Jharkhand High Court

Dilip Kumar Paswan vs C.M.D on 19 January, 2021

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P.(S) No. 5419 of 2018
   Dilip Kumar Paswan, son of Sri Nakul Ram, aged about 30 years, resident of
   Argada Colliery, CCL, Under Project Officer, Sirka, P.O. and P.S. Argada,
   District-Ramgarh
                                                  ...... Petitioner
                          Versus
   1. C.M.D, Central Coalfields Limited, Argada Colliery, P.O. and P.S. Argada,
   District Ramgarh
   2. General Manager, Central Coalfields Limited, Argada Colliery, P.O. and
   P.S. Argada, District Ramgarh
   3. Director (Personnel), Central Coalfields Limited, Argada Colliery, P.O. and
   P.S. Argada, District Ramgarh
   4. Project Officer, Sirka, Central Coalfields Limited, P.O. and P.S. Argada,
   District Ramgarh
   5. Assistant Manager, (P&A) Argada Colliery, P.O. and P.S. Argada, District-
   Ramgarh

                                                  ...... Respondents

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner                    : Mr. Saurabh Shekhar, Advocate
For the Respondent-CCL             : Mr. Hardeo Pd. Singh, Advocate

08/Dated: 19/01/2021
1.          Heard, Mr.    Saurabh Shekhar, learned counsel appearing for the

petitioner and Mr. Hardeo Pd. Singh, learned counsel for the respondent-CCL.

2. This writ petition has been heard through Video Conferencing in

view of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any

technical snag of audio-video and with their consent this matter has been heard.

3. Petitioner has filed this writ petition for direction upon the

respondents to release 50% wages in favour of the petitioner's father w.e.f.

15.12.2017 in view of the fact that the father of the petitioner has been under

complete disability in view of para 6.5.2 of National Coal Wage Agreement.

Further prayer has been made for appointment of the petitioner on compassionate

ground in view of provision of 9.4.0 NCWA.

4. The petitioner has preferred this writ petition on behalf of his father

namely, Nakul Ram for the reason that he is disabled and cannot walk. The father

of the petitioner was employed with the respondents-CCL, Argada Colliery in the

year 1990. His date of birth is 16.07.1960. His CMPF Number registered with the

respondent authorities is 48-2425. The father of the petitioner was appointed on

the post of Pump Operator and thereafter he was serving for the respondent

authorities without any complain from any corner. The petitioner is intermediate

pass and his date of birth is 07.12.1988 and an application for appointment on

compassionate ground was made under the provision of NCWA 9.4.0. The

father of the petitioner while in service has suffered some problem in leg and in

course of treatment the right leg of the petitioner was cut in view of the fact that

there was no blood circulation in down the knee. Medical prescription has been

brought on record by way of Annexure-1 to the writ petition. The father of the

petitioner submitted an application before the respondent-authorities who

replied that a Medical Board would be constituted on 08.03.2017 and thereafter

decision would be taken whether he is to be treated in Central Hospital

Gandhinagar, Naya Sarai or he has to be referred to better hospital. On

04.03.2017, the petitioner immediately made an application before the

respondent-authorities informing that he has to move for CMC Vellore under

the emergent medical circumstances. The petitioner went to Vellore, however in

the meantime, on 09.03.2017, the matter of the father of the petitioner was

referred to Ruby Central Hospital Ltd, West Bengal. The father of the petitioner

got admission in CMC Vellore and medical certificate has been brought on

record by way of Annexure-3 to the writ petition. However, the father of the

petitioner was again examined by Ruby Central Hospital Ltd., West Bengal and

medical certificate has been annexed as Annexure-5 to the writ petition. The

father of the petitioner was also referred to the Medanta, Gurgaon where he

underwent surgery and as a result of surgery, his right leg was cut and heart was

also examined, in this regard medical report has been brought on record by way

of Annexure-6 to the writ petition. The application for payment of 50% wages

has been filed by way of Annexure-7 to the writ petition. No medical board was

instituted, in the meantime, the father of the petitioner retired on 31.07.2020.

Aggrieved with this, the petitioner has moved before this Court by way of filing

this writ petition.

5. Mr. Saurabh Shekhar, learned counsel appearing on behalf of the

petitioner submits that in terms of NCWA, the case of the petitioner was required

to be considered by constituting a Medical Board but this has not been done in

the case of the petitioner. He submits that the father of the petitioner was injured

in the month March, 2017 and on 09.05.2017, he made application for payment

of 50% wage and appointment on compassionate ground to the petitioner but

nothing has been done by the respondent-CCL. He submits that NCWA is the

statutory in nature in view of the fact that tripartite agreement has been

interpreted by the Hon'ble Supreme Court in the case of "Mohan Mahto Vs.

Central Coalfields Limited & Others reported in (2007) 8 SCC 549.

6. Per contra, Mr. Hardeo Pd. Singh, learned counsel appearing on

behalf of the respondent-CCL submits that the petitioner is not entitled for any

relief. He submits that in view of 6.5.2 of NCWA, the petitioner is not having

such type of ailment which is prescribed in 6.5.2 NCWA, sofar as 50% wage is

concerned, the petitioner is not entitled. He further submits that a committee was

constituted under 10th Wage Agreement for CIL & SCCL and on 23.11.2018 in

view of taking into consideration 9.3.0, 9.4.0 and 9.5.0. of N.C.W.A. it was

decided as under:

" A committee is constituted under the Chairmanship of Director (P&IR), CIL consisting of representatives of Trade Unions and Management to finalise the scheme for employment or financial benefits to the dependent. The aforesaid committee shall submit the

scheme tentatively by 31st March, 2018. Till then, status quo shall be maintained in respect of these provisions.

