WP/6056/2010 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6056 OF 2010 The State of Maharashtra & Ors. ... Petitioners V/s. Medha Prashant Parkhe ... Respondent Mr.A.D. Kango, AGP, for Petitioners Mr.N.A. Kulkarni for Respondent CORAM: SMT.NISHITA MHATRE, J. DATED: OCTOBER 26, 2010 P.C.: 1. Rule, returnable forthwith, by consent. 2. The petition has been filed to challenge the order of the Industrial Court in revision application (ULP) No.126 of 2009 and 129 of 2009. The facts giving rise to the present petition are as follows: The respondent’s father was employed with the petitioner. He attained a permanent disability due to which he retired on 2.6.1998 prior to his date of superannuation. The respondent then applied for employment on compassionate grounds on 3.8.1998 and sent a reminder on 9.8.1999. The application was preferred under Rule 74 of the Maharashtra Civil Services (Pension) Rules, 1982. Under the policy framed which is contained in a notification issued by the Government on 26.10.1994 the WP/6056/2010 : 2 : husband/wife, son or unmarried daughter or legally adopted son or unmarried daughter are eligible for being appointed on compassionate grounds in the place a deceased or a prematurely retired government employee. No other relatives of such a government employee are entitled to be appointed on compassionate grounds. The respondent being found eligible was selected and her name was included in the wait-list on 13.12.1999. She was appointed on 30.12.2003. In the meantime, she was married on 21.12.2000. Her services were terminated on 21.12.2005 on the ground that she was not eligible for appointment on compassionate grounds since she was a married daughter of a prematurely retired government servant. 3. The respondent being aggrieved by the termination of her service filed a complaint u/s 28(1) of Schedule IV r/w Items 1(a), (b), (d) and (f) of the MRTU & PULP Act. She contended there in that she had completed 240 days in service after being appointed on 30.12.2003. It was further pleaded that her services were terminated w.e.f. 21.12.2005 without paying her retrenchment compensation or notice or wages in lieu of notice. No enquiry was conducted prior to the termination of her services. 4. The petitioner filed its written statement contending that only an unmarried daughter could be offered employment under the Government Notification dated 26.10.1994. It was contended that the respondent had not cleared the Marathi and English typing test as well as the MSCIT computer examination and, therefore, the petitioner had terminated her services. 5. Evidence was led by the respondent before the Labour Court. It appears WP/6056/2010 : 3 : however that no witness was examined by the petitioner. The respondent admitted that she did not inform the Collector’s office that she was married when she received the appointment order. However, she has denied that she did so deliberately with the intention to “grab” the appointment. 6. The Labour Court has held that services of the respondent had been illegally terminated by the petitioner. It was of the view that the provisions of section 25F of the Industrial Disputes Act had not been complied by the petitioner and, therefore, there was an illegal termination of service. The Labour Court opined that if it was the case of the petitioner that the respondent had suppressed the fact that she had got married and that it amounted to a misconduct it was necessary for the petitioner to hold an enquiry. Besides this, it observed that the policy of the government of appointing employees on compassionate grounds as detailed in the notification of 26.10.1994 envisages that the eligibility criteria for a daughter to be appointed on compassionate grounds is that she should be unmarried. The Labour Court held that since the respondent applied on 3.8.1998 and was wait-listed in 1999 when she was unmarried she had not committed any illegality as she was eligible for being appointed when she was selected. The fact that the petitioner had got married during this period would not in any event reflect adversely on her right to continue in service, held the Labour Court. It then concluded that since there were no pleadings in the complaint regarding the respondent’s unemployment after her services were terminated, she was not entitled to backwages. 7. Being aggrieved by the order of the Labour Court both the petitioner and the respondent filed revision applications. These applications were heard and decided WP/6056/2010 : 4 : together by the Industrial Court. The revision application filed by the petitioner was dismissed while the one filed by the respondent was allowed. The Industrial Court directed the petitioner to reinstate the respondent with continuity of service and full backwages from 21.12.1965 within two months of the order. 8. The Industrial Court considered the notification and held that the ground for termination of the services of the Respondent was unreasonable and improper. It also concluded that since admittedly the respondent had worked with the petitioner from 30.12.2003 to 21.12.2005, it was necessary for the petitioner to comply with section 25F prior to terminating her services. With regard to the backwages, the Industrial Court observed by relying on the judgment of the Division Bench of this Court in the case of Taranjit Singh L. Bagga vs. MSRTC, 2008 (4) BCR 330 that the respondent would be entitled to backwages. 