Central Coalfields Limited vs Sushma Kumari
2021 Latest Caselaw 231 Jhar

                                  1




IN THE HIGH COURT OF JHARKHAND AT RANCHI

                    L.P.A No. 772 of 2019
1. Central Coalfields Limited, a Company incorporated under the Companies
Act, having its registered Office at Darbhanga House, P.O-GPO, P.S-
Kotwali, District-Ranchi (Jharkhand) through its Chairman-cum-Managing
Director, having office at Darbhanga House, Kutchery Road, P.O-GPO, P.S-
Kotwali, District-Ranchi, PIN-834011 (Jharkhand) and also through its
Managing Director (Administration) Sri Bimlendu Kumar, aged about 57
years, son of Jagdish Pandey, residing at Flat No.2C, Shanti Apartment,
Dangra Toli, Lalpur, P.O. & P.S-Lalpur, District-Ranchi (Jharkhand).
2. Director (Personnel), Central Coalfields Limited, Darbhanga House,
Kutchery Road, P.O-GPO, P.S-Kotwali, District-Ranchi, PIN-834001
(Jharkhand)
3. General Manager (P & IR), Central Coalfields Limited, Darbhanga
House, Kutchery Road, P.O-GPO, P.S-Kotwali, District-Ranchi, PIN-
834001 (Jharkhand)
4. Project Officer, Central Coalfields Limited, Kedla Opencast Project,
Hazaribagh Area, P.O. & P.S-Kedla, District-Ramgarh (Jharkhand).
5. Manager (P), Central Coalfields Limited, Office of the Project Officer,
Kedla Opencast Project, P.O. & P.S-Kedla, District-Ramgarh (Jharkhand).
                                     ......            Respondents/Appellants
                           Versus
Sushma Kumari, Daughter of Late Jhari Mahto, resident of Kedla Opencast
Project, P.O. & P.S-Kedla, District-Ramgarh (Jharkhand).
                                ...... ....          Writ Petitioner/Respondent
                       ---------

CORAM:             HON'BLE THE CHIEF JUSTICE
            HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                       ----------
For the Appellants     : Mr. Arvind Kumar, Advocate
For the Respondent     : Mr. Lalan Kumar Singh, Advocate
                       -----------
Oral Judgment:
Order No.5/Dated: 18th January, 2021

1. With 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.

I.A. No.10756 of 2019

2. This interlocutory application has been preferred under Section 5 of

the Limitation Act for condoning the delay of 70 days in preferring this

Letters Patent Appeal.

3. Heard.

4. In view of the submissions made on behalf of the parties and the

averments made in the interlocutory application, we are of the view that the

appellants were prevented by sufficient cause in preferring the appeal within

the period of limitation.

5. Accordingly, I.A. No.10756 of 2019 is allowed and delay of 70 days

in preferring the appeal is condoned.

L.P.A. No.772 of 2019

6. The instant appeal under Clause 10 of the letters patent, is directed

against the order/judgment dated 06.08.2019 passed by the learned Single

Judge of this Court in W.P.(S) No.3134 of 2017, whereby and whereunder

the writ petition has been allowed and in consequence thereof, the

respondents have been directed to consider the case of the petitioner for

compassionate appointment according to the provisions of National Coal

Wage Agreement-IV (hereinafter referred to as the 'NCWA-IV').

7. The brief fact of the case, which requires to be enumerated, reads as

hereunder:

