Lt. Robin Kr. Bhuyan & Ors. v. Bongaigaon Refinery and Petrochemicals Ltd.

Both the petitioners are admittedly wives of the deceased employees of the respo ndent-Refinery, who died on 07-05-2000 while in service following a road traffic accident while they were on their way to Delhi for attending a training program me conducted by the BPPL. Following the death of husband of the petitioner no. 1 , the said petitioner and her minor daughter are his legal heirs and the petitio ner no. 1 is also an Arts Graduate from Gauhati University with Major in History , whereas the petitioner no. 2, her child, and her old ailing mother-in-law are the surviving legal heirs of Late Utpal Roy, the deceased employee. The petition er no. 2 is an M.A. by qualification. Both the petitioners with their family mem bers are facing difficulties due to the death of their only bread earners. After the death of their husbands, both the petitioners had submitted applications on 06-06-2000 and 19-06-2000 respectively (Annexure-3 and 4 to the writ petition) before the Chairman-cum-Managing Director, BRPL for giving them appointment on compassionate ground in suitable posts commensurating with their educational qua lifications, so that they could look after themselves and their families. As the authority did not response to their representations, as stated supra, the petit ioners had filed further representations (Annexure-5 series to the writ petition ) for consideration of their respective prayers. Thereafter, on 20-06-2000, the petitioners had been informed by the General Manager of the Refinery, respondent no. 2, that their applications for compassionate appointment cannot be consider ed by the authorities on the ground that the policies of the company do not leav e any scope for such compassionate appointment, and also the petitioners were pr ovided the benefit of welfare scheme framed by the authority.

4. It is further stated that the private respondent no. 3, Smt. Rina Majumd er Barman, wife of another deceased employee namely Lt. Subhash Barman had given the benefit of compassionate appointment, even when her husband had died in an accident while he was not on official duty. Thus, the petitioners are also entit led to the same benefit.

5. It is further stated that due to the death of respective husband of the petitioners, the petitioners are facing immense difficulties with their family m embers and the impugned action of the respondent authorities in denying appointm ent on compassionate ground to the petitioners and at the same time, granting th e same benefit to the private respondent is discriminatory, arbitrary, unreasona ble and unfair and thus, violative of Article 14 of the Constitution. Hence, the writ petition.

6. The respondent-Refinery by way of filing an affidavit-in-opposition deni ed the contentions of the petitioners so far as the nature of appointment of the It is also stated that appreciat ing the difficulties of the employees, like the petitioners, the respondent-Refi private respondent no. 3 is concerned. nery Company had consciously adopted welfare measures to ameliorate the circumst ances and particularly, in case of the petitioners, certain benefits had been ex tended which will be evident from the paragraph 6 of the said affidavit-in-oppos ition. Paragraph-6 of the affidavit-in-opposition is reproduced hereunder :- (cid:28) That with regard to the statements made in paragraph 11 of the writ petition the deponent humbly begs to state that appreciating the difficulties of the peti tioners the Company has consciously adopted welfare measures to ameliorate the circumstances and, as such, following benefits has been extended to the petition ers. Benefits extended to petitioner no. 1 Monthly pension @ Rs. 1375.00 under Employees Benevolent Fund Scheme i. , from Dhaligaon Post Office. ii. i. iii. ife Insurance Corporation, Guwahati. iv. tion of Rs. 3,500.00. Monthly pension @ Rs. 2188.00 under Pension Scheme, from RPFC, Guwahat Rs. 743.00 per month under BRPL Employees Rehabilitation Scheme from L Medical treatment facility admissible for self on a one time Contribu Additionally, the following benefits are also extended from the Company : 1. Group Term Insurance 2. Group Saving Linked Insurance Rs.1,43,618.00 3.Group Personal Accident Benefit Rs.6,13,340.00 4. Benevolent Fund(balance amount Rs. 37,000.00 in cash)

5. Gratuity 6. Provident Fund 7. Terminal Benefit Rs. 34,300.00 Rs. 93,348.00 Rs. 60,439.21 Rs. 9,334.80 Total Rs. 9,91,380.01 Benefits extended to petitioner no. 2 v. Monthly pension @ Rs. 1375.00 under Employees Benevolent Fund Scheme, from Dhaligaon Post Office. Monthly pension @ Rs. 2188.00 under Pension Scheme, from RPFC, Guwahat vi. i. vii. ife Insurance Corporation, Guwahati. viii. ions of Rs. 3,500.00. Rs. 743.00 per month under BRPL Employees Rehabilitation Scheme from L Medical treatment facility admissible for self on a one time Contribut Additionally, the following benefits are also extended from the Company : 1. Group Term Insurance 2. Group Saving Linked Insurance Rs.1,43,520.00 3.Group Personal Accident Benefit Rs.6,53,590.00 4. Benevolent Fund(balance amount Rs. 37,000.00 in cash)

5. Gratuity 6. Provident Fund 7. Terminal Benefit Rs. 34,300.00 Rs. 99,324.00 Rs.1,81,073.00 Total Rs.11,84,446.80 Rs. 33,659.80 Further, as a special consideration, the Company has agreed to provide free medi cal treatment to the children in BRPL hospital up to the age of 15 years. (cid:29) 7. The respondents in their affidavit have also stated that the question of compassionate appointment to the petitioners does not arise as the policy of th e Company does not cover for employment on compassionate ground, rather the peti tioners are entitled to benefits under the rehabilitation scheme which have alre ady been provided to them. It is also stated that the husbands of the petitione rs had died because of their injuries sustained in the said accident while they were on a pleasure trip to Agra which is not work related or any official duty.

