Rukhia Devi vs Bharat Coking Coal Limited ...
2021 Latest Caselaw 3129 Jhar

                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                     Civil Review No. 12 of 2019

              Rukhia Devi                             ---          ---    Petitioner
                                                   Versus
              1. Bharat Coking Coal Limited through its
                 Chairman-cum-Managing Director, Dhanbad
              2. Director (Personnel), Bharat Coking Coal Limited, Dhanbad
              3. Chief Manager (P), MP & R, Bharat Coking Coal Limited, Dhanbad
              4. General Manager, Bharat Coking Coal Limited, Katras Area, Dhanbad
              5. Area Personnel Manager, Katras Area, Dhanbad
              6. Chief Manager (Personnel), Katras Area, Dhanbad
              7. Project Officer, Salanpur Colliery, Bharat Coking Coal Limited, Dhanbad
              8. Coal India Limited through its Chairman, Kolkata        ---     Opp. Parties
                                                      With
                                         Civil Review No. 10 of 2019
              1. Rajia Devi
              2. Kajal Baurin
              3. Kalo Bourin
              4. Kumar Bai
              5. Nanh Bai
              6. Bandhani Devi
              7. Fulia Dasin                                 ---         ---     Petitioners
                                                   Versus
              1. Bharat Coking Coal Limited through its
                 Chairman-cum-Managing Director, Dhanbad
              2. Director (Personnel), Bharat Coking Coal Limited, Dhanbad
              3. Chief Manager (P), MP & R, Bharat Coking Coal Limited, Dhanbad
              4. General Manager, Bharat Coking Coal Limited, Katras Area, Dhanbad
              5. Area Personnel Manager, Bharat Coking Coal Limited,
                  Katras Area, Dhanbad
              6. Chief Manager (Personnel), Bharat Coking Coal Limited,
                 Katras Area, Dhanbad
              7. Project Officer, Keshalpur, Akakrit West Modidih Colliery, Bharat Coking
                 Coal Limited, Dhanbad                                   ---     Opp. Parties
                                                       ---

              CORAM:          Hon'ble Mr. Justice Aparesh Kumar Singh
                          Hon'ble Mrs. Justice Anubha Rawat Choudhary
                                  Through:     Video Conferencing
                                                  ---

For the Petitioners: M/s Ajit Kumar, Sr.Advocate, Aparajita Bhardwaj, Kumari Sugandha, Jagdeesh, Advocates For the Opp. Parties: M/s Amit Kr. Das, Swati Shalini, Advocates

---

15 / 26.08.2021 Heard learned senior counsel for the Review petitioners Mr. Ajit Kumar and Mr. Amit Kumar Das, learned counsel for the Respondent BCCL.

2. Writ petitioner Rukhia Devi in WPS No. 2590/2016 and writ petitioners Rajia Devi and six others in WPS No. 1537/2016 decided with a batch of five other writ petitions vide judgment dated 27.08.2018, are in review in the present matter.

3. By judgment dated 27.08.2018, learned Division Bench of which one of us (Aparesh Kumar Singh, J) was a Member, decided a batch of writ petitions referred by the learned single Bench. The referral order made in WPS No. 4079/2016 was in the following terms.

"This Court prima facie feels that this scheme is against the constitutional provisions. This scheme introduces a new mode of appointment which is appointment by inheritance and nomination. This is also just two years before the actual date of superannuation. By virtue of this scheme, a female employee works 2 years short of her superannuation and thereafter, after obtaining VRS gets her dependent in permanent employment in Coal India Ltd. This hereditary mode of appointment prima facie violates Article 16 of the Constitution.

Can this type of appointment be legalised, as an exception to the general rule, as is in a case of compassionate appointment when an employer dies in harness and his heir is appointed to overcome the immediate financial hardship. Validity of this scheme has to be tested first. In view of the above this writ petition be placed before a Division Bench after the approval of the Hon'ble the Chief Justice to decide the issue whether the scheme of Female VRS or any of the provisions of the scheme floated by Coal India Ltd. violates the provision of the Constitution of India or not."

