Ku. Shimla D/O Late Satiram ... vs Western Coalfields Limited, ...
2023 Latest Caselaw 730 Bom

WP-4074-2018                                  1                       Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.

                 WRIT PETITION NO. 4074 OF 2018

1.   Ku. Shimla d/o Late Satiram Rajbhar,
     aged about 22 years, Occ. Nil,
     Resident of Quarter No. 25/2, WCL Colony,
     Sadbhavana Nagar, Post : Patansaongi,
     Tahsil - Saoner, District - Nagpur.

2.   Smt. Chandravati wd/o Late Satiram Rajbhar,
     aged about 53 years, Occ. Nil,
     Resident of Quarter No. 25/2, WCL Colony,
     Sadbhavana Nagar, Post : Patansaongi,
     Tahsil - Saoner, District - Nagpur.
                                                                 PETITIONERS
                               .....VERSUS.....
1.   Western Coalfields Limited
     (A Government of India undertaking),
     Office of the Senior Manager (Mining),
     Saoner Mine No.2, Post : Saoner, Nagpur - 441107,
     District - Nagpur, through its Senior Manager (Mining)
     and Mine Superintendent.

2.   Western Coalfields Limited
     (A Government of India undertaking),
     Office of the Senior Manager (Mining),
     Saoner Mine No.2, Post : Saoner, Nagpur - 441107,
     District - Nagpur, through its Assistant Manager (Personnel).

3.   Western Coalfields Limited
     (A Government of India undertaking) 'Coal Estate',
     Civil Lines, Nagpur - 440001,
     through its Chairman-cum-Managing Director.

4.   Coal India Limited
     (A Government of India Enterprise),
     10, Netaji Subhash Road, Kolkata (West Bengal),
     through its Chairman.
                                                               RESPONDENTS

Shri D.S. Thakur, Advocate for the petitioners.

Shri A.M. Ghare, Advocate for respondent Nos. 1, 3 and 4.

                                  WITH
 WP-4074-2018                                 2                       Judgment

                  WRIT PETITION NO. 2036 OF 2021

Miss. Sarika Shamrao Manusmare,
aged about 29 years, Occ. Nil,
R/o At Post Waighaon Ghoturli W.C.L.
Umrer (Rural), Vihirgaon, Nagpur - 441204.
                                                                   PETITIONER
                                .....VERSUS.....
1.   Western Coal Limited,
     through its Chairman-cum-Managing Director,
     Coal Estate, Civil Lines, Nagpur.

2.   Chief General Manager,
     Western Coal Limited,
     Coal Estate, Civil Lines, Nagpur.

3.   Deputy Manager,
     Western Coal Field Limited,
     Moorpar Sub-Area, Umrer.
                                                                 RESPONDENTS


                Shri A.M. Sudame, Advocate for the petitioner.
                Shri A.M. Ghare, Advocate for the respondents.



CORAM : A. S. CHANDURKAR AND M.W. CHANDWANI JJ.
ARGUMENTS WERE HEARD ON : NOVEMBER 16, 2022
JUDGMENT IS PRONOUNCED ON : JANUARY 20, 2023
JUDGMENT :(PER : A.S. CHANDURKAR, J.)

Since common issues arise in these Writ Petitions, they are

being decided together by this common judgment.

2. The facts in Writ Petition No. 4074/2018 are that one

Satiram Rajbhar was in employment with the Western Coalfields Limited

(WCL) as a permanent non-executive employee. He expired in harness on WP-4074-2018 3 Judgment

6/4/2009 leaving behind his widow. On his death, his daughter Vimla

and Shimla along with his brother Nandkishor were eligible dependents

who could seek employment on compassionate reasons from the WCL.