8. Mr. M.K. Choudhury learned Sr. Counsel for the petitioners, while urging for the relief sought for, would contend that mere providing the benefit of reh abilitation scheme itself cannot be a ground to deny the appointment/employment on compassionate ground when the private respondent was provided the benefit of compassionate appointment. He further submits that pension and pensionary benefi ts which have been provided to the petitioners and their family members are thei r own properties. Thus, that can also not be a ground for denying the compassion ate appointment, as prayed for. Mr. Choudhury in his usual fairness also submits that obviously compassionate appointment is not a right of the family members o f the deceased employees. But being a model employer, the respondents are bound to see how the family members of the deceased employees can be survived in absen ce of them. He also submits that the respondent-Refinery has no specific scheme for compassionate appointment. He has finally contended that if the respondent n o. 3 is given the benefit of compassionate appointment, then the present petitio ners are also entitled to the same benefit.

9. Mr. K.N. Choudhury, learned Sr. Counsel appearing for the respondent-Ref inery while countering the submission of Mr. M.K. Choudhury, learned Sr. Counsel for the petitioners would contend that appointment on compassionate ground is n ot another source of recruitment, but merely an exception to the aforesaid requi rement taking into consideration the fact of the death of employee while in serv ice leaving his family without any means of livelihood. He also submits that in the instant case, the petitioners are getting the benefit of rehabilitation sche me which has been framed to provide the benefits, like the petitioners and not o nly that they are also getting the pension and pensionary benefits including the benefit of Group Term Insurance etc. Thus, it cannot be said that the petitione rs and their family members would not survive without employment on compassionat e ground, as prayed for. He further submits that mere death of an employee does not entitle any of the family members to claim compassionate appointment under the Die-in-harness scheme as a matter of right, as there is difference between (cid:28) rights (cid:29) and (cid:28)compassion (cid:29).

10. In support of his aforesaid contention he has placed reliance on a decis ion of this court in Sanjoy Sukla Das Vrs. Union of India and others ( WP(C) 410 of 2002), Agartala Bench. He has also placed reliance on a decision of this cou rt in Sinam Inao Singh Vrs. Union of India and others, [(2008) 2 GLR 39], wherei n this court dismissed the prayer of compassionate appointment of the petitioner of that case holding that the court cannot resume the power of the employer whi le deciding a writ petition, particularly on prayer for providing a job under th e Die-in-harness scheme, as that will encroach the power of the administrative a uthority. The court can only see whether any right of the family members of the deceased employee is affected either by action or by in action of the respondent employer while they consider the case of the family members of the deceased emp loyee.

11. The court has given anxious thought to the submission made by the learne d counsel for the parties as well as the contentions made in the writ petition, the affidavit-in-opposition and the law reports cited. Regarding the factual mat rix of the case, there is no dispute except regarding the mode of appointment of the respondent no. 3. It is also not disputed that the petitioners were provide d the pension and pensionary benefits as entitled in accordance with the Rules. In Sinam Inao Singh (Supra), wherein this court has considered almost a similar situation where the case of the petitioner in that case for compassionate appoin tment have been sympathetically considered by the authority and found not suitab le on the ground that the family has been provided pensionary benefits to the tu ne of Rs. 12.5 lakhs besides pension in the form of LPA @ Rs. 2,010 per month to the petitioner’s family is sufficient to maintain the livelihood of the family of deceased employee as well as compassionate appointment as sought for.

