground and it was not on temporary basis and accordingly Labour Court ought to have granted all consequential benefits; he would contend that several others appointed on compassionate grounds have since been appointed on regular basis and some of them who have remarried are not terminated and they have continued to hold the post and same yardstick is to be applied to the employee in question. On these grounds he seeks for award of back wages by allowing the writ petition filed by employee.

7. In reply to the arguments advanced by Sri.Mohan Rao he would submit that remarriage is not a ground for terminating and at no point of time the employee was informed or intimated that her employment would come to an end after six months. He would contend that there was no material placed regarding management not being an ‘industry’ and such contention should not be examined by this court for the first time. He would contend that management being satisfied that employee has to be given appointment on compassion on the death of her husband she has been provided with such a employment and once a person is appointed on compassionate ground the penury or the financial condition which will have to be looked into will be the one prevailing as on the date of appointment and no subsequent event can be taken into consideration. He would contend that section 25G and 25J are squarely applicable to the facts of the case by bringing to the notice of the court paragraph 9 of the claim statement and contending that plea raised by employee has not been denied by the management in its counter statement and as such it deserves to be accepted. On these grounds he seeks for allowing the writ petition 3355/2007 and prays for dismissal of W.P.No.5361/2006. In support of his submission he has relied upon the following Judgments:

1.) AIR 1988 SC 37

ChristianMedical College, Hospital Employees Union and another s. Christian Medical College Vellore Association and others

2.) (1994) 2 LLJ 462 (M.P) – para 12

Suresh Chandra Mathe vs. Jiwaji University, Gwalior & Ors.

3.) (1994) 2 LLJ 236 (Kerala) – para 5

T. Rajan and State and Ors.

4.) (1995) 1 LLJ 944 (M.P.) – para 13

Ramakishan vs. Samrat Ashok Technical Institute, Vidisha

5.) AIR 2010 SC 1116 – para 17

Harjinder Singh vs. Punjab State Warehousing Corporation

6.) AIR 1955 SC 425 – para 14

Sangam Singh vs. Election Tribunal Kotah and another

7.) AIR 2003 SC 3553-

8.) Unreported judgment in W.A.905/99 dated 21.01.2002

9.) 1978 Lab IC 467 – AIR 1978 SC 548

8. Having heard the learned advocates appearing for parties and on perusal of the impugned award as also records secured from the Labour Court and the case laws cited at the bar, I am of the considered view that following points arise for my consideration:

i. Whether petitioner in W.P.5361/2006 namely Indian Institute of Science is an ‘Industry’ as defined under section 2(j) of the Industrial Disputes Act, 1947?

ii. Whether the petitioner –employee in W.P.3355/2007 has an indefeasible right to claim appointment on compassionate ground in Indian Institute of Science on account of death of her husband Sri.Prabhakaran Pillai? And, if so, whether it continued thereafter?

iii. Whether award of the Principal Labour Court, Bangalore passed in I.D.No.52/97 dated 01.12.2005 is to be set aside or affirmed or modified?

iv. What order?

BRIEF BACKGROUND OF THE CASE:

9. The husband of the petitioner (in W.P.No.3355/2007) by name Sri Prabhakaran Pillai was appointed as a mechanic in the Indian Institute of Science originally on temporary basis and subsequently he was confirmed. He expired during July 1991 . During his life time he had married Smt. D. Vijayakumari Pillai and from the said marriage they had two children and at the time when Sri.Prabhakaran Pillai expired, children were aged 8 years and 7 years respectively. On the demise of her husband, petitioner submitted an application for appointment on compassionate grounds and she was appointed as a temporary clerk in the institution on 26.08.1991 on a consolidated salary of 1,400/- and she worked upto May 1997 with break in service. The management by order dated 07.05.1997 informed that her services are being discontinued and terminated as per section 2(oo) (bb) of the Industrial Disputes Act, 1947. Aggrieved by the said action, employee raised a dispute by filing petition under section 10(4-A) of the Industrial Disputes Act, before the Labour Court, Bangalore. Respondent –management on service of notice appeared and filed its statement of objections denying the averments made in the claim statement. Before the Labour Court the employee got herself examined and on behalf of the management the Deputy Financial Controller appeared as a witness and was examined as MW-1. Documentary evidence was tendered by both the parties. Labour Court on the basis of the pleadings of the parties framed following issues for its determination.