9. Both the learned advocates have essentially based their arguments on whether the order of termination on the ground of suppression of the fact that the respondent was married on the date when she was actually appointed in service was unreasonable. Admittedly, in the present case, the petitioner has not complied with section 25F of Industrial Disputes Act although the Respondent had worked for 240 days in the twelve calendar months preceding the termination from service. Moreover, in its written statement, the petitioner has stated that the termination of services of the respondent is in accordance with the rules. No evidence whatsoever has been led by the petitioner to establish that the respondent had in fact suppressed the fact that she was married on the date when the appointment order was issued to her nor has any evidence been led by the petitioner in support of its pleadings in the WP/6056/2010 : 5 : written statement that the Respondent had not complied with the departmental rules of passing Marathi and English typing test and the computer examination within one year from the date of appointment. 10. In my view, therefore, when admittedly, the petitioner had not complied with the provisions of section 25F, the termination of service of the respondent is illegal. Apart from this, if it is the contention of the petitioner that the respondent had committed a fraud as argued by the learned AGP, it was necessary for it to hold a departmental enquiry prior to terminating her services. Therefore, in my opinion, the termination of the respondent’s services was illegal and has rightly been set aside by the Labour Court and the order has been confirmed by the Industrial Court. 11. It has been argued on behalf of the petitioner that fraud vitiates all else and therefore there is no need to hold an enquiry. Unfortunately the order terminating the services of the respondent has not been placed before me. However, on the basis of what has been stated in the impugned orders, the order terminating the respondent’s services has been passed principally on the ground that she had suppressed the fact that she was married when the appointment order was issued to her. Reliance is placed on the judgment of the Supreme Court in the case of State of Chattisgarh & Ors. vs. Dhirjo Kumar Sengar, 2009 (13) SCC 600. In that case, the Supreme Court was considering a case of a person who had secured appointment on compassionate grounds. He claimed that he was related to a deceased headmaster of the government school and that therefore, he was entitled to compassionate appointment. Since his offer of appointment was cancelled, the aggrieved individual filed original application before the Administrative Tribunal. The Court observed that WP/6056/2010 : 6 : appointment on compassionate grounds is an exception to the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India. It was held that the appointment on compassionate grounds should not be granted as a matter of course but only to those dependants of the deceased employee whose family would be left in the lurch as a result of his death. The concerned individual contended that he was adopted by the deceased headmaster and produced a purported deed of adoption. The Court therefore held that the presumption envisaged u/s 16 of the Hindu Adoption and Maintainance Act 1956 was not acceptable as the deed of adoption was not registered. The Court therefore held that the legality of the grant of a valid appointment on compassionate grounds was dependent upon number proof that the employee was the adopted son of the deceased headmaster. In these circumstances, the Court held that when documents had been obtained as a result of fraud practised on the department it was appropriate to cancel the appointment granted. The fraud had been proved and, therefore, the principles of natural justice were not required to be complied. 12. In the case of V.Sivamurthy vs. State of Andhra Pradesh & Ors., (2008) 13 SCC 730, the Supreme Court has enunciated the principles on which appointments may be made on a compassionate basis. The Supreme Court has observed that two well recognised contingencies are carved out as exceptions to the general law of employment in public service. These are “(i) appointment on compassionate grounds to meet the sudden crisis occurring in a family on account of the death of the breadwinner while in service; (ii) appointment on compassionate ground to meet the crisis in a family on account of medical invalidation of the breadwinner”. The Court has also held that compassionate appointments can be granted only when the rules WP/6056/2010 : 7 : governing the service permit such appointments. Furthermore, it has observed that such appointments are permissible to the dependent member of the family of the employee concerned i.e. the spouse, son or daughter and not other relatives. The Court then observed that Courts should not interfere with the policy of the Government regarding compassionate appointments unless it was unreasonable or arbitrary or absurd. The learned AGP has argued that in view of this judgment, both the Courts below were incorrect in holding that a married daughter would also be entitled to appointment on compassionate grounds thereby changing the policy for appointment on compassionate grounds. 