Jharkhand High Court
Budhni Devi @ Reshmi Devi vs The Central Coalfields Limited on 31 August, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 7116 of 2019
1. Budhni Devi @ Reshmi Devi
2. Dewanti Kumari .... .... Petitioners
Versus
1. The Central Coalfields Limited
though its Chairman-cum-Managing Director,
Darbhanga House, Ranchi.
2. The Project Officer, Central Coalfields Limited,
office of Project Office, Sel, Bokaro.
3. Project Officer Selectrate,
Central Coalfield Limited, Dhori, Bokaro.
4. Senior Manager Personnel,
Central Coalfields Ltd, Sel, Dhori, Bokaro.
5. The State of Jharkhand .... .... Respondents
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CORAM : HON'BLE MR. JUSTICE DR. S.N. PATHAK
(Through Video Conferencing)
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For the Petitioner : Mr. Prem Pujari Roy, Advocate
For the Respondents : Mr. Anoop Kumar Mehta, Advocate
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6 / 31.8.2021 Heard the parties.
2. The petitioners have approached this Court for quashing of the
order contained in Memo No. 4815 dated 17.2.2016 at Annexure-5, whereby, the
respondent-CCL has rejected the claim of petitioner no.2 for compassionate
appointment on the ground that sister is not treated as dependent family
members for the purpose of grant of compassionate appointment under Para
9.3.0 of National Coal Wage Agreement and for a direction upon the
respondents to consider the case of petitioner no.2 (Dewanti Kumari) for
compassionate ground on account of death of her brother i.e. son of petitioner
no.1, while working as Piece Rater Worker with the respondent-CCL.
3. The factual exposition, as has been delineated in the writ
application is that father of petitioner no.2, namely, Basudeo Kolh was appointed
as Piece Rated Mazdoor on 29.11.1980. However, on sudden death of husband
of petitioner no.1 (Basudeo Kolh), she applied for consideration of appointment
of her son under Clause 9.3.0 of the NCWA. The candidature of son of petitioner
no.1 was duly considered and he was appointed on compassionate ground vide
letter no. 372 dated 7.12.2012 as an Ex Mazdoor-Category-I. But unfortunately,
the said son of petitioner no.1, namely, Umesh Kolh also died in harness on
5.3.2013, leaving behind his mother (petitioner no.1) and his sister (petitioner
no.2). Thereafter, petitioner no.2 made an application on 2.5.2013 for her
appointment on compassionate ground on account of death of her brother, which
ultimately was rejected by the respondent-CCL by letter dated 17.2.2016 mainly
on the ground that sister is not treated as dependent family member for the
purpose of compassionate employment under Para 9.3.0 of the NCWA.
4. Mr. Prem Pujari Roy, learned counsel appearing for the petitioner
submits that the impugned decision rejecting the claim of petitioner for
compassionate appointment is not sustainable in the eyes of law, inasmuch as,
the rejection order is only based on the ground that sisters are not treated as
dependent family member for the purpose of compassionate appointment, which
amounts to violation of Articles 14, 16 & 21 of the Constitution of India. In
support of this contention learned counsel places heavy reliance on plethora of
judgments of this Court and submits that gender cannot come in the way of
compassionate appointment and as such, the respondents ought to have
considered for appointment of petitioner no.2. Learned counsel argues that
though the claim of petitioners was rejected only on the ground that sisters are
not treated as dependent, but the respondents have come out with a different
plea in the counter-affidavit stating therein that deceased brother was not a
permanent employee of the Company and as such, the case of petitioners cannot
be considered for compassionate appointment. Learned counsel submits that
said statement is not tenable in the eyes of law in view of the law laid down by
the Hon'ble Apex Court in the case of Commissioner of Police, Bombay Vs.
Gordhandas Bhanji, reported in AIR 1952 SC 16 and also in the case of
Mohinder Singh Gill Vs. Chief Election Commissioner, reported in (1978) 1
SCC 405.
5. Learned counsel for the petitioner draws the attention of this Court
towards order dated 9.1.2004 passed in W.P.(S) No. 1031 of 2013 (Sumit Kumar
Mahato Versus Bharat Coking Coal Limited & Ors), in which, similar issue fell
for consideration before this Court as to whether legal heirs of the casual worker
can be considered for compassionate appointment or not and this Court after
hearing the parties, allowed the writ petition and a direction was given to the
respondents for consideration of appointment on compassionate ground and the
order was fully complied with and the same was not challenged before the
Division Bench of this Court by the respondents and as such, same attained
finality.