1) Whether the first party proves that she is workman as defined under Industrial Disputes Act?

2) Whether the second party was justified in terminating the services of first party?

3) To what reliefs the first party is entitled to?

10. On evaluation and scrutiny of evidence Labour Court held that first party is a workman and second party was not justified the services of first party and directed reinstatement to her original post with continuity of service and without back wages and consequential benefits.

RE POINT NO. 1:-

11. The management of Indian Institute of Science who is petitioner in W.P.3355/2007 raised a contention before the Labour Court in its counter statement specifically contending that it was started in the year 1901 as a public charitable trust and it has been functioning as an autonomous body under the provisions of the scheme framed under the provisions of Charitable Endowments Act, 1890 and it is an institute for higher learning and research and it is a deemed university for the purpose of awarding degrees. As such it was contended that activity carried out by it cannot be termed as an activity which come under the definition of ‘Industry’ as defined under the Industrial Disputes Act and in view of the same application is not maintainable. The institute sought for this issue being tried as a preliminary issue. However, no issue came to be framed by the Labour Court and management also did not seek for reframing/recasting of the issues after issues were framed. In view of the fact that such a plea having been raised and same is found in the counter statement this Court has formulated Point No.1 for adjudication and as such point No.1 is taken up for consideration first as it would have a direct bearing on the maintainability of claim petition. Learned advocates have also addressed arguments in extenso on this issue as already observed herein above and to answer the point formulated and arrive at a conclusion it would be necessary to extract the definition of ‘Industry’ as defined under the Industrial Disputes Acts namely section 2(j) which reads as under:

2(j) 'Industry' means any systematic activity carried on by co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production supply of distribution of goods or services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature). Whether or not.

i. Any capital has been invested for the purpose of carrying on such activity; or

ii. Such activity is carried on with a motive to make any gain or profit, and includes-

a. Any activity of the Dock Labour Board established under section 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9of 1948);

b. Any activity relating to the promotion of sales or business or both carried on by an establishment,

But does not include

1) Any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity (being any such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one.

Explanation. For the purposes of this sub-clause, 'agricultural operation' does not include any activity carried on in a plantation as defined in clause (f) of section 2 of the Plantation Labour Act, 1951 (69 of 1951); or

2) hospitals or dispensaries; or

3) educational, scientific, research or training institutions; or

4) institutions owned or managed by organizations who9lly or substantially engaged in any charitable, social or philanthropic service; or

5) khadi or village industries; or

6) any activity of the Government relatable to the soverign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space; or

7) any domestic service; or

8) any activity being a profession practiced by an individual or body of individuals, if the number of persons employed, by the individual or body of individuals in relating to such profession is less than ten; or

9) any activity, being an activity carried on by a co-operative society or a club or any other like body of individuals, if the number of persons employed by the co-operative society, club or other like body of individuals in relation to such activity is less than ten.'

12. The learned advocates have relied upon judgments on this issue which would throw light on the definition of the word ‘industry’ and the manner in which it is to be interpreted and applied in a given situation. They are as under:

i. 1978 Lab I.C 467 – AIR 1978 SC 467 –

ii. (1994) 2 LLJ 462 – Suresh Chandra Mathe vs. Jiwaji University, Gwalior & Ors.

