Sk. Ansar @ Sk. Ansar Mondal vs Eastern Coal Fields Limited & Ors
2022 Latest Caselaw 7834 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      Constitutional Writ Jurisdiction
                                  Appellate Side



Present:

The Hon'ble Justice Jay Sengupta



                            WPA 7644 of 2015

                       Sk. Ansar @ Sk. Ansar Mondal

                                    Versus

                     Eastern Coal Fields Limited & Ors.



For the petitioner            :       Ms. Madhu Priya
                                      Mr. Arindam Chatterjee
                                                               .....Advocates
For the respondents           :       Mr. Susanta Pal

Mr. N. Banerjee .....Advocates

Heard lastly on : 29.08.2022

Judgment on : 28.11.2022

Jay Sengupta, J.:

1. This is an application under Article 226 of the Constitution of India

seeking directions upon the respondents to cancel and/or rescind and

quash the impugned order dated 23.06.2010 and to immediately give

appointment to the petitioner on compassionate ground as prayed for in his

application dated 28.11.2003.

2. On 10.11.1995 Md. Nizamuddin @ Najimuddin, the father of the

petitioner, died on duty while working for the Eastern Coal Fields. On

27.12.1995 Fatima Bibi, the petitioner's mother, applied for employment on

compassionate ground before the Agent, Narkonda Colliery, under dying-in-

harness quota. However, she passed away on 22.09.1996. On 10.10.1996

Nadira Khatun, the elder sister of the petitioner, applied for employment on

compassionate ground in place of the said Fatima Bibi. But, in April 1999

she got married and left her maternal home. On 28.11.2003 the petitioner

made an application for appointment on compassionate ground in place of

her sister Nadira Khatun. On 11.10.2004 the petitioner gave a letter to the

respondent authorities requesting them to give employment to the petitioner

and also to disburse the death benefits arising out of his father's demise. As

the same was not granted, the petitioner was constrained to file a writ

petition being WP No. 656(W) of 2005. On 12.08.2009 this Court disposed of

the said writ petition, inter alia, directing the Chairman-cum-Managing

Director to consider the prayer for compassionate appointment of the

petitioner in accordance with law and to pass a reasoned order and also to

release the terminal benefits arising out of the death of the petitioner's

father. The order was duly communicated to the respondent authorities. On

23.06.2010 the respondent no. 2 passed the impugned order rejecting the

petitioner's prayer for appointment on compassionate ground.

3. Ms. Madhu Priya, learned counsel appearing on behalf of the writ

petitioner, submitted as follows. The petitioner's right emanated from the

National Coal Wage Agreement (the NCWA for short). It was a settlement in

view of Section 18 of the Industrial Disputes Act, 1947 and was binding

between the parties. The terms of the NCWA were such that a dependant, if

he or she satisfied all the conditions in Clauses 9.3.5 and 9.3.4 i.e., he or

she was a dependant of the deceased employee and had the requisite

eligibility criteria for being employed by the ECL, was entitled to claim as of

right that he or she ought to be extended the benefit of compassionate

appointment or monetary compensation, as the case may be. Besides, the

NCWA did not provide time frame for making an application for employment.

Reliance was placed on the decisions reported in Sujit Kora Versus Coal

India Ltd. & others reported at 2002 (2) CHN 557, Mohan Mahato Versus

Central Coal Fields Ltd. & others, reported at (2007) 8SCC 549 and M/s

Eastern Coalfields Ltd. Versus Dewanti Kumari & others, reported at (2016)

