Jharkhand High Court

Ganesh Mahto vs Central Coalfields Ltd. on 9 February, 2021

                                 [1]


        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            L.P.A. No.377 of 2019
                                    With
                             I.A. No.596 of 2021
       Ganesh Mahto, aged about 28 years, son of Late Kitak Mahto,
       resident of Village-Ara Basti, P.O.-Sarubera, P.S.-Mandu, District-
       Ramgarh.
                                                . ... Writ-Petitioner/Appellant
                                       Versus

    1. Central Coalfields Ltd., a subsidiary of Coal India Limited, having its
       Head Office at Darbhanga House, P.O. - G.P.O., P.S.-Kotwali,
       District-Ranchi through its Chairman-cum-Managing Director.

    2. Director (Personnel), Central Coalfields Limited, Darbhanga House,
       Ranchi, P.O.-G.P.O., P.S.-Kotwali, District-Ranchi.

    3. General Manager (Personnel), Central Coalfields Limited, Darbhanga
       House, Ranchi, P.O.-G.P.O., P.S.-Kotwali, District-Ranchi.

    4. General Manager, Kuju Area, Central Coalfields Limited, P.O.-Kuju,
       P.S.-Mandu, District-Ramgarh.

    5. Project Officer, Ara Colliery, Kuju Area, P.O.-Sarubera, P.S.-Mandu,
       District-Ramgarh.

    6. The Senior Officer (Personnel), Ara Colliery, Kuju Area, P.O.-
       Sarubera, P.S.-Mandu, District-Ramgarh.
                                                ... Respondents/Respondents
                                   -------

    CORAM:            HON'BLE THE CHIEF JUSTICE
             HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                                   -------

For the Appellant : Mr. Surya Prakash, Advocate For the Resp.-CCL : Mr. D.K. Chakraberty, Advocate

--------------------------

ORAL JUDGMENT

06/Dated 09th February, 2021 [2]

I.A. No.596 of 2021:

1. The matter has been heard through video conferencing with the

consent of the learned counsel for the parties. They have no

complaint about any audio and visual connectivity.

2. The instant interlocutory application is under Section 5 of the

Limitation Act for condoning the delay of 43 days in preferring the

instant appeal.

3. This Court, after taking into consideration the reason assigned in the

instant application as also considering the fact that instead of

dismissing the appeal on the ground of limitation it would be

appropriate in the ends of justice to decide the appeal on its merit,

accordingly, the delay of 43 days in filing the appeal, is condoned.

4. In the result, the instant interlocutory application is disposed of.

L.P.A. No.377 of 2019:

5. This is an appeal under Clause 10 of the Letters Patent directed

against the order/judgment dated 07.02.2019 passed by the learned

Single Judge of this Court in W.P.(S) No.7686 of 2017 whereby and

whereunder the writ Court has declined to interfere with the Letter

dated 10.11.2016 whereby the respondents have communicated that

the claim of the writ-petitioner/appellant for compassionate

appointment under clause 9.3.0 of the National Coal Wage

Agreement, in short NCWA, in place of his elder brother, who is

not the original applicant, is not maintainable.

6. The brief facts of the case which requires to be enumerated reads as

under:

[3]

The father of the writ-petitioner/appellant, late Kitak

Mahto, who was in employment of Central Coalfields Limited,

hereinafter referred to as C.C.L., died in harness on 25.12.1992. The

writ-petitioner/appellant was one and a half years old at the time of

death of his father and the elder brother of the writ-

petitioner/appellant namely, Dinesh Mahto, applied for

compassionate appointment but his claim was rejected because he

was found to be 13 years of age. At the relevant time, no person

could have been kept in live roster who was below the age of 15

years, thus, his claim was rejected. In the meantime, the elder

brother died on 26.03.2014, thereafter, mother of the writ-

petitioner/appellant made an application for grant of compassionate

appointment to writ-petitioner/appellant in place of Dinesh Mahto

but was rejected on the following grounds:

(i) The name of the writ-petitioner/appellant does not find place

in service record;

(ii) The application for compassionate appointment is not

transferable.

The writ-petitioner/appellant has challenged the said

order by filing a writ petition before this Court invoking the

jurisdiction conferred under Article 226 of the Constitution of India

on the ground that since his elder brother had died, he could only

have made fresh application on attaining majority, thus, the writ-

petitioner/appellant's case would have been considered.

He submits that the respondents would conduct an

enquiry about the genuineness of the writ-petitioner/appellant and [4]

thereafter would have considered his case rather than dismissing the

same holding that the name of the writ-petitioner/appellant does not

appear in the service records.

The respondents had appeared before the writ Court and

contested the case inter alia on the ground that the mother of the

writ-petitioner/appellant at the time of death of the father of the

writ-petitioner/appellant was also in service.

The Writ-petitioner/appellant is claiming compassionate

appointment on the ground of death of his father which took place

in the year 1992, hence, after more than 23 years, compassionate

appointment cannot be granted. The application of the brother of the

writ-petitioner/appellant stood dismissed, thus, with the said

dismissal the entire issue of grant of compassionate appointment to

the legal heirs of Kitak Mahto comes to an end and the same cannot

be reopened.

