Compassionate Employment Claims Must Be Considered Promptly, Bureaucratic Process Of Pushing Files Is Unacceptable: Calcutta High Court

The Calcutta High Court has held that claims of compassionate employment must be dealt with promptly and that the legal right of a litigant who belongs to a socially or economically backward section of society should not be defeated on account of procedural lapses of the litigant in view of glaring breaches by the employer. 

A division bench of Justices Soumen Sen and Uday Kumar allowed the plea seeking compassionate employment from the Airports Authority of India (AAI) and held:

"The writ petitioners approached the authorities in time. It was a manifest arbitrary act of the employer in denying employment. The writ petitioners have been denied a decent livelihood and a timely action would have put the family in a better position. The contention that the writ petitioner No.1 is presently working as a contractual employee in the airport under a contractor apart from being substantiated is no consolation and if such excuse is accepted it would only embolden an employer to act unfairly and arbitrarily and an irreparable injury and injustice would be caused to the writ petitioner no.1 whose legal right to employment is unquestionable. Justice will be buried and a loser at the end of the day. It is a clear violation of article 14 and 21 of the Constitution of India. All persons similarly placed have been given appointment under the same scheme. All equals are to be treated alike. The conduct of AAI shocks the conscience of the court more so as AAI is an instrumentality of the state."

"A person may survive after the death of the bread earner on borrowings or benediction of well-wishers. However, begging or borrowing or living with someone's mercy is not a dignified living. Article 21 of the Constitution of India postulates a person should have a decent and dignified living. Compassionate appointment although is not a vested right, it is a right nonetheless. The authority is obliged to consider such application with utmost promptitude. The sense of immediacy and urgency cannot be shown as a defence when the fault lies with the employer. The bureaucratic process of pushing files from table to table or keeping the application in the file to gather dust as an excuse for delay is clearly unacceptable. The duty to communicate and disclose the reason for denying such benefit is immediate and cannot be unduly postponed and deferred" it added.

The appeal arose out of a single judge order allowing the writ petition by directing the respondents/ appellants to appoint the writ petitioner on compassionate ground notionally with effect from 2007.The principal ground of challenge was the assumed inordinate delay of almost 16 years from the death of the writ petitioner and after 4 years 6 months from the discontinuance of the scheme of compassionate appointment of AAI. It is submitted that no opportunity was given to the appellants to file an affidavit disclosing all relevant facts.

The father of Respondent No. 1 was an employee of the AAI and was working as a Sweeper. He died in 2006 and was survived by his wife and his son, being the respondent No. 1. Thereafter, the mother of the respondent No 1 wrote to the appellant, requesting to appoint the respondent No 1 on compassionate ground upon sudden demise of her husband. AAI, however, claimed to have rejected the said application on 3rd July, 2008. However, no such decision was communicated to the widow.

The writ petitioner alleged that since 20th July, 2015 till March, 2022 the AAI did not take any steps for providing an appointment to the writ petitioner no.1 on compassionate grounds. The Single Judge, without calling for an affidavit, proceeded on the basis of a chart and calculation filed by AAI and the oral submissions made by AAI opposing the prayer for compassionate appointment and allowed the writ petition.

Senior Counsel appearing on behalf of the appellants, submitted that since no affidavit in opposition was filed, the matter could not be explained properly. The writ petitioner no. 1 was not found suitable for giving compassionate appointment as he failed to secure minimum qualifying marks i.e. 60 marks out of total 100 marks and the writ petitioner was all throughout aware of the facts for non-selection since 2008.

He submitted that it is well settled that compassionate appointment is not a matter of right, and a long inexplicable delay in approaching the court for seeking relief of compassionate appointment would be a relevant consideration in deciding the writ petition for compassionate appointment. It is submitted that the High Court in exercise of its discretion, cannot assist an indolent and lethargic litigant.

Counsel for the writ petitioner submitted that once the Single Judge has arrived at a finding that the application has been arbitrarily rejected, although the writ petitioner had the requisite qualification and is entitled to the qualifying marks, the writ court as a court of equity can direct compassionate appointment if other conditions are satisfied. It is submitted that AAI has failed to demonstrate that the writ petitioner is not entitled to the minimum qualifying marks i.e. 60. AAI had arbitrarily awarded only 45 marks out of 100 in assessing the financial condition of the family for compassionate employment.

It was submitted that the decision for discontinuance of the scheme of compassionate appointment was taken only on 10th January 2018. The writ petitioner No.1, being eligible prior in point of time, could not have been denied the benefit of appointment due to the wrong or erroneous assessment by AAI.

Upon hearing the submissions, the court noted,

"The economic, social and academic background of the deceased person and his family members need to be appreciated. The wife of the deceased and the writ petitioner no. 1 are not aware or well versed with the legal niceties and nuances and may not have the wherewithal to pursue a luxurious litigation. The petitioners are like a man in the street alienated against the law being confounded and baffled with its complexities with no comprehension about it or the legal system by which he is governed. The writ petitioner No.1 was barely 20 years old when his father died. He studied up to Class VIII. The widow was illiterate. The father of the writ petitioner no.1 admittedly was the only breadwinner. They were struggling for survival. [AAI] cannot deny its responsibility in not considering the application for compassionate appointment provided all other criteria are fulfilled. Once a dependent fulfils the criterion the employer is duty bound to give employment. It is also the duty of a model employer to inform the family of the deceased of any beneficial scheme in existence and assist the family to withstand the shock instead of allowing it to drown. One has to appreciate that the deceased was a safaiwala (sweeper)."

It thus concluded that in such cases where the fault of the employer is glaring in nature, the alleged delay caused by the litigant, especially belonging to a socially and economically backward class, cannot be used as an excuse to deny the claim of compassionate employment. The bench held:

"One could not possibly expect the son of a sweeper, the writ petitioner no.1, to know the consequence of delay in approaching the court for not being communicated of the decision of AAI for redressal of his grievance, lest it might be contended against the writ petitioner no.1 that immediacy is lost and the family is no more in need of any financial assistance and the employer notwithstanding its many faults would expect the court to turn a blind eye for all its inactions. The legal aphorism that ignorance of law is no excuse or a defence may not be applicable in all circumstances as we cannot lose sight of the economic and social strata of a litigant. The concept of delay and laches to deny the relief to a litigant has to be considered contextually after taking into consideration his social and economic background. The scheme was consciously framed to take care of their needs. They are the beneficiaries."

"Under such circumstances we affirm the order under appeal. We direct the authorities to give appointment to the writ petitioner no.1 within four weeks in terms of the order of the learned Single Judge. We further direct payment of Rs.3,51,000/- illegally withheld along with simple interest at the rate of 10% per annum from January, 2008 till the date of payment. The payment shall be made within four weeks from date," it concluded.

Case: Airports Authority of India & Ors. vs. Provash Besai & Another

Case No: MAT 176 of 2024

Click here to read order