Sabitri Devi vs Union Of India
2021 Latest Caselaw 805 Jhar

 (In the matter of an application under Article 226 of the Constitution of India)
                                    ....

W.P. (S) No.4260 of 2018 ....

 Sabitri Devi                                                   ....       Petitioner
                                 Versus
1. Union of India
2. Central Coalfields Limited

3. The Chief Managing Director, Central Coalfields Limited, Office at Darbhanga House, P.O./P.S.-Ranchi, District-Ranchi

4. The General Manager, Central Coalfields Limited, Office at Charhi, P.O./P.S.-

Charhi, District-Hazaribagh.

5. The Project Officer, Central Coalfields Limited, office at Kedia UGP, P.O./P.S.-

Charhi, District-Hazaribagh.

6. The Staff Officer, Central Coalfields Limited, Hazaribagh Area, Charhi, P.O./P.S.-

Charhi, District-Hazaribagh

7. The Regional Commissioner, Region 2, Coal Mines Provident Fund, Mayfield Building, Station Road, P.O./P.S.-Chutia, District-Ranchi

8. The Assistant Labour Commissioner, (Central), Hazaribag, P.O.-P.S./Dist.-

Hazaribag

9. Sanju Devi, daughter of Shri Chhedi Ram, resident of village Kaladwar, P.O.-

Ratanpur, P.S.-Ichak, District-Hazaribagh .... Respondents

With W.P. (S) No.4396 of 2018 Sanju Devi .... Petitioner Versus

1. The Central Coalfields Limited through its C.M.D., Darbhanga House, P.O. & P.S.-

Ranchi, Ditrict- Ranchi

2. The Project Officer, Kedla Underground Project at M/s C.C.L., P.O. & P.S.-Kedla, District-Ramgarh

3. The Welfare Officer, Kedla Underground Project at M/s C.C.L., P.O. & P.S.-Kedla, District-Ramgarh

4. The Personnel Officer, Kedla Underground Project at M/s C.C.L., P.O. & P.S.-

Kedla, District-Ramgarh

5. The Regional Commissioner, CMPF, Ranchi-II, P.O & P.S.-Ranchi, District-Ranchi

6. The Controlling Authority Under Payment of Gratuity Act, 1972 and Assistant Labour Commissioner (Central), Hazaribag, At-PO-PS-Dist-Hazaribag .... Respondents ....

PRESENT CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR ....

For the Petitioners :Mrs. Rakhi Rani, Adv.(in W.P.S. No.4260/2018) Mr. Krishna Murari, Adv.(in W.P.S. No.4396/2018) For the Respondent-CCL :Mrs. Darshana Poddar Mishra, AAG-I (in W.P.S.No.4396/2018) For the Respondent-CMPF Mrs. Preity Sinha, Adv. .(in both cases) For the Respondent Nos. 1 & 8 :Mr. Laxman Kumar, CGC For the Respondent Nos. 2 to 6 :Mr. Vijay Kant Dubey, Adv. For the Respondent No. 7 :Mr. Prashant Kr. Singh, Adv. For the Respondent No. 9 :Mr. Krishna Murari, Adv. (in W.P.S. No.4260 /2018) ....

The matter was taken up through Video Conferencing. Learned counsels for the parties had no objection with it and submitted that the audio and video qualities are good.

Heard learned counsel for the petitioners and the respondents.

Both the cases are being heard together because the issues in both cases are inter-linked.

It is a family dispute between the parties. From perusal of records and argument of the parties, following facts emerges-

Sabitri Devi is a widow, who has two sons, namely, Late Tulsi Das and Jainandan @ Raju. The husband of Sabitri Devi had died-in-harness and on that basis his one of the son, namely, Late Tulsi Das has been given compassionate appointment in the year 1995. Unfortunately, Tulsi Das has also died on 17.12.2011 and on death of Tulsi Das, dispute has arisen between the parties, who are parties in the present case. Sabitri Devi has claimed compassionate appointment for her second son, namely, Jainandan @ Raju on the basis of nomination and further she has claimed 100% amount of CMPF, Life Cover Scheme and Gratuity on the basis that she was the only nominee to receive these amounts. So far as pension is concerned, widow-Sabitri Devi wife of Late Tulsi Das is the nominee, and as such no dispute has been raised. There was earlier litigation between the parties and two writ petitions have also been filed. There is determination of gratuity by the authorised officer also.