13. This submission is without any merit. The fact that the respondent was selected on compassionate grounds because she was eligible cannot be denied. The eligibility criterion for a daughter of a medically invalidated employee was that she should be unmarried when she applied for employment. The Respondent here was unmarried when her father was prematurely retired on grounds of ill health. She was unmarried when she was selected. The delay in appointing her cannot deprive her of the right that she had acquired when her name was placed on the wait list. 14. In the case of Smt.Usha Singh vs. State of West Bengal & Ors., 2003 (2) LLN 554, the Calcutta High Court observed as under: 7. No authority need be cited for the proposition that right to marry is a necessary concomitant of right to life guaranteed under Art. 21 of the Constitution. “Right to life includes right to lead a healthy life so as to enjoy all the faculties of the human body n their prime condition”. (See in this regard Sr X v. Hospital Z, reported in (1998) 8 S.C.C 296). WP/6056/2010 : 8 : Later in para 10 the Court has observed thus: 10. The rationale of the rules quoted hereinabove is that the son or the daughter who applies for an appointment in the died-in-harness category should have been dependent upon the income of the deceased so that his untimely death left him/her/them in extreme economic hardship. The Award object of the rules is to provide relief to the family which is in extreme financial hardship and for this purpose an unemployed son can apply whether married or unmarried. Why then is the restriction upon a daughter that she should be unmarried in order to be eligible for appointment? An unmarried daughter can be a divorcee fully dependent upon the father. She may have been abandoned wife again fully dependent upon the father. She may have been married to an indigent husband so that both the married daughter and the son- in-law would have been dependent upon the income of the bread-winner whose death led them to extreme financial hardship. The concept of a “Ghai Jamai” (one who lives at one's father-in-law's house) is well accepted in Indian society particularly in those families where there s no son. There may be many other probabilities in which a married daughter may be fully dependent upon the income of her father so that death of the father would lave her and the rest of the members of the family in extreme economic hardship. Why should then a distinction be made between a son and a married daughter? An unemployed married son according to the rules is ineligible irrespective of the fact that they are or may be similarly placed and equally distressed financially by the death of the father. Take the case of a teacher who died-in-harness leaving him surviving his illiterate widow, an unqualified married son and a qualified married daughter who were all dependent on the income of the deceased. Following the rule as it is interpreted by the Council and its learned advocate, this family cannot be helped. Is this the intended result of the rule? Or does this interpretation advance the object of the rule? What is the basis for the qualification which debars the married daughter? And what is the nexus between the qualification and the object sought to be achieved? In my view, there is none. If any one suggests that a son married or unmarried would look after the parent and his brothers and sisters, and that a married sister would not do as much, my answer will be that experience has been otherwise. Not only that the experience has been otherwise but also judicial notice has been taken thereof by a Court no less than the Apex Court in the case of Savita v. Union of India reported in (1996) 2 SCC 80 wherein Their Lordships quoted with approval a common saying; “A son is a son until he gets a wife. A daughter is a daughter throughout her life”. 1. Mr.Kulkarni, appearing for the respondent, was at pains to point out that even assuming the respondent had not mentioned that she was married when the appointment order was issued it would still not amount to a fraud. He relies on WP/6056/2010 : 9 : several judgments to submit that a policy which discriminates against a daughter for compassionate appointment is violative of Articles 15 and 16 of the Constitution of India. 2. In the case of Manjula vs. State of Karnataka by its Secretary, Department of Cooperation Bangalore & anr., 2005 (104) FLR 271, a learned Single Judge of the Karnataka High Court has held after considering the judgments of the Supreme Court that a woman cannot be denied entry into service on compassionate employment just because she is married. The Court has observed thus: 12. In these circumstances, this Court is of the view that no married women can be denied of any entry into service on compassionate employment just because she is married. In fact the State Government has accepted the theory of no employment for married women living with her husband. There may be cases where the married woman may be living with her parents notwithstanding her marriage for various reasons and there may be cases like the present one in which case the married women would be dependent on their parents on account of death of her husband. Therefore, what this Court would do is to read down the Rule thereby providing employment to dependent married daughters subject of course to the satisfaction of the management of the dependency of the said married daughters in the given circumstances. This view in my view would support the cause of women in terms of Article 14 and 15 of the Constitution of India. They cannot be denied employment merely on the ground of marriage. The Division Bench has also noticed dependency in such cases. Therefore, the `dependency' should be the yardstick and not the `marriage' to wipe out the tears from the eyes of the suffering family on account of the loss of an earning member in the family.” (Emphasis supplied). 17. The Orissa High Court was dealing with Rule in the Orissa Superior Judicial Service Rules 1963. Rule 6(2) of the Rules disqualify a woman to be employed as District Judges, if married. The Court struck down this Rule as discriminatory in nature and violative of Article 14. The Court observed that a marriage cannot operate as a disqualification for the appointment as a District Judge for women only if it does WP/6056/2010 : 10 : not operate as a disqualification for males. 