3 WBLR (Cal) 464. Moreover, the provisions contained in Clause 9.5.0 of the

NCWA-V was not applicable in the present case. The said clause applied

only when the age of the son of the deceased employee was between 15 and

18 years. The Clause did not debar making of an application by a dependant

of the deceased upon his attaining 18 years of age. In the instant case, none

of the conditions for application of clause 9.5.0 were fulfilled as the female

dependants of the deceased employee made applications for the

employment, which were kept pending and the petitioner was below 15

years of age and no monetary compensation was paid to such female

dependants. The Clause did not even require that an application of the

minor male dependant be made upon attaining majority. The petitioner's

application was an independent one which could not be equated with one

under Clause 9.5.0 (iii) of the NCWA-V. On the other hand, the respondent

authorities had taken different stands and different times. In the earlier

round of litigation in the writ proceeding of 2005, the only stand of the

respondents was that the petitioner could not provide employment as 7

years had lapsed. But, in the order under challenge the only ground for

rejection was the non-conformity to Clause 9.5.0 of the NCWA-V. That apart,

the respondent authority had taken contrary stands on certain facts. The

age of the petitioner was shown as 12 years 9 months at the time of death of

his father in the order under challenge while at paragraph 4 of the

Opposition the age was shown as 9 years. The date of birth of the petitioner

was 4th February 1983 and the service record maintained by the respondent

no. 1 could not supersede the birth certificate evincing such fact. As was

indicated earlier, delay could not be a ground for rejection of the prayer for

appointment. The respondents admitted that the writ petitioner was entitled

to terminal benefits for his deceased father. Yet, no terminal benefits were

disbursed except a sum of Rs. 20,000/- under life cover scheme. In terms of

Clause 9.2.7 of the NCWA-V, the writ petitioner was also entitled to an ex-

gratia amount of Rs. 15,000/-. Terminal benefits would also include

pension, provident fund and gratuity. Reliance was placed on the decisions

reported at (2007) 8 SCC 549 (Mohan Mahato Versus Central Coalfields Ltd.

and Ors.), 2002 (2) CHN 557 (Sujit Versus Coal India Ltd. Versus Ors.),

(2006) 9 SCC 195 (Syed Khadim Hussain Versus State of Bihar and others),

2017 (6) WBLR (Cal) 255 (Putul Rabidas Versus Eastern Coalfields Ltd.),

(2016) 3 WBLR (Cal) 464 (M/s Eastern Coalfields Ltd. Versus Dewanti

Kumari & Ors).

4. Mr. Susanta Pal, learned counsel appearing on behalf of the Eastern

Coal Fields Ltd., submitted as follows. Public employment in offices or posts

under the State or its instrumentalities or an authority covered by Article 12

of the Constitution must be in accordance with Articles 14 and 16. Even

otherwise, the appointment must be preceded by an invitation to the public

for offering candidature for consideration, providing equal opportunities to

each of the applicants to participate in the process and subject to fulfilment

of eligibility criteria, selection on the basis of merit. Appointment on

compassionate ground, which was offered on humanitarian grounds, was an

exception to the above rule of equality in the matter of public employment.

However, in such cases compassionate appointments scheme should be

strictly followed. An application for compassionate appointment had to be

made immediately upon the death/incapacitation and in any event, within a

reasonable period. Otherwise, a presumption would be drawn that the

family of the deceased was not in immediate need of financial assistance. In

the present case, the petitioner did not make any such application even after

becoming eligible to make one. There could not be a reservation vacancy till

such time the applicant became a major after a number of years. The idea of

compassionate appointment was not to provide for endless compassion.

While an over aged dependant could not seek appointment even an under

aged dependant could also not seek such appointment. The compassionate

employment being an exception, the scheme had to be strictly construed.

