Project Officer East Busseria ... vs Smt. Sumitra Devi
2021 Latest Caselaw 3219 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            [Civil Writ Jurisdiction]
                            W.P. (C) No. 5792 of 2014
      Project Officer East Busseria Colliery of
      M/s. Bharat Coking Coal Limited                           .... .. ... Petitioner
                                   Versus
      Smt. Sumitra Devi                                         .. ... ...  Respondent
                                  ...........

CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through :-Video Conferencing) .........

      For the Petitioner                 :    Mr. Anoop Kumar Mehta, Advocate
      For Respondent                     :    Mr. Mukesh Bihari Lal, Advocate
                                   ..........
09/02.09.2021       Project Officer, East Busseria Colliery of M/s. Bharat Coking Coal

Limited P.O.-Kusunda, P.S.-Kendua, District- Dhanbad through Sri Satendra Singh, son of Sri G.Singh, resident of Near G.M. Office, Sijua, P.O.- Loyabad, P.S. Jogta, District-Dhanbad has preferred this petition for quashing the award/judgment dated 10.07.2014 passed by learned Presiding Officer, Labour Court, Dhanbad in M.J. Case No.20/2011, whereby the Labour Court has been pleased to allow the application of the respondent- Smt. Sumitra Devi, W/o late Amrit Mallah, R/o of Village- Renguni, Mallah Patti, P.O.- Bhuli Nagar, District- Dhanbad, for payment of monetary compensation w.e.f. from 01.08.1991 till 30.04.2008.

Learned counsel for the petitioner-Mr. Anoop Kumar Mehta has assailed the impugned on four grounds:-

(1) That respondent Smt. Sumitra Devi has preferred M.J. Case No.20/2011 before the learned Labour Court, Dhanbad under Section 33-C(2) of the Industrial Disputes Act, 1947 when her writ petition for same relief vide W.P.(S) No.1340/2009 was itself pending before the Hon'ble High Court for payment of monetary compensation.

(2) That W.P.(S) No.1340/2009 has been disposed of vide judgment dated 01.04.2019 passed by Coordinate Bench of this Court, for the same set of claims for payment of monetary compensation, thus the entire proceeding of M.J. Case No.20/2011 was itself not maintainable.

(3) That the proceeding under Section 33-C(2) of the Industrial Disputes Act, 1947 is in the nature of execution proceeding for computation of wages in respect of pre-existing right. The learned Labour Court has precluded from passing an award on interest on the decreetal amount, which does not carry any statutory interest.

(4) In view of the judgment rendered by this Hon'ble High Court in W.P.(S) No.1340/2009 the matter relating to payment of monetary compensation stands concluded in a proceeding under Article 226 of Constitution of India.

Learned counsel for the petitioner-Mr. Anoop Kumar Mehta has assailed all these four points on the ground that to maintain judicial discipline, the respondent ought not to have initiated several proceedings simultaneously before different forums like Hon'ble High Court and during pendency of the same, again before Labour Court, as such, this act of the respondent entitles this Hon'ble Court to set aside the impugned award passed by the learned Labour Court.

Learned counsel for the petitioner has submitted that multiplicity of the proceeding has been done by the respondent and as such, this Court may take notice of such fact.

Mr. Mukesh Bihari Lal, learned counsel appearing for the respondent, Smt. Sumitra Devi has submitted that though the proceeding has been initiated initially by Smt. Sumitra Devi in W.P.(S) No.1808/2