The father of the writ petitioner namely, Jhari Mahto died in harness

on 27.10.2008 in course of treatment at Rajendra Institute of Medical

Sciences (RIMS) while working in Kedla O.C. Project under the Central

Coalfields Limited. The brother of the writ petitioner namely, Mohar Lal

Mahto had applied for compassionate appointment on 20.12.2008 but after

submission of application for compassionate appointment, he met with a

road accident and succumb to injury on 12.12.2009. After death of the

brother of the writ petitioner her brother namely, Raghunath Mahto

submitted an application on 03.04.2010 to the Project Officer, Kedla O.C.P

and requested to provide compassionate appointment to his sister namely,

Sushma Kumari. The petitioner further submitted an application for

compassionate appointment on 08.04.2013 before the appellants-CCL stating

therein that earlier also an application was submitted by her but was not

accepted as she was less than 18 years old during the relevant time. The writ

petitioner further requested that she has crossed the age of 18 years so her

case may be considered. The writ petitioner received a communication dated

21.11.2013, whereby and whereunder her case for compassionate

appointment was not considered under the provision of Para 9.3.0 by the

competent authority, aggrieved thereof, the petitioner approached to this

Court under Article 226 of the Constitution of India.

The writ petitioner agitated the ground that even though she was fully

dependant upon the deceased father, who was admittedly an employee of the

Central Coalfields Limited and died in harness. Thereafter, she became

dependant on deceased brother, who died in a road accident. It has further

been agitated that unmarried daughter also comes under the definition of

dependant and therefore, compassionate appointment is to be provided as per

the condition stipulated under N.C.W.A-IV, Para-9.4.0, 9.4.1, 9.4.2 (i) and

(ii) and as such, the action of the respondents, rejecting the claim of the writ

petitioner is illegal, arbitrary and as such, not sustainable in the eye of law.

The respondents-CCL had appeared and filed a detailed counter

affidavit before the learned Single Judge, opposing the contention of the

petitioner and submitted that after the death of her father late Jhari Mahto,

his nominee namely Mohar Lal Mahto, the brother of the petitioner applied

for compassionate appointment on 20.12.2008 but he died in a road accident

before his claim for compassionate appointment could be finalised.

Thereafter, his sister namely, Sushma Kumari, who was aged about 14 years

and 6 months as on date of death of deceased employee applied for

compassionate appointment on 08.04.2013 and hence she having found to be

minor and female dependant, as such she could not be kept in live roster as

per the condition stipulated in N.C.W.A-IV and hence her application for

compassionate appointment was rejected.

The learned Single Judge on deliberation upon the issues, has quashed

and set aside the order dated 21.11.2013 with a direction upon the

respondents to consider the case of the writ petitioner for appointment on

compassionate ground within a period of ten weeks from the date of

receipt/production of a copy of the order, which is the subject matter of the

present intra-court appeal.

8. Mr. Arvind Kumar, learned counsel for the appellants-CCL has

submitted that the learned Single Judge has not appreciated the basic

requirement as per the condition stipulated in N.C.W.A-IV which provides

that no female dependant can be kept in live roster. As per the provision

contained therein only male dependant is to be kept in live roster, if he has

been found to be more than 12 years of age and below the age of 18 years.

Herein, in the instant case, the father of the writ petitioner had died in

harness on 27.10.2008 and thereafter, an application had been filed on behalf

of the brother of the writ petitioner namely, Mohar Lal Mahto on 20.12.2008

but he met with an accident which succumb to an injury and died on

12.12.2009 and only thereafter on 08.04.2013 an application was filed by

the writ petitioner for consideration of her case for appointment on

compassionate ground since by that time the writ petitioner had become

major. It has been submitted that it is not a case which is to be considered

under the condition as contained in Para 9.5.0 which is for the reasons that

the writ petitioner being a female and as per the condition stipulated under

NCWA-IV, only the male dependant, who is having age in between 12-18

years is to be considered and in absence of any adult in the family, the case

of such minor is required to be kept in live roster. But it is not the case

herein, since at the time of death of the deceased employee there was adult

dependant namely, Mohar Lal Mahto, who made an application on

20.12.2008 but died in a road accident on 12.12.2009. As such, it is evident

that it is not a case that the question of applicability of the provision as

stipulated under Para 9.5.0 is attracted rather it is a case for applicability of

the condition stipulated under 9.3.0 of the aforesaid agreement, which

provides to offer appointment in favour of the dependant in case of death of

the bread earner. The writ petitioner since was having age of 14 years and 6

months, is claiming for consideration of her case on the ground of

applicability of the condition stipulated in Para 9.5.0 but the same is not

permissible, in view of the fact that there was already major dependant in the

family of the deceased employee at the time of death.

