Calcutta High Court (Appellete Side)

Eastern Coalfields Limited vs Nitu Devi And Ors on 22 December, 2022

                                  1


               IN THE HIGH COURT AT CALCUTTA

                    (Civil Appellate Jurisdiction)

                         APPELLATE SIDE

Present:

The Hon'ble Justice Subrata Talukdar

And

The Hon'ble Justice Supratim Bhattacharya



                        MAT 250 of 2021
                                With
                          CAN 2 of 2021
                     Eastern Coalfields Limited

                                -Vs-
                         Nitu Devi and Ors.



For the Appellant            : Mr. Manik Das

For the Respondents          : Mr. Supriyo Chattopadhyay

Ms. Anasuya Bhattacharya

Heard On : 03.11.2022

Delivered On : 22.12.2022

Supratim Bhattacharya, J. :- Under challenge in this appeal is the

Judgment and Order dated 21.12.2020 passed in the writ petition

being WPA No. 9612 of 2020.

The respondent No.5, i.e. the Eastern Coal Fields Ltd., is the

appellant in this instant appeal and Smt. Nitu Devi, the writ

petitioner and the Union of India, General Manager, Eastern Coal

Fields Ltd., Manager Eastern Coal Fields Ltd. and the Dy. Manager

Eastern Coal Fields Ltd., being the respondents No. 1, 2, 3 and 4 in

the writ petition, are the respondents in this appeal.

The issue before the Hon'ble Single Bench was as to whether

the writ petitioner, being the wife of Ram Kumar Mahato who has

been declared dead by a competent Civil Court, is entitled to be

appointed in the Eastern Coal Fields Ltd. as an employee on

compassionate ground.

The Learned Counsel appearing on behalf of the respondent

No.1/ writ petitioner placed his argument stating that husband of

the respondent No.1 has been missing on and from 25.03.2005 and

after the expiry of 7 years from the date of his missing report, the

respondent No. 1/ writ petitioner filed a case before the Learned

Civil Judge Jr. Divn., 2nd Court at Asansol, praying for a declaration

of death of her husband along with other consequential reliefs. It

has further been submitted that the appellant namely, Eastern Coal

Fields Ltd., was a party in the said case. He has further submitted

that the Ld. Judge passed an order in favour of the respondent

no.1/ writ petitioner and declared her husband to be dead, in

consequence of which the appellant Eastern Coal Fields Ltd.

disbursed all the benefits entitled to the writ petitioner but denied

the appointment of the respondent no.1/ writ petitioner on

compassionate ground.

Ld. Counsel has emphasized upon the point that the Eastern

Coal Fields Ltd. did not prefer any appeal before any higher forum

against the/Order of the Learned Civil Judge. On the contrary the

appellant disbursed the dues which the heirs of the Ram Kumar

Mahato were entitled and as such the appellants complied with part

of the order passed by the Ld. Civil Judge but defied the order of

appointment on compassionate ground for which the respondent

No.1/ writ petitioner has been compelled to prefer a petition before

the Hon'ble Court.

Ld. Counsel for the respondent relied upon several judgements

reported In Re: 1999 1) SCC 273; 1998 (9) SCC 138; AIR 1996 SC

2252; AIR 1991 SC 2219; 2011 Supreme (Bombay) 140; AIR 1992 SC

711; 2005 SC (ALL) 372; 2002 SC (ALL) 390; 2013 SC (MAD) 2772.

The writ petitioner has argued that she is entitled to be

appointed as an employee of the Eastern Coal Fields Ltd. on

compassionate ground as her husband namely, Ram Kumar

Mahato, has been declared dead by a competent Court. On behalf of

the writ petitioner it was stated that the said petitioner couldn't

have applied for the declaration of death of her husband prior to the

expiry of 7 years of his missing in terms of Section 108 of the Indian

Evidence Act 1872. It has further been submitted that immediately

after the declaration of death of her husband, the writ petitioner

has applied for releasing the monetary benefits along with the

prayer for employment. It has also been argued that there were no

laches on the part of the writ petitioner as regards to the prayer for

appointment on compassionate ground along with all other service

benefits.

