Employers In Relation To The ... vs Miss. Shanti Kumari
2021 Latest Caselaw 233 Jhar

                                     1




IN THE HIGH COURT OF JHARKHAND AT RANCHI

                    L.P.A No. 100 of 2020
                            with

                     I.A. No.1984 of 2020

1. Employers in relation to the management of Katras Area of M/s. Bharat
Coking Coal Limited, a Company incorporated under the Companies Act,
having its Head Office at Koyla Bhawan, P.O.-Koyla Nagar, P.S-Seraidhela,
District-Dhanbad (Jharkhand) through General Manager (P)/Legal Sri
Santosh Kumar Singh, aged about 60 years, son of Late Ramayan Singh,
residing at Manas Kunj, Sarvodaya Nagar, Chiragora, P.O. + P.S. & District-
Dhanbad, PIN 826001 (Jharkhand)
2. The General Manager, office of the General Manager, Katras Area of M/s
Bharat Coking Coal Limited, P.O-Katras Bazar, P.S-Katras, District-
Dhanbad, PIN-828114 (Jharkhand)
3. The Project Officer, Office of the Project Officer, Amalgamated
Angarpathra Ramkanali Colliery, P.O-Katrasgarh, P.S-Katras, District-
Dhanbad, PIN-828113 (Jharkhand)            ...... Respondents/Appellants
                            Versus
Miss. Shanti Kumari, aged about 21 years, daughter of Late Darwa Bhuiya,
Ex-Pump Operator, Resident of Near Durga Colony, Qtrs. No.263, Coal
Dump, Katras Bazar, PO-Katras Bazar, PS-Katras, District-Dhanbad, PIN-
828114 (Jharkhand)              ...... ....        Writ Petitioner/Respondent
                        ---------

CORAM:             HON'BLE THE CHIEF JUSTICE
            HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                        ----------
For the Appellants      : Mr. Amit Kumar Das, Advocate
For the Respondent      : Mr. Manoj Kumar Sinha, 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.1984 of 2020

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

the Limitation Act for condoning the delay of 109 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.1984 of 2020 is allowed and delay of 109 days

in preferring the appeal is condoned.

L.P.A. No.100 of 2020

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

against the order/judgment dated 20.09.2019 passed by the learned Single

Judge of this Court in W.P.(S) No.3993 of 2018, whereby and whereunder

the writ petition has been allowed by quashing the order contained in letter

No.153/2018 dated 13/30.06.2018 issued by the respondent no.3/appellant

no.3 herein, by which the claim of the writ petitioner to provide her

compassionate appointment has been rejected with a further direction upon

the respondents-BCCL to consider the case of the writ petitioner for

appointment on compassionate ground within a period of 10 weeks from the

date of receipt/production of a copy of the order.

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

hereunder:

The father of the writ petitioner, who was permanent employee and

was posted as Pump Operator at Ramkanali Colliery under the respondents-

BCCL (hereinafter referred to as 'the BCCL') died in harness on 11.01.2015.

At the time of death, the writ petitioner and her sister were minor and as

such, mother of the petitioner, wife of the deceased employee had submitted

her representation before the respondent for appointment of her daughter on

compassionate ground.

The case of the writ petitioner was considered but rejected on the

ground that the age of the writ petitioner at the time of death of her father

was 15 years 8 months and 24 days but there is no provision to keep female

dependant on live roster. It is further case of the writ petitioner that on

27.12.2017, the writ petitioner had submitted a representation requesting

therein that the ground of rejection of her claim for compassionate

appointment, is illegal and arbitrary in view of the fact that she had applied

for compassionate appointment on 01.06.2015 and had attained majority on

02.05.2017 and as such, a request was made to consider her case for

appointment on compassionate ground. But, the said claim was rejected vide

order dated 13/30.06.2018.

The aforesaid order was assailed before this Court by invoking

jurisdiction conferred under Article 226 of the Constitution of India, wherein

the ground has been agitated that the compassionate appointment is to be

provided to unmarried daughter as per the provision contained in Para-9.4.0

of N.C.W.A and as such, the action of the respondent-BCCL, rejecting the

claim of the petitioner is illegal and arbitrary in the eyes of law. Further

submission has been made that her claim on the ground of gender is against

the provision of Constitution of India. It has further been submitted that in

terms of N.C.W.A, a male dependant, who is below the age of 18 years can

be kept in live roster till he attains majority but there has been apparent

discrimination in the case of female dependant as would appear from the

case in hand.