4. While deciding these batch of writ petitions, the Court took into consideration the judgment delivered in LPA No. 340/2016 (Sumita Devi Versus M/s Coal India Ltd., Kolkata and others) which dealt with the similar voluntary retirement scheme for female employees of the year 2002. The Court also took note of the fact that so far as the present Coal India Special Female Voluntary Retirement Scheme, 2015 is concerned, it was similar in all respects with the earlier scheme forming the subject matter of LPA No. 340/2016, barring the age at which a female employee was to superannuate, which was extended to 58 years in the scheme involved in these six writ petitions, on the submissions of learned counsel for the parties. The learned Division Bench while passing judgment dated 23.08.2017 in LPA No. 340/2016 held as under:

"6) Having heard learned counsels for both sides and looking to the facts and circumstances of the case, it appears that scheme, which was floated in the year 2002 and modified in the year 2003, lived a very short life for some times and ended without there being any implementation of the same for any of the female employee. Management thought it fit not to operate the scheme and not a single female employee got voluntary retirement nor their legal heir - son, was given employment as envisaged by the said scheme. Under such type of scheme, an application was preferred by the appellant on 11th/14th December, 2002 for voluntary retirement, so that automatically her son can be employed under the scheme of the year 2002.

7) Much has been argued out by the counsel for the appellant that when the application was preferred, scheme of the year 2002 was in force, which was later on modified on 16.07.2003 and ultimately on 08.06.2006, the scheme was withdrawn by the respondents and, hence, the son of the appellant should have been given employment. This contention is not accepted by this Court mainly for the following reasons:-

(a) There is no legal right vested into this appellant to secure the employment of her son in advance.

(b) The scheme of the year 2002 is nothing, but, an extra charity shown by the respondents. Extra charity, exemption, concession or extra liberty can be enjoyed only at the volition of the employer. There cannot be any right vested into the employee to get such type of concessional treatment. Such type of concessional treatment cannot be a part and parcel of the service condition. At the highest, extra charity is not shown by the respondents to this appellant.

(c) The scheme, which is floated in the year 2002 and which was slightly modified on 16th July, 2003, was never made operational. Not a single female employee was allowed to resign, nor her male legal heir was ever given any employment.

(d) Later on, the Management has withdrawn the scheme on 08.06.2006 as per the Annexure-L to the counter affidavit filed by the respondents in this Letters Patent Appeal.

8) Much has been argued out by the learned counsel for the appellant that in the year 2015, again a similar scheme has been floated for female workers and under this scheme also, son of this appellant should be appointed by the respondents in place of this appellant. This contention is also not accepted by this Court, mainly for the reason that there cannot any Relay Fast type of employment which is retained when one is getting voluntary retirement and another will get the employment, which may tantamount to handing over the baton. Such type of scheme is, in fact, wholly violative of the Constitutional provisions. The public at large must be given a chance to get public employment, otherwise, the employment will also be given to female employees of the respondents in inheritance. Public employment cannot be given in inheritance. Such type of practice should be brought to an end forthwith, by those who are managing affairs of the Public Sector Undertakings. Moreover, under the new Scheme of the year 2015, no such application was ever preferred by this appellant and, hence, no question, whatsoever, arises either to grant or reject such type of prayer by this appellant. Even otherwise also, this appellant has already retired from service from July, 2016. Hence also, her son cannot be given employment as a matter of right. Moreover, the scheme of the year 2015 also lived a very short life.

9) Counsel for the respondents - Public Sector Undertaking, submitted that the scheme of the year 2015 lived a very short life of six months only and the same has been acted upon also.

10) It appears that this is a very dangerous procedure followed by the respondents. Such type of scheme for 4, 5 or 6 months brought in force, results into dissatisfaction amongst the employees of the respondents, as if, the same has been brought for few selected persons only. Initially, in the year 2002, such scheme was brought and later on withdrawn on 08.06.2006. We are unable to understand why such type of scheme has been re-floated. It appears that there is no consistency of thought with the Directors of the respondents-Company. Sometimes they are too much charitable and sometimes they are strict. By virtue of this type of zig-zag thoughts by Directors of the respondents- Company, few selected employees are getting benefits and others have to file petitions and Letters Patent Appeals. In fact, the respondents-authorities are increasing the work of this Court. Those who are Public Sector Undertakings, they are the "State" within the meaning of Article 12 of the Constitution of India. There cannot be such type of grant of public employment to txhe legal heirs of the employees. The Directors of Eastern Coalfields Limited will take note of this matter, so that, in future also no such type of scheme is floated for 3, 4, 5 or 6 months and thereby, "few favourable" or "few fortunates" will get the benefit and rest of them will have to come to the Courts. There cannot be accommodative schemes."

