Kajali Mejhain vs M/S. Eastern Coal Fields Limited & ...
2022 Latest Caselaw 621 Cal

17.02.2022 IN THE HIGH COURT AT CALCUTTA Sl. No.1 CONSTITUTIONAL WRIT JURISDICTION (PP) APPELLATE SIDE (Via Video-Conference) WPA 20746 of 2021

Kajali Mejhain Vs.

M/s. Eastern Coal Fields Limited & Ors.

Mr. Partha Ghosh, Mr. Amal Kumar Dutta ....for the petitioner.

Mr. Bijoy Kumar ....for ECL.

The petitioner is the daughter of late Baneswar

Majhi and late Fulmoni Mejhain. Baneswar Majhi

during his lifetime was an employee of Eastern

Coalfields Limited (in short ECL). He died-in-harness

on 29th August, 2000. His wife Fulmoni Mejhain was

given appointment in terms of a letter dated 30th

August, 2000. It appears from the said appointment

letter that Fulmoni Mejhain was appointed as a

Trainee Time Rated worker in ECL. One of the

conditions in the appointment letter was that on

successful completion of training and good conduct

for a period of 18 months, the said Fulmoni will be

regularised in Time Rate with the approval of Head

Quarter. The appointment letter also provides that

the termination of service after confirmation will be

subject to one month's notice from the party

terminating the service or one month's salary in lieu

of notice. Although the appointment letter provides

that the age of superannuation will be 60 years, but it

is silent as to what will happen after the initial

training period of 18 months from the date of joining

was over and Fulmoni was not regularised in Time

Rate. Fulmoni died on 24th January, 2004. There is

no dispute that Fulmoni worked till her death. After

the death of Fulmoni, her son Bodiram Majhi applied

for providing him compassionate employment.

Subsequently, Bodiram died. So, none of the

dependants of Fulmoni were either given

compassionate employment or paid the Monthly

Monetary Cash Compensation (hereinafter referred to

MMCC).

The petitioner claims to be the unmarried

daughter of Fulmoni and is claiming compassionate

employment. Since the petitioner's application was

kept pending, the petitioner approached this Court by

filing a writ petition, being WPA 238 of 2021. The

said writ petition was disposed of by an order dated

15th March, 2021 directing consideration and disposal

of petitioner's representation within a period of 2

months from the date of communication of a copy of

the said order. The petitioner's representation was

disposed of by the General Manager, Kajora Area,

ECL by an order dated 23rd April, 2021. The

operative portion of the said order is as follows:-

"As per the relevant provisions of the NCWA, the option for employment or MMCC arises out of the death of the employee concerned. The right to employment or the MMCC, as the case may be, should not be allowed to be exercised one after another, assuming without admitting that the death of Fulmoni Mejhain caused accrual of right of employment or MMCC the same was exercised by the son of Late Fulmoni Mejhain i.e. Late Bodiram Majhui by praying for employment on the death of Fulmoni Mejhain (paragraph 5 of the writ petition) and once such application was made, the right to employment or MMCC was exhausted and irrespective of the result of such application, no further application by any further dependent on the self-same cause of action should be maintainable.

In view of the aforesaid facts, the undersigned is inclined to come to conclusion that the petitioner i.e. Kajali Mejhain is not entitled for payment of MMCC in accordance with applicable rules and law."

The petitioner has inter alia challenged the said

order in the instant writ petition and has prayed for

release of MMCC to the petitioner from 24th January,

2004, being the date of death of the petitioner's

mother.

ECL has filed a report in the form of an affidavit

wherein as an additional point it alleges that the

appointment of the petitioner's mother was never

regularised and as such, no benefit under the

National Coal Wage Agreement ( in short NCWA) can

be given to the petitioner. The reasons for not

regularising the petitioner's mother as cited by ECL

are non-submission of the relevant documents and

for non-appearance at medical examination to prove

her fitness. This is admittedly an additional ground

apart from the ground cited by ECL rejecting the

petitioner's claim by the order dated 23rd April, 2021.

ECL further says that there is material suppression

by the petitioner showing the service book of

Baneswar. ECL says as per the declaration given by

Baneswar as on 1st April, 1987, the age of the

petitioner was 13 years. The petitioner, therefor,

cannot claim herself to be 28 years at the time of

filing of the writ petition on 22nd December, 2021,

which appears from the affidavit appended to the writ

petition. ECL also refers to the voter identity card of

the petitioner wherein the petitioner's date of birth

has been declared as 1st January, 1993. On these

grounds, ECL submits that the writ petition should

be dismissed.

