Kamesh vs Central Coalfields Limited
2021 Latest Caselaw 1816 Jhar

                                  1

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          W.P.(S) No.2652 of 2010
                                     -------

                Kamesh                         ...    ...    Petitioner
                                     Versus

1. Central Coalfields Limited, through its CMD Darbhanga House, Ranchi.

2. The General Manager, Sirka Colliery, Argada Area, CCL, Hazaribagh.

3. The Personnel Manager, CCL, Sirka Colliery , Hazaribagh.

4. The Personnel Officer, CCL, Darbhanga House, Ranchi.

5. The Chief General Manager, Sirka, Colliery, Argada Area, CCL, Hazaribagh.

6. The Staff Officer, (Personnel), Sirka Colliery Argada Area, Hazaribagh.

                                               ...    ... Respondents

                                      -------
         CORAM       : HON'BLE MR. JUSTICE DEEPAK ROSHAN
                                      -------

For the Petitioner :Mr. Mahesh Tiwari, Adv. For the Respondents : Mr. A. K. Das & Ms. Swati Shalini,

-------

C.A.V. on 05.02.2021 Pronounced on 20/04/2021

Heard learned counsel for the parties through

V.C.

2. The instant writ application has been preferred

by the petitioner praying therein for quashing and setting

aside the letter dated 03.04.2008 (Annexure-8) bearing

reference no. P.O.(S.G.)/Sirka/PD/930/Court case no.

2008; whereby the representation of the petitioner for his

claim for compassionate appointment has been rejected.

The grievance of the petitioner is that his claim

for compassionate appointment is justified under clause

9.3.2 of the National Coal Wage Agreement-VI (in short

NCWA) on compassionate ground in view of the fact that

his father who was an employee of Sirka Colliery died

working as an Ex-Conveyor Khalasi.

3. The facts relevant for disposal of the instant writ

application are that the petitioner is the second son of his

deceased father who was an employee of the respondent-

Coal Company died on 12.10.1996 while on duty.

Thereafter, the mother of the petitioner had applied for her

appointment in the office of respondents which was

rejected on the ground that her age was more than 45

years which was not as per the norms according to the

respondent's office.

Subsequently, the petitioner's mother did not

accept the monetary benefit and requested to provide

employment to her second son-the petitioner in place of

her. Thereafter, the petitioner applied for appointment on

compassionate ground as per clause 9.3.2 of NCWA-VI on

28.09.1999, which was received in the office of respondent

on the same day, which has been brought on record as

Annexure-5 to this writ application.

When employment was not granted to the

petitioner, he moved before this Court in W.P.(S) No.5275 of

2006, which was disposed of by directing the respondents

to pass a reasoned order on the application filed by the

petitioner and pursuant to that the impugned order dated

03.04.2008 was passed denying the claim of the petitioner

on the ground that the petitioner had filed prescribed

application form for employment on 18.05.2007 i.e. after a

lapse of more than 10 & ½ years from the date of death of

ex-employee, whereas the time of limitation was Six months

only.

4. Mr. Mahesh Tiwari, learned counsel for the

petitioner submits that the impugned order is bad in law

on the face of it, inasmuch as, from their own documents it

clearly transpires that the petitioner had applied for

compassionate appointment on 28.09.1999 and his claim

was also processed; however for the reasons best known to

the respondent authorities, they have rejected the claim of

the petitioner on the ground that he had applied in

prescribed application form after a lapse of 10 & ½ years.

Learned counsel for the petitioner further draws

attention of this Court towards the NCWA scheme. While

referring to clause 9.3.2 of NCWA, Mr. Tiwari strenuously

argued that as per the NCWA there is no time limit for

giving an employment and a person has a legal right to get

appointed under this provision when he is a legal

dependant of the deceased employee; as such the rider

stated by the respondent is non-est in the eyes of law. He

further relied upon paragraph no. 18 of the judgment

passed in the case of Mohan Mahto Vs. Central Coal

Field Ltd. & Ors. reported in (2007) 8 SCC 549 which is

as under:-

"18. We have indicated hereinbefore, that it is not necessary for us to go into the question as to whether in the teeth of the provision of NCWA V, the respondent at all

had any power to fix a time-limit and thereby curtailing the right of the workman concerned. We would assume that even in such a matter, it had a right. But, even for the said purpose, keeping in view the fact that a beneficial provision is made under a settlement, the "State" was expected to act reasonably. While so acting, it must provide for a period of limitation which is reasonable. Apart from the fact that the period of limitation provided for in the circular letter with a power of relaxation can never be held to be imperative in character, the matter should also be considered from the subsequent conduct of the respondent insofar as it had issued another circular letter in the year 2000 providing for filing of an application for appointment on compassionate grounds within a period of one year. It may be that the said circular letter has prospective operation but even in relation thereto we may notice that whereas the said circular letter was issued upon holding discussion with the unions, the circular letter of the year 1995 was a unilateral one. Furthermore, in its letter dated 2-8-2000/3-8-2000, it will bear repetition to state that expiry of the period of limitation was not taken as a ground for rejecting his application. Underage and non-placement of his name in live roster are stated to be the reasons. It is, therefore, unfair on the part of the respondent to raise such a plea for the first time in its counter-affidavit to the writ petition. If he was underage, definitely, it was obligatory on the part of the respondent to keep his name in the live roster. It was not done."

