Lalmuni Devi @ Lilmuni Kamin vs The Central Coalfields Ltd. ...
2021 Latest Caselaw 2090 Jhar

                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                         W.P.(S). No. 1720 of 2020
                                               ----------

1. Lalmuni Devi @ Lilmuni Kamin

2. Ruplal Manjhi @ Ruplal Murmu @ Ruplal Marandi ......... Petitioners.

Versus

1. The Central Coalfields Ltd. through its Chairman-cum-Managing Director, office at Darbhanga House, P.O. G.P.O., P.S. Kotwali, Town & Dist. Ranchi

2. The Director (Personnel), Central Coalfields Ltd., having office at Darbhanga House, P.O. G.P.O., P.S. Kotwali, Town & Dist. Ranchi

3. The General Manager (P&IR), Central Coalfields Ltd., having office at Darbhanga House, P.O. G.P.O., P.S. Kotwali, Town & Dist. Ranchi

4. The General Manager, Central Coalfields Ltd., Kuju Colliery, P.O. + P.S. Mandu, Dist. Ramgarh.

5. The Project Officer, Central Coalfields Ltd., Kuju Colliery, P.O. + P.S. Mandu, Dist. Ramgarh.

6. The Dy. Manager (Personnel), Central Coalfields Ltd., Kuju Colliery, P.O. + P.S. Mandu, Dist. Ramgarh.

                                                                ..........          Respondents.
                                                ----------
                  CORAM:             THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
                                     (Through: Video Conferencing)
                  For the Petitioners        :      Mr. Mahesh Tewari, Advocate
                                                    Mr. Munga Lal Kumar Chitra, Advocate
                  For the Respondents        :      Mr. Amit Kumar Sinha, Advocate
                                               -----------
05/ 29.06.2021 Heard the parties.

2. In the instant writ application prayer has been made for quashing the order dated 28.05.2020 (Annexure-3), whereby respondent No. 5 has rejected the claim of petitioner No. 2 for his compassionate appointment on account of death of his father, Mahadeo Manjhi.

Further prayer has been made for a direction upon the respondents to immediately and forthwith provide compassionate appointment to petitioner No.2.

3. The facts of the case in short is that father of petitioner No. 2 namely, Mahadeo Manjhi, was appointment on 25.05.1979 and was working as Ex-Drill Man 'Cat.-VI' in Kuju Colliery, under respondent-CCL. After working for several years, Mahadeo Manjhi (father of petitioner No. 2) died in harness on 15.12.2014, leaving behind his wife (petitioner No. 1), two sons namely, Ruplal Manjhi (petitioner No. 2) and Babulal Manjhi. After death of Mahadeo Manjhi, his wife-

petitioner No. 1 submitted application dated 16.04.2015, for compassionate appointment of her son, Ruplal Manjhi (petitioner No. 2) before the respondent- CCL. Thereafter, the brother of petitioner No.2, namely, Babulal Manjhi also applied on 20.05.2015 for his compassionate appointment under Clause-9.3.0/ 9.4.0 of the National Coal Wage Agreement (for short "NCWA"), however, his application was rejected by the respondent-authorities on 05.09.2016, on account of overage of the applicant as per provisions of NCWA. Thereafter, on the very next i.e. on 06.09.2016, petitioner Nos. 1 and 2 again filed representation before the respondent-authorities for compassionate appointment of petitioner No. 2. However, the respondent-authorities vide order dated 27.05.2017, rejected the case of the petitioners on the ground of delayed claim.

4. Aggrieved by the order dated 27.05.2017, by which the claim of petitioner No. 2 for his compassionate appointment was rejected by the respondents, the petitioners approached this Court by filing W.P.(S). No. 3709 of 2017 and this Court, after hearing the parties vide its order dated 10.04.2018, allowed the said writ application and directed the respondents to assess the claim of the petitioner No. 2 on merits and to appoint petitioner no. 2 on compassionate ground within a period of eight weeks, if he is found eligible.

