Calcutta High Court (Appellete Side)
Badamia Devi & Anr vs The Union Of India & Ors on 1 May, 2023
May 01, 2023
(79) ARDR
WPA 8643 of 2020
Badamia Devi & anr.
Vs.
The Union of India & Ors.
Adv. Sangeeta Roy,
Adv. Sandeep Prasad Shaw,
Adv. Chandra Prakash,
Adv. Monalisa Maity,
...for the petitioners.
Adv. Manik Das,
...for the respondents no. 2 to 5.
Adv. Kallol Guha Thakurata,
Adv. Sharique Afzal,
Adv. Md. Wasim Rahaman,
...for the CMPFO.
Adv. Susmita Saha Dutta,
Adv. N. Saha,
...for the added respondents.
The petitioner's husband went missing on August
27, 1998. The petitioner filed a civil suit being T.S. No.
28 of 2006 before the learned Civil Judge (Junior
Division), 2nd Court, Asansol, for a declaration of her
husband's death. The said declaration was made on April
10, 2007 by the Civil Court. The petitioner's husband
was an employee of the Eastern Coalfields Limited (ECL).
The petitioner made an application for compassionate
appointment of her son-in-law, but the said prayer was
rejected by the ECL on May 12/14, 2020 on the ground
that there was no provision for grant of compassionate
appointment in a case where the employee is declared to
be dead by the Civil Court after seven years from the
date when the employee goes missing. Such a case is not
covered under the National Coal Wage Agreement
(NCWA).
Mr. Shaw, learned counsel appearing for the
petitioners prays for disbursal of the provident fund dues
that accrued in favour of the husband of the petitioiner
no.1 from Coal Mines Provident Fund Organisation
(CMPFO) and disbursal of leave encashment benefits
which also accrued in favour of her husband.
Documents are handed over before this Court to show
that necessary prayer for disbursal of leave encashment
benefits have been made before the authorities
concerned. Necessary prayer has also been made for
disbursal of provident fund amount before the
authorities concerned.
Considering the materials placed on record and
the submissions made by the parties, this Court is of the
view that the respondents/ECL were under a duty to
inform the petitioner and advise the petitioner about the
applications which were required to be made by her for
disbursal of the terminal benefits of her husband once
the decree was passed by the Civil Court and intimated
to the ECL. The death benefits of her husband could not
have been withheld by the employer/ ECL on the ground
that appropriate applications were not made by her.
Beneficial reference may be made to a Division Bench
judgment of this Hon'ble Court passed in MAT 86 of
2022 on April 21, 2022 (M/s. Eastern Coalfields Ltd. &
ors. vs. Smt. Dukhni Bhuiya).
In such view of the matter, the employer/ECL is
directed to release the leave encashment benefits to the
petitioner within six weeks from date along with interest
at the rate of six per cent per annum payable from the
date on which the decree passed by the Civil Court was
brought to the notice/intimated to the respondents/ECL.
Furthermore, the CMPFO is directed to release the
entire provident fund dues of the petitioner's husband to
the petitioner within six weeks from date along with
interest at the rate of six per cent per annum from the
date when the decree passed by the civil Court was
brought to the notice of the employer/ECL.
It is made clear that the said interest of six per
cent is over and above the interest that has already
accrued in the account of the petitioner's husband on
the amount that is lying with the hands of CMPFO. The
CMPFO cannot justify their inaction of withholding the
legitimate dues of the petitioner no.1 and refuse to pay
additional interest because the money is lying with the
P.F. authorities in an interest bearing account.
On the issue of compassionate appointment, this
Court finds that the petitioner or her representative is
not entitled to the same relying on the principles
applicable for compassionate appointment. The
petitioner's husband went missing in 1998. There my be
an element of voluntariness involved in the said process
which cannot be equated with the factum of 'death' or
permanent incapacitation. The civil suit was filed by her
in 2006. The same was decreed on April 10, 2007. At
least nine years passed from the date when the husband
of the petitioner went missing till the date on which the
decree has been passed.
The object of compassionate appointment is to
provide immediate succour to the family members since
there may be a immediate financial crisis due to the
death of the bread earner of the family. Since the
petitioner's husband went missing in 2006 and the
family has been surviving without his income this Court
finds no reason for consideration of the petitioner's
prayer for compassionate appointment. Moreover, several
years have passed since the petitioner's husband was
declared dead in 2007 and the date on which such
prayer was rejected on May 12, 2020 by the Area
Personnel Manager, Kunustoria Area. ECL. Even the said
prayer of rejection was challenged after several months
in 2020. Any order of consideration of the petitioner's
prayer at such a belated stage will frustrate/belie the
purpose of giving compassionate appointment. Reliance
is placed on Apex Court's judgment passed in Civil
Appeal Nos. 8842-8855 of 2022 (State of West Bengal
vs. Debabrata Tiwari).
In the light of the discussions above due to elapsed
of long period of time from the date when the petitioner's
husband went missing and was declared dead till the
date of rejection, this Court finds that there is no merit
in the prayer for compassionate appointment.
In the light of the discussions above, WPA 8643 of
2020 is disposed of.
All parties shall act on the serve copy of this order
duly downloaded from the official website of this Court.
Urgent photostat certified copy of this order, if
applied for, be given to the parties, upon compliance of
all formalities.
(Lapita Banerji, J.)