The writ Court, after hearing the learned counsel for the

parties, passed an order by dismissing the writ petition on the

ground of death of the father of the writ-petitioner/appellant which

was on 25.12.1992 and after lapse of 23 years, the writ-

petitioner/appellant has made an application for consideration of his

case for appointment on compassionate ground and further on the

ground that at the time of death of his father, he was one and a half

years old. The case of the elder brother of the writ-

petitioner/appellant has also been considered but since he was only

13 years old, therefore, could not have been kept in live roster but

subsequently, he died. In view of the aforesaid reason, decision [5]

taken by the authority declining to grant appointment on

compassionate ground has been declined to be interfered with,

which is the subject matter of the instant intra-court appeal.

7. Mr. Surya Prakash, learned counsel for the writ-petitioner/appellant

has submitted that the learned Single Judge has not appreciated the

fact that the writ-petitioner/appellant who was not 18 years of age at

the time of death of his father, as such, could not have made an

application for consideration of his candidature for appointment on

compassionate ground.

He further submits that the elder brother who was 13

years of age at the time of death of his father, although, had made

an application but his case could not have been considered under

the provision of clause 9.3.0 and further even under clause 9.5.0 of

the said agreement, the case could not have been considered since

under the aforesaid agreement, the condition is to keep a dependant

in live roster if he is found to be more than 15 years of age and

below 18 years of age but elder son being 13 years old could not

have been kept in live roster. However, when the elder brother of

the writ-petitioner/appellant died, an application has been filed by

the writ-petitioner/appellant to provide him appointment on

compassionate ground but the authority without considering the

case in right perspective has rejected the case of the writ-

petitioner/appellant on the ground that the claim of appointment on

compassionate ground is not transferable one and further once the

case has been closed by rejecting the claim of his elder brother,

there is no reason to reopen the same.

[6]

According to the learned counsel since the writ-

petitioner/appellant's claim is of appointment on compassionate

ground under the aforesaid agreement, therefore, the authorities

ought to have proceeded by taking lenient view but this aspect of

the matter has also not been appreciated by the learned Single

Judge, hence, the impugned order is not sustainable and the same is

fit to be quashed and set aside.

8. Per contra, Mr. D.K. Chakraberty, learned counsel for the

respondent-C.C.L. has submitted that there is no error in the

impugned order or the order passed by the learned Single Judge

since the claim of the writ-petitioner/appellant has been rejected

taking into consideration the inordinate delay in making application,

i.e, after lapse of 23 years, and further on the ground that the case of

the elder brother of the writ-petitioner/appellant has been

considered but was rejected, hence, the issue having been closed, it

cannot be allowed to be reopened after lapse of the period of 23

years.

The learned Single Judge after taking into consideration

these aspects of the matter has correctly not interfered with the

impugned order, accordingly, the instant appeal may be dismissed.

9. We have heard the learned counsel for the parties, perused the

documents available on record and the finding recorded by the

learned Single Judge.

10. The admitted fact herein is that the father of the writ-

petitioner/appellant had died in harness on 25.12.1992 and at the [7]

time of death of his father he was one and a half years old, as such,

his elder brother namely, Dinesh Mahto, applied for compassionate

appointment but his claim was rejected because he was 13 years of

age. At that time, no person could have been kept in live roster

since as per the condition stipulated under clause 9.5.0 of the

NCWA, the dependant can be kept in live roster if he is more than

15 years of age and less than 18 years of age, as such, the case of

the elder brother was rejected. Subsequent thereto, the elder brother

died on 26.03.2014 and then the mother of writ-petitioner/appellant

made an application for grant of compassionate appointment in

place of Dinesh Mahto but the claim was rejected, therefore, the

fact is not in dispute that after the death of the father of the writ-

petitioner/appellant the claim of the dependant being the elder son

namely, Dinesh Mahto, had been considered but was rejected.

11. The question is that once the claim of the elder brother of the writ-

petitioner/appellant has been considered and rejected, can the case

of the writ-petitioner/appellant be considered, that too after lapse of

23 years from the date of death of his father.

The answer of this Court would be in negative because as

per the condition stipulated under clause 9.3.0, the dependant is to

be provided appointment if he is in between the age of 18 to 35

years.

However, as per the condition stipulated under clause

9.5.0 if the dependant is in between the age of 15 to 18 years, he can

be kept in live roster. The elder brother of the writ-

petitioner/appellant had applied for consideration of his candidature [8]

but he was 13 years old at the time of consideration of his claim,

therefore, he could not have been kept in live roster as per the

condition stipulated under clause 9.5.0 of NCWA.

However, his case was considered but he having found to

be 13 years of age, being minor, his case was rejected, as such,

consideration of the case of the dependant on account of death of

employee was closed. The writ-petitioner/appellant was one and a

half years old at the time of death of his father but on attaining

majority, he made an application after 23 years from the date of

death of his father.

12. There is no provision under the NCWA that once the case of a

dependant of the deceased employee has been considered and

rejected, the case of other dependant would be considered and in

view thereof, the claim has not been made to be a transferable claim

for consideration of appointment on compassionate ground.

13. The authorities have rejected the claim of the writ-

petitioner/appellant while passing the impugned order on the ground

of the claim having not been transferable one and the issue of

appointment on compassionate ground has already been closed the

day when the claim of his elder brother was rejected and further, the

claim of the writ-petitioner/appellant for appointment on

compassionate ground having been made after lapse of 23 years.

The learned Single Judge, after taking into consideration all these

aspects of the matter, has declined to interfere with the same.