Chapter IX of NCWA presently in operation

provides for social security. The said Chapter in

clause 9.2.0 provides for Workmen's Compensation

Benefits. It also appears from clause 9.2.1 that

NCWA has been formulated in consonance with the

provisions of Workmen's Compensation Act, 1923

(hereinafter referred to as the 1923 Act). Clause 9.3.3

defines who are dependant. Clause 9.5.0 provides for

employment/ monetary compensation to female

dependant. Clauses 9.3.3 and 9.5.0 are set out

hereunder:-

"9.3.3 The dependant for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment, brother, widowed daughter/widowed daughter-in-law or son-in- law residing with the deceased and almost wholly dependent on the earnings of the deceased may be considered to be the dependants of the deceased.

9.5.0 Employment/Monetary compensation to female dependant

Provision of employment/monetary compensation to female dependants of workmen who die while in service and who are declared medically unfit as per Clause 9.4.0 above would be regulated as under:-

i) in case of death due to mine accident, the female dependant would have the option to either accept the monetary compensation of Rs.4000/- per month or employment irrespective of her age.

ii) In case of death/total permanent disablement due to causes other than mine accident and medical unfitness under Clause 9.4.0, if the female dependant is below the age of 45 years she will have the option either to

accept the monetary compensation of Rs.3000/- per month or employment.

In case the female dependant is above 45 years of age she will be entitled only to monetary compensation and not to employment.

iii) In case of death either in mine accident or for other reasons or medical unfitness under Clause 9.4.0, if no employment has been offered and the male dependant of the concerned worker is 12 years and above in age, he will be kept on a live roster and would be provided employment commensurate with his skill and qualifications when he attains the age of 18 years. During the period the male dependant is on live roster, the female dependant will be paid monetary compensation as per rates at paras (i) & (ii) above. This will be effective from 1.1.2000.

iv) Monetary compensation, wherever applicable, would be paid till the female dependant attains the age of 60 years.

v) The existing rate of monetary compensation will continue. The matter will be further discussed in the Standardisation Committee & finalised."

After going through the two definitions as

aforesaid, it is evident that if the female dependant is

below the age of 45 years, she will have the option

either to accept MMCC or employment and in case of

female dependant above 45 years of age, the only

entitlement is MMCC.

There is no dispute that the petitioner is the

daughter of Baneswar and Fulmoni. In fact, in the

service declaration of Baneswar as referred to by ECL,

the name of the petitioner is shown. It does not

appear to me from any provision of the NCWA or any

other law referred to by the parties that the other

dependants of a deceased employee are disentitled to

claim MMCC or employment, if any one of the

dependants had previously applied for the same

irrespective of the fate of such application as held in

the order dated 23rd April, 2021.

In the instant case, assuming without admitting

that Bodiram, the petitioner's brother, had applied for

compassionate employment immediately after the

death of Fulmoni, the fact remains that Bodiram was

never given compassionate employment. In that view

of the matter, according to me, the rejection of the

claim for compassionate employment or monetary

compensation of the petitioner has been erroneously

rejected by the order dated 23rd April, 2021. This is

more so because of the ratio laid down in the

judgment dated 7th January, 2014 passed in W.P.

No.4 of 2014 (Kajoli Bouri Vs. Coal India Ltd. & Ors.),

the relevant paragraph whereof is quoted below:-

"It is evident from the provision that there is a financial security which is afforded to the female dependant of a deceased workman and the right crystallises instantaneously upon the death of the workman. The immediately has per force to be inferred upon recognising

the provision to ensure that the female dependant of the deceased workman or the bereaved family is not washed away by the calamitous loss of the bread-earner. In the event the female dependant opts for employment and it is possible to offer employment, the employment has to be given within reasonable time of the application being made. If the female dependant entitled to apply for an appointment does not apply for the employment within reasonable time after the death of the workman, she would be deemed to have exercised the option to receive compensation which would be payable from the date of death or the month following the date of death of the workman. The right that inheres in the female dependant of the deceased workman gives rise to a corresponding obligation or duty on the part of the coal company to offer and reach the monthly compensation to the female dependant. The right to the compensation is unconditionally immediate and is not dependant on any application for the purpose. Indeed, given the rationale behind the provision, it is the duty of the concerned coal company to both advise the dependant female member of a deceased workman of her rights and guide her to the appropriate option. A government company as an employer cannot be heard to say that a distressed family would be deprived of the benefit by reason of any belated application therefor. The appointment sought on compassionate grounds may be declined on account of delay or other cogent grounds; but the monthly compensation has to be paid with effect from the date of death of the workman or the month following the death."

Kajoli Bouri has been affirmed by the Hon'ble

Division Bench in APOT No. 269 of 2014 by an order

dated 25th June, 2014.