However, the respondent-CCL challenged the order dated 10.04.2018, passed in W.P.(S). No. 3709 of 2017 by filing L.P.A. No. 309 of 2018 and the learned Division Bench of this Court vide order 14.11.2019 allowed the said L.P.A. However, while allowing the aforesaid L.P.A., learned Division Bench directed the CCL to considered the application of petitioner no.2 dated 16.04.2015, in accordance with law, which was duly sponsored by his mother, petitioner no. 1 on the same day itself.

In compliance of the order passed by the learned Division Bench in L.P.A. No. 309 of 2018, the respondent-CCL considered the case of petitioner No. 2 and after hearing the petitioners, vide its reasoned order dated 28.05.2020 rejected the claim of petitioner No. 2 for his compassionate appointment.

In the instant writ application, petitioners have thrown challenge to the rejection order dated 28.05.2020.

5. Mr. Mahesh Tewari, learned counsel appearing for the petitioners strenuously urges that impugned order dated 28.05.2020 is illegal, unjustified and bad in law. Learned counsel further argues that respondent-CCL has rejected the claim of petitioner No. 2 on the ground of disputes in the name and age of petitioner No. 2 but in view of Full Bench Judgment of this Court in case of

Kamta Pandey Vs. BCCL & Ors. [2007 (3) JLJR 726 (Jhr.)] as well as the judgment passed by the Hon'ble Supreme Court in case of BCCL Vs. Chhota Birsa Urawn [2014 (3) JLJR 182 (SC)], the date of birth recorded in the matriculation certificate is the conclusive evidence of age and override the age recorded in other statutory/ non-statutory records. Hence, the respondents are bound to accept the date of birth recorded in the matriculation certificate of the petitioner, which is issued by Jharkhand Academic Council. Learned counsel further argues that the respondents cannot be allowed to take advantages of their own mistake as they have entered the name and age of the petitioner No. 1, as Ruplal Manjhi and age as 6 years in the year 1994 in the service records of deceased employee. Learned counsel accordingly submits that for the aforesaid reasons, the impugned order is fit to be quashed and set aside and a direction be given to the respondent-CCL to appoint the petitioner no. 2 on compassionate ground.

6. Per contra counter-affidavit has been filed. Mr. Amit Kumar Sinha, learned counsel appearing for the respondent-CCL vehemently opposes the contention of learned counsel appearing for the petitioner and submits that the present writ application is not maintainable as the petitioners have an efficacious and alternative remedy under the provisions of Industrial Disputes Act, 1947. Learned counsel further argues that Smt. Lalmuni Devi and Sri Ruplal Manjhi gave their consent in favour of Sri Babulal Manjhi (brother of petitioner No. 2) for his appointment on compassionate ground and hence, they have willfully surrendered their previous application submitted on 16.04.2015 for compassionate appointment of Sri Ruplal Manjhi. Learned counsel further argues that claim of appointment of Sri Babulal Manjhi was rejected vide letter dated 05.09.2016 on the ground of being overage. Thereafter, on the very next date petitioner No. 1 submitted application dated 06.09.2016 for employment of her second son, Sri Ruplal Manjhi (petitioner No. 2) but the said application was filed after lapse of 18 months from the date of death of Mahadeo Manjhi (deceased employee) and as such, the same is time barred. Learned counsel submits that as per the provisions of NCWA no claim for compassionate appointment can be entertained after lapse of prescribed period and hence, rightly the impugned order has been passed.

Learned counsel further argues that there is difference of age of petitioner No. 2 as recorded in the service excerpts of the deceased employee and in the matriculation certificate submitted by petitioner No. 2. As per service excerpts,

the date of birth of petitioner is 01.04.1981, whereas, the date of birth as recorded in the matriculation certificate is 19.04.1988. Learned counsel submits that in LPA No. 521 of 2017, this Hon'ble Court has held that date of birth mentioned in the matriculation certificate is the prima facie proof of age and no other documents is required to be looked into but in the present case the facts remains that there are sufficient materials to show that the name and age of petitioner No.2 finds mention in the service records of his father as well as in the LTC facility availed by the deceased employee, which is much prior to the date of birth mentioned in the matriculation certificate.