Per contra, a counter affidavit was filed by the respondents-BCCL.

Learned counsel for the respondents-BCCL opposed the contention of the

petitioner by making submission that as per the service excerpts of the

deceased employee, the name of the writ petitioner did not find place in the

list of dependants and after the death of the deceased employee, the family

certificate was submitted by the writ petitioner in which she is shown as

dependant along with her sister and mother. It has further been submitted

that the mother of the writ petitioner earlier requested for compassionate

appointment to be given in favour of the writ petitioner but was rejected vide

letter dated 06.01.2016 on the ground that the petitioner's age is 15 years 8

months and 24 days and she is minor and there is no provision to keep the

name of female dependant in the live roster, which was never been

challenged. Further argument has been made that in absence of enabling

provision that if the dependant of deceased is minor and not eligible for

employment on compassionate ground, then he/she can claim such

employment after becoming major subsequently? The respondent cannot

pass order in such cases, as the eligibility for employment is to be seen at the

time of death, not subsequently.

Learned Single Judge deliberating upon the issues, has allowed the

writ petition on the ground that the father of the writ petitioner died in

harness on 11.01.2015 and the writ petitioner and her sister were minor, as

such, the mother of the writ petitioner i.e. wife of the deceased employee

submitted an application for employment in favour of the daughter on

compassionate ground. The age of the writ petitioner was 15 years 8 months

and 24 days and as such, her case was rejected as there was no provision for

keeping a female dependant on live roster. Further on attaining the age of

majority, the writ petitioner made an application on compassionate ground

which was rejected on 13/30.06.2018 on the aforesaid ground. Admittedly,

the writ petitioner was aged about 12 years at the time of death of her father

which has not been controverted by the respondents.

Learned Single Judge, has further taken into consideration the case of

the writ petitioner, which was rejected merely on the ground that she is

female and her name cannot be kept in live roster as she has not attained

majority. Para-9.5.0 of the N.C.W.A provides condition for employment on

compassionate ground to a female dependant and considering the fact that

there cannot be any gender discrimination on the ground of sex, the writ

petition was allowed by quashing and setting aside the impugned order,

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

8. Mr. Amit Kumar Das, learned counsel for the appellants-BCCL has

assailed the order passed by the learned Single Judge, inter alia, on the

ground that the question of applicability of condition stipulated under Clause

9.5.0 will only arise, if there is no major dependant available in the family

for getting the appointment on compassionate ground. According to the

learned counsel, the scheme as contained in Clause 9.3.2 stipulates that the

female dependant/widow can be provided appointment on compassionate

ground, if she is below the age of 45 years.

Herein, the age of the wife of the deceased employee was 43 years at

the time of death of her husband and as such, she was eligible for

consideration of her candidature for appointment on compassionate ground

and in that view of the matter, the condition stipulated in Clause 9.5.0 will

not be applicable but this aspect of the matter has not been considered by the

learned Single Judge and hence the impugned order is not sustainable in the

eyes of law.

9. Learned counsel for the respondent-writ petitioner has submitted that

the learned Single Judge has considered the very intent and object of the

National Coal Wage Agreement and taking into consideration the fact that

the condition stipulated under Clause 9.5.0 is discriminatory on the ground

of sex as because the provision has been made to keep the male dependant

on live roster but indulgence has not been given so far as female dependant

is concerned. Considering the said aspect of the matter, the writ Court has

proceeded with the matter and decided in favour of the writ petitioner which

is having 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

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

It further 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-XI. Taking into consideration the date of death of the

father of the writ petitioner which is 11.01.2015, 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 at paras (i) & (ii) above. This will be effective from 1.1.2000.

It is not in dispute that the appellant-B.C.C.L has issued circular 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 11.01.2015 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 11.01.2016, 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.

It is evident from Clause 9.3.2 wherein the condition is stipulated for

offering appointment to the dependant, which includes the widow also. The

age criteria for the male dependant is 12-18 years and for widow is up to 45

years under Clause 9.5.0 of the aforesaid agreement. The condition has been

stipulated to keep male dependant on live roster, if at the time of death of the

deceased employee the age of the male dependant is in between 12-18 years.

