Lilwa Bhuiyan vs Central Coalfields Limited ...
2021 Latest Caselaw 641 Jhar

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   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                    L.P.A. No.687 of 2019
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Lilwa Bhuiyan, aged about 39 years, S/o Laxmi Devi, Resident of Village Tina Side, P.O. Sayal and P.S. Urimari, District - Hazaribagh, Jharkhand-829125.

                                         ...     ...     Appellant
                             Versus

1. Central Coalfields Limited (C.C.L.), a subsidiary of Coal India Limited, a government of India undertaking, having office registered at Dharbhanga House, Ranchi, P.O. Ranchi University, P.S. Kotwali, District Ranchi.

2. The Director (Personnel), C.C.L., having office at Dharbhanga House, Ranchi, P.O. Ranchi University, P.S. Kotwali, District - Ranchi.

3. The General Manager (P&IR), C.C.L., Dharbhanga House, Ranchi, P.O. Ranchi University, P.S. Kotwali, District- Ranchi.

4. The Manager (C/Sauda Siding) Urimari Project (Barka-

sayal area), C.C.L., P.O. - Sayal & P.S. - Urimari, District Hazaribagh.

5. The Project Officer, Urimari Project (Barka Sayal area), C.C.L., P.O. - Sayal & P.S. - Urimari, District Hazaribagh ... ... Respondents

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

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For the Appellant : Ms. Khalida Haya Rashmi, Advocate For the Respondents : Mr. Hardeo Prasad Singh, Advocate

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ORAL JUDGMENT

Order No. 08 : Dated 10th February, 2021

With the consent of the parties, hearing of the matter

has been done through video conferencing and there is no

complaint whatsoever regarding audio and visual quality.

2. The instant intra-Court appeal is under Clause 10 of the

Letters Patent directed against the order/judgment dated

08.07.2019 passed by learned Single Judge of this Court in

W.P.(S) No. 2424 of 2019 whereby and whereunder the prayer

for direction upon the respondents to consider the case of the

writ petitioner for appointment on compassionate ground on

account of death of his mother, who died in harness, having

been denied by the respondents, has been refused to be

interfered with by the learned Single Judge vide impugned

order.

3. The brief facts of the case which need to be enumerated

herein, read as under :-

The mother of the writ petitioner, namely, Laxmi Devi,

was appointed to the post of Ex-Wagon Loader on

18.12.1989, who died in harness on 19.12.2013. The

petitioner, being the legal heir, approached the respondent

authorities for consideration of his case for appointment on

compassionate ground under the provision of Clause 9.3.0 of

National Coal Wage Agreement (hereinafter to be referred to

as NCWA). His case for compassionate appointment was

forwarded for consideration. The writ petitioner had annexed

copy of Driving License, Aadhar Card, nomination form and

L.T.C. form with his application. His case was referred to the

Medical Board for assessment of the correct age. The Medical

Board assessed the age of the writ petitioner to be 37½ years

on the date of assessment and taking into consideration the

aforesaid age and keeping the fact into consideration that

maximum age for appointment is 35 years, his case was

rejected vide order dated 16.06.2015, aggrieved thereof the

writ petitioner has approached to this Court by filing writ

petition being W.P.(S) No. 2424 of 2019.

Learned counsel appearing for the petitioner before the

writ court has taken the ground that if the age of the

dependant is medically assessed, the lower age ought to have

been considered instead of considering the higher age and as

such, the order dated 16.06.2015 is arbitrary, illegal and fit

to be quashed and set aside.

Learned counsel appearing for the respondent C.C.L.

has submitted that the writ petitioner is not entitled for

compassionate appointment as he has crossed the maximum

age of appointment i.e., more than the age of 35 years.

Learned Single Judge, after taking into consideration

the stand of the respondent C.C.L., has found no merit in the

writ petition and accordingly the writ petition has been

dismissed which is the subject matter of the instant intra-

court appeal.