Learned counsel further contended that in the

said case it has been held that a settlement within the

meaning of Sub-Section III of Section 18 of the Industrial

Dispute Act is binding on both the parties and continues to

remain in force unless the same is altered, modified or

substituted by another settlement. In this regard he relied

upon paragraph 10 of the said judgment, which is quoted

herein below:-

"10. A settlement within the meaning of sub-section (3) of Section 18 of the Industrial Disputes Act is binding on both the parties and continues to remain in force unless the same is altered, modified or substituted by another settlement. No period of limitation was provided in the settlement. We would assume that the respondent had jurisdiction to issue such circular prescribing a period of limitation for filing application for grant of appointment on compassionate grounds. But, such circular was not only required to be strictly complied with but also was required to be read keeping in view the settlement entered into by and between the parties. The expanding definition of workman as contained in Section 2(s) of the Industrial Disputes Act would confer a right upon the appellant to obtain appointment on compassionate grounds, subject, of course, to compliance with the conditions precedent contained therein."

Learned counsel further refers to Annexure-M to

the counter affidavit and submits that the period of

limitation for making application for compassionate

appointment was extended from six months to one year

then one and half year but the said Annexure is not part

and parcel of NCWA. He reiterated his argument by

submitting that as per clause 9.3.2 the respondents are

duty bound to give the employment to the legal heirs of the

deceased employee who died during service without any

time limit. He further refers to a judgment passed in the

case of Dhiran Rawani in LPA No.568 of 2018 wherein at

paragraph-12 it has been held that the appointment offered

under the NCWA and the compassionate appointment in a

Government Offices or Public Sector Undertakings cannot

be equated. Paragraph 12 of the judgment is quoted herein

below:-

"(12) In our view, there is a difference between the appointment being offered under the NCWA and the compassionate appointment in the Government Offices or Public Sector Undertakings on the basis of Executive instructions. Of course, such appointments in Government offices under the Executive instructions are provided only to tide over the immediate crisis on the death of the employee and when the family has been able to sustain the crisis, there will be no requirement for providing employment after several years. However, under the National Coal Wage Agreement, to which the employer and the employee are parties and has a statutory fervour in view of the same having reached between the parties under Section 18 of the Industrial Disputes Act, 1947, the provisions would be binding upon all the sides to the Agreement. As has been discussed above, Clause 9.3.0 clearly provides that employment would be provided to one dependant of the worker who dies while in service. In case the dependant is male then he should not be more than 35 years of age and in case of female spouse, she should not be over 45 years of age. At the same time, Clause 9.5.0(iii) of the NCWA-VI further provides that if no employment has been offered to any of the dependants including the female dependant and the male dependant of the concerned worker is aged 12 years or above, he will be kept on live roster and would be provided employment commensurate with his skill and qualification when he attains the age of 18 years and during the period the male dependant is kept on live roster, the female dependant will have to be paid monetary compensation as per the approved rates."

Relying upon the aforesaid judgments Mr. Tiwary

contended that any rider by the circular or instructions is

not sustainable in the eyes of law. He fairly submits that

when the claim of petitioner's mother was rejected, all other

legal heirs were adult. However, the petitioner applied for

compassionate appointment because the mother of the

petitioner was not having full faith on her first son who was

living separately. He reiterated that when no time limit has

been given in the agreement-NCWA itself, the denial of

appointment on compassionate ground on the ground of

delay is non-est in the eye of law, as such the impugned

order be quashed and set aside and the respondents be

directed to provide employment to this petitioner.

5.         Mr.   A.   K.     Das,   learned      counsel    for   the

respondent-Company          assisted   by   Ms.     Swati    Shalini

opposes the prayer of the petitioner and submits that the

petitioner had applied for appointment on compassionate

ground after a delay of 10 years, inasmuch as, the

impugned order categorically states that in prescribed

format he has made application only after the disposal of

earlier writ application.

Learned counsel further submits that

immediately after the death of deceased employee his

widow applied for compassionate appointment within a

reasonable time and when her case could not be considered

for being over age; only then the petitioner applied for

compassionate appointment with much delay and that is

the reason his case could not be considered.