Reliance was placed on the decision reported at AIR 1966 SC 529 (Martin

Burn Ltd. Versus Corporation of Calcutta) on the point that the Court had

no power to ignore the provision to relieve what it considered a distress

resulting from its operation. In Life Insurance Corporation Versus Asha

Ramchandra Ambekar, (1994) 2 SCC 718, the Hon'ble Apex Court held that

it was well settled that no mandamus would be issued directing to do a

thing forbidden by law. On the question of delay in approaching the Court,

reliance was placed on a decision reported at (2019) 3 SCC 653 (State of

Himachal Pradesh & another Versus Shashi Kumar). In Umesh Kumar

Nagpal Versus State of Haryana & Ors., (1994) 4 SCC 138, the Hon'ble

Supreme Court emphasized that the basis of a scheme of compassionate

appointment lay in the need for providing immediate assistance to the family

of the deceased employee. The sense of immediateness was evidently lost in

the delay on the part of the dependant in seeking compassionate

appointment. As regards the terminal benefits, it was found that the life

cover scheme amount had been paid to the wife of the deceased by a cheque

dated 04.07.1996. But no record was found regarding payment of gratuity to

the dependant. As per Section 7(3) of the payment of gratuity (Central) Rules

1972, a legal heir of employee who was eligible for payment of gratuity under

the second proviso to sub-Section (1) of Section 4 shall apply, ordinarily

within one year from the date of gratuity became payable to him in Form K

to the employee. The petitioner failed to established that he had applied for

the benefit following the condition stipulated under the Act. Moreover, as per

Section 209 (4A) of the Companies Act 1956, the books of account of a

company was to be kept for a period not less than 8 years immediately

preceding the current year together with vouchers. The petitioner

approached for alleged gratuity more than 8 years of death of the deceased,

when unfortunately the records were not available. The impugned order was

a reasoned one and did not suffer from any illegality. On the question of

delay, reliance was placed on the decision reported at AIR 2007 SC 1365

(New Delhi Municipal Council Versus Pantiugh & Ors.)

5. In reply, learned counsel representing the petitioners further

submitted as follows. Section 7(1) of the Payment of Gratuity (Central) Rules

1972 was not applicable as the petitioner was not the employee of the

respondent authority, but was a dependant of the deceased employee.

Moreover, Companies Act had no relevance to the issue at hand. On the

contrary, Sections 6 and 7 of the Public Records Act 1993 provided that no

public records could be destroyed or otherwise disposed of except in such

manner and subject to such conditions as would be prescribed. The

judgments relied on upon by the respondent authority had no relevance in

the present facts. In this regard reliance was placed on a decision reported

at (2008) 1 SCC 494 (Sarba Sramik Sanghathan (KV) Mumbai Versus State

of Maharashtra & Ors.)

6. I heard the submissions of learned counsels appearing on behalf of

the parties and perused the writ petitions, the affidavits and the written

notes of submissions.

7. The National Coal Wage Agreement was a settlement arrived at in view

of Section 18 of the Industrial Disputes Act 1947. It was indeed binding on

the parties. The terms provided that if a dependant satisfied all the

conditions of Clauses 9.3.5, 9.3.4 i.e., he or she was a dependant of the

deceased employee and had the requisite eligibility criteria for being

employed by the ECL, was entitled to claim, as of right, the benefit of

compassionate appointment or monetary compensation, as the case may be.

It was also emphasized that the NCWA did not specifically provide any time

frame for making an application for employment.

8. The facts of the present case have to be seen in the light of the above.

The original employee of the ECL being the father of the present petitioner

died on 10.11.1995. On 27.12.1995 the petitioner's mother applied for

employment on compassionate ground. She passed away on 21.09.1996. On

10.101996 the elder sister of the petitioner applied for employment on

compassionate ground in place of the said mother. But, in April, 1999 she

got married and left the maternal home. Therefore, it is not in doubt that the

other family members of the present petitioners were able to make prayers

for appointment on compassionate ground, but could not obtain the benefits

for some reason or the other.

9. After about 7 years from the death of his father, the petitioner made

an application for appointment on compassionate ground in place of his

sister on 28.11.2003. On 11.10.2004 he gave a letter to the respondents

requesting them to give employment to him and to disburse the death

benefits arising out of his father's death. As the same was not granted, the

petitioner moved a writ petition being WP No. 656 (W) of 2005. On

12.08.2009 this Court disposed of the writ petition, inter alia, directing the

Chairman-Cum-Managing Director to consider the prayer for appointment

on compassionate ground in accordance with law and to pass a reasoned

order and also to release the terminal benefits arising out of the petitioner's

death. The rejection of the petitioner's prayer for employment on

compassionate ground on 23.06.2010 led to the present application.