4. Learned counsel appearing for the writ

petitioner/appellant while assailing the order passed by the

learned Single Judge has reiterated the argument and in

addition thereto, it has been submitted that it is a case of the

nature where no Medical Board ought to have been

constituted since there is no discrepancy in the date of birth,

rather if the document pertaining to PS-3 (Particulars of

Family) is perused, the age of the writ petitioner has been

mentioned as 18 years as on 28.05.1998 and if the writ

petitioner was of 18 years' of age as on 28.05.1998, he, at the

time of death of his mother, had attained the age of 33 years

06 months and 21 days and, therefore, he being less than the

age of 35 years, ought to have been granted appointment on

compassionate ground but erroneously the respondent C.C.L.

asked the writ petitioner to go for the medical assessment

based upon the L.T.C. form but the said L.T.C. form where

the age of the writ petitioner has been shown to be 15 years,

does not stipulate that on what date the writ petitioner's age

was 15 years. However, in the affidavit filed on 09.02.2021

the respondent authorities have shown the writ petitioner of

the age of 15 years as on 21.11.1991 but the same is without

any basis as would appear from the L.T.C. Form - A

appended to the said affidavit and, therefore, the age of the

writ petitioner mentioned in the PS-3 and PS-4 Forms as on

28.05.1998 to be 18 years ought to have been accepted and

thereby the respondent authority ought to have provided

appointment on compassionate ground but only in order to

harass the writ petitioner, the respondent authorities

themselves have shown contradiction in the age of the writ

petitioner to deprive him from his legitimate claim for

appointment on compassionate ground by relying upon one

another documents i.e., L.T.C. Form which is highly arbitrary

and illegal.

According to learned counsel, the said aspect of the

matter was required to be considered by the authority while

considering the application for appointment on

compassionate ground but having not done so, gross illegality

has been committed.

5. Learned counsel appearing for the respondent CCL has

defended the order passed by the learned Single Judge and

has submitted that in view of the policy decision of the

respondent CCL since there are discrepancy in the age of the

writ petitioner and taking into consideration the official

records i.e., L.T.C. Option Form and PS-3 and PS-4 Forms, a

conscious decision was taken to ask the writ petitioner to

appear before the Medical Board in which he appeared

wherein the Medical Board has assessed his age between 35

to 40 years and by taking the midpoint of five years, he has

been assessed to be the age of 37½ years and having crossed

the maximum age of 35 years which is the maximum age for

consideration for appointment, his case has been rejected

and as such, there is no error in the decision taken by the

authority and the learned Single Judge, after taking into

consideration this aspect of the matter, has correctly rejected

the claim of the writ petitioner by showing no interference in

the impugned order and as such, the impugned order may

not be interfered with.

6. We have heard the learned counsel for the parties,

perused the documents available on record as also the

finding recorded by the learned Single Judge.

7. Before going to the legality and propriety of the

impugned order, this Court deems it fit and proper to refer

certain admitted facts of this case as has been pleaded by the

parties which transpire that the writ petitioner has claimed

appointment on compassionate ground under the provision of

NCWA on account of death of his mother, namely Laxmi Devi,

who was working as Ex-Wagon Loader and died in harness

on 19.12.2013.

The writ petitioner made application on 23.01.2014 for

consideration of his case for appointment on compassionate

ground under the provision of Clause 9.3.0. of the NCWA.

The writ petitioner claimed to be within the age of 35 years

and to substantiate this, he annexed Aadhar Card, Driving

License, L.T.C. Option Form and PS-3 Form.

The respondent authorities came to a finding about

variation in age in different documents, therefore, at the time

of consideration of the writ petitioner's case for appointment

on compassionate ground, the writ petitioner was directed to

appear before the Medical Board at Ranchi for the purpose of

assessment of his age and thereafter his claim has been

rejected by communicating the same vide letter dated

16.06.2015, 26.06.2015 and 08.07.2015 on the ground of

overage wherein the writ petitioner was assessed to be of the

age of 37½ years on the date of assessment and 36 years, 03

months and 15 days on 23.01.2014 i.e., the date of

application.