6. Per contra, counter affidavit has been filed. Learned counsel for the
respondent-CCL opposes the contention of learned counsel for the petitioners
and submits that the impugned decision is fully justified and the petitioner no.2
is not eligible for compassionate appointment under Para 9.3.0 of the NCWA, as
per which, sister is not treated as dependent of the family. Learned counsel
further submits that the writ petition of the petitioner is also fit to be dismissed
on the ground of delay, inasmuch as, the brother of petitioner no.2 was died on
5.3.2013 and application for compassionate appointment was rejected by letter
dated 17.2.2016, but the petitioner has approached this Court by filing this writ
petition after about three years and ten months. As such, the writ petition is not
maintainable and the petitioners are not entitled for any relief.
7. Learned counsel further submits that as the deceased employee was
appointed as Trainee for a period of six months on initial basic wage of
Category-I, no compensation can be granted to his family members in absence of
provision under NCWA. In support of his contention, learned counsel places
reliance upon the decision of this Court rendered in the case of Kunti Devi,
decided on 29.11.2019 in W.P.(S) No. 6040 of 2018. Learned counsel further
argues that even the Division Bench of this Court in the case of Central
Coalfields Limited Vs. Rajan & Ors., decided on 22.11.2017 in L.P.A. No. 393
of 2017 held that those who are working as apprentice, trainee, probationer and
if they expire, their legal heir cannot get the compassionate appointment.
Learned counsel submits that again in L.P.A. No. 506 of 2017 (Central
Coalfields Limited Vs. Piyashi Devi & Ors), the Division Bench of this Court
relying upon the judgment of L.P.A. No. 393 of 2017, held that if the deceased
employee was only getting the stipend as a trainee, by no stretch of imagination,
he could be treated as a permanent employee of the Company.
8. Having heard learned counsel for both the sides and upon going
through the record, I find that it is an admitted position that deceased brother of
petitioner no.2 was appointed as a trainee for a period of six months, as is
apparent from the appointment letter of deceased employee itself and he died on
5.3.2013 while working on temporary roll of CCL. Petitioner No.2, being his
sister, applied for compassionate appointment, which was rejected by the
respondent CCL in terms of Para 9.3.0 of the NCWA, which deals with
employment of dependents from the death in harness category. This provision
reads as under:-
"9.3.0 Provision of Employment to Dependants.
9.3.1 Employment would be provided to one dependant of workers
who are disabled permanently and also those who die while in
service. The provision will be implemented as follows. 9.3.2
Employment to one dependant of the worker who dies while in
service In so far as female dependants are concerned, their
employment/payment of monetary compensation would be governed
in para 9.5.0.
9.3.3 the dependant for this purpose means the wife/husband as the
case may be, unmarried daughter, son and legally adopted son. If
no such direct dependant is available for employment, brother,
widowed daughter/widowed daughter-in-law or son-in-law residing
with the deceased and almost wholly dependent on the earnings of
the deceased may be considered to be the dependant of the
deceased."
9. From perusal of Clause 9.3.3., it appears that sister does not come
under the definition of dependent. More so, the brother of petitioner no.2 was a
trainee, working on the stipend basis and had not been put under the regular pay
scale of the respondents, he could not be termed as a permanent employee of the
respondent-CCL and hence, there was no question of granting any
compassionate appointment to the petitioner No.2. The case of the petitioners is
squarely covered by the decisions passed in L.P.A. No. 393 of 2017 and L.P.A.
No.506 of 2017 by the Division Bench of this Court.
10. Be that as it may, though the rejection order is only based on the
ground that sisters cannot be treated as dependent family member of the
deceased, but the fact remains that the deceased brother of petitioner no.2 was
on temporary roll of the CCL and this issue has elaborately been dealt with by
the Division Bench of this Court, wherein, it has been held that only legal heir of
the confirmed employee can get compassionate appointment and not otherwise.
11. In view of the observations made by the Division Bench of this
Court in L.P.A. No. 393 of 2017 and L.P.A. No.506 of 2017, nothing remains to
be decided in the present writ petition.
12. This writ petition has no merit and the same is accordingly,
dismissed.
(Dr. S. N. Pathak, J.)
R.Kr.