12. also observed as follows :- In the case of Sinam Inao Singh (Supra) in paragraph-13, this court has (cid:28)13. In the instant case also according to this court, learned counsel Mr. N. Ibotombi, rightly pointed out that appointment on compassionate ground as praye d for by the petitioner is not a vested right so he cannot approach this court f or issuance of a writ as sought for. This court is, further of the opinion that even between the family members of deceased government employees who died while in service, the authority should consider those families first for giving appoin tment whom are worse financially than others and in the instant case the authori ty rightly given job to the persons whose names were mentioned by the petitioner in its petition. This Court also observed in the aforesaid case of Sanjoy Sukla Das (Supra) in para 13 as under: (cid:28)13. When a person applies for a job following procedure and succeeds in the interview and gets selected by the authority, then only a right is accru ed for claiming a job to the said post, the same being a legal right, but in Die -in-harness, prescription in the scheme rule is a condition precedent for gettin g a job. The scheme being prepared for compassionate appointment it is the autho rity who only can decide whether only will provide job to a family member of a d eceased employee or not on such compassionate ground and that too whether they w ould frame scheme for that purpose or not. In the instant case, keeping in mind that the family members of the deceased employee faced sudden crisis just after his death he being the lone bread earner, the respondent-employers framed a sche me for providing job to one of the family members of the deceased employee to ti de over such crisis and also considers that all the vacancies should not go to t he family members of the deceased employees who are otherwise compensated to tid e over their crisis from the property of the deceased employee left over by him including pension and other retiral benefits and the movable and immovable prope rties. Only five per cent of the vacancies should go to them so that the general provisions/route of the employment should not be hampered and the unemployed yo uth waiting in queue for getting job after following the prescribed procedure sh ould not be deprived of. According to this Court, such restriction/ceiling limit is not unreasonable, rather a reasonable restriction which is permissible, and if the entire vacancies are filled up only by the legal heirs/dependent family members of the deceased employee, then unemployed waiting for in general route w ould face serious problem which may disturb the society. Now the question remain s to be answered whether court can direct the employer to appoint a family membe r after creating supernumerary post. Creation or abolition of post is within the domain of the employer. Normally, court cannot direct or recommend for creating a supernumerary post to make available the vacancy in order to accommodate a gi ven person in the Die-in-harness scheme, since it is the sole province of employ er and not the writ court. But that does not mean that a genuine claim of the fa mily members of the deceased employee shall not be entertained and considered by the authority for providing a job under the scheme in force to tide over the su dden crisis. In a given case, it is the duty of the employer to provide job to o ne of the family members of the deceased employee for which the scheme is framed specially to the person fulfilling the conditions laid down in the scheme and t he court cannot at all give a direction to create a supernumerary post for provi ding benefit of Die-in-harness scheme, if the authority considered the case in a ccordance with the scheme and due observance of law (see State Bank of India v. Somvir Singh, (2007) 4 SCC 778). Yet the court has the power, which can only be exercised in a particular case where the employer fails to discharge its duty an d the family members of the deceased employee has established violation of artic le 14 of Constitution. In the instant case, as it appears from the letter dated 24.09.2002 and 31.12.2002 (Annexures H and I respectively to the writ petition) that the case of the petitioner was considered not only on one occasion but also on three consecutive occasions and due to non-availability of the vacancies his case could not be recommended by the Board of Officers (BOO) and he has also se cured lesser point than the persons recommended for the job under the Die-in-har ness scheme, hence, it cannot be said by this court that the right for considera tion of the petitioner for getting the job was denied by the authority. The afor esaid observation of this court is supported by the decision of the Apex Court i n Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 ; Managing Director, MMTC Ltd. v. Pramoda Delalias Nayak, (1997) 11 SCC 390 ; Union of India v. Jogi nder Sharma (supra); State of J & K v. Sajad Ahmed Mir, (2006) 5 SCC 766. (cid:29)

13. In view of the above, it would not be proper on the part of this court t o direct the respondents to appoint the petitioners on compassionate ground, par ticularly, when there is no scheme prepared by the respondents for compassionate appointment. Framing of Scheme is always with the authority, and not with the c ourt. In Sanjoy Sukla Das (Supra), this court also noted, inter alia, that \ the court cannot resume the power of the employer while deciding a writ petition, p articularly on prayer for providing a job under the Die-in-harness scheme, as t hat will encroach the power of the administrative authority. The court can only see whether any right of the family members of the deceased employee is affected either by action or by inaction of the respondents’ employer while they conside r the case of the family members of the deceased employee.\ In the instant case , it appears from the record that the respondents have considered the case of th e petitioners and decided that they are not entitled job on compassionate ground as they are getting pension and pensionary benefits. In the affidavit-in-reply, the respondents also stated that the authorities have not appointed the private respondent on compassionate ground, if that be so, then the plea of discriminat ion also fails. It is also settled that the court should not decide a writ petition on s 14. ympathetic ground contrary to law. It is always with the employer authority as t o whether it will provide employment/ job on compassionate ground to the family members of the deceased employee or not being compassionate appointment is not a right. Though generally the court has no power to direct the authority to appoi nt a person on compassionate ground, but obviously it is the duty of the court t o see that the employer should treat in similar manner to all the applicant-fami ly members of its deceased employees, who died while in service.

15. Having gone through the materials available on record and upon considera tion of the same, this court is of the opinion that the petitioners have failed to make out a case for issuance of writ, as prayed for. However, the respondent- authorities, if so desire, may consider the case of the petitioners either for p roviding appointment on humanitarian ground or for providing certain financial b enefits on their own, in accordance with law.

16. In view of the above, the instant writ petition is disposed of. No order as to costs.