WA/263/2022
2023 Latest Caselaw 567 Gua

                    GAHC010134802022




                                                               Judgment delivered on :17.02.2023.




                                     IN THE GAUHATI HIGH COURT
                          (HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)


                                           WRIT APPEALNO.263 OF 2022


                                        1. Shri Rajib Sekhar Nath, Son of Jawhar Nath,
                                           Aged about 35 years, Resident of Audit Colony,
                                           M/175, Margherita, Tinsukia, Assam-786181.

                                         2. Shri Jawhar Nath, Son of Manmohan Nath, Aged
                                            about 60 years, Resident of Audit Colony,
                                            M/175, Margherita, Tinsukia, Assam-786181.


                                                                          ........Appellants

                                                       -Versus-

                                         1. The Chairman, Coal India Limited, Head Office,
                                            Coal Bhawan, Premise No.-04 MAR, PlotNo. AF-
                                            III, Action Area-1A, Newtown, Rajarhat, Kolkata-
                                            700156.

                                         2. The General Manager, Office of the General
                                            Manager, North Eastern Coalfields, Coal India
                                            Limited, Margherita, Tinsukia, Assam, 786181.


                                                                         ........Respondents

Writ Appeal No. 263 of 2022

-BEFORE-

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SOUMITRA SAIKIA

Advocate for the appellants :Mr. S. Dutta, learned counsel.

Advocate for the respondents : 1.Mr. M. Z. Ahmed, learned Senior Advocate,

2.Mr. A. R. Dutta, learned Advocate.

JUDGMENT AND ORDER

(Soumitra Saikia, J)

Heard Mr. S. Dutta, learned counsel for the appellant. Also

heard Mr. M. Z. Ahmed, learned senior Advocate assisted by Mr.

A. R. Dutta, learned counsel for the respondents.

2. This writ appeal is directed against the Order dated

17.05.2022 passed by the learned Single Judge in WP (C) No.

7750/2019.

3. The appellant No.2 was an employee of the Central Store

NEC of the North Eastern Coalfields (NEC), a small coal producing

unit operating in Margherita, Assam. During the service period of

the appellant No.2 he suffered from certain ailments which were

diagnosed to be spino cerebeller ataxia with cerebro vascular

Writ Appeal No. 263 of 2022

accident having with severe neurological deficit with 75%

disability. According to the appellants, the disability suffered by

the appellant No.2 affected his ability to render service properly.

According to the appellant under Clause 9.4.0 of the Chapter-IX

of the National Coal Wage Agreement-IX (NCWA) dated

31.01.2012, the appellant No.2 applied for being consideredin

terms of Clause 9.4.0 of the Chapter-IX to be superannuated on

medical grounds. According to the appellants if the appellant No.2

would have been superannuated on medical grounds as per

Clause 9.4.0 of the Chapter-IX of the National Coal Wage

Agreement-VI, the appellant No.1 could have been considered for

compassionate appointment in lieu of appellant No.2 as per the

said clause of Clause 9.4.0 of the Chapter-IX of the National Coal

Wage Agreement-IX.It is contended that in terms of the

provisions of the said Clause 9.4.0 of National Coal Wage

Agreement (NCWA),a Medical Board was required to be

constituted for examination of the appellant No.2. However, the

Medical Officer/Practitioner of the North Eastern Coalfields (NEC)

was on leave and therefore, the competent authority, at the

relevant point in time requested the Chief Medical Services, NEC,

Margherita, Assam to constitute a Medical Board for examination

Writ Appeal No. 263 of 2022

of the appellant No.2. However, no action was taken and the

matter got delayed. Thereafter, a writ petition was filed being

WP(C)/855/2018 and by order dated 18.01.2019 this Court

disposed of the petition giving liberty to the appellants to submit

representation to the General Manager, North Eastern Coalfields

(NEC) and if the authority had no competence then the same

would be forwarded to the competent authority, who shall dispose

of the representation within a period of 2 (two) months from the

finalization of the scheme of employment or financial benefits to

the dependents in respect of "social security of 10th Wage

Agreement for CIL and HCCN-provisions of employment/payment

of monthly monetary compensation to dependent scheme" or any

other substituted scheme in force. Liberty was also granted to the

appellants to approach this Court a fresh.

4. More than 5 years had elapsed pursuant to filing of the

application by the appellant NO.2 but there was no examination

by the Medical Board constituted for the purpose and the case of

the appellant No.2 was never considered by the respondent

authorities. Before the learned Single Judge, it was urged that the

North Eastern Coalfields (NEC) was duty bound to honour the

National Coal Wage Agreement (NCWA) and conferred the

Writ Appeal No. 263 of 2022

benefits on the appellant No.1 in terms of Clause 9.4.0 of

Chapter-IX. The learned Single Judge upon consideration of the

submissions and the pleadings rejected the contentions of the

appellants/ writ petitioners and dismissed the writ petition by the

impugned order dated 17.05.2022. The learned Single Judge held

that with effect from 30.09.2018 the appellant No.2 had already

retired from service on attaining the age of 58 years. It was

further held that in terms of the RTI reply the North Eastern

Coalfields (NEC)authorities had informed the appellants that

Clause 9.4.0 was inoperative in North Eastern Coalfields (NEC), as

the Committee constituted under the 10th Wage Agreement for

CIL and HCCN was yet to finalize the scheme for employment or

financial benefits to the dependents. As the committee constituted

did not finalize the scheme for employment or financial benefits to

be conferred on the dependent family members, the benefits

under the NCWA could not be conferred on the appellants.