As it is a family dispute and as such, without going into the technicalities of the proceeding, this Court proposed to examine the claim of the parties in accordance with law to settle the dispute among the family members.

So far as compassionate appointment is concerned, Sabitri Devi has claimed, on the basis of nomination which was in favour of her second son, namely, Jainandan @ Raju and for this purpose learned counsel appearing on behalf of Sabitri Devi has relied upon a judgment reported in 2009 (4) JLJR 105 in the case of Krishna Kumar & Anr. vrs. Central Coalfields Ltd., Ranchi & Ors. and also upon the Annexure-1the Circular.

On the other hand, learned counsel appearing on behalf of Sanju Devi has relied upon a judgment reported in 2006 3 JCR 1 and Rule 9.3.3 and 9.5.0 of the N.C.W.A For convenience, Rule 9.3.0, 9.3.3 and 9.5.0 of N.C.W.A. is quoted hereinbelow:

9.3.0 Provision of Employment to Dependents 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 dependent 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 by 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 dependant on the earnings of the deceased may be considered to be the dependant of the deceased.

9.5.0 Employment/Monetary compensation to female dependant Provision of employment/monetary compensation to female dependants of workmen who die while in service and who are declared medically unfit as per Clause 9.4.0 above would be regulated as under:

(i) In case of death due to mine accident, the female dependant would have the option to either accept the monetary compensation of Rs. 4,000/- per month or employment irrespective of her age.

(ii) in case of death/total permanent disablement due to cause other than mine accident and medical unfitness under Clause 9.4.0., if the female dependant is below the age of 45 years she will have the option either to accept the monetary compensation of Rs. 3,000/- per month or employment. In case the female dependant is above 45 years of age she will be entitled only to monetary compensation and not to employment.

(iii) In case of death either in mine accident or for other reasons or medical unfitness under Clause 9.4.0, f no employment has been offered and the male dependant of the concerned worker is 12 years and above in age, he will be kept on a live roster and would be provided employment commensurate with his skill and qualifications when re attains the age of 18 years. During the period the male dependant is on live roster, the female dependant will be paid monetary compensation as per rates at paras (i) & (ii) above. This will be effective from 1.1.2000.

(iv) Monetary compensation wherever applicable, would be paid till the female dependant attains the age of 60 years.

(v) the existing rate of monetary compensation will continue. The matter will be further discussed in the Standardisation Committee and finalised.

This provision has been examined in detail by a Single Bench of this Court reported in 2006 (3) JCR 1 (Jhr). Para-13 is quoted hereinbelow:-

"From bare reading of Clause 9.3.2 it is manifestly clear that if an employee dies in harness, the dependants shall be provided employment or monetary compensation. Clause 9.3.3 makes if clear that the word 'dependants' means wife/husband, as the case may be, unmarried daughter, son and legally adopted son. They are termed as 'direct dependants' and anyone of them shall be provided employment. Only in case where no such direct dependant is available for employment, then in that case, the brother, widowed daughter, widowed daughter-in-law or son-in-law residing with the deceased and wholly dependant on the earning of the deceased, may be considered to be dependants of the deceased. I have, therefore, no hesitation in holding that in the event of death of a worker, only the wife/husband, as the case may be, unmarried daughter, son and legally adopted son shall be entitled to employment. For example, if a worker dies leaving behind the widow or unmarried daughter or son or adopted son, then they cannot claim employment in favour of brother, widowed daughter, widowed daughter-in-

law or son-in-law inasmuch as they are not direct dependants of the deceased-

employee." (emphasis supplied)

From perusal of above provision and judgment, it is clear that if widow is available then she has a claim over compassionate appointment. This fact also forfeited by the N.C.W.A. 9.5.0 which deals with monetary compensation to the female dependent.