12. This Court has gathered from the argument advanced on behalf of the

parties as also from the finding recorded by the learned Single Judge about

the question of applicability of the Clause 9.3.2 or 9.5.0 of the N.C.W.A.

The admitted position so far as legal issues are concerned, the

applicability of Clause 9.5.0 of the aforesaid agreement will only be

applicable, if there is no major dependant in the family after the death of the

employee and in that circumstances, the minor having age in between 12-18

years will be kept on live roster.

The question of discrimination is one of the points agitated by the

learned counsel appearing for the writ petitioner to the effect that there

cannot be any discrimination on the ground of sex since Clause 9.5.0 only

stipulates to keep male dependant on live roster, who is having the age of 12-

18 years leaving the female dependant.

This Court, before answering the issue deem it fit and proper to deal,

as to whether it is a fit case where this issue is to be decided on the facts of

the case, taking into consideration the fact that the condition stipulated under

Clause 9.5.0 is applicable or Clause 9.3.2?

The admitted position, as would appear from the materials brought on

record that the age of the widow at the time of death of her husband was 43

years. As stated under Clause 9.3.2 of the agreement that the maximum age

for the widow for consideration of appointment on compassionate ground is

45 years, meaning thereby, the widow of the deceased employee was eligible

in all respects for consideration for appointment on compassionate ground

but she has not chosen to offer herself for appointment on compassionate

ground rather had chosen to offer the candidature of her daughter, the writ

petitioner, for appointment on compassionate ground. But, at the time of

death of the deceased employee, the writ petitioner was having the age of 15

years 8 months and 24 days and as such, it is not a fit case where the

ingredient stipulated under Clause 9.5.0 is applicable, rather it is a case

where the condition stipulated under 9.3.2 is applicable since at the time of

death of the deceased employee, the widow in the capacity of dependant was

eligible to be appointed on compassionate ground having the age less than 45

years and therefore, we are of the view that in the facts of the case it is not a

case of gender discrimination as has been discussed by the learned Single

Judge.

It is further apparent from the factual aspect that the claim of the writ

petitioner was rejected on the ground that she is having age of only 15 years

8 months and 24 days at the time of death of her father. She has again filed a

fresh application after attaining the majority on 02.05.2017, but the same

was also rejected on the ground that there is no provision in N.C.W.A to

keep the female dependant on live roster and in the meanwhile, wife of the

deceased employee was having 46 years of age.

It is correct on the part of the writ petitioner that the ground about

availability of the candidate to be considered for appointment under Clause

9.3.2 was available before the respondent but the same has not been

considered while passing the impugned order and hence the same, at the

moment cannot be allowed to be agitated.

But, we are not in agreement with such submission, as because even

if, the reason as has been provided under the agreement which has got

statutory fervour, has not been mentioned in the impugned order, the same is

required to be considered by the court of law and considering the aforesaid

legal position, this Court has also gone into that factual aspect in order to

consider the same on the basis of legal position as provided under Para 9.3.2

of the N.C.W.A to find out as to whether it is a fit case for consideration

under condition stipulated under Clause 9.5.0 or 9.3.2.

Upon which, we have found that it is not a case where consideration

ought to have been given under Clause 9.5.0 rather it is a case of Clause

9.3.2 of the aforesaid agreement as discussed above. But at the risk of

repetition, the same is reiterated herein that at the time of death of the

deceased employee the age of widow of the deceased employee was 43 years

and as she was eligible to be considered for appointment as under Para 9.3.2

of the agreement but she has not offered herself for the same rather offered

the candidature of unmarried daughter for the same who was less than the

age of 18 years.

As such, since there was adult dependant in the family it was a case

under Para 9.3.2 of the agreement and once it is a case of Para 9.3.2 of the

agreement, there cannot be applicability of condition stipulated under Para

9.5.0 of the agreement.

In that view of the matter, it is not a case of gender discrimination,

hence we are not going to this aspect.

The learned Single Judge, without appreciating this aspect of the

matter and without traveling to that aspect, has considered the case of the

writ petitioner on the basis of applicability of Clause 9.5.0 of the aforesaid

agreement which cannot be said to be proper and justified.

13. This Court, therefore, is of the view that the order passed by the

learned Single Judge, cannot stand in the eyes 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-BCCL has raised no

objection to such submission.

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

the authority for 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-BCCL 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.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Saket/-

A.F.R.