5. The review petitioners have inter-alia taken a number of grounds, as under, to assail the impugned judgment.

A. For that, the same Respondents of M/S Bharat Coking Coal Limited has considered those applications of more one thousand female workers who made in the Coal India Special Female Voluntary Retirement Scheme, 2014 (Revised) and provided the employment to their respective son before the date of delivery of the above said judgment dated 23.08.2017 passed in L.P.A. No. 340 of 2016 (Sumitra Devi vrs M/s Coal India Ltd., Kolkata and Ors).

B. For that, in an earlier decision of the Co-ordinate Division Bench in L.P.A. No. 340 of 2016 (Sumitra Devi Vrs. M/s Coal India Ltd. Kolkata and Ors) has found such Female Voluntary Retirement Scheme to be unconstitutional by the judgment dated 23.08.2017 which may not be applicable in the case of petitioners as to maintain the parity.

C. For that, the petitioners has also made their respective applications before the cut-off date as prescribed in the Coal India Special Female Voluntary Retirement Scheme, 2014 (Revised) and also much before the above said judgment 23.08.2017 and the petitioners also deserve consideration of their application made in Coal India Special Female Voluntary Retirement Scheme, 2014 (Revised).

D. For that, there would be two set of persons who had applied in the same Special Female Voluntary Retirement Scheme, 2014 (Revised) before the cut-off date i.e. the date prescribed for making the application but one set of persons enjoyed the benefit of the said Voluntary Retirement Scheme and remained in their respective jobs despite of the

judgment and order dated 23.08.2017 passed in L.P.A No. 340 of 2016 and the order dated 27.08.2018 passed in W.P.(S) No. 1537 of 2016 whereas another set of persons got deprived from the same benefit only due to the fact that their cases were pending before the same judgment and order dated 23.08.2017 passed in L.P.A. No. 340 of 2016 and order dated 27.08.2018 passed in W.P.(S) No. 1537 of 2016 and that too for no fault on their part as such their case be allowed to consider as per the said Special Female Voluntary Retirement Scheme, 2014 (Revised).

6. It is not disputed by the learned counsel for the Review petitioners that the material facts forming the basis for asserting that similarly situated other persons who had also applied before the cut-off date prescribed under the scheme of 2014 got the benefit of the scheme, whereas the Review petitioners and others were denied the same, was not pleaded in the writ petitions. In the Review petitions, it has been averred that the Respondent BCCL considered more than one thousand applications of female workers under 2014 scheme and provided employment to their respective sons before the date of delivery of judgment dated 23.08.2017 passed in LPA No. 340/2016 in the case of Sumita Devi Versus M/s Coal India Ltd., Kolkata and others and that the petitioners had also made application before the cut-off date and deserve due consideration on principles of parity as there was no fault on their part. Under ground-B, the Review petitioners have also asserted that the findings of the learned Division Bench in LPA No. 340/2016 that the Female Voluntary Retirement Scheme was unconstitutional, may not be applicable in the case of the petitioners so as to maintain parity.

7. However, during course of submissions, learned Senior counsel for the Review petitioners has questioned the impugned judgment, more specifically the observations made in para-7 on the ground that constitutionality of FVRS was not decided in LPA No. 340/2016 directly. The findings as regards the constitutionality of the scheme at para-7 of the impugned judgment are unwarranted, more so when no such issue of constitutionality of the scheme was ever raised. Therefore, the impugned judgment suffers from such errors of law which are amenable to Review jurisdiction within the grounds enumerated under Order 47 Rule 1 of Code of Civil Procedure. Reliance is placed on the judgment of the Apex Court in the case of Board of Control for Cricket in India and another versus Netaji Cricket Club and others [(2005) 4 SCC 741, para-89 & 90]. It has also been urged on behalf of the Review petitioners that if case of their dependents is not considered on equal footing with those applicants who also made their application by the cut-off date and have been

conferred appointment after their training by the Respondent BCCL, grave injustice would be caused. Therefore, the impugned judgment needs to be reviewed.