The widow of Satiram however preferred to seek employment for her son

Nandkishor. Since at the relevant time Nandkishor was minor, a request

was made by the widow to keep his name on the life roster and pay her

monthly monetary compensation till he attained the age of majority and

was thereafter provided employment under the National Coal Wage

Agreement (NCWA). This was accordingly done. On 3/5/2011,

Nandkishor attained majority. After submitting all relevant documents,

the WCL on 7/8/2012 provided employment to Nandkishor and stopped

paying the amount of monthly monetary compensation to the widow. On

completion of the period of probation, the appointment of Nandkishor

was regularized from 6/2/2013. Nandkishor however died an unnatural

death on 5/6/2015. At that time, the daughter of Satiram as well as the

widow were residing with him and were dependent on him. In

accordance with the provisions of the NCWA, the widow sought grant of

compassionate appointment to her daughter vide communication dated

22/8/2015. The daughter executed an affidavit stating therein that she

would take financial and medical care of her mother. On 5/9/2015, the

claim for seeking compassionate appointment was rejected by the WCL on

the ground that "sister" was not included in the definition of dependent WP-4074-2018 4 Judgment

under the NCWA. A representation was thereafter made on 1/6/2018 to

which there was no response. In that backdrop, the widow and daughter

of Satiram have filed this Writ Petition raising challenge to the

communication dated 5/9/2015 refusing to appoint the daughter on

compassionate ground. In addition, a declaration is sought that Clause

9.3.3 of Chapter IX of NCWA - IX to the extent it excluded the dependent

sister of the deceased from consideration is violative of Articles 14, 15, 16

and 21 of the Constitution of India.

3. The facts in Writ Petition No. 2036/2021 are that the

petitioner's father Shamrao was working as Miscellaneous Majdoor -

category - II with the WCL. He died in harness in the year 2010.

Thereafter, the petitioner's brother Yogesh was appointed as General

Majdoor - category - I (trainee) on 26/7/2010. He was thereafter made

permanent on 26/4/2011. In a road accident, the said Yogesh expired on

17/5/2012. After his death, the petitioner's mother made a representation

to the WCL stating therein that the petitioner - her daughter be given

employment on compassionate basis. Since the representation made in

that regard was not being decided, Writ Petition No. 3980/2018 was filed

by the present petitioner. By the judgment dated 26/11/2019, the WCL

was directed to consider the application in question within a period of

eight weeks from the date of the order. Pursuant to the said order, the WP-4074-2018 5 Judgment

said representation was considered by the WCL and by the order dated

20/1/2020 the same came to be rejected.

Being aggrieved, the petitioner has challenged the aforesaid

order of rejection. In addition, a declaration has been sought that the

NCWA - IX to the extent it dis-entitles female dependents from seeking

employment on compassionate basis was violative of the fundamental

rights guaranteed by Part III of the Constitution of India.

4. Shri D.S. Thakur, learned Counsel for the petitioners in Writ

Petition No. 4074/2018 submitted that the rejection of the petitioners'

claim to appoint petitioner No.1 on compassionate basis was bad in law.

The reason assigned by the WCL that petitioner No.2 as the sister of the

deceased was not a dependent resulted in gender discrimination and was

contrary to the spirit of the NCWA - IX and especially Clause 9.3.3

thereof. The NCWA - IX was in the nature of "settlement" as

contemplated by Section 2(p) of the Industrial Disputes Act, 1947 (for

short "the Act of 1947"). By virtue of Section 18(3) of the Act of 1947, it

had binding effect. Failure to comply with the settlement could result in

penal consequences as contemplated by Section 29 of the Act of 1947. An

award passed under the Act of 1947 and a settlement as contemplated by

Section 2(p) of the Act of 1947 were at par. Since the NCWA - IX was WP-4074-2018 6 Judgment