If female dependent is available and aged below 45 years, either to accept monetary compensation or the employment. The monetary compensation is payable till the age of 60 years. Thus, in case, employment is given either to the female or to the male, the female dependent will lose the benefit of monetary compensation. From this point of view also, the claim of the widow cannot be defeated by the brother, who is indirect dependent and he can claim only on the basis of dependency and if no other direct dependent is available.

Learned counsel appearing on behalf of Sabitri Devi has relied upon the circular dated 22.10.2014 wherein it has been stipulated that in the case of dispute between the parties regarding the claim of compassionate appointment, the dependent, whose nomination has been proposed by the late employee, will be considered for compassionate appointment. On the basis of said circular, learned counsel has claimed that since the brother-Jainandan @ Raju has been nominated by the deceased employee-Late Tulsi Das and as such he has claimed for compassionate appointment and the appointment should have been given to him only.

This argument of the learned counsel is totally fallacious. This simply stipulates in the case of dispute between the legally entitled person, decision has to be taken on the basis of circular. The law as discussed above is clear that if no direct dependent is available then only indirect dependent may claim. In the present case, direct dependent is available and as such circular has no role in the fact of the present case. If there is a dispute among the direct dependent and indirect dependent then certainly the circular has its role. The circular cannot be read in contravention of the N.C.W.A. giving preference to the indirect dependent over the direct dependent, especially for defeating the claim of the widow to the deceased employee.

In view of above discussion, this Court finds that the compassionate appointment given to widow-Sanju Devi is totally justified and requires no interference.

So far as dispute of CMPF is concerned, relevant Clause 62.3 is quoted hereinbelow:-

62.-

(3) If a member has a family at the time of making a nomination, the nomination shall be in favour of one or more presons belonging to his family. Any nomination made by such member in favour of a person not belonging to his family shall be invalid.

3" Provided that any nomination made by a member before his/her marriage in favour of his/her dependent parents shall be deemed to be invalid from the day on which the member marries; and the member shall make a fresh nomination."

The release of C.M.P.F. amount is governed by the above rules and this rule clearly stipulates that any nomination of a family member before marriage is valid till the employee gets married. Once employee gets married, the nominee becomes invalid and in the case of no nomination, the amount has to be distributed equally among the family members.

In the present case, there are three claimants i.e. mother, widow and one minor daughter. Since as per rule itself the earlier nomination, which was in favour of the mother stands cancelled and as such, all the three claimants are equally entitled to the amount of C.M.P.F.

C.M.P.F. authorities are directed to release 1/3rd amount in favour of Sabitri Devi, 1/3rd amount in favour of Sanju Devi and 1/3rd amount in favour minor daughter, namely, Neha Kumari. Since Neha Kumari is a minor, hence, her share amount will be kept in Fixed Deposit in her name in a Nationalized Bank till she attains majority and thereafter the amount shall be released in her favour.

So far as L.C.S. and gratuity amount are concerned, this is governed by the Gratuity Act. Relevant Sections 2(h) and 6 of the Payment of Gratuity Act, 1972 are quoted hereinbelow:

"2(h) "family" in relation to an employee, shall be deemed to consist of--

(i) in the case of a male employee, himself, his wife, his children, whether married or unmarried, his dependent parents 7 [and the dependent parents of his wife and the widow] and children of his predeceased son, if any,

(ii) in the case of a female employee, herself, her husband, her children, whether married or unmarried, her dependent parents and the dependent parents of her husband and the widow and children of her predeceased son, if any; 8 [***] Explanation.--Where the personal law of an employee permits the adoption by him of a child, any child lawfully adopted by him shall be deemed to be included in his family, and where a child of an employee has been adopted by another person and such adoption is, under the personal law of the person making such adoption, lawful, such child shall be deemed to be excluded from the family of the employee;

6. Nomination .--

(1) Each employee, who has completed one year of service, shall make, within such time, in such form and in such manner, as may be prescribed, nomination for the purpose of the second proviso to sub-section (1) of section 4.