In this pretext, the writ petitioner approached to this

Court by invoking the jurisdiction conferred to this Court

under Article 226 of the Constitution of India questioning the

decision of the authority but the said writ petition has been

dismissed on the ground of being overage.

8. This Court, after hearing the learned counsel for the

parties and going through the materials available on record,

has considered the fact regarding the requirement to

constitute a Medical board in the facts and circumstances of

the instant case as because it is the admitted case of the

respondent CCL that there is discrepancy in the age of the

writ petitioner which necessitated for constituting the Medical

Board.

We have examined as to whether there was any

discrepancy in the age of the writ petitioner on the basis of

the documents upon which the respondent CCL has relied

upon. Admittedly, the respondent CCL has relied upon the

L.T.C. Form-A, PS-3 and PS-4 Forms. In the L.T.C. Form-A

the age of the writ petitioner has been shown as 15 years

while in PS-3 and PS-4 Forms the age of the writ petitioner

has been mentioned as 18 years as on 28.05.1998.

We, in order to examine this aspect of the matter, had

also issued directions to bring other documents which led the

respondent CCL in asking the writ petitioner to appear before

the Medical Board and in terms of the said order, the

respondent CCL has come out with L.T.C. Form-A, PS-3 and

PS-4 Forms which were already available on record before the

writ court. However, in pursuance to our order when we put

specific query that is there any decision by the competent

authority of the respondent CCL to constitute a Medical

Board in the facts and circumstances of the instant case, if

yes, where is the order to that effect and if any decision has

been taken to constitute the Medical Board, it was on what

basis? The respondent CCL has not come out with any new

documents as also has failed to produce any decision of the

authority to constitute a Medical Board in the facts and

circumstances involved in the case. However, one order has

been placed on record dated 07.07.1992 in the affidavit dated

19.01.2021 filed by the respondent CCL wherein it has been

stipulated that when no age is recorded in respect of any

employee in any statutory records, and the Medical

Board/Age Assessment Committee decide an age range, the

mid-point of the age range so recommended will be taken as

the age of the concerned employee, for ready reference, the

said document dated 07.07.1992 is being quoted hereinbelow

:-

"Coal India Limited "Coal Bhawan"

10 Netaji Subhas Road, Calcutta- 700001.

No.- CIL/C-5B/MP/ADVA/2704                       dated-

7-7-1992.

To,

1) Director (Personnel), ECL/BCCL/CCL/WCL/SECL

2) Director-in-Charge, MCL.

3) Chief General Manager (P), NCL.

4) Chief General Manager, NEC/ Dankuni Coal Complex.

Dear Sir, During the course of discussion held in 51st meeting of the Directors (P) on 21 06.1992 at CIL, Calcutta, the issue regarding age determination on the basis of the age range recommended by the Age Assessment Committees on the basis of medical jurisprudence was discussed and the following guidelines were evolved.

a) Where no age is recorded in respect of any employees in any statutory records, and the Medical Board/Age Assessment Committee decide an age range, the mid-point of the age range so recommended be taken as the age of the concerned employees.

For instance, if the range decided is 50 and 55, the age of the employee concerned will be 52 years 6 months.

b) Where there is variation of age in the various statutory records, the nearest point of the age range as recorded in Form-B register will be accepted as the age of the employee concerned.

Example :-

Form-B      Age                Age          Age
         recorded             range        to be
          in other          fixed by       fixed.
         statutory             the
          records           Medical
                             Board
49            47            45 to 50        49
44            49            45 to 50        45
46            43            45 to 50        46
47            40            40 to 45        45
                                - 10 -

You are requested to decide all pending cases on the above lines. Cases already settled need not be re- opened.