pursuant to mutual agreement between the various Labour Unions and

the WCL, it was required to provide for terms in consonance with the

Constitution of India. He then referred to the Employee's Compensation

Act, 1923 and Section 2(d) which defines the term "dependent". The

same did not indicate any gender discrimination. In that regard, he also

referred to Section 5 of the Equal Remuneration Act, 1976, Section 13 of

the General Clauses Act, 1897 and Section 2(d) of the Protection of

Human Rights Act, 1993. It was further submitted that Clause 9.3.3 of the

NCWA - IX results in gender discrimination which is violative of Article 14

of the Constitution of India and thus opposed to public policy under

Section 23 of the Indian Contract Act, 1872. Since the NCWA - IX had the

force of a settlement, it was binding on the WCL and the Writ Petition

seeking enforcement of the terms therein was maintainable. There being

no bar in the said agreement to grant employment to a dependent after

the death of the concerned employee, the same could not be defeated by

permitting such right to operate only in the case of a brother but

excluding sister of the deceased employee. The petitioners were pursuing

their claim diligently and there was no delay in seeking reliefs. It was thus

submitted that the reliefs sought for in the Writ Petition deserve to be

granted. In support of his submissions, the learned Counsel for the

petitioners placed reliance on the decisions in i) Mohan Mahto Vs.

Central Coal Field Ltd. And Others [(2007) 8 SCC 549]; ii) Indian Bank WP-4074-2018 7 Judgment

Vs. K. Usha And Another [(1998) 2 SCC 663]; iii) Balbir Kaur And

Another Vs. Steel Authority Of India Ltd. And Others [(2000) 6 SCC

493]; iv) Bharat Coking Coal Limited And Others Vs. Chhota Birsa Uranw

[(2014) 12 SCC 570]; v) Koshi Project Workers Assocn. & Ors. Vs. State

of Bihar & Ors. [2001(1) LLJ 1685]; vi) Madhubala Sinha and others Vs.

M/s. Central Coalfields Limited, Ranchi, through its Chairman-cum-

Managing Director and others [2019(4) LLJ 529]; vii) M/s. Central

Coalfields Limited and ors. Vs. Anita Kumari [2022(1) J.C.R. 82]; viii)

Shakila Begum (Siddiqui) w/o Late Abdul Latif Siddiqui & Anr. Vs.

Northern Coal Field Ltd. thr. its Chairman Cum Managing Director & Ors.

[Writ Petition No. 15841/2021 decided on 14/2/2022] at the High Court

of Madhya Pradesh at Jabalpur; and ix) Sail And Another Vs. Awadhesh

Singh And Others [(2001) 10 SCC 621] and submitted that reliefs as

prayed for in the Writ Petition deserve to be granted.

5. Shri A.M. Sudame, learned Counsel for the petitioner in

Writ Petition No. 2036/2021 in addition to the aforesaid submissions

urged that Clause 9.3.3 of the NCWA - IX had been found to be violative

of the provisions of Article 14 of the Constitution of India by the High

Court of Madhya Pradesh in Shakila Begum (Siddiqui) (supra). Though

the said adjudication was challenged by the subsidiary of Coal India

Limited, it was unsuccessful. Despite directions issued by this Court in WP-4074-2018 8 Judgment

Writ Petition No. 3980/2018 decided on 26/11/2019, the WCL failed to

consider the application as moved in the proper perspective thus

depriving the petitioner of the beneficial provisions for grant of

employment. The learned Counsel placed reliance on the decisions in i)

Miss C.B. Muthamma, I.F.S. Vs. Union Of India And Others [(1979) 4

SCC 260]; ii) Hamshikha Mallick Vs. Coal India Ltd. and Others [2016

Lab IC 3944]; iii) Smt. Gendia Debi Vs. The Central Coal Fields Limited,

through its Chairman-cum-Managing Director & Ors. [LPA No. 475/2017

decided on 16/9/2019] at the High Court of Jharkhand at Ranchi; and

iv) Shakila Begum (Siddiqui) (supra).

6. Shri A.M. Ghare, learned Counsel for the WCL opposed the

aforesaid submissions. At the outset, he submitted that grant of

compassionate appointment could not be claimed as of right since it was

an exception to the mode of recruitment as contemplated under Article 16

of the Constitution of India. The rights of the petitioners were covered by

the NCWA - IX. Since the said agreement was pursuant to deliberations

between representatives of Coal India Limited and various Employee

Unions, it was clear that non-inclusion of "sister" as beneficiary for

seeking compassionate appointment could not be termed to be arbitrary.