However, the writ petitioner had made an application on 08.04.2013

on attaining the age of majority for consideration of her case for appointment

on compassionate ground which has been rejected on the ground that it is not

a fit case to consider her appointment on compassionate ground under Para

9.3.0. But, the learned Single Judge has interfered with the said decision by

quashing and setting it aside purely on sympathetical ground, without

appreciating the fact that the father of the writ petitioner died in harness on

27.10.2008 and the application for appointment on compassionate ground

had been filed by the daughter of the deceased employee on 08.04.2013 i.e.

after lapse of 4 and ½ years.

The learned Single Judge has not appreciated the fact and issued

direction to consider the case of the writ petitioner for appointment on

compassionate ground without appreciating the fact and without examining

the applicability of the provision as per Clause 9.4.2 with a further condition

stipulated in N.C.W.A, has passed such order which is not sustainable in the

eye of law.

9. Per Contra, learned counsel for the respondent-writ petitioner has

submitted that there is no infirmity in the impugned order rather the learned

Single Judge has considered entire aspect of the matter in right perspective

by quashing and setting aside the order passed by the authority dated

21.11.2013 on the ground that the writ petitioner is fulfilling all the criteria

for consideration of her case for appointment envisaged under Para 9.4.2

wherein it has been stipulated that unmarried daughters are also entitled for

appointment and taking into consideration the sympethetical circumstances,

which is the situation due to death of the father and the brother, the aforesaid

order has been quashed with a direction upon the appellants-CCL to consider

the case of the writ petitioner on compassionate ground. According to him,

since the learned Single Judge has considered the object and intent for

appointment of the writ petitioner on compassionate ground, as such, the

same suffers from no infirmity.

10. We have heard learned counsel for the parties, perused the documents

available on record as also gone across the finding recorded by the learned

Single Judge.

It requires to refer herein that the National Coal Wage Agreement has

been entered in between the Coal India Limited and the union of the workers

to deal with the wage structure and other conditions of service including

benefits of the employees of the Coal Industry under the recommendations

of the Central Wage Board for Coal Mining Industry as accepted by the

Government of India and made applicable with effect from 15.08.1967.

The aforesaid agreement is outside the conciliation proceeding and as

such, it requires to be treated within the meaning of Section 18(1) of the

Industrial Disputes Act, 1947 and hence, the aforesaid agreement has got

binding effect.

The issue about applicability of National Coal Wage Agreement, as to

whether the said agreement is having statutory fervour or not, has been

decided by the Hon'ble Apex Court in the case of Mohan Mahto vs. Central

Coalfiled Ltd. reported in (2007) 4 JLJR 144 (SC).

It requires to refer herein that once bipartite agreement, by way of

National Coal Wage Agreement, has been said to have got its statutory

fervour within the meaning of Section 18(1) of the Industrial Disputes Act,

1947, the terms and conditions contained therein bind the parties. It further

requires to refer herein that the Industrial Disputes Act is by way of a

beneficial legislation and once the bipartite agreement in terms of National

Coal Wage Agreement has been entered pursuant to the provisions of

Section 18(1) of the Industrial Disputes Act, the same having got the

statutory fervour, therefore, the terms and conditions of the agreement will

also be said to have its beneficial effect upon the workmen.

11. The instant case pertains to the bipartite agreement by way of National

Coal Wage Agreement-VIII. Taking into consideration the date of death of

the father of the writ petitioner which is 27.10.2008, the concerned

provisions of the N.C.W.A which is relevant for the present case as

contained in Clause 9.3.0 and Clause 9.5.0 are reproduced herein below:

        "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 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 dependent on the earnings of the deceased may be considered to be the dependants of the deceased.

