BIMAL KUMAR DEY Vs. CHAIRMAN, HINDUSTAN COPPER LTD.

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THIS matter has come -up before this Court because of the fact that the learned Single Judge vide order dated 04.01.2002 referred the matter for answering the following question:

(3.) THE brief facts of the case are that the petitioners, who are four in numbers and their father were employees of the respondent -Company i.e., Hindustan Copper Limited, Kolkata and they were working in Ghatshila area of District -East Singhbhum, the then State of Bihar and now in the State of Jharkhand. The petitioners' father applied for voluntary retirement obviously before their actual date of superannuation and at that time they made request for employment of their nominees,who are the petitioners herein. The petitioners' name, therefore, registered as nominee of their fathers. In the year 1986, Voluntary Retirement Scheme was prepared by the Company and under that Scheme certain benefits have been provided to the employees offering voluntary retirement including employment of their respective nominees. After retirement of fathers of these petitioners, the petitioners got employment on temporary basis and they received wages as temporary worker. The petitioners after some time submitted their representations for regular appointment and according to the petitioners, they were given assurance but in fact they were not given regular appointment. It is also submitted that a list was prepared by the respondent -Company on 19.5.1990 containing the names of the petitioners and on 13.6.1990, they were interviewed but subsequently their names were withdrawn from the list without any information and without any reason shown to them by the Management. Rest of the candidates, whose names were in the list dated 19.5.1990, have been given appointment against the regular posts. In the background of these facts, the petitioners preferred a writ petition being C.W.J.C. No. 3684 of 1992(R) before this Court. This Court after taking note of the contentions of the petitioners referred above and the stand of the respondent -Company stating therein that as back as in the year 1947, a system of recruitment in the Company was prescribed under an Award(Annexure -A to the counter affidavit and in course of time, another bipartite agreement dated 18.8.1973(Annexure -B) was arrived at between the Management and recognized Labour Union whereby it was agreed that appointment may be given to certain class of persons who are family members or relatives of employees of the Company upon their nomination by the employees and employees having 08 years service be allowed to enlist their nominees for recruitment on preferential basis. However, the Central Government in the year 1986 emphasized reduction of manpower and issued directives and banned further employment, except for vacancies in essential services like hospital, etc. However, on other side, the Union started pressing for their demand for employment to family members of the employees. Therefore, on 26.4.1990, the matter was discussed in the Head -Office of the Company at Kolkata and after considering all the relevant factors, it was decided to relax selectively the ban on recruitment in phased manner and to consider the cases of nominees of those employees, (i) who died while in service/retired on attaining the age of superannuation and (ii) eligible land oustees. In view of the said decision, dated 26.4.1990, a notice dated 19.5.1990, referred above, was issued and nominees were invited to attend interviews. It is submitted that the ban on recruitment was lifted only with respect to those categories of persons mentioned in Annexure -D appended to the counter affidavit to the writ petition C.W.J.C. No. 3684 of 1992(R) and it did not include the nominees of employees who opted for voluntary retirement and inadvertently, the names of the petitioners, who were nominees of employees who took voluntary retirement, were wrongly included in the list (Annexure -E) and on realising the same, a fresh notice dated 30.5.1990 was issued containing the names of the eligible candidates. The contention of respondent -Company was that the petitioners, who are the nominees of the persons who took the voluntary retirement had no locus -standi to raise any claim relating to the employment against the Management and the Company being a Public Sector Undertaking, the question of appointment of nominees on preferential basis was certainly violative of the provisions of the Constitution. The Division Bench thereafter, rejected the claim of the writ petitioners by observing that in the opinion of the Court, in exercise of power under Article 226 of the Constitution of India, the High Court cannot direct the petitioners' appointment in a regular manner, which would be against the principles of natural justice as also against the provisions of Article 16 of the Constitution of India. However, the High Court while dismissing the writ petition C.W.J.C. No. 3684 of 1992(R) observed that the Company, in the facts and circumstances of the case, should consider the petitioners' case as to providing relaxation in age limit as and when steps are taken up for filling up the vacant posts in a regular manner.