12) It is therefore clear that education is a kind of service, although sublime service, and that University is an 'industry' within the meaning of Section 2(j) of the Industrial Disputes Act, 1947. The further question whether a clerk of the University, like the petitioner, was a 'workman' under Section 2(s), admits of no doubt. A person employed to do clerical work is expressly mentioned in the definition of a 'workman'. Pausing here it may be mentioned that a new definition of 'industry' has been given by Act 46 of 1982 whereby a new Clause (i) will take the place of Clause (j), from a date to be notified upon enforcement of Section 2(c) of the Act. When that new definition will get substituted, educational, scientific, research and training institutions will cease to fall within the purview of 'Industry’ by virtue of Clause (3) of that definition. Till that happens, a University will continue to be held to be an 'Industry'.

iii. (1995) 1 LLJ 944 – Ramakishan vs. Samrat Ashok technical Institute, Vidisha

13) Considering the provisions of law as they stand today, the educational service is not only an industry but is the mother of industries and the respondent is, therefore, held to be an industry.

iv. (1997) LLR 401 – Physical Research Laboratory vs. K.G.Sharma

8) Therefore, the question whether PRL is an ‘industry’ under the I.D.Act will have to be decided by applying the above principles, but, at the same time ti has to be kept in mind that these principles were formulated as this court found the definition of the word ‘industry’ as vague and 'rather clumsy’ vaporous and tall-and-dwarf'. Therefore, while interpreting the words ‘undertaking’ calling and ‘service’ which are of much wider import, the principle of ‘noscitur a soclis’ was applied and it was held that they would be ‘industry’ only if they are found to be analogous to trade of business. Furthermore an activity undertaken by the Government cannot be regarded as ‘industry’ if it is done in discharge of its soverign function, one more aspect to be kept in mind is that the aforesaid principles are not exhaustive either as regards what can be said to be soverign function or as regards the other aspects dealt with by the court.

12) PRL is an institution under the Government of India’s Department of Space. It is engaged in pure research work is already stated earlier. The purpose of the research is to acquire knowledge about the formation and evolution of the universe but the knowledge thus acquired is not intended for sale. The Labour Court has recorded a categorical finding that the research work carried on by PRL is not connected with production supply or distribution of material goods or services. The material on record further discloses that PRL is conducting research not for the benefit or use of others. Though the results of the research work done by it are occasionally published they have never been sold. There is no material to show that the knowledge so acquired by PRL is marketable or has any commercial value. IT has not been pointed out how the knowledge acquired by PRL or the results of the research occasionally published by it will be useful to persons other than discloses that the object type of study. The material discloses that the objet with which the research activity is undertaken by PRL is to obtain knowledge for the benefit of the Department of Space. Its object is not to render services to others nor in fact it does so expect in an indirect manner.

13) It is nobody’s that PRL is engaged in an activity which can be called business trade or manufacture. Neither from the nature of its organization nor from the nature and character of the activity carried on by it, it can be said to be an ‘undertaking’ analogous to business or trade. It is not engaged in a commercial industrial activity and it cannot be described as an economic venture or a commercial enterprise as it is not its object to produce and distribute services which would satisfy wants and needs of the consumer community. It is more an institution discharging Governmental functions and a domestic enterprise than a commercial enterprise. We are, therefore, on the opinion that PRL is not an industry even though it is carrying on the activity of research in a systematic manner with the help of its employees as it lacks that element which would make it an organization carrying on an activity which can be said to be analogous to the carrying on of a trade or business because it is not producing and distributing services which are intended or meant for satisfying human wants and needs, as ordinarily understood.

13. The Constitutional Bench in Rajappa’s case has held that if triple tests namely (i) Systematic activity (ii) organized by co-operation between employer and employee (the direct and substantial element is chemerical). (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss), there is an 'industry' in that enterprise. Thus, if these triple tests are fulfilled an establishment cannot be exempted from the ambit of definition of 2(j) of the Industrial Disputes Act. This dicta laid down by the Constitutional Bench is binding on this court and requires to be implicitly followed to which proposition there cannot be any different view.

14. The Hon’ble Supreme Court in the case of Physical Research Laboratory Vs. K.G.Sharma reported in 1997 LLR 401 by following the judgment in Rajappa’s case has also considered as to whether department of space of the Government of India, engaged in pure research in space science which research work was not connected with production, supply or distribution of material goods or services which does not have any commercial value could be still called as business or trade to bring within the purview of the definition of ‘industry’ and has been held that even though said Laboratory was carrying on the activity of research in a systematic manner with the help of its employees, it was held that it lacks the element which make it an organization carrying on an activity which can be said to be analogous to the carrying on trade or business because it is not producing or distributing services which are intended or meant by satisfying human wants and needs as ordinarily understood.