9.3.4 The dependants to be considered for employment should be physically fit and suitable for employment and aged not more than 35 years provided that the age limit in case of employment of female spouse would be 45 years as given in Clause 9.5.0. In so far as male spouse is concerned, there would be no age limit regarding provision of employment. 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.4000/- per month or employment irrespective of her age.

ii) In case of death/total permanent disablement due to causes 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.3000/- 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, if 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 he 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 (i) & (ii) at paras above. This will be effective from 1.1.2000.

        iv) xxxx         xxxxx        xxxx
        v) xxxx          xxxxx        xxxx"

It is evident from the provision of Clause 9.3.2 of the N.C.W.A-VI

which stipulates that one dependant of the worker who dies while in service

shall be given employment. Under the aforesaid condition, the definition of

dependant has been stipulated as under Clause 9.3.3, which 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 dependants of the deceased.

The condition stipulated under Clause 9.3.4 provides that the

dependants to be considered for employment should be physically fit and

suitable for employment and aged not more than 35 years provided that the

age limit in case of employment of female spouse would be 45 years as

given in Clause 9.5.0. In so far as male spouse is concerned, there would be

no age limit regarding provision of employment.

Clause 9.5.0 (iii) stipulates that in case of death either in mine

accident or for other reasons or medical unfitness under Clause 9.4.0, if 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 live roster and would

be provided employment commensurate with his skill and qualifications

when he 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 (i) & (ii) above. This will be effective from 1.1.2000.

It is not in dispute that the respondent-C.C.L has issued circulars time

to time fixing the period of making application for consideration of the case

for appointment on compassionate ground under Clause 9.3.2. The circular

dated 12.12.1995 provides a period of six months. Subsequently, the circular

dated 12.12.1995 was cancelled by introducing another circular dated

01.01.2002 making six months to one year. It is applicable from the year

2000, meaning thereby that in the given situation if the case of the writ

petitioner was to be considered under Clause 9.3.2, the application ought to

have been made within one year from the date of death. Herein, the date of

death of the father of the writ petitioner is 27.10.2008 and as such the

application for appointment on compassionate ground if conveyed, it ought

to have been made within one year i.e. up to 27.10.2009, if at all the

provision under Clause 9.3.2 will be said to be applicable.

It further appears from the provision of Clause 9.5.0 that in case when

there is no adult male or female dependant for consideration under Clause

9.3.2, rather the male dependant is 12 years and above such minor male

dependant will have to be kept on live roster for his appointment.

The case of the writ petitioner before the writ Court was that her father

died on 27.10.2008 and immediately thereafter, one application was filed by

the brother of the writ petitioner namely, Mohar Lal Mahto on 20.12.2008

but before taking such decision by the respondent authority, the brother of

the writ petitioner met with a road accident and succumb injury on

12.12.2009. The further admitted position is that at the time of death of the

father of the writ petitioner, she was having aged about 14 years and 6

months. It is further to be clarified that even on the date of death of the

brother namely, Mohar Lal Mahto i.e. 12.12.2009, the writ petitioner was

having aged about 15 years and 6 months approximately, therefore, even

after death of her brother, Mohar Lal Mahto on 12.12.2009, the case of the

writ petitioner was not fit to be considered due to her minor age since she

had not completed the age of 18 years. Therefore, she had not made any

application for consideration of her candidature for appointment on

compassionate appointment till attaining the age of 18 years and she made an

application only on 08.04.2013 when she attains the majority of 18 years for

consideration of her case for appointment on compassionate ground which

was rejected by the C.C.L authority vide decision dated 21.11.2013.

As per the provision contained in Clause 9.3.0 on account of death of

the bread earner, the appointment is to be made to the dependant of the

bereaved family having the age in between 18 years to 35 years and taking

aid of the said provision, the brother of the writ petitioner made an

application on 20.12.2008 but since he met with an accident and died,

therefore, no conclusive decision could come with respect to fate of the

application submitted by the brother of the writ petitioner namely, Mohar

Lal Mahto.

In view of the aforesaid fact, it cannot be a case for consideration of

candidature of the dependent of the deceased employee under the provision

of Clause 9.5.0 as the condition stipulated there, provides in a case where

there is no male dependant of the family of the deceased employee, but

admittedly, in the family of the deceased employee there was male

dependant i.e. the brother of the writ petitioner, who had made an application

but died due to road accident on 12.12.2009.