Further, in the service excerpts of deceased employee, name of petitioner No. 2 is mentioned as 'Ruplal Manjhi', whereas name recorded in the matriculation certificate is 'Ruplal Marandi'. Learned counsel submits that petitioner No. 2 applied for his compassionate appointment on 08.09.2016, mentioning his name as Ruplal Manjhi whereas his name as recorded in matriculation certificate is Ruplal Marandi. Even the relationship certificate issued by the Circle Officer, Dadi, Hazaribagh on 20.01.2015, mentions the name of petitioner No. 2 as Ruplal Manjhi and as such, it creates a serious doubt and involves disputed question of fact, which need not to be decided by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. Even the indemnity bond and affidavit submitted by petitioner No. 1 (Smt. Lalmuni Devi) was for employment of Sri Babulal Manjhi and not the petitioner no. 2 (Ruplal Manjhi) and as such, for the aforesaid facts and reasons, there is no merit in the instant writ application and the same is fit to be dismissed outrightly.

To buttress his argument, learned counsel appearing for the respondent- CCL places heavy reliance on the judgment passed by this Court in CCL & Ors. Vs. Binod Ram Tirkey, reported in [(2018) 2 JCR 311 (Jhr.)].

7. Be that as it may, having heard the rival submissions of the parties and upon perusal of the documents brought on record, this Court is of the considered view that the case of the petitioner needs consideration and the reasoning given by the respondent-CCL while rejecting the claim of the petitioner for compassionate appointment, is not tenable in the eyes of law and the impugned order is fit to be quashed and set aside.

8. Admittedly, the case of the petitioner was considered by this Court in W.P.(S). No. 3709 of 2017 and the ground for rejection of the claim of the petitioner for compassionate appointment was rendered unsustainable and vide order dated 10.04.2018, the Hon'ble Court while allowing the said writ

application directed the respondents to assess the claim of the petitioner on merits and if found eligible, grant appointment on compassionate ground to the petitioner No. 2. The respondent-CCL challenged the order of learned Single Judge in LPA No. 309 of 2018, on the ground that compassionate appointment is not transferrable and the application for compassionate appointment was made after the prescribed time limit of 1½ years. Though it was held by the Division Bench that theory of relation would not apply to cases under compassionate appointment simultaneously it was observed that application for compassionate appointment made by the petitioner No. 2 on 16.04.2015 duly sponsored by his mother, petitioner No. 1 on the same date vide Annexures-6 and 7 to the writ application, be considered by respondent-CCL in accordance with law.

9. The application of petitioner No. 2 made on 16.04.2015 was within time but no order was passed by the respondent-CCL on the same. The argument advanced by learned counsel appearing for the respondent-CCL is completely misconceived and not tenable in the eyes of law. The respondent-CCL has counted the limitation period from the date of second application, which is not permissible as the first application was never rejected by them. The respondents ought to have considered the first application made by petitioner No. 2 which was within time and rejection of the claim of petitioner on the ground of limitation is not sustainable and fit to be quashed and set aside.

10. Now, the respondents while rejecting the case of the petitioner, after direction of this Court, have come-out with a different reasoning and a new case has been made out.

a) First ground for rejection of the claim is difference in age of the petitioner mentioned in matriculation certificate and in the service excerpt of the deceased employee.

The same is not acceptable to this Court in view of catena of decisions of this Court as well as of Hon'ble Apex Court. This Court in its Full Bench judgment in case of Kamta Pandey Vs. M/s. BCCL & Ors., reported in 2007 SCC Online Jhar. 222 has clearly observed as under:

29. In view of the above discussion, our answer to the question raised in this case is as follows:

The date of birth recorded in the Matriculation Certificate duly authenticated by the Education Board is a conclusive proof of age and no other records, including service records as both the parties are governed by

Implementation Instruction No. 76 of National Coal Wage Agreement-III.

30. In the light of the above answer, we think it fit to give a direction to Bharat Coking Coal Limited to make necessary correction in the date of birth in the petitioner's service records as 1.7.1951 as per the Matriculation Certificate and pass consequential orders."

Arguments of learned counsel for the petitioner that date of birth recorded in the matriculation certificate is a conclusive proof of age and no other documents prevail over the same, finds force and support from the said judgment and also in view of Circular/ Office Order dated 02.12.2013, issued by the General Manager (P & IR/ R), CCL, as the respondents themselves have devised a method under which such cases for compassionate appointment are to be considered where there is variation in the date of birth recorded in the matriculation certificate and in the service records of the employee.