The recommendations of the Committee constituted vide Office Order Reference No. CIL/C-SB/JBCCL/324 dated 26/27.09.2017 under above provision was discussed in the third meeting of Standardization Committee of JBCCL-X held on 11.11.2018 at CIL (HQ), Kolkata and after detailed deliberation, it has been resolved as under:-

" The existing practice of offer of employment in death cases (Clause 9.3.0 of NCWA) to the dependent of non-executive cadre employees in Category-1 (Trainee) Irrespective of their educational qualification shall continue You are requested to take necessary action to implement the above provision".

7. Learned counsel for the respondent-CCL further submits that on

28.11.2018 further direction was issued to the effect that status quo shall be

maintained in respect of these provision. The relevant part of the said direction is

being reproduced here-in-below:-

" A committee is constituted under the Chairmanship of

Director (P&IR), CIL consisting of representatives of Trade Unions

and Management to finalise the scheme for employment or financial

benefits to the dependent. The aforesaid committee shall submit the

scheme tentatively by 31st March, 2018. Till then, status quo shall be

maintained in respect of these provisions"

8. Learned counsel for the respondent-CCL further submits that the

case of the petitioner is fit to be rejected in view of the Division Bench judgment

of this Court passed in L.P.A. Nos. 614 and 615 of 2002 which was disposed on

06.11.2009. He further submits that the father of the petitioner has already

retired and any loss of employment is not there, thus the petitioner is not entitled

for compassionate appointment. He further submits that this aspect of the matter

has been dealt with by the Hon'ble Division Bench of this Court in the aforesaid

L.P.As.

9. In view of aforesaid facts and considering the submissions of the

learned counsel for the parties, the Court has ventured to go through the

documents annexed with the writ petition as well as counter-affidavit and

rejoinder. It is admitted position that the father of the petitioner received injury in

March, 2017. The petitioner filed application on 09.05.2017 for payment of 50%

wages in terms of 6.5.2 NC.W.A and for appointment on compassionate ground

under 9.4.0. NCWA but the respondent-CCL has not acted in terms of the

NCWA. The plea taken by the respondent-CCL with regard to committee report

dated 23.11.2018 which says that status quo shall be maintained in respect of

these provisions, this has been effected on 23.11.2018 whereas the case of the

petitioner was to be considered w.e.f. 09.05.2017, thus, this decision is not

coming in the way of the petitioner for consideration of the case of the petitioner

on 09.05.2017 in view of the fact that this cannot be operative retrospectively. In

the said decision it was also taken care of that dependent of non-executive cadre

employees offer of employment in death cases shall continue. Thus so far as non-

executive cadre employee is concerned, appointment was decided to be made in

death cases, this aspect of the matter is giving effect from 23.11.2018 thus this

cannot be allowed to operate retrospectively. Letter dated 23.11.2018 is

prospective in nature, thus, it is not helping the respondent-CCL. So far as the

case of the petitioner for consideration of appointment on compassionate ground

is concerned, that was required to be considered in terms of Clause 9.4.0.

N.C.W.A. The petitioner, no doubt, retired on 31.07.2020 however, it was

incumbent upon the respondent-CCL to act upon the application of the

petitioner on 09.05.2017 itself. The judgment relied by the learned counsel for the

respondent-CCL in the aforesaid L.P.As. is on different issue wherein the

litigant of that case approached the Tribunal after retirement. The Hon'ble

Division Bench considering Clause 9.5.0 NCWA came to the conclusion that loss

of employment is not there. The petitioner has already retired smoothly and this

distinguishing fact is there so far as the case of the petitioner is concerned, thus

the said judgment is not helping the respondent-CCL.

10. In view of the matter, the respondent-CCL is required to consider the

case of the petitioner for appointment on compassionate ground, so far as the

claim of the petitioner for payment of 50% wages is concerned, certain diseases

are prescribed in para 6.5.2 which is quoted here-in-below:-

" 6.5.2:- Grant of Special Leave to employees suffering from Heart Diseases, TB, Cancer, Leprosy, Paralysis, Renl Diseases, H.I.V. and Brain disease/disorder.

Employees suffering from Heart diseases, TB, Cancer, Leprosy and Paralysis, Renal diseases, H.I.V., and Brain diseases/disorder shall be granted leave at 50% of wages (Basis Pay+VDA+SDA) till they are declared fit by the Company Medical Board or any other hospital to which the cases may be referred for treatment by the Management duly vetted by the company Medical Board".

11. There is mention of one disease i.e. heart disease and the petitioner has

brought on record the document which suggests that the petitioner is suffering

from heart diseases and in view of Clause 6.5.2 NCWA, the respondent-CCL is

required to examine the case of the petitioner by way referring the matter to the

Medical Board and come to the conclusion whether the petitioner is entitled for

back wages or not.

12. In view of above discussion, the writ petition succeeds and the

respondent-CCL is directed to act in terms of NCWAs which is statutory in

nature as has been held by the Hon'ble Supreme Court in the case of "Mohan

Mahto" (Supra). The respondent-CCL shall issue necessary notice to the

petitioner to appear before the Medical Board within a period of four weeks. The

petitioner shall abide by the direction of the respondent-CCL and will appear