This writ appeal quashed the single judge's order mandating alternative employment for a compassionate appointee without a counter affidavit. The bench held the employer must be heard before such a direction.
Impugned single judge order set aside; matter remanded for disposal afresh after giving chance to file counter affidavit.
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HON’BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR
WRIT APPEAL NO.1404 OF 2012
Dt: 15-11-2012.
Between:
THE SINGARENI COLLIERIES CO.LTD., REP. BY ITS CHIEF GENERAL MANAGER RAMAGUNDAM DIVISION I GODAVARIKHANI KARIMNAGAR DISTRICT AND ANOTHER .. APPELLANTS
AND
JAKKULA SHANKER AND ANOTHER .. RESPONDENTS
HON’BLE THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE AND THE HONOURABLE SRI JUSTICE VILAS V.AFZULPURKAR
WRIT APPEAL NO.1404 OF 2012
JUDGMENT: (Per THE ACTING CHIEF JUSTICE SRI PINAKI CHANDRA GHOSE)
This writ appeal is directed against the order of the Hon’ble single Judge dated 28-02-2012 passed in W.P.No.5239 of 2012, which was filed by the writ petitioner praying to issue a Writ of Mandamus declaring the action of the respondents 1 and 2 in not forwarding the appeal petition of the petitioner dated 13.12.2011 to the 3rd respondent for Medical re-examination of the petitioner as per Rule 29(J) of the Mines Rules 1955 as illegal, unjust, arbitrary and contrary to law and consequently to direct the respondents 1 and 2 to forward the appeal petition of the petitioner dated 13.12.2011 forthwith to the 3rd respondent for his medical re-examination.
The Hon’ble single Judge, after hearing learned counsel appearing for the parties, disposed of the writ petition on the following terms:
“ In the above circumstances, even if the petitioner is not suitable for underground work or any hard work, otherwise suitable for any other easy job or any job of surface, respondent-authority may also consider his case and give him any other alternative job which he can do after taking opinion of the appellate medical board within a period of six weeks from the date of receipt of a copy of this order.
Accordingly, this writ petition is disposed of. No costs.”
Heard learned counsel appearing for the parties and perused the record.
It appears to us that the 1st respondent-petitioner is not even a permanent employee in the appellant No.1-company, which is also not
denied or disputed before us by the 1st respondent-petitioner. It further appears to us that this is nothing but the appointment is only on the ground of compassionate appointment, therefore, the right of the 1st respondent-petitioner has not yet been crystallized. In these circumstances, the Hon’ble single Judge without taking into account of such fact and without giving a chance of filing the counter affidavit to the appellant No.1/respondent-company, disposed of the writ petition, at the admission stage itself, in favour of the 1st respondent/petitioner and a mandatory order was passed directing the Medical Board to express its opinion within a period of six weeks from the date of receipt of a copy of the order. It also appears to us that by passing such order the Hon’ble single Judge also held that even if the petitioner is not suitable for underground work or any hard work, otherwise suitable for any other easy job or any job of surface, the respondent-authority may also consider the case of the 1st respondentpetitioner and give him any other alternative job.
In our considered opinion, this type of order cannot be passed by the court giving a mandatory direction to the appellant No.1-respondent-company to appoint a person and that too at the admission stage without giving a chance to the appellant-company to file their affidavit. After noting these facts, in our opinion, the impugned order cannot be substantiated in the eye of law on the grounds already mentioned by us in the preceding paragraph.
In view of that, the impugned order is set aside and the matter is remanded back to the writ court for disposal afresh within a period of six weeks from the date of communication of this order, after giving chance to file counter affidavit in the writ petition.
The writ appeal is allowed on the above terms.
( PINAKI CHANDRA GHOSE, ACJ )
( VILAS V.AFZULPURKAR,
J )
Dt: 15-11-2012.
TNB
2 issues framed by the court
Whether the High Court can pass a mandatory direction to appoint a person on compassionate appointment without giving the employer a chance to file a counter affidavit.
Whether the patient status of a compassionate appointee has crystallized rights before expression of opinion by the medical board.
The Singareni Collieries Co. Ltd.
Jakkula Shanker
Pinaki Chandra Ghosh
Vilas V. Afzulpurkar
As recorded by the court registry
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