18. The Supreme Court in the case of Miss. C.B. Muthamma vs. Union of India & Ors., AIR 1979 SC 1868 was dealing with the following rule in the Indian Foreign Service (Conduct and Discipline) Rules 1961 which reads as follows: “Rule 8(2): In cases where sub-rule (1) apply, a woman member of the service shall obtain the permission of the Government in writing before her marriage is solemnized. At any time after the marriage, a woman member of the Service may be required to resign from service, if the Government is satisfied that her family and domestic commitments are likely to come in the way of the due and efficient discharge of her duties as a member of the service." 19. Justice Krishna Iyer speaking for the Bench has observed thus: 5. Discrimination against women, in traumatic transparency, is found in this rule. If a woman member shall obtain the permission of government before she marries, the same risk is run by government if a male member contracts a marriage. If the family and domestic commitments of a woman member of the Service is likely to come in the way of efficient discharge of duties, a similar situation may well arise in the case of a male member. In these days of nuclear families, inter-continental marriages and unconventional behaviour, one fails to understand the naked bias against the gentler of the species. Rule 18 of the Indian Foreign Service (Recruitment Cadre, Seniority and Promotion) Rules, 1961, run in the same prejudicial strain: "(1) to (3) ............ (4) No married woman shall be entitled as of right to be appointed to the service." 6. At the first blush this rule is in defiance of Article 16. If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman’s thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India’s humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and Law in Action. And if the Executive as the surrogate of Parliament, makes rules in the teeth of Part III, especially when high political office, even diplomatic WP/6056/2010 : 11 : assignment has been filled by women, the inference of die-hard allergy to gender parity is inevitable. 7. We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrable, the rule of equality must govern. ….......... 20. In R. Jaymma vs. Karnataka Electricity Board & anr. AIR 1993 I LLJ 587, the Karnataka High Court was dealing with a Rule which is similar to clause 3(A) of the present Government Notification dated 26.10.1994. A learned Single Judge of the Karnataka High Court has held thus: 5. Article 14 of our Constitution assures to all citizens equality before the law and legal protection of the law. Article 15 expressly prohibits discrimination on the ground of sex. Article 16 guarantees equality of opportunity in matters of public employments. 6. Though women have equal right in law, tradition and social customs hinder Indian women in enjoying equal rights with men. With the change in family structure and life styles and the social norms, nothing is so detrimental to society as a blind adherence to outworn forms and obsolete social customs which survive because of inertia. 7. This discrimination, in refusing compassionate appointments on the only ground that the woman is married is violative of constitutional guarantees. It is out of keeping with the trend of times when men and women compete on equal terms in all areas. The Electricity Board would do well to revise its guidelines and remove such anachronisms. 21. In my opinion, therefore, Rule 3(A) which discriminates against unmarried women is arbitrary and, therefore, it cannot be said that the termination of service of the respondent was legal. An unfair labour practice has been established. It is impossible to accept in this day and age that assuming a woman gets married she will cut off her ties with the family she is born in and will leave it to suffer the vagaries WP/6056/2010 : 12 : of life in penury. It was necessary for the Petitioner in this case to establish on evidence that the respondent, after having secured the employment, was no longer connected with the family that she was born into and that the family was living without her financial support. The petitioner instead has chosen to dismiss the Respondent, without holding an enquiry and has thereby committed an unfair labour practice. One of the eligibility criteria for applying for appointment on compassionate grounds is that the daughter must be unmarried. The Respondent was unmarried when she applied for the post. She was selected as she fulfilled all the other criteria for appointment. Her name was included in the wait-list and she was issued an appointment order three years later. The petitioner cannot expect the life of the Respondent to come to a grinding halt only because her name was included in the wait list. The unreasonableness and arbitrariness of the Petitioner is writ large. Does the Respondent have to let life pass her by only because her name was included in the wait list? The answer must be emphatically in the negative. To suggest that because the Respondent had not waited long enough to get married, she had committed a fraud, smacks of an unfair labour practice under Item 1(b). 22. In my opinion, the order of the Industrial Court is correct and need not be disturbed. The Industrial Court has rightly in my opinion, awarded the backwages. The services of the respondent were terminated on 21.12.2005. The complaint was filed on 31.1.2006 i.e. approximately after a month and 10 days of her termination from service. It is difficult to believe that a person would be able to get employed within a month from the date of her dismissal. In my opinion, therefore, in the facts of the present case merely because the complainant has not stated that she is unemployed it would not mean that she is not entitled to backwages. The Industrial WP/6056/2010 : 13 : Court has therefore rightly