The writ petitioner/respondent to this appeal had filed the suit

praying for declaration of death of her husband in the year 2013 as

because her husband is missing since the year 2005 as such she

had to wait 7 years prior to filing the suit for declaration of death of

her husband. It has also been argued that during the year 2017 the

suit was decreed in her favour and soon thereafter she has claimed

for the benefits along with employment on compassionate ground.

The writ petitioner has relied upon the Judgment by the

Madurai Bench of the Madras High Court in the matter of P.

Venkatesan alias Thirumaran vs. The Commissioner of Municipal

Administration 'Ezhilagam' and another reported in 2013 0 Supreme

(Madras 2772), wherein the Hon'ble Court was of the opinion that

as the prayer for compassionate appointment was not sought on the

natural death of the employee but was sought on the civil/ legal /

presumptive death the contention as to not having applied for

appointment on compassionate ground within 3 years of death will

not arise.

It has further been argued on behalf of the writ petitioner that

disciplinary proceeding was initiated by the employer against her

husband on the ground that the said employee is having

unauthorized leave and on no other ground of moral turpitude or

for any illegal act. It has further been stated that her husband was

ultimately dismissed from service on the sole ground of

unauthorized leave. In this regard it has been submitted that since

her husband was found missing since March 2005, the question

does not arise of his joining his place of work which is the ground of

filing the suit praying for declaration of civil death.

The Learned Counsel appearing on behalf of the appellant

namely, Eastern Coal Fields Ltd (ECL), during his exhaustive

arguments submitted that the husband of the respondent No.1/

writ petitioner namely Ram Kumar Mahato was employeed as

underground loader at Dabor Collierie Salanpur area, Eastern Coal

Fields Ltd. in the district of Paschim Burdwan, West Bengal. The

said Ram Kumar Mahato attended his place of work lastly on the

25th day of March 2005 and since then he had not attended his

place of work. The letter of dismissal dated 08/09. 05.2009 was

communicated vide letter dated 12.05.2009 to the recorded address

of the said Ram Kumar Mahato and the said letter was received by

the respondent No.1/writ petitioner.

It has further been stated that the respondent no.1/ writ

petitioner filed a Title Suit being Title Suit No. 45/2013 in the Court

of the Learned Civil Judge Jr. Divn. 2nd Court, Asansol praying for

declaration of death of the said Ram Kumar Mahato. It has further

been stated that the death certificate of Ram Kumar Mahato was

issued thereafter by the appropriate authority in the State of Bihar.

It has also been submitted that thereafter terminal benefit was

sought for but for the first time in her letter dated 05.01.2020 the

respondent No.1/ writ petitioner prayed for appointment on

compassionate ground after about more than 15 years of the

missing of the said Ram Kumar Mahato.

It has further been submitted that thereafter the respondent

No.1/writ petitioner during the month of October 2020 filed the writ

petition praying, inter alia, for quashing the order of rejection of the

prayer for appointment on compassionate ground. The learned

Counsel during his elaborate argument stressed upon the point

that Section 108 of the Indian Evidence Act 1872 does not have any

retrospective effect. It has been argued that the declaration of death

made by the Learned Civil Judge is based on presumption laid

down under Section 108 of the Indian Evidence Act.

It has also been submitted that by no means it can be said

that the person who has been declared dead by a Civil Court was

dead on the date when he was last seen or heard of. It has further

been stressed that under Section 108 of the Indian Evidence Act

there is only presumption of death and no mention of date of death.

The learned Counsel has stressed upon the point that where there

is no date of death it can be presumed that the said Ram Kumar

Mahato died much latter and not during the year 2005. It has also

been submitted that the said Ram Kumar Mahato was terminated

on the ground of unauthorized absence and this termination does

not entitle the said writ petitioner to get appointment on

compassionate ground.