A conscious decision was taken after such deliberations and challenge to

the NCWA - IX could be raised in the manner provided by Section 18 of WP-4074-2018 9 Judgment

the Act of 1947. The petitioners were seeking deviation from the terms of

NCWA - IX and the Writ Petitions seeking such relief did not deserve to

be entertained since remedy under Section 18 of the Act of 1947 was

available. Relying upon the decisions in i) Anz Grindlays Bank Ltd. (Now

Known As Standard Chartered Grindlays Bank Ltd.) Vs. Union Of India

And Others [(2005) 12 SCC 738]; ii) M/s. Tata Chemicals Ltd. Vs. The

Workmen Represented By Chemicals Kamdar Sangh [(1978) 3 SCC 42];

iii) Sail And Another Vs. Awadhesh Singh And Others (supra); (iv) State

Bank Of India And Another Vs. Somvir Singh [(2007) 4 SCC 778]; v)

Nageshwar Turi s/o Late Laldeo Turi Vs. Central Coalfields Ltd. & Ors.

[I.A. No. 2363/2019 decided on 29/6/2020]; vi) I.G. (Karmik) And

Others Vs. Prahalad Mani Tripathi [(2007) 6 SCC 162]; vii) National

Institute Of Technology And Others Vs. Niraj Kumar Singh [(2007) 2 SCC

481]; and viii) Mohan Mahto (supra) it was submitted that there was no

legal justification for the petitioners to claim entitlement to consideration

of the claim as made. He submitted that after considering all relevant

aspects, the WCL had found that the respective petitioners were not

entitled to any relief whatsoever. He submitted that both the Writ

Petitions were liable to be dismissed.

7. We have heard the learned Counsel for the parties at length

and with their assistance, we have also perused the documents placed on

record. In the light of the fact that the petitioners have sought a WP-4074-2018 10 Judgment

declaration that NCWA - IX and especially Clause 9.3.3 thereof insofar as

it dis-entitles female dependents from seeking employment on

compassionate basis is violative of Article 14 of the Constitution of India,

it is the stand of the WCL that such declaration cannot be granted in the

present proceedings in view of the provisions of Section 18(3) of the Act

of 1947 as all terms of the agreement are binding on both parties. Unless

NCWA - IX is suitably amended, the claim of the petitioners cannot be

considered. Before going into that aspect, it would be necessary to refer

to the judgment initially of the learned Single Judge of the Madhya

Pradesh High Court in Shakila Begum (Siddiqui) (supra). The facts

therein indicate that the claim of the daughter of an employee of the

Northern Coalfields Limited (NCL) for compassionate appointment came

to be denied on the ground that the same was not permissible under

Clause 9.3.3 of the NCWA - IX. While considering challenge to that order,

the learned Single Judge referred to the judgment of the Full Bench of the

said Court in Meenakshi Dubey Vs. M.P. Poorva Kshetra Vidyut Vitran Co.

Ltd. & Ors. [Writ Appeal No. 756/2019 decided on 2/3/2020] wherein

the Full Bench has held that Clause 9.3.3 of the NCWA - IX while

referring to dependents would include married daughter/ sister.

Following the judgment of the Full Bench, the learned Single Judge held

that sister of an employee as dependent could not be deprived of

consideration of the claim for compassionate appointment. The Writ WP-4074-2018 11 Judgment

Petition preferred by her was allowed. This judgment of the learned

Single Judge came to be challenged in Writ Appeal No. 616/2022

(Northern Coalfields Limited Through Its Chairman Cum Managing

Director Singrauli & Ors. Vs. Shakila Begum (Siddiqui) Wd/o Late Abdul

Latif Siddiqui & Anr. decided on 14/6/2022] wherein the Division Bench

considered the ground raised by the NCL that Clause 9.3.3 could not be

declared to be illegal without impleading the Joint Bipartite Committee

For The Coal Industry (JBCCI) in the proceedings. It was held that the

NCL being a party to the agreement was only an implementing authority

and thus was not aggrieved by the order passed by the learned Single

Judge declaring Clause 9.3.3 to be illegal. On that count and as the

learned Single Judge had relied upon the judgment of the Full Bench of

the said Court in Meenakshi Dubey (supra), the Writ Appeal came to be

dismissed.