(2) An employee may, in his nomination, distribute the amount of gratuity payable to him under this Act amongst more than one nominee. (3) If an employee has a family at the time of making a nomination, the nomination shall be made in favour of one or more members of his family, and any nomination made by such employee in favour of a person who is not a member of his family shall be void.

(4) If at the time of making a nomination the employee has no family, the nomination may be made in favour of any person or person but if the employee subsequently acquires a family, such nomination shall forthwith become invalid and the employee shall make within such time as may be prescribed, a fresh nomination in favour of one or more members of his family. (5) A nomination may, subject to the provisions of sub-sections (3) and (4), be modified by an employee at any time, after giving to his employer a written notice in such form and in such manner as may be prescribed, of his intention to do so.

(6) If a nominee predeceases the employee, the interest of the nominee shall revert to the employee who shall make a fresh nomination, in the prescribed form, in respect of such interest.

(7) Every nomination, fresh nomination or alteration of nomination, as the case may be, shall be sent by the employee to his employer, who shall keep the same in his safe custody."

Learned counsel appearing on behalf of Sabitri Devi has submitted that since the definition of family includes mother and as such the nomination in favour of mother was valid and she is entitled to receive 100% payment of gratuity and amount under the Life Cover Scheme.

On the other hand, learned counsel appearing on behalf of Sanju Devi has submitted that there is determination by the Controlling Authority under the Payment of Gratuity Act, 1972 vide order dated 30.06.2017, wherein the amount has equally been distributed amongst Sabitri Devi, Sanju Devi and Neha Kumari.

It has been argued that the provision of Gratuity Act and the CMPF is pari materia and accordingly all the dependents are equally entitled to receive the amount in equal proportion irrespective of nomination made in favour of the mother, as after marriage the nomination gets invalidated.

From perusal of provision of Payment of Gratuity Act and the Rules of the CMPF, it is evidently clear that in the rules for distribution of CMPF, the proviso of sub clause 3 is determinative, which reads as under:

3" Provided that any nomination made by a member before his/her marriage in favour of his/her dependent parents shall be deemed to be invalid from the day on which the manner marries; and the member shall make a fresh nomination."

This proviso is missing under the Payment of Gratuity Act. The definition of family includes mother. Once one of the family members has been nominated as a nominee then it remains, until changed by employee.

There is difference between the Payment of Gratuity Act and the Rules of CMPF. In CMPF, after marriage the earlier nomination in favour of family

members gets cancelled and a fresh nomination has to be made while such stipulation is missing under the Payment of Gratuity Act.

Rule of casus omisus has to be applied in such circumstance. The Rule maker has deliberately not included that proviso under the Payment of Gratuity Act and as such nomination made in favour of one of the other family members is valid even after marriage.

In the present case, the nomination is in favour of the mother, namely, Sabitri Devi and as such the interpretation given by the authorized officer in its order dated 30.06.2017 appears to be fallacious and not sustainable and accordingly, the same is hereby, set aside.

It is ordered that the amount of gratuity with statutory interest as well as the amount of Life Cover Scheme shall be released in favour of the mother, namely, Sabitri Devi.

So far as pension is concerned, the nomination is in favour of the widow and no dispute has been raised by any of the parties and as such it requires no determination by this Court. It should be released in favour of the widow, namely, Sanju Devi.

All amounts as ordered above should be released within three months from the date of receipt/ production of a copy of this order.

With above observations and directions, these writ petitions stands disposed of.

(Rajesh Kumar, J.)

Jharkhand High Court, Ranchi The Day of 19th of February, 2021 Shahid/N.A.F.R.