The Learned Counsel has also emphasized upon the point that

question of appointment on compassionate ground cannot arise as

the writ petitioner's husband was dismissed from service prior to

declaration of his death by the Civil Court and even prior to the

lapse of the statutory period of 7 years as has been laid down under

Section 108 of the Indian Evidence Act 1872. Relying on a judgment

of the Hon'ble Apex Court reported in 2004 (2) Supreme page 709

Learned Counsel submits that the law postulates that the

presumption raised under Section 108 of the Indian Evidence Act,

1872, is a limited presumption presuming the factum of death of

person who's life or death was in issue but there is no presumption

as to the date or time of death.

Elaborating on the above, the learned Counsel has submitted

that the said Ram Kumar Mahato was alive at the time of his

termination from service. The Learned Counsel has also cited the

following judgments being an unreported judgment passed by the

High Court of Judicature at Madras dated 14.02.2008 passed in

Writ Petition no. 22441 of 2005 and another unreported judgment

passed by a Hon'ble Division Bench of the High Court of Judicature

of Hyderabad passed in Writ Petition no. 34859 of 2016.

In this context the learned counsel relied upon a judgment of

the Hon'ble Apex Court reported in In Re: (2002) 10 Supreme Court

Cases 166. The Learned Counsel also relied upon an unreported

judgment passed by an Hon'ble Single Bench of the Madurai Bench

of the Madras High Court dated 05.08.2014 in connection with

W.P (MD) 5128 of 2010 and MP (MD) 3 of 2010. The learned Counsel

has also relied upon an unreported Judgment of the Hon'ble Apex

Court passed in Civil Appeal No. 897 of 2021 (arising out of Special

Leave Petition (C) No. 10514 of 2020).

The appellant/ ECL has submitted that as per National Coal

Wages Agreement (for short, NEWA), employment on compassionate

ground can be offered if the person concerned remains in the

payroll of the company and as the petitioner's husband was

terminated from service and his name was struck off the rolls, so

the petitioner is not entitled to be considered far less to get

employment on compassionate ground. It has also been argued that

as the husband of the writ petitioner was terminated from service

way back in the year 2009 the claim for compensation in the year

2020 does not survive being placed so late and as such cannot be

accepted by the authority. It has further been submitted that the

writ petitioner was all along aware about the fact that her husband

has been terminated from service since long but she chose to sit

tight over the matter and had not challenged the termination before

any court of law and as long as the order of termination remains

valid there is no scope for providing employment to the writ

petitioner who happens to be the widow of the deceased employee.

On behalf of the respondents during the time of hearing of the

writ application an unreported order dated August 5, 2014 passed

by the Hon'ble Madras High Court in WP (MD) No. 5128 of 2010 and

MP (MD) No. 3 of 2010 in the matter of M.G. Lalitha Pearson and

another Vs. the Union of India and others wherein under similar

circumstances an Hon'ble Single Bench of the said Court was of the

opinion that as the service of the petitioner stood terminated prior

to the date of declaration of civil death, it is not open for the

petitioner to claim any employment on compassionate ground,

except the terminal benefits and thus the said Court upheld the

rejection of the claim of the petitioner of appointment on

compassionate ground.

The Hon'ble Single Bench in the said judgment has discussed

that the husband of the petitioner went missing on and from March

2005 and the disciplinary proceeding was initiated in the month of

May 2005, the petitioner lodged a General Diary reporting the

missing of her husband during the month of June 2005 and

immediately by a letter dated June 13, 2005 intimated the

respondents that her husband was not traceable. The show-cause

notice which was issued in the name of the husband of the

petitioner was also replied by the petitioner intimating that the

employee is still untraceable.

The petitioner had also filed several representations before the

authority to bring to their knowledge that her husband was

missing, in spite of that the employer terminated the service of her

husband on the sole ground of unauthorized absence. After 7 years

of missing of her husband the petitioner approached the Civil Court

for declaration of his death and ultimately the said declaration was

allowed by the judgment delivered on June 17, 2017.