Moreover, it is not a case of the petitioner that he

was a minor at the time of applying employment rather

each and every members of the family of the deceased

employees was major and the petitioner as well as all legal

heirs were qualified to apply for compassionate

appointment but the fact remains that the mother of this

petitioner firstly applied for appointment and when her

case was rejected; this petitioner filed application. In this

regard he relied to the judgment of this Court in LPA

No.562 of 2014 wherein this Court has categorically held

that the legal obligation of the employer comes to an end

once one of the legal heirs is offered of the compassionate

appointment and there is no legal obligation on the part of

the employer to offer compassionate appointment one by

one to all the legal heirs of the deceased employees.

Learned counsel further submits that the

judgment passed by this Court in LPA No.568 of 2018 does

not apply, inasmuch as, the fact of the said case is entirely

different. In the said case, the petitioner was a minor and

he preferred an application when his mother's case was

rejected and since the petitioner was a minor he was kept

in live roster, whereas in the instant case all the legal heirs

of the deceased were major and certainly when the case of

his mother was rejected the petitioner sat over the matter

and after a much delay applied for compassionate

appointment.

It is true that in LPA No.568 of 2018; the ground

that "immediate crisis is already over" has been held to be

erroneous by this Court; but the fact of this case is that the

petitioner did not file an application within the reasonable

time and/or within a period as stipulated by the

respondent Company.

Mr. Das further submits that in the case of

Mohan Mahto (supra), which has been relied by the

petitioner, the Hon'ble Apex Court has denied holding

anything with regard to the powers of the respondent to fix

a time limit for giving employment. The only thing which

the Hon'ble Apex Court has held that since the respondent

is a "State" was expected to act reasonably.

Thus, in the facts and circumstances of this case

no relief can be granted to this petitioner.

6. Having heard learned counsel for the parties

and after going through the documents annexed and the

averments made in the respective affidavits, it appears that

the petitioner's father died on 12.10.1996. Thereafter, the

mother of the petitioner applied for compassionate

appointment which was rejected on 23.03.1998. From

record it further appears that this petitioner filed an

application on 28.09.1999 i.e. more than One and Half year

from the date of rejection of the application of his mother.

Thereafter, when his appointment was not approved, the

petitioner filed writ application wherein this Court directed

the respondent-Company to pass a reasoned order and

pursuant to that petitioner filed an application for

compassionate appointment on 18.05.2007 (as appears

from the impugned order) in prescribed format and on the

ground of delay; the case of the petitioner for

compassionate appointment was rejected.

7. At the outset it is pertinent to mention here that

from the documents of the respondent-Company itself

(Annexure-5); it clearly transpires that the petitioner has

made an application under clause 9.3.2 on 28.09.1999

which was received by the respondent-Company on the

same date and the proposal was also sent to the higher

authority. So, it cannot be said that the petitioner had

applied after the lapse of 10 & ½ years as such, this part of

the impugned order is perverse, inasmuch as, the ground

of 10 & ½ years delay is non-est and against their own

documents.

However it is also a fact that the application of

his mother was rejected on 23.03.1998 and this petitioner

applied on 28.09.1999 i.e. after a delay of more than one

year and six months and at the relevant time the time limit

for submission of application for compassionate

appointment was six months only.

8. At this stage, it is necessary to refer the

judgment of the Hon'ble Apex Court passed in the case of

Mohan Mahto (supra) wherein the Hon'ble Apex Court has

held that the respondents are having powers to fix a time

limit. In this regard relevant portion of paragraph 18 is

quoted herein below:-

"18. We have indicated hereinbefore, that it is not

necessary for us to go into the question as to whether in

the teeth of the provision of NCWA-V, the respondent at all

had any power to fix a time limit and thereby curtailing

the right of the workman concerned. We would assume

that even in such a matter, it had a right

.............................................."

9. From the aforesaid observation given by the

Hon'ble Apex Court in the case of Mohan Mahto (supra) it

clearly transpires that the respondent has power to fix a

time limit, however the Hon'ble Apex Court has held that

since it is a State it should act reasonably. Thus, in the

said judgment the time limit framed by Company has not

at all been discarded. Since at that time the normal time

limit was Six months for making an appointment on

compassionate appointment and the mother of the

petitioner duly applied for the same, however her case was

rejected for being over age then this petitioner filed

application, but not immediately, rather after a gap of more

than One year and Six months. So in no case it can be said

that the petitioner was vigilant enough in making

application for appointment and thus was responsible in

delaying the matter of appointment. Moreover, in the case

of Central Coalfields Ltd. Vs. Sanjay Kumar & Anr. in

L.P.A. No.562 of 2014 this Court has held that there is no

legal obligation on the part of Coal Company to offer

compassionate appointment one by one to all the legal

heirs of the deceased employee. In this regard para-10 and

11 of the judgment passed in Sanjay Kumar (supra) is

quoted herein below:-

"10. In view of the aforesaid decision and also keeping in mind the fact that the son of the deceased employee was already offered the compassionate appointment, but, he could not avail the compassionate appointment because of his own personal reasons as he was medically unfit. No error has been committed by the appellants in rejecting the application preferred by another legal heir of the deceased. These aspects of the matter have not been properly appreciated by the learned single Judge while allowing writ petition being W.P.(S) No.2708 of 2007 vide judgment and order dated 18th January, 2014.

