1. Shri Noor Mohammad B. has filed this O.A. under Section 19 of the Administrative Tribunal Act praying therein for the following reliefs: "(1). This Honourable Tribunal be pleased to quash and set side the impugned order dated 6.7.2000 at Annexure "A" with its enclosure dated 24.4.2000 issued by the respondent No. 2 by holding it as illegal, unjust, improper, unfair, against the principles of equity and natural justice and be pleased to further hold that the same is not in confirmity with the policy of the compassionate appointment particularly in the present facts and circumstances of the case, the applicant is required to be reinstated in service with continuity of service and with all other consequential benefits including the back wages, promotions, seniority, and bonus, etc.
(3) Any other order or direction as may be deem fit, just and proper may kindly be passed." 2. The brief facts of the case are that the applicant who is the brother of late Shri Mohammad Idrish who was working in the Railway as Khalasi and died while in service. The widow of Shri Mohammad Idrish stated that she was not inclined to seek appointment on compassionate ground for herself and the applicant may be appointed as per the near relative clause in accordance with the Circular of the Railway Board for providing a bread winner to the family of the said deceased Government servant i.e., Mohammad Idrish.
3. The applicant was given appointment after completion of apprenticeship period, in Class III post as Fetter in the scale of 3050-4590. Thereafter he stated paying Rs. 400 p.m. to the widow of his brother and he has been continuously paying. On 21.2.2000, the Divisional Personnel Office insisted the applicant to pay Rs. 800 and he adhered to the same. The widow of the brother of the applicant has been staying in the house of the applicant and all electricity and other charges are being paid by him. The applicant has also to look after his old mother, father, and widow of his brother and others of his late brother. Further it has been submitted that the widow of his brother is getting about Rs. 1680 as family pension and Rs. 800 from the applicant. The widow is also getting interest on the amount which was received by her and certain more details have been given in the matter.
4. It has also been submitted that Smt. Jubedaben widow of the deceased brother filed O.A. 473/97 before this Hon'ble Tribunal. The same was disposed of vide order dated 6.7.99 with a direction to the department to conduct fresh inquiry in association with the applicant and the respondent No. 3 and to give proper finding within the specified period of four months. In pursuance with said order the order dated 24.4.2000 was passed vide which it has been held that the widow has clearly mentioned that she is not being supported by her brother-in-law and it is desirable to terminate the services of Shri Noor Mohammad with immediate effect as per the extent instructions on the subject. It is also said that no further appointment shall be given to be widow later or to the son or a daughter or the widow of the employee, once a near relative has been appointed on the compassionate grounds. In consequence thereto the order dated 6.7.2000 has been passed vide which the services of the applicant have been terminated. The O.A. has been filed on a number of grounds mentioned therein challenging the impugned order dated 6.7.2000 at Annexure A arid letter dated 24.4.2000.
5. The respondents have filed a counter to the O.A. and have controverted the contentions and grounds raised in the O.A. by the applicant. It has been specifically submitted that the appointment to the applicant was given on compassionate ground after the death of deceased Railway employee Mohammad Idrish on a specific undertaking by him that he would support the widow and the family members of the deceased. It is wrong to contend that the DPO insisted for enhanced amount which has to be paid to the widow of the brother of the applicant. It has been also submitted that there is no infirmity or illegality in passing of the impugned order. Since the widow has specifically submitted that she is not being supported by the applicant, the question of supplying of any copy of Inquiry Report etc., does not arise. The O.A. deserves to be dismissed. The applicant has filed rejoinder to the reply and have controverted the contentions and averments made in reply filed on behalf of the respondents.
6. We have heard the learned Counsel for both the parties and have are carefully gone through the records of this case.
7. As per the rules in force and the instructions issued by the Railway Board, a near relative can be allowed appointment on compassionate ground at the request of the widow of the deceased Government servant provided the widow is satisfied that the said near relative will be acting as a bread winner. At the time of grant of the appointment on compassionate ground, a specific undertaking to this effect is obtained from the said near relative in the present case that in case he does not support the family and act as a bread winner his services will liable to be terminated. This proposition of the rules has not been controverted by the applicant. The learned Counsel for the applicant has further submitted that the termination of the services of the applicant would result in economic death of the applicant as well as his dependent family members and bring on roads without job. There is no provision under the rules to grant appointment on compassionate grounds again. In this view of the matter, the termination of the service of the applicant shall affect and aggravate the misgiving of the applicant as well as that of the widow of the deceased Government servant. And the equity demands that some portion of the pay could then be directly deducted from his salary and remit it to the widow of the deceased but even such request of the applicant has gone in vain.
8. On the other hand, the submissions on behalf of the respondents have been that we are to be governed by the rule of law and the sympathy cannot replace the rules which are in force. Once the provisions of rule's are unambiguous they are to be applied in their full vigour.
Further, this Hon'ble Tribunal can entertain any matter which is regulated by Service Rules. In the present case, the rules are very clear and in case one does not support the family of the deceased at whose instance the appointment on compassionate ground was given for acting as a bread winner, as per the terms of appointment the termination is inevitable.
9. A similar controversy came up for adjudication before Hon'ble Supreme Court in U.P. State Electricity Board v. U.P. Bizali Karmachari Sangh and Anr., 1998 SCC (L&S) 157, the following orders has been passed.
2. The only question which requires consideration in this appeal is whether Ram Kishan, who was given appointment on compassionate grounds on account of the death of his nephew Ram Asrey, should be required to abide by the undertaking given by him at the time of his appointment to look after Smt. Munni Devi, the widow of Ram Asrey.
Smt. Munni Devi made a complaint that Ram Kishan has failed to honour the said undertaking. On the basis of the said complaint, the services of Ram Kishan were terminated by the appellant. The said termination of Ram Kishan has been set aside and he has been ordered to be reinstated. As per the direction given by this Court in the order dated 30.4.1993, there is a stay of payment of half of back wages to the said employee and it has also been directed that on reinstalment one-third of the current wages should be deducted every month every month and should be paid to Smt. Munni Devi.
3. We have heard Mr. B. Sen, the learned Senior Counsel for the appellant, and Mr. R.P. Gupta, the learned Counsel for Respondent 1.
Having regard to the facts and circumstances of the case, we are of the view that it would meet the ends of justice if Smt. Munni Devi is paid one-third of the amount of back wages that are payable to Ram Kishan after his reinstatement and for future as per the direction contained in the order dated 30.4.1993, Smt. Munni Devi is paid one-third of the wages payable to Ram Kishan. The appeal is disposed of accordingly. "No order as to costs." 10. In view of the aforesaid discussion and the judgment of the Apex Court in U.P. State Electricity Board (supra), the application merits acceptance. The O.A. is allowed. The termination order dated 6.7.2000 (Annexure A) is hereby quashed and set aside. The respondent are directed to reinstate the applicant with all consequential benefits.
The respondents are also directed that on reinstatement, one-third of the current wages should be deducted from the salary of the applicant and shall be paid to Smt. Jubedaben Belim Respondent No. 3. Smt.
Jubedaben Belim will also be entitled to one-third of the arrears of the wages which becomes payable to the application in view of this order. No costs.