15. Thus, keeping in mind the principles enunciated in the above judgments when facts on hand are examined the following would emerge.

16. The Indian Institute of Science was founded under the charitable Endowments Act (VI of 1890) and the properties and funds was endowed by its founder, the late Mr.J.N.Tata which came to be vested in the trust under a vesting order dated 27.05.1999 as published in the Official Gazette by Government of India. Under the said Act the Government of India settled a scheme for administration of trust which came to be modified from time to time and the scheme in operation at present has been approved by Government of India on 22.05.1967 which is in force and vogue.

17. The Indian Institute of Science is governed by scheme-approved by the Government of India, regulations approved by the Visitor (the Hon’ble President of India) and bye laws framed by the Council. The object of the establishment of the said institute is as per clause 3.1 which reads as under:

'The objects of the institute shall be (a) to provide for advanced instructions and to conduct original investigations in all branches of knowledge and, in particular in such branches of knowledge as or likely to promote the material and industrial welfare of India. (b) to establish and maintain chairs and lectureships in science, arts and technology. (c) to provide suitable libraries, laboratories and equipment. (d) to co0operate as far as possible with such recognized institutions as exists or are found in founded in future for cognate objects in India, and (e) to do all such thins as or necessary or conducive to the attainment of all or any of the objects of the institute'.

18. The institute for its functioning has adopted the rules as followed by Government of India in respect of its employees by way of resolution passed by the Board. It is not in dispute that institute is funded by the Ministry of Human Resource Development, Government of India. It is an established for higher learning and to conduct research. In this background the point formulated hereinabove namely as to whether the institute would be an ‘Industry’ as defined under the Industrial Disputes Act, requires to be examined. Hon’ble Apex Court in K.G.Sharma’s case referred to supra keeping in mind the dicta laid down in Rajappa’s case held that doctrine of ‘noscitur a soclis’ is applicable since the definition of the word ‘Industry’ being vague and rather clumsy, vaporous and tall-and-dwarf while interpreting the words ‘undertaking’, ‘calling’ and ‘service’ which are of wider import and held if they are analogous to trade or business then it would come within the definition of ‘industry’ and not otherwise. In this background it was held that an activity undertaken by the Government cannot be regarded as ‘industry’ if it is done in discharge of its sovereign functions. The Indian Institute of Science is a premier institute established for the purposes of development of pure science and related research activities. The objects of the trust under clause 3.1 of the scheme would clearly go to establish it is a forum established for conducting original investigations in all branches of knowledge and such branches of knowledge which are likely to promote material and industrial welfare of India and the knowledge so acquired in this process is for the betterment of a society as a whole and the knowledge so acquired in this process is not a product which becomes marketable and neither it is a saleable commodity. Such knowledge which would emerge from conducting laboratory tests or result of a research has no nexus to supply or distribution of material goods or services. The activity carried on is not for the benefit of any particular individual or an institution but it is for the benefit of the society as a whole and its object is not to render services to others. It is not engaged in an activity which can be called business, trade or manufacture since it is not engaged in any commercial or industrial activity and it does not fall under the category of either economic venture or commercial enterprise, as its object to produce and distribute services is not to satisfy the needs of the consumer community. In that view of the matter, I am of considered view that the activity carried on by the institute cannot be held to fall within the definition of ‘Industry’. Accordingly Point No.1 is answered by holding that Indian Institute of Science is not an ‘Industry’ as defined under Industrial Disputes Act, 1947.

NOTE:

Since, point No.1 is answered in favour of Indian Institute of Science, claim petition will have to be necessarily held not maintainable. However, in view of the fact that learned Advocates have addressed arguments on all the issues points 2 to 4 formulated hereinabove for consideration by this Court is also delved upon and answered as under.