8. Learned counsel for the BCCL Mr. Amit Kumar Das has, at the outset, submitted that the impugned judgment does not suffer from any error apparent on the face of the record, nor the grounds urged by the Review petitioners stem out of the pleadings in the writ petitions. It is submitted that the ground-B raised by the Review petitioners, in fact asserts that the learned Coordinate Division Bench in LPA No. 340/2016 found the Female Voluntary Retirement Scheme to be unconstitutional which, according to the Review petitioners, may not be applicable in their case, so as to maintain parity. The stand of the Review petitioners taken during course of submissions therefore, are contrary to their grounds taken in the Review petitions. Even otherwise, it was open for the learned Division Bench deciding the batch of writ petitions to deal with the issue of constitutionality of the scheme, even though the vires of the scheme may not have been specifically raised in the writ petitions, having regard to the importance thereof and the issue to be decided not unconnected to the subject matter of the writ petitions. In support of his submission, he has placed reliance upon the decision of the Apex Court in the case of V. Sivamurthy Versus State of Andhra Pradesh and others [(2008) 13 SCC 730]. He submits that the question posed at para-8(ii) therein has been answered at para-32 affirming the view that even though the vires of the scheme were not specifically raised in the writ petitions, but having regard to the importance thereof, and it being not wholly connected to the subject matter of the writ petitions, it could have been entertained and decided by the Full Bench of the High Court. It is submitted that the observations at para-6 of the impugned judgment clearly show that the parties had agreed that fundamentally, the features of the present scheme is similar to the one in respect of which decision has already been delivered by a Division Bench of this Court in LPA No. 340/2016.

9. In response to the statement made in para-18 to 27 of the supplementary affidavit of the Review petitioners, learned counsel for the Respondent BCCL has referred to para-24 of the counter affidavit and submitted that total 59 persons were found eligible for employment and after female workmen were first separated, their nominated persons were sent to HRD Division for training prior to passing of the judgment in LPA No. 340/2016. After successful completion of training and after acquiring certificate of specific grade, 58 out of 59 persons were provided employment under the scheme. Learned counsel for

the Respondents submits that applications received in the Headquarter after expiry of due date and a period of three months from the date of the notification were not entertained. It is submitted that the grounds of parity vis-à-vis other applicants who had made applications under the scheme was never the case of the Review petitioners in the writ petitions. He submitted that on these grounds, no case of review is made out. Therefore, Review petitions deserve to be dismissed.

10. We have considered the submissions of the learned counsel for the parties and taken note of the grounds urged for review of the impugned judgment. We have also referred to the necessary factual canvass of the case and the observations and findings rendered by the learned court in the batch of writ petitions including that of the present Review petitioners vide judgment dated 27.08.2018. We find that the Review petitions primarily allege discrimination in matters of consideration on the part of the Respondent BCCL under the FVRS Scheme 2015, as according to the Review petitioners, other applicants like the present petitioners who also had applied within the cut-off date, their nominated persons were sent for training and appointed in spite of the decision rendered by learned Division Bench in LPA No. 340/2016. However, the Review petitioners had never raised any such plea of parity, nor made any such assertion on facts in the writ petitions. On that count, the impugned judgment cannot be said to suffer from any error apparent on the face of the record.

11. Other ground which has been urged during the course of submissions on behalf of the Review petitioners in fact, runs contrary to the ground no.-B taken in the Review petition as to the findings relating to constitutionality of the FVRS Scheme, 2002 in LPA No. 340/2016. Review petitioners, during course of submissions, have rather taken a different stand that since constitutionality of the scheme was not decided in LPA No. 340/2016 and neither raised in the batch of writ petitions, the findings rendered at para-7 of the impugned judgment on its constitutionality, was not proper in the eye of law. It being mistake of law, it therefore requires to be corrected by review or recall of the impugned judgment. Having considered this plea as well, we find that the instant ground is a complete change in the stand of the Review petitioners during course of arguments from what has been urged in the Review petitions. On the other hand, such a finding even if erroneous, could not constitute an error which can be corrected in the exercise of Review jurisdiction. Petitioners, if so aggrieved thereby, may have appropriate remedy in law, if so advised. At

the same time, it is also clear from the observations made at para-7 of the impugned judgment that the learned court accepted the reasoning of the Coordinate Bench expressed in LPA No. 340/2016 while doing so.

12. Learned counsel for the parties have placed reliance upon the decisions supporting their stand as to whether such a finding on the constitutionality of the scheme could have been rendered by the learned court while delivering the impugned judgment. Having considered the submissions of the parties in the light of the facts and circumstances noted above and the grounds urged by the Review petitioners, we do not find that the impugned judgment suffers from any such errors apparent on the face of the record warranting review of the impugned judgment. Moreover, it is not the case of the Review petitioners that the new facts pleaded in the Review petitions could not have been within their knowledge or could not be produced at the time when the impugned judgment was passed even after exercise of due diligence. The Review petitions being devoid of merit, are accordingly dismissed.

(Aparesh Kumar Singh, J)

(Anubha Rawat Choudhary, J) Ranjeet/