The aforesaid judgment in Writ Appeal No. 616/2022 was

challenged by the NCL before the Hon'ble Supreme Court in Special Leave

Petition (C) No. 16264/2022 (Northern Coalfields Limited & Anr. Vs.

Shakila Begum (Siddiqui) & Ors.). The Special Leave Petition came to be

dismissed on 14/10/2022. Thus, in effect, the judgment of the learned

Single Judge declaring Clause 9.3.3 of the NCWA - IX as unreasonable,

unjustified and contrary to the view taken by the Full Bench in Meenakshi WP-4074-2018 12 Judgment

Dubey (supra) stands confirmed. As a result, Clause 9.3.3 of the NCWA -

IX cannot be relied upon as a ground for not considering the claim for

compassionate appointment made by a sister of the dependent on the

ground that reference in the said Clause is only made to a brother therein.

8. From the aforesaid, it becomes clear that insofar as the NCL

which is a signatory to the NCWA - IX is concerned, it is covered by the

aforesaid decisions and it cannot implement Clause 9.3.3 by excluding

claim of a married sister as dependent of the deceased employee for

seeking compassionate appointment. The WCL is also a signatory to the

NCWA - IX being a subsidiary of the Coal India Limited. If the aforesaid

declaration as granted by the Madhya Pradesh High Court and affirmed

by the Hon'ble Supreme Court binds the concerned signatory to the said

agreement which is a subsidiary of the Coal India Limited, there is no

reason to hold that the aforesaid adjudication would not be applicable to

the WCL which is another subsidiary of the Coal India Limited. Holding so

would result in implementing Clause 9.3.3 of the NCWA - IX in a

different manner insofar as the WCL is concerned which would not be

consistent with the manner in which the NCL is now bound to interpret it

in the light of the aforesaid decisions. We therefore find that for the

aforesaid reasons, it would not be permissible for the WCL to re-iterate

the very same contentions that were raised on behalf of the NCL only for WP-4074-2018 13 Judgment

the reason that such contentions were raised before a different High

Court. The fact that the view of the Madhya Pradesh High Court has been

upheld by the Hon'ble Supreme Court is in our view a sufficient reason

not to entertain the very same arguments at the behest of another

subsidiary of the Coal India Limited afresh. In Sahu Madho Das and

others Vs. Mukand Ram and another [AIR 1955 SC 481] the Hon'ble

Supreme Court has held that where a document has been interpreted in

an earlier decision it may not bind a person who was not a party to the

said proceedings but the construction of the document would operate as a

judicial precedent.

9. We may note that the Full Bench of the Madhya Pradesh

High Court in Meenakshi Dubey (supra) has considered the aforesaid

issue at length and has referred to various enactments that were relied

upon by the learned Counsel for the petitioners herein. Since we agree

that the view taken by the Full Bench of the Madhya Pradesh High Court

in Meenakshi Dubey (supra) depriving a married daughter from the right

of consideration for compassionate appointment cannot sustain judicial

scrutiny, it is not necessary to refer to the said provisions again.

Moreover, reference has been made to various decisions of other High

Courts on the said point in the said decision including the judgment of

this Court in Sou. Swara Sachin Kulkarni (Kumari Deepa Ashok Kulkarni) WP-4074-2018 14 Judgment

Vs. Superintending Engineer, Pune Irrigation Project Circle and Another

[2013 SCC OnLine Bom 1549]. Therein, the Division Bench held that

refusal to consider the claim of a married daughter for compassionate

appointment would amount to discrimination on the basis of gender thus

violating Articles 14, 15 and 16 of the Constitution of India. We also note

that the Jharkhand High Court in Madhubala Sinha (supra) has

considered this very question and by its judgment dated 16/9/2019

directed consideration of the claim of a sister under Clause 9.3.3 of the

NCWA - IX. It is noted that this judgment of the Jharkhand High Court

was challenged before the Hon'ble Supreme Court in Special Leave

Petition (C) No. 29678/2018 (Central Coalfields Ltd. & Ors. Vs. Gendia

Debi & Anr.). The Special Leave Petition came to be dismissed on

12/11/2021. However, the question of law was left open for being

examined in an appropriate case. It is therefore held that Clause 9.3.3 of

the NCWA - IX insofar as it excludes a married daughter/ sister from

being considered for appointment on compassionate basis is unreasonable

and suffers from gender discrimination thus being violative of Articles 14

and 15 of the Constitution of India.