RE:POINT No.2 AND 3:

19. It has been the contention of the Indian Institute of Science that at the time when employee Sri. Prabhakaran Pillai i.e., husband of Smt. Vijayakumari Pillai expired, there was no regular post and on account of immediate assistance she was appointed as a temporary employee and on account of her re-marriage to another person the need for assistance by way of appointment on ground compassion vanished. It is also contended that family pension was being paid to her children born to her through deceased employee Sri.Prabhakaran Pillai and she has also drawn family pension from the institute. It is also contended by the learned counsel for management that penury or financial distress of Smt.Vijayakumari Pillai did not continue and wife of the deceased employee to claim appointment on compassionate ground is not a indefeasible right vested to her.

20. Appointment on compassionate ground is to enable immediate financial assistance to a family which has lost its bread earner and such appointment can never be a source of recruitment. Appointment on compassionate ground is never considered as a right of a person. In the normal course when the appointment is to be made it has to be in accordance with the recruitment rules prevalent and existing as otherwise it would be violative of Article 14 of Constitution. Thus, excepting to the general rule of recruitment is traceable in the case of compassionate appointment. In this background the point formulated hereinabove requires to be answered. The Hon’ble Supreme Court while considering the claim for compassionate appointment has laid down the contours under which such claim is to be examined and considered in the following Judgments:

(i) (2009) 6 SCC 481

Santosh Kumar Dubey vs. State of Uttar Pradesh and others

'11.) The very concept of giving a compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased due to the death of the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints.

12.) The request for appointment on compassionate grounds should be reasonable and proximate to the time of the death of the bread earner of the family, inasmuch as the very purpose of giving such benefit is to make financial help available to the family to overcome sudden economic crisis occurring in the family of the deceased who hs died in harness. But this however, cannot be another source of recruitment. This also cannot be treated as a bonanza and also as a right to get an appointment in government service.'

(ii) (2008 8 SCC 475)

General Manager, State Bank of India and others vs. Anju Jain

'31.) We are of the view that both the Courts were wrong in granting relief to the writ petitioner. Appointment on compassionate ground is never considered a right of a person. In fact, such appointment is violative of rule of equality enshrined and guaranteed under Article 14 of the Constitution. As per settled law, when any appointment is to be made in Government or semi-Government or in public office, cases of all eligible candidates must be considered alike. That is the mandate of Article 14. Normally, therefore, State or its instrumentality making any appointment to public office, cannot ignore such mandate. At the same time, however. In certain circumstances, appointment on compassionate ground of dependents of deceased employee is considered inevitable so that the family of the deceased employee may not starve. The primary object of such scheme is to save the bereaved family from sudden financial crisis occurring due to death of sole bread earner. It is thus an exception to the general rule of equality and not another independent and parallel source of employment.'

21. Keeping the principles enunciated and laid in the above judgments by Hon’ble Apex Court when facts are examined it can be noticed that husband of Smt.Vijayakumari Pillai i.e., Sri. Prabhakaran pillai was working as an helper at the time of his demise on 21.07.91. It is not in dispute that Indian Institute of Science has adopted the rules for compassionate appointment as prevalent in Government of India. These rules have also been produced and marked in evidence of MW-1 as Ex-M-1. Though it has been contended by the employee that her appointment was on compassionate grounds her letter of appointment produced at Ex.W-1 dated 23.08.91 would go to show that she was appointed as 'TEMPORARY CLERK' and not on compassionate ground. The application submitted by the employee seeking compassionate appointments has been produced by the management through its witness MW-1 as Ex-M-3. The said witness who has been examined on behalf of the management namely MW-1 has stated in his evidence by reiterating the contentions raised in the counter statement that at the time the employee submitted application seeking compassionate appointment there was no vacancy available and claim of the family members of employees who had expired in harness prior to death of Prabhakaran Pillai and who were senior to the deceased employee herein was pending consideration. This clearly goes to show that employee Smt. Vijayamumari Pillai was never appointed on compassionate grounds.