It has also been discussed in the judgment passed in the writ

petition by the Hon'ble Single Bench that an issue was framed by

the Ld. Trial Court "as to whether the plaintiff is entitled to receive

all the dues standing in the name of Ram Kumar Mahato and

employment on dependent quota". In the judgement of the Learned

Trial Court it has been opined that the petitioner, who is one of the

successors of the deceased employee, was entitled to get

employment on compassionate ground subject to the compliance of

the rules and regulations of the defendant company and also

subject to the no objection of the other dependants of the said

deceased. The said suit was disposed of being decreed in favour of

the writ petitioner.

It has further been stated that the Chairman-cum-Managing

Director of the Eastern Coal Fields Ltd., who was a defendant in the

suit, chose not to file appeal against the same and accepted the

order of the Ld. Trial Court regarding entitlement of the petitioner to

get employment on compassionate ground. In this aspect it has

been stated that not being challenged before any higher forum, the

judgment passed by the Ld. Trial Court has attained finality.

It has further been stated that death benefits which the

petitioner was entitled to receive has since been paid, i.e. a part of

the order passed by the Learned Trial Court has been complied with

but her prayer for employment stands rejected on the ground that

the company does not provide employment on compassionate

ground in case of deemed death.

It has also been discussed that the Ld. Trial Court has

declared the employee to be dead and the said death has to be

treated as a civil death. There is no explanation to the effect as to

why employment cannot be provided in case of declaration of civil

death. A family which deals with natural death of the bread earner

is no different from a family where civil death of the bread earner is

declared by the Court, both the families pass through similar

financial crunch. As there is a provision for providing employment

on compassionate ground in case of natural death, there is no

reason as to why the same benefit will not be provided/ extended to

the dependents of the family where order of declaration has been

passed in their favour by a competent court of law.

It has also been stated that the time period for making

application for compassionate appointment will not be the same in

case of natural death and on the other hand in case of death

declared by a civil court. An application for declaration of civil death

cannot be filed prior to expiry of 7 years from the date of missing of

the said person since it takes a considerable period for disposal of

the said suit, declaring the death of the said person who had been

missing for at least 7 years. Rejecting the prayer of the writ

petitioner on the ground that more than 15 years have lapsed since

the person went missing is not an appropriate ground for rejection.

The contention of the respondents that the wife had not

challenged the order of termination even though she knew the

same, has not impressed this Court because the said person was

not traceable, had it been the fact that the person was available and

in spite of that he was not reporting on duty, then only the question

of unauthorized absence could have arisen and as the person was

missing at the relevant point of time and subsequently declared

dead by the competent court, the ground for termination on

unauthorized absence is not tenable.

It has further been mentioned that there is no intentional

laches or delay on the part of the petitioner in approaching the

authority praying for employment, on the contrary it appears that

the petitioner all along proceeded with her claim diligently and in

accordance with law.

The Hon'ble Single Bench has further stated that providing

employment on compassionate ground can never be claimed as a

matter of right and the same is granted strictly in accordance with

the provisions of the scheme, to tide over the immediate financial

need of the family due to the untimely death of the bread earner.

The scheme of the company contains the provision for providing

employment on compassionate ground which is liable to be

extended in case of death declared by the civil court.

Discussing the aforementioned aspects, the Hon'ble Single

Bench has directed to assess the financial condition of the writ

petitioner and a decision whether employment is required to be

provided to her on compassionate ground is to be assessed and

after that if it appears that the financial condition of the petitioner

is such that the family will not survive but for the employment of

the petitioner then necessary steps have to be taken by the said

authority as regards to appointment of the petitioner on

compassionate ground.

The crux of this appeal is as to whether the order passed by

the Hon'ble Single Bench in the Writ Petition being No. 9612 of

2020 is in accordance with law or not. In this aspect it is to be

mentioned that there is no controversy as regards to the fact of

lastly attending the place of work which also is the date of missing

of Ram Kumar Mahato that is 25.03.2005, thereafter disciplinary

proceedings was started against the aforesaid employee and

ultimately the said employee was terminated by the appellant on

the sole ground of unauthorized absence and to this effect is the

letter of dismissal dated 08/09. 05.2009 which was communicated

vide letter dated 12.05.2009.