Yours faithfully,

Sd/-

General Manager (Personnel) Calcutta"

9. It needs to clarify herein that the document dated

07.07.1992 speaks about assessment of the age of the

employees but we are dealing with a case where the writ

petitioner has not got the status of an employee and,

therefore, the decision of the respondent CCL as contained in

letter dated 07.07.1992 is not applicable in the facts and

circumstances of the instant case.

10. We have considered the L.T.C. Form vis-à-vis PS-3 and

PS-4 Forms which contain details about the family members

wherefrom we have found that in the L.T.C. Form-A the age of

the writ petitioner has been shown to be 15 years but it is

very surprising that the said L.T.C. Form is having no

signature of the respondent authorities and the same is

without any date and as such, the age of the writ petitioner

finds mentioned therein as 15 years, but on what date, is not

being clarified from the said document and, therefore,

according to us, the said document cannot be said to be a

proof of age of the writ petitioner.

We have also perused the PS-3 Form which contains

particulars of family members wherein the age of the writ

petitioner has been shown to be 18 years and the said

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document is dated 28.05.1998.

It is further evident from the L.T.C. Form-A that the said

application does not contain any column for signature of the

employer rather it is the form to be furnished by way of self-

declaration of the concerned employee but the PS-3 Form i.e.,

particulars of family, contains the column for signature of the

employer. Likewise, PS-4 Form i.e., the nomination form, also

contains column for signature of the employer and as such,

in comparison in between the L.T.C. Form-A and PS-3 and

PS-4 Forms, so far as its authenticity is concerned, in

absence of any signature of the employer the same cannot

prevail upon the details furnished either in PS-3 or PS-4

Forms and, therefore, the authority, instead of putting

reliance upon L.T.C. Form-A so far as the age of the writ

petitioner is concerned, ought to have considered solely the

details furnished including the age of the writ petitioner on

PS-3 or PS-4 Forms.

Therefore, reliance having been placed by the

respondent CCL on the L.T.C. Form-A cannot be said to be

justified one since the age of 15 years mentioned therein

cannot be said to be conclusive age in absence of any date

mentioned in L.T.C. Form-A as to on what date and year the

writ petitioner was of the age of 15 years.

So far as PS-3 Form is concerned, the age of the writ

petitioner has been mentioned as 18 years as on 28.05.1998

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and, therefore, the said document i.e., PS-3 Form, containing

the particulars of family members, can be said to be a valid

document to assess the age of the writ petitioner. Since

herein the respondent CCL is placing reliance upon these

documents i.e., L.T.C. Form-A, PS-3 and PS-4 Forms but

reliance has been placed by the respondent CCL in L.T.C.

Form where the age of the writ petitioner has been shown to

be 15 years while in PS-3 and PS-4 Forms the age of the writ

petitioner has been shown to be 18 years which led the

respondent CCL to come to the conclusion about discrepancy

in the age necessitating for constituting a Medical Board but

as we have already said hereinabove that the age having

mentioned in L.T.C. Form-A without any date and year,

cannot be relied and, therefore, the age mentioned in PS-3

and PS-4 where the age of the writ petitioner has been

mentioned as 18 years on 28.05.1998 can only be said to be

valid document for assessment of age of the writ petitioner

and as such, there was no requirement to constitute a

Medical Board.

11. The respondent CCL has not considered this aspect of

the matter even though an agreement has been entered into

by way of National Coal Wage Agreement which is a beneficial

piece of agreement as per provision of Section 18 (1) of the

Industrial Disputes Act, 1947 to make out provision for

providing appointment in case of death of bread earner by

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way of social security measures, meaning thereby, the NCWA

which is having a statutory fervor as because the agreement

has been entered in view of Section 18(1) of the Industrial

Disputes Act, 1947 which confers statutory force to the

agreement and as such, the same ought to have been

considered by the respondent CCL taking into consideration

the object and intent of the Industrial Disputes Act, 1947.