The Office order dated 02.12.2013, reads as under:

"In continuation to this office letter no. PD/MP/age/DOB/O.O/2013/3616 dated 13.11.2013 wherein it has been concluded that in case an applicant seeking compassionate employment is matriculate, the date of birth recorded in the matric pass certificate or equivalent examination may be taken as a basis for reckoning the date of birth of the appointee and further that in the event of variation in age/date of birth reflected in the Matriculation Certificate of an appointee from that of the age/date of birth disclosed by the ex-employee in his/her service record, the genuinity of matriculation certificate will be got ascertained from the concerned Board.

It has further been decided forthwith that if such variation in date of birth as per matriculation record vis-a-vis company's record is up to the extent of 05 years, the employment proposal may be processed and verification of authenticity of the matriculation certificate from the concerned Board shall be undertaken by the concerned Project / Area immediately after issue of appointment letter and the outcome thereof should be reported to this end within 03 months thereafter.

It has further been decided that where such variation is beyond five years, then the verification from the concerned Board should be undertaken by the concerned Unit before processing the case of compassionate appointment.

This is for strict compliance please.

This issues with the approval of competent authority."

In view of said order, it is crystal clear that if the variation in date of birth is upto five years, the concerned Project/ Area has to issue appointment letter and get the authenticity of the matriculation certificate verified from the concerned Board thereafter and if the variation is beyond five years, the verification from the concerned Board had to be be undertaken by the concerned Unit before processing the case of compassionate appointment.

As such it can be comfortably inferred that claim of the petitioner has been rejected on wholly improper ground and the respondents in several other similar cases where deceased-employee happens to be either illiterate or semi-literate or a mazdoor, have considered their claim.

b) The other ground for rejection was variation in the name of petitioner in two records. Rup Lal Manjhi, as the son of deceased employee is nowhere disputed by the respondent-CCL and this Court has also accepted the petitioner-Rup Lal Manjhi as the son of deceased employee in W.P.(S). No. 3709 of 2017 and LPA No. 309 of 2018. When the respondent-CCL never raised dispute earlier, now the same could not have been a ground for rejection and as such, the impugned order being devoid of any merit, is fit to be quashed and set aside.

11. The issue regarding slight variation in the name of applicant is considered by this Court in case of Litlal Munda Vs. CCL & Ors., reported in 2005 (3) JCR 259 (Jhr.) and in case of Shankar Kumar Mahto Vs. CCL & Ors., reported in 2014 (3) JLJR 559 and the observation of the Court duly supports the case of the present petitioner.

12. Now, the respondents have changed their stand and rejected the claim of the petitioner on ground of difference in age and name of petitioner. Earlier, the claim of the petitioner was rejected on the ground of limitation and in the present case, they have come-out with a new ground which is not acceptable to this Court. Just to frustrate the case of petitioner, the respondents have tried their level best and such action of the respondent is not praise-worthy. Admittedly, the very concept of giving compassionate appointment is to tide over the financial difficulties that are faced by the family of the deceased employee due to death of

the earning member of the family. There is immediate loss of earning for which the family suffers financial hardship. The benefit is given so that the family can tide over such financial constraints. The valuable right of compassionate appointment cannot be snatched away on frivolous grounds. Impugned order is thus wholly arbitrary, unjust and against the fair play and the same is not tenable.

13. At this stage, this Court is of the view that object behind compassionate appointment under NCWA must be enforced in its true letter and spirit. This being a beneficial provision for the benefit of the dependents of the deceased employee must not be denied on technical ground. The respondents have dragged the petitioner on earlier two occasions and this Court has passed order in favour of the petitioner.

14. As sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the impugned order dated 28.05.2020 (Annexure-3), is hereby quashed and set aside. The respondent-CCL is directed to consider the matter for appointment of petitioner No. 2 on compassionate ground and if there is no other legal impediment, issue appointment letter to the petitioner within a period of six weeks from the date of receipt/ production of a copy of this order.

15. Resultantly, the writ petition stands allowed.

(Dr. S.N. Pathak, J.) Kunal/-