22. The office memorandum Ex.M-1 which relates to scheme of compassionate appointment adopted by the institute would go to show that institute is competent to appoint in relaxation of the procedure of regular recruitment such of those persons namely son, daughter near relative to a employee who dies in harness leaving his family in immediate need of assistance, in the event of there being no other earning member in the family. Appointment under such category is restricted to 3% which has been subsequently enhanced to 5% as admitted by MW-1. It is only on these criteria specified under the scheme being satisfied, a candidate would become eligible or in other words entitled to seek appointment on compassion. Thus, the right of a near relative of the deceased to claim appointment on compassionate ground is circumscribed by the provisions of the scheme or in other words is restricted to the extent of application being considered and not for being appointed. It is in this background the right of an applicant to claim employment for being appointed on compassionate grounds will have to be understood.

23. A perusal of the records of the Labour Court would go to show that in the year 1993 i.e., 14.05.93 a letter cam to be issued by the institute to the petitioner calling upon her to clarify her marital status to which she has replied on 24.05.93 (Ex.M-7) declaring that she continues to be widow of late Sri.P.Prabhakaran Pillai. Thereafter on 21.06.93 a memo came to be issued to her for suppression of facts since it was found by the institute that information furnished by her was false. Again a letter dated 12.07.93 came to be issued to her by t

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he institute. Same was replied by her on 15.07.93 (Ex.M.9) and for the first time she stated that her ‘Marriage has still not been legally solemnized’. In other words she admitted that she had remarried. Infact in letter dated 12.08.96 which is said to be reply to the letter dated 12.01.94 she has stated that after her husband expired she got remarried to one Sri.M.V.Krishnan. However, in her cross examination dated 05.11.2001 she states that she had intimated about her second marriage in writing to the second party-management. However, no such letter or intimation said to have been given to the institute was produced before the Labour Court by her. In the year 1993 i.e., on 14.05.93 the employee was called upon to declare her marital status and by reply dated 24.05.93 (Ex-M-7) she declared that her marital status continued to be widow of late Sri.Prabhakaran Pillai (First Husband). However her reply dated 15.7.93 (Ex.M-9) being contrary to facts a memo came to be issued on 21.06.93 (Ex.M-8) by the institute directing her to state the present marital status. This was followed by communication dated 12.07.93 which came to be replied by the employee on 15.07.93 (Ex.M-9) whereunder she has stated that’ Marriage has not been legally solemnized.'. Again a letter 12.01.94 was issued by the institute to her by calling upon her to declare the family details to which she has replied on 12.08.96 (Ex-M-10) declaring that after her husband Sri.Prabhakaran Pillai expired she got remarried to one Sri.M.V.Krishnan. however she does not specify the date of marriage. In her cross examination dated 05.11.2001 she has stated she had intimated about her second marriage to the institute in writing. However the said intimation was not produced before the Labour Court or before this Court. This admission in her reply Ex-M-10 and admission in the cross-examination dated 05-11.2001 would clearly go to show that immediately on demise of Sri.Prabhakaran Pillai she has got remarried to Sri.M.V.Krishnan. Thus, penury or financial distress under which the family members of the deceased were placed at the time of the death did not continue but got vanished or extinguished or evaporated by virtue of her remarriage to Sri.M.V.Krishnan working in Indian Telephone Industries. Compassionate appointment being an appointment by deviating from the general recruitment rules and procedure it would be a concession in favour of dependents of a deceased employee in order to overcome the financial distress or the penury. In other words when the application for compassionate appointment is being considered the said condition has to be present and continuing. If the family of the deceased employee has tied over the crisis for a considerable period as in this case where the widow has got remarried the claim of appointment on compassionate ground would cease to exist. There would be no necessity for consideration of a application on compassionate ground since said situation does not exists and exercising compassion cannot be endless. In that view of the matter, Point No.2 and 3 has to be answered against the employee and in favour of the institute. RE: POINT NO.4: 24. In view of the findings given by this Court on Point No.1 to 3 in favour of the institute, Point No.4 has to be necessarily answered in favour of the institute and against the employee. In the result following order is passed: ORDER 1. Writ Petition No.5361/2006 is hereby allowed and award dated 01.12.2005 passed by the Principal Labour Court. Bangalore in I.D.52/1997, Annexure-A is hereby quashed. Rule made absolute. 2. Writ Petition No.3355/2007 is hereby dismissed. Rule discharged. 3. No order as to costs.
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