It is settled position of law that benevolent provisions

should be construed taking into consideration the dominant

purpose of the statute, intention of the legislature and

underlying policy as laid down by Hon'ble Apex Court in

National Textile Workers' Union etc. Vs. P. R.

Ramakrishnan and Others reported in AIR 1983 SC 75

and in Madan Singh Shekhawat Vs. Union of India and

Others reported in (1999) 6 SCC 459 wherein it has been

held that it would be the duty of the Court to interpret the

provision, especially a beneficial provision, liberally so as to

give it a wider meaning rather than a restrictive meaning

which would negate the very object of the Rule.

12. It is admitted by the respondent CCL that the Medical

Board is constituted in case of discrepancy in the age. We are

not disagreeing with the said policy decision but the question

is that while constituting a Medical Board, there must be

conscious decision by the competent authority in the

backdrop of the factual aspect but we repeatedly asked the

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learned counsel appearing for the respondent CCL to place on

record any decision of the competent authority to constitute a

Medical Board to assess as to what led the competent

authority of the respondent CCL to constitute the Medical

Board but surprisingly no such decision has been produced,

however, a noting sheet has been produced by way of affidavit

dated 09.02.2021 wherein a hand written script has been

placed on record under the signature of the General Manager

(P&IR) referring therein that due to discrepancy in the age of

the writ petitioner having been mentioned in L.T.C. Form, PS-

3 and PS-4, a decision was taken to constitute a Medical

Board but anything contained in the noting sheet cannot be

said to be a decision of the authority, rather a decision will be

said to be a decision in the eyes of law if the same has been

taken by the competent authority after deliberating upon the

issues and communicating to all concerned for its

execution/implementation and, therefore, we are left with no

option but to hold that the decision of the respondent CCL

asking the writ petitioner to go for the medical examination is

in absence of any decision of the competent authority.

13. We have already referred hereinabove about the validity

of the L.T.C. Form-A and further we have come to a

conclusion that PS-3 and PS-4 Forms refer the age of the writ

petitioner as 18 years as on 28.05.1998, the same being a

piece of evidence to substantiate the age of the writ petitioner

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available on record and which is sole piece of evidence, there

was no requirement to constitute a Medical Board for

assessment of the age of the writ petitioner as because the

reason for constituting a Medical Board as has been

admitted by the learned counsel appearing for the respondent

CCL that the same is required to be assessed in case of non-

availability of any document pertaining to age of the employee

but herein official documents are available by way of PS-3

and PS-4 Forms containing the age of the writ petitioner as

18 years on 28.05.1998.

Even accepting the contention of the respondent CCL

that there was requirement to constitute a Medical Board and

admittedly the Medical Board has assessed the age of the writ

petitioner in between 35 to 40 years and respondent

authorities have considered the writ petitioner to be the age

of 37½ years taking the midpoint of five years but the

question is why the midpoint and not 35 years.

14. We have already referred hereinabove about the

principle to be followed in a case of beneficial legislation

which is to be interpreted liberally so as to give it a wider

meaning than a restrictive meaning which would indicate the

very object of the Rule and admittedly the Industrial Disputes

Act, 1947 is a beneficial legislation and as such, the

provisions contained therein may be construed taking the

dominant purpose of the statute, intention of the legislature

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and underlying policy.

We have also referred hereinabove that the NCWA is by

way of providing social security measures by entering into an

agreement with the Union under the provision of Section

18(1) of the Industrial Disputes Act, 1947 and the same

having the statutory fervor, the object underlying therein is to

be considered. The foremost object of the said agreement is to

act by way of providing social security measures to the

employees and its dependant for which various provisions

have been made to provide appointment in case of death of

the bread earner as under Clause 9.3.0 and 9.5.0 of the said

agreement and, therefore, when the underlying object of the

said agreement is to provide social security measures to the

employees and their dependants, the same is to be treated by

the respondent authorities in a way so that the object and

intent of the agreement be achieved.