10. It is true that Clause 9.5.0 of the NCWA-V applied only when the age

of the son of the deceased employee was between 15 and 18 years. In fact,

the petitioner's age was less than 15 years at that time. It is also canvassed

that the Clause did not require a minor male dependant to make an

application upon attaining majority. Therefore, the petitioner contended that

his application was an independent one and could not be equated with the

one under Clause 9.5.0 (iii) of the NCWA-V. Clause 9.5.0 was evidently

incorporated to accommodate a family member who had not come of age.

Implicit was the immediate needs of the family. In a way, the immediateness

was extended to three more years. But, if a dependant who was younger in

age is treated in the same manner, then Clause 9.5.0 itself would become

redundant. Therefore, even if such an application made afterwards by a

dependant who was less than 15 years at the time of death is found

entertainable, then such application has to pass through the rigours of

eligibility and immediate need.

11. Moreover, in respect of the petitioner's claim of employment on

compassionate ground, the sequence of events of the instant case have to be

taken into consideration. It is admitted that the mother, when she was alive,

and the elder sister of the petitioner, after her, were able to apply for the

benefit of such claim. It is another thing that neither could obtain the

benefit for reasons beyond the control of anyone. Although the NCWA does

not provide for a time limit for applying for compassionate appointment, a

limitation period is implicit in any such engagement of public nature. After

all, one has to remember that employment on compassionate appointment is

an exception to the normal procedure. Public employment in offices or posts

under the State or its instrumentality or an authority covered by Article 12

of the Constitution must be in accordance with Articles 14 and 16. Even

otherwise, the appointment has to be preceded by an invitation to the public

for offering candidature for consideration. This ensures providing equal

opportunities to all subject, of course, to the fulfilment of the eligibility

criteria. Selection has to be on the basis of merits. Appointment on

compassionate ground is thus an exception to the said rule of equity in the

matter of public employment.

12. It is settled law that an application for compassionate appointment

has to be made soon after the death or incapacitation and in any event,

within a reasonable period. Or else, one would have to presume that the

family of the deceased was not in any immediate need of financial

assistance. In the present case, whether the NCWA required it or not, the

petitioner did not make any application even after becoming eligible. On the

question of immediate relief being the touchstone for granting

compassionate appointment, reliance may be placed on Umesh Kumar

Nagpal Versus State of Haryana & Ors.(supra) and State of Himachal

Pradesh & another Versus Shashi Kumar (supra).

13. As rightly pointed out by the learned counsel for the respondent, the

idea of compassionate appointment was not to provide endless compassion.

It has to come to an end at some point. Otherwise, the public at large would

be left in the lurch and the family members of those who were able to obtain

government service at some point would continue to inherit such posts.

14. When this Court is asked to deal with the infringement of the rights of

a citizen, it will not confine itself to the grounds behind an impugned order

only, but also look into the other attending questions of fact and law.

15. Therefore, the petitioner's claim to compassionate appointment in

respect of the death of his father cannot be sustained.

16. As regards payment of retiral benefits, it appears that a Life Cover

Scheme amount was paid to the wife of the deceased by a cheque dated

04.07.1996. So, the family members of the deceased were aware of the fact

that some terminal benefits could be claimed. Yet, the present petitioner

approached the authorities for alleged gratuity dues more than 8 years after

the death of the deceased.

17. Be that as it may, by an order dated 12.08.2009 passed in WP No. 656

(W) of 2005, this Court asked the respondents to see that the terminal

benefits of the deceased employee were disbursed in accordance with law.

This order was not challenged and has also not been departed from in the

impugned order.

18. In view of the above discussions, this Court does not find any merit in

the petitioner's prayer for compassionate appointment. Accordingly, such

prayer is turned down.

19. However, the respondents shall make all endeavours to pay within a

reasonable time the rest of the retiral benefits in respect of the petitioner's

deceased father to the petitioner in compliance with the order dated

12.08.2009 passed by this Court in WP No. 656 (W) of 2005. For this, the

respondents shall trace out the relevant records or reconstruct the records,

if necessary and calculate the applicable dues.

20. With these observations, the writ petition is disposed of.

21. Urgent photostat certified copies of this judgment may be delivered to

the learned Advocates for the parties, if applied for, upon compliance of all

formalities.

(Jay Sengupta, J.)

S.M