Thereafter during the year 2013 a Title Suit being Title Suit

No. 45 of 2013 was filed in the Court of the Learned Civil Judge, Jr.

Divn. 2nd Court, Asansol praying for declaration of death of the said

employee namely Ram Kumar Mahato and also other consequential

reliefs. The said suit was decreed on 17th June 2017 declaring the

said Ram Kumar Mahato dead and further declaring that the

respondent no.1/ writ petitioner/ plaintiff is entitled to get her

share in the monetary benefits standing to the credit of the said

Ram Kumar Mahato and is entitled to get employment on

compassionate ground subject to the compliance of the rules and

regulations of the company. The aforesaid suit was contested by the

Eastern Coal Fields Ltd. and no appeal has been preferred by the

appellant against the order passed by the Ld. Civil Judge declaring

the death of Ram Kumar Mahato. The appellant partly complied

with the order of the Ld. Civil Judge by disbursing the dues to the

legal heirs of Ram Kumar Mahato but did not comply the order of

appointment of the respondent no.1/ writ petitioner on

compassionate ground.

Now the appellant has come up with a point that as the

employee namely Ram Kumar Mahato was terminated from service

as a result of disciplinary proceedings and as the employee was not

in the payroll of the said company at the time of his death so his

legal heirs are not entitled to any appointment on compassionate

ground. It has also been submitted that respondent No.1 has

prayed for appointment after long gap of 15 years so she is not

entitled for appointment on compassionate ground.

On the one hand the appellant has relied on the fact that at

the time of death of the said Ram Kumar Mahato he was not in the

payroll of the company and has also emphasized upon the fact that

at the time of termination of his service he was alive, on the other

hand it has been stated that the order of termination against the

said Ram Kumar Mahato was passed during the lifetime of the said

Ram Kumar Mahato and it was not passed in respect of a dead

person so it is fact that the appellant is at a dilemma as to the

actual date and time of death of the said Ram Kumar Mahato.

In the above context, this Court is persuaded to put forth the

discussion of the Hon'ble Apex Court reported in In Re: 2004 (2)

Supreme 709, which has been cited on behalf of the appellant

wherein it has been stated as follows:

"Paragraph 14... The law as to presumption of death remains the same whether in common law of England or in the statutory provisions contained in Sections 107 and

108 of the Indian Evidence Act 1872. In the scheme of Evidence Act, though Sections 107 and 108 are drafted as two sections, in effect, Section 108 is an exception to the rule enacted in Section 107. The human life shown to be in existence, at a given point of time which according to Section 107 ought to be a point within 30 years calculated backwards from the date when the question arises is presumed to continue to be living. The rule is subject to a proviso or exception as contained in Section

108. If the persons, who would have naturally and in the ordinary course of human affairs heard of the person in question, have not so heard of him for 7 years, the presumption raised under Section 107 cease to operate Section 107 has the effect of shifting the burden of proving that the person is dead on him who affirms the fact. Section 108, subject to its applicability being attracted, has the effect of shifting the burden of proof back on the one who asserts the fact of that person being alive. The presumption raised under Section 108 is a limited presumption confined only to presuming the factum of death of the person whose life or death is in issue. .... "

So from the above discussion of the Hon'ble Apex Court it

reveals that Section 108 has the effect of shifting of burden of proof

back on the one who asserts the fact of that person being alive. In

this instant case it is the appellant that is the employer on whom

burden lies of proving that the said Ram Kumar Mahato was alive

on the date of his termination from service and had not expired

earlier, which the appellant has not proved or is said to have failed

to prove, as the appellant was a party in the suit in which the death

of the said Ram Kumar Mahato was declared dead.

In the light of the above discussion it is crystal clear that Ram

Kumar Mahato is missing since the month of March 2005 and has

expired but no exact date of death can be ascertained. As such the