The question of consideration of an application under the provision of

Clause 9.5.0 will only arise if there is no male dependant in the family of the

deceased employee, rather the male dependant is there but having the age

12-18 years.

Herein, admittedly the writ petitioner had made an application on

08.04.2013 i.e. after lapse of about more than 4 and ½ years from the date of

death of her father and about more than 3 years from the date of death of her

brother namely, Mohar Lal Mahto, who died on 12.12.2009.

We have considered the question also on the ground as to why the

application submitted by son of the deceased employee namely, Mohar Lal

Mahto, who made an application on 20.12.2008 was kept pending, and

ultimately he died on 12.12.2009 due to the road accident. Even on the date

of death of her elder brother namely, Mohar Lal Mahto, the writ petitioner

was having the age of 15 years and 6 months and as such, her case could not

have been kept on live roster as per Clause 9.5.0 of the aforesaid agreement

being the female dependant and also on the ground that at the time of death

of the father of the writ petitioner there was male dependant available in the

family of the deceased employee.

Admittedly the application has been filed by the writ petitioner

after delay of more than 4 and ½ years from the date of death of her father

and more than 3 years from the death of brother, which is beyond limitation

period as per the circular dated 01.01.2002 whereby and whereunder, the

application is required to be filed within one year from the date of death for

its consideration under Clause 9.3.2 and therefore, the case of the writ

petitioner which has been rejected by the appellants-CCL, cannot said to be

suffer from any infirmity.

The learned Single Judge, has not appreciated the aforesaid aspect of

the matter and travelled beyond the condition of the agreement purely by

taking sympathetic view.

12. According to our considered view, no order can be passed on

sympathy, deviating from the condition stipulated under the act, rule and

regulation. It is settled that the National Coal Wage Agreement being

statutory in nature cannot be allowed to be deviated.

Learned Single Judge has passed the order by taking aid of the

provision of Para 9.4.2 of the aforesaid agreement. We have examined the

condition stipulated in Para 9.4.2, which stipulates that employment of one

dependant of the worker is to be provided who dies while in service. The

provision of Clause 9.4.2 has been examined without appreciating the

applicability of the circular which contains the period of limitation for filing

of an application for the parties within a period of one year.

It requires to refer the proposition of law laid down by the Hon'ble

Apex Court in the case of Mohan Mahto vs. Central Coalfiled Ltd. reported

in (2007) 4 JLJR 144 (SC) wherein at paragraph 10 the circular containing

the period of limitation has been found to be correct approach of the C.C.L

and in that view of the matter if any application has been filed after the

period of aforesaid limitation, the same is required to be dismissed but this

aspect of the matter has not been considered, even the fact is admitted that

the application filed by the writ petitioner was beyond the period of one year.

13. Accordingly, in our considered view, the order passed by the learned

Single Judge suffers from infirmity and hence, is not sustainable in the eye

of law. Accordingly, the same is quashed and set aside.

14. In the result, the appeal stands allowed and the writ petition stands

dismissed.

15. At this juncture, learned counsel for the writ petitioner has submitted

that at least direction may be passed for monetary compensation.

Learned counsel appearing for the appellants-CCL has raised no

objection to such submission.

16. In view thereof, the writ petitioner is given liberty to approach before

the authority by filing representation within a period of four weeks from the

date of receipt/production of a copy of the order for consideration of her case

for payment of monetary compensation. If such application would be filed,

the appellants-CCL will consider the same in accordance with law and take

decision within a further period of eight weeks thereafter.

17. Needless to say that if the claim of the writ petitioner is admissible as

per the condition stipulated in Clause 9.5.0 of the aforesaid agreement, the

monetary compensation shall be paid to the writ petitioner within the period

aforesaid.

18. Consequently, I.A. No.10757 of 2019 for stay also stands disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Saket/-

A.F.R.