The delay, if any, by the petitioner in applying

for compassionate employment or MMCC is not fatal

in the instant case as the application by the

petitioner's brother Bodiram was almost immediate

and till the death of Bodiram, the petitioner may have

decided not to claim. That apart and in any event,

the petitioner's prayer for compassionate employment

and monetary compensation was directed to be

considered by the order dated 13th March, 2021

passed in petitioner's previous writ petition.

The issue as to the date from which MMCC is

payable is no more res integra in view of the

pronouncement in M/s. Eastern Coalfields Limited vs.

Dewanti Kumari & Ors. reported in (2016)3 WBLR

(Cal) 464. MMCC has to be paid from the date of

death of the employee.

So far as the claim of ECL that Fulmoni was not

regularised, I find that Fulmoni continued to work

even after expiry of initial 18 months from the date of

her joining which was stipulated as the training

period in her appointment letter. There is no

document on record to demonstrate that ECL had

asked Fulmoni to submit the medical documents or

refused to regularise her after expiry of 18 months for

non-submission of medical documents and for not

complying with other formalities. Although, there is

no definition of "employee" in the NCWA, but at the

same time in Chapter IX there is no distinction

provided between an ad hoc employee or a temporary

employee and a permanent employee. The word used

in the said Chapter is "employee" and not "permanent

employee". As NCWA has been formulated in

consonance with the 1923 Act and Chapter IX thereof

provides for workmen's compensation benefit, the

definition of "employee" in the said Act can be

borrowed to scrutinise whether a distinction can be

made in the definition of "employee" as proposed by

ECL.

Considering the definition of "employee" in

Section 2(1)(dd) read with Schedule II of 1923 Act, I

find no distinction in the said word "employee" on the

basis of ad hoc or permanent employee to construe

the word "employee" used in NCWA is a permanent

employee only. Fulmoni admittedly comes within the

definition of "employee" under Section 2(1)(dd) and

Schedule II of the 1923 Act even if she was not

regularised as alleged by ECL. The petitioner, in view

of the provisions of clause 9.3.3 and clause 9.5.0, is a

female dependant of the employee and, as such,

becomes entitled to claim MMCC or employment or

can opt for both depending upon her age.

Now the question arises whether the petitioner is

below or above the age of 45 years. According to the

service records of Baneswar, the petitioner's father,

the petitioner was of 13 years of age as on 1st April,

1987. The petitioner has, however, claimed herself to

be born on 1st January, 1993 and her present age is

about 28 years. Clause 9.5.0 of NCWA makes a

distinction between female dependants on the basis of

their age. If a female dependant is below 45 years, she

is entitled to claim MMCC or employment. If the

female dependant is above 45 years, she is entitled

only to monetary compensation and not to

employment. Even if one goes by the service records

of Baneswar, the petitioner's age is presently above 44

years but below 45 years. Assuming without

admitting that the petitioner is above 45 years and

not 28 years as declared by the petitioner, then also

under the provisions of clause 9.5.0 of NCWA, the

petitioner is entitled to monetary compensation.

In the aforesaid facts and circumstances, I direct

ECL to pay the petitioner monetary compensation on

and from the date of death of her mother, i.e., 24th

January, 2004, at the applicable rates under the

NCWA prevailing from time to time.

The petitioner shall also be entitled to an

interest at the rate of six per cent per annum on the

arrears calculated on the amounts payable under

different NCWA on and from 25th January, 2004 till

actual payment. The payment of current MMCC

payable to the petitioner will commence from the

month of February, 2022 payable within 15th March,

2022. The MMCC thereafter shall be paid month by

month by 10th of each successive month for which the

same falls due. The arrears of MMCC along with

interest as directed to be paid shall be paid within

31st March, 2022.

Since MMCC is payable up to the age of 60 years

as per the NCWA, an ossification test is also

necessary for the purpose of ascertaining the age of

the petitioner as there is a discrepancy of about 17

years between the age declared by the petitioner and

the age as per the service records of Baneswar.

ECL shall get an ossification test done in respect

of the petitioner by constituting a Medical Board and

shall act in terms of the result of such test with

regard to the date till which MMCC will be paid to the

petitioner in terms of clause 9.5.0 of the NCWA.

The petitioner shall render all cooperation for

undergoing the ossification test.

In the event, the petitioner does not turn up for

ossification test on being called for the same, the

MMCC as directed to be paid under this order shall

be automatically stopped.

The parties shall act on the basis of a server

copy of this order without insisting upon production

of a certified copy thereof.

Nothing further remains to be adjudicated in

this writ petition. The same is disposed of accordingly

without any order as to costs.

Since I have not called for any affidavits,

allegations made in the writ petition are deemed to

have not been admitted.

Urgent photostat certified copy of this order, if

applied for, be given to the parties, upon compliance

of necessary formalities.

(Arindam Mukherjee, J.)