10. Coming to the decision in Mohan Mahto (supra) on which

considerable reliance was placed by the WCL, it would be necessary to

consider the facts therein. The father of the petitioner therein died in WP-4074-2018 15 Judgment

harness on 23/2/1997. The petitioner moved an application seeking

appointment on compassionate basis on 25/10/1997 but the same was

rejected on the ground that at the relevant time he was a minor. He then

applied for compassionate appointment after attaining the age of

majority. The claim was again denied on the ground that it was made

beyond the period of six months from the death of the employee. The

petitioner relied upon Clause 9.5.0 of the National Coal Wage Agreement

which was a settlement as contemplated by Section 18(3) of the Act of

1948. It was in that context observed that the settlement was binding on

both parties and continued to remain in force unless it was altered in

accordance with law. No period of limitation was prescribed in the

settlement and assuming that there was jurisdiction to issue such Circular,

it had to be read keeping in view the settlement between the parties. If

limitation was to be provided the same ought to be reasonable. Since the

initial application of the petitioner was not rejected on the ground of

delay, the stand taken by the Central Coalfields Limited to that effect in

its counter affidavit was not accepted. Relief was accordingly granted to

the said petitioner. We do not find how the ratio of the judgment supports

the stand of the WCL while opposing the Writ Petitions. It is true that the

NCWA - IX is binding on both parties but if a Clause thereof is found to

result in gender discrimination, the legal consequences are bound to

follow. On the contrary, in Mohan Mahto (supra) the National Coal Wage WP-4074-2018 16 Judgment

Agreement similar to the one in the present matters was under

consideration and the challenge was considered on merits. We would

therefore rely upon the decision in Mohan Mahto (supra) to entertain the

challenge. The decision in Sail and another (supra) refers to a

memorandum of understanding that was found to be not a statutory

scheme for being enforced under Article 226 of the Constitution of India.

Since the decision in Mohan Mahto (supra) is a later decision comprising

of similar bench strength that decided Sail and another (supra), we are

inclined to follow the later decision.

11. In Writ Petition No. 4074/2018, the claim of petitioner No.2

has not been considered on the ground that she cannot be treated as

dependent. Similar reason is also contained in the impugned

communication in Writ Petition No. 2036/2021 as communicated to the

petitioner. Though in the communication dated 20/1/2020 rejecting the

claim of the petitioner in Writ Petition No. 2036/2021 seeks to rely upon

the judgment of the Hon'ble Supreme Court in Mohan Mahto (supra), for

what has been stated hereinabove it would be necessary for the WCL to

take into consideration Clause 9.3.3 of the NCWA - IX in the manner as

interpreted by the Madhya Pradesh High Court in the decisions referred

to hereinabove. We therefore find that in the light of such interpretation

of Clause 9.3.3 of the NCWA - IX, the applications made by the WP-4074-2018 17 Judgment

petitioners deserve re-consideration by the WCL on their own merits by

relying upon Clause 9.3.3 of the NCWA - IX as interpreted and referred to

hereinabove.

12. Hence, for the aforesaid reasons, the impugned

communications dated 5/9/2015 in Writ Petition No. 4074/2018 and

dated 20/1/2020 in Writ Petition 2036/2021 are set aside. The WCL shall

re-consider the respective applications of the petitioners on their own

merits. However, the applications shall not be rejected on the ground that

the same have been made by a daughter/ married sister of the deceased

employee. Necessary exercise be completed within a period of six weeks

from receipt of copy of the judgment.

13. Rule is made absolute in the aforesaid terms with no order

as to costs.

                                   (M.W. CHANDWANI, J.)             (A.S. CHANDURKAR, J.)
                         Sumit




Digitally signed bySUMIT CHETAN
AGRAWAL
Signing Date:20.01.2023 18:52