5. Before us the learned counsel for the appellant has drawn

the attention of a Communication dated 04.02.2015 issued by the

General Manager of North Eastern Coalfields (NEC) to all

agents/HODs. By the said communication, applications of the

employees/departments, who were suffering from the diseases

Writ Appeal No. 263 of 2022

mentioned in the said communication under Clause 8.4.0 of

NCWA were called for. The learned counsel for the appellants

submits that from the various documents available on record that

it is evident that the provisions of NCWA are enforceable and are

applicable to the employees of North Eastern Coalfields (NEC) like

the appellant No.2. Inspite of that, the prayer of the appellant

No.2 having not been consideredenabling the appellants to avail

the benefits under Clause 9.4.0 of NCWA, the same is wholly

arbitrary and unreasonable. Learned counsel for the appellant

submits that there is no dispute that the appellant No.2 namely

the father of appellant No.1 suffered from medical conditions

namely-spino cerebeller ataxia with cerebro with cerebro vascular

accident having with severe neurological deficit with 75%

disability. The appellant No.2 suffered disability to the extent of

75% because of the ailments /disease he had suffered. The

learned counsel for the appellant submits that the North Eastern

Coalfields (NEC) does not dispute the medical condition of the

appellant No.2. Under the circumstances, it was incumbent on the

respondents North Eastern Coalfields (NEC) to ensure that the

benefit accrued to the appellants under Clause 9.4.0 of the

Chapter-IX of the National Coal Wage Agreement-IXwas not

Writ Appeal No. 263 of 2022

denied. It is submitted that the learned Single Judge failed to

consider these aspects of the matter and passed the impugned

Judgment dismissing the writ petition and negating the claims

made by the appellants.

6. Per contra Mr. M. Z. Ahmed, learned senior counsel assisted

by Mr. A. R. Dutta, learned counsel for the respondents disputed

the claims of the appellant and submits that the benefits claimed

under Clause 9.4.0 of the Chapter-IX of the National Coal Wage

Agreement-IX are not available to the appellants on two counts

namely, the said NCWA has not been enforced in view of the non-

finalization of the report/recommendation of the standing

committee constituted under the 10th Wage Agreement for CIL

and HCCN and secondly on account that the appellant No.2 had

superannuated on 30.09.2018. As such it is submitted that there

is no infirmity in the impugned order dated 17.05.2022 passed by

the learned Single Judge and the writ appeal should therefore be

dismissed.

7. Learned counsels for the parties have been heard. Pleadings

on record have been carefully perused. The impugned order

Writ Appeal No. 263 of 2022

dated 17.05.2022 passed by the learned Single Judge has also

been perused.

8. From the perusal of Clause 9.4.0, it is evident that the

benefit under this clause of 9.4.0 will accrue to a dependent only

on the loss of employment suffered by the workman. There is a

finding recorded by the learned Single Judge that the appellant

No.2 retired superannuated on 30.09.2018. Such finding returned

by the learned Single Judge has not been disputed. The learned

Single Judge have also held that the appellant No.2 having

superannuated on 30.09.2018,no direction can be given to the

respondents to treat the appellant No.2 to be notionally in service

and then issue directions for constituting the medical board for

examination to assess his entitlements under Clause 9.4.0.

9. In view of such findings arrived at by the learned single

Judge that the appellant No.2 had superannuated on 30.09.2018

and the same not being disputed by the appellants, we find no

infirmity in the order dated 17.05.2022 impugned in the present

writ proceedings. The learned Single Judge had correctly held that

once the appellant No.2 retired,no directions can be issued to the

respondents to consider the entitlement of the appellants under

Writ Appeal No. 263 of 2022

Clause 9.4.0 notionally. In order to avail the benefits of Clause

9.4.0, it is necessary that the concerned employee, namely, the

appellant No.2, herein was unable to render any service because

of the disability suffered.

10. In the facts of the present case, although it is contended

that the appellant No.2 suffered from locomotor disabilities to the

extent of 75%, he was ultimately allowed to superannuate on

30.09.2018 and it is not disputed by the appellants that the

appellant No.2 was unable to render his services because of the

locomotor disability he suffered and was therefore, required to be

superannuated on medical grounds, prior to his date of

superannuation as per his service records. The appellant No.2 had

rendered his services inspite of suffering from locomotor

disabilities and having superannuated on 30.09.2018, we are in

agreement with the findings of the learned Single Judge that the

benefits, if any, accrued under Clause 9.4.0 cannot be conferred

on the appellant No.1 by way of grant of compassionate

appointment notionally when the appellant No.2 had

superannuated on 30.09.2018. We find no merit in the appeal and

the same is accordingly dismissed.

Writ Appeal No. 263 of 2022

11. No order as to cost.

                                    JUDGE            CHIEF JUSTICE



                    Comparing Assistant




Writ Appeal No. 263 of 2022