11. Looking to the peculiar facts of the present case, as stated hereinabove especially that:

(a) the son of the deceased employee was already offered the compassionate appointment:

(b) the legal obligation of these appellants comes to an end once, one of the legal heirs is offered compassionate appointment;

(c) there is no legal obligation on the part of these appellants to offer compassionate appointment one by one, to all the legal heirs of the deceased employee;

(d) the daughter of the deceased employee is preferring application in the year, 2006 and the petition is allowed in the year, 2014. Thus, compassionate appointment cannot be given after approximately one and half decades in view of the aforesaid decisions. These facts make the present case different from the facts of the judgment reported in (2011) 4 SCC 209 upon which the reliance has been placed by the learned Single Judge in paragraph no.7 of the impugned order and hence also, the judgment and order delivered by the learned Single Judge deserves to be quashed and set aside."

10. At the cost of repetition, the facts of the case in

LPA No.568 of 2018 relied by the petitioner is that in the

said case the mother of the petitioner submitted an

application for her appointment however her claim was

rejected on 15.01.2004 and thereafter an application for

keeping the petitioner on live roster was submitted through

the union on 30.07.2004 because at that time the

petitioner was a minor and there was a provision of keeping

in minor in live roster as per the Company Rules. So far as

this case is concerned; all the legal heirs of the deceased

employee were major; as such the judgment passed in LPA

No.568 of 2018 is not applicable in the instant case. Even

in this case, the Court has observed that in case the

dependant is male then he should not be more than 35

years of age and in case of female spouse, she should not

be over 45 years of age.

11. At this stage, it would be relevant to place

reliance on the implementation of decision arrived at JCC

meeting held on 22.07.2008 regarding date of submission

of application and consideration of matriculation certificate

for offering employment (Annexure-M to the counter

affidavit). From perusal of the said documents it clearly

transpires that on persistent demand of Union members at

various level for extension of time limitation for submission

of application and also for consideration of matriculation

certificate for the purpose of offering employment, the

period of limitation for submitting application in prescribed

format by the dependant which was initially one year at

that time was extended to 1 and ½ year.

This decision of JCC meeting cannot be ignored

because on each and every time an agreement cannot be

entered by the employer and employees' Union and for

implementation of few demands, the meeting of Joint

Bipartite Consultative Committee for industries (JCC) are

normally held; as such, this is also binding on the

employees whereby time limit was extended to 1 and ½

years on 3rd November, 2009.

12. Even for the sake of argument for accepting the

extended time limit for making an application by the

dependents as per clause 9.3.2. of NCWA in view of the

JCC meeting held in the year 2009; case of this petitioner

will not fall under consideration because as stated herein

above after the rejection of the claim of the petitioner's

mother, the petitioner took more than 1 year and 6 months

to take a decision and make an application for

compassionate appointment as such; rejection of the claim

for appointment of this petitioner is not unjustified.

The only thing which has been mentioned in the

impugned order that there was a delay of 10 and ½ years is

perverse and as a matter of fact there was a delay of almost

3 years after the death of deceased employee and for more

than 1 year 6 months from the date of rejection of the

application of his mother. In any view of the matter; it

cannot be said that the petitioner was vigilant.

13. Further, as held by this Court in Sanjay Kumar

(supra) there is no legal obligation on the part of the

employer-Coal Company to offer compassionate

appointment one by one to all the legal heirs of the

deceased employee, inasmuch as, it will become an

unending process. The contention of the petitioner that

since there is no time limit mention in the NCWA as such

the respondents are duty bound to give one employment to

the grieved family at any stage is wholly misconceived in

view of the discussions made herein above.

In this regard reference may be made to the

recent judgment delivered in the case of Central Coalfield

Limited through its Chairman and Managing Director

& Ors. Vs. Smt Parden Oraon, Civil Appeal No.897 of

2021, arising out of Special Leave Petition (C) No. 10514 of

2020 wherein the Hon'ble Apex Court has held as under:-

"8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family. It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a significant lapse of time and after the crisis is over."

14. In view of the aforesaid findings and judicial

pronouncements, no relief can be granted to this petitioner.

Consequently, the instant writ application is

dismissed, however no order as to cost.

(Deepak Roshan, J.) Jharkhand High Court, Ranchi.

Fahim/-

A.F.R/