The respondent CCL, however, failed to produce any

decision of the authority, in case of consideration of

appointment on compassionate ground, to take the midpoint

of the age assessed by the Medical Board as has been done in

the instant case, rather the document dated 07.07.1992 has

been produced to assess the age of an employee by taking the

midpoint of the age as has been assessed by the Medical

Board but since it is not a case of an employee rather the

case of a candidate who is seeking appointment on

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compassionate ground and, therefore, the said circular will

not be applicable in the case of the writ petitioner and in that

view of the matter, when the respondent authorities have

asked the writ petitioner to go for the medical examination

wherein the age of the writ petitioner has been assessed in

between 35 to 40 years and taking the midpoint the age of

the writ petitioner has been assessed as 37½ years of age,

cannot be said to be an action to achieve the object and

intent of the NCWA to provide social security measures to the

dependant of the deceased employee, rather the approach of

the respondent authorities ought to have been to consider the

age of the writ petitioner by taking its lower point so that the

object and intent of NCWA be achieved.

15. It requires to refer herein about the order passed by the

Coordinate Division Bench of this Court in L.P.A. No.117 of

2010 dated 01.12.2010 which has been brought on record

wherein also the issue fell for consideration about judging the

age of appellant on medical opinion and therein it has been

observed that if the petitioner's claim that her age is 43 years

and the respondents considered that as per the medical

evidence her age is 45 years then there always possibility of

errors of two years (plus)/(minus) and in that view of the

matter the claim of the petitioner's mother could not have

been denied on compassionate ground.

It has been brought to the notice of this Court by the

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learned counsel for the appellant that in pursuance to the

order passed in L.P.A. No. 117 of 2010 [Md. Rahim v.

Project Officer, Kuju Colliery], the appellant namely Md.

Rahim has already been provided with the appointment

which fact has not been disputed by the learned counsel

appearing for the respondent CCL.

Further, learned counsel for the appellant has relied

upon the judgment passed by the learned Single Judge of this

Court in the case of Jagdish v. Central Coalfields Limited

& Others in W.P.(S) No. 3339 of 2016 wherein also the

dispute about the age has been set at rest by the opinion of

the Medical Board after assessment of the age of the writ

petitioner in that writ petition which has been questioned by

the writ petitioner on the ground that when the age of the

writ petitioner is available in other records what is the

necessity to go for the Medical Board and in that view of the

matter the writ petition was allowed with a direction to

appoint the writ petitioner of the said writ petition on

compassionate ground.

We are taking note of this order even though the same

has been passed by the learned Single Judge only due to the

reason that the respondent CCL, in pursuance to the said

order, has acted upon by providing appointment to the writ

petitioner of the said case without assailing the same before

the higher forum and, therefore, according to us, the

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approach of the respondent CCL, being the machinery of the

State, cannot be of pick and choose policy i.e., to assail one

order and accept another order on almost same set of facts.

16. We, on the basis of the discussion made hereinabove,

have gone across the order passed by the learned Single

Judge and found therefrom that the learned Single Judge has

simply gone across the contention of the respondent CCL

wherein the respondent CCL has contended about the age of

writ petitioner to be 37½ years which has been considered to

be more than the maximum age of 35 years and, therefore,

writ petition has been dismissed but we, on the basis of the

discussion made hereinabove, are of the view that the learned

Single Judge has failed to appreciate the fact in entirety as

per the discussion made hereinabove and reached to a wrong

conclusion by approving the decision of the respondent CCL

which according to us, cannot be said to be sustainable in

the eyes of law.

17. In view thereof, we find patent illegality in the impugned

order. Accordingly, the same is quashed and set aside.

18. In the result, the instant L.P.A. is allowed and the writ

petition being W.P.(S) No. 2424 of 2019 is also allowed.

19. In consequence, this Court is remitting the matter

before the competent authority to take appropriate decision

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in the light of observations and findings recorded

hereinabove, within a period of eight weeks from the date of

receipt of copy of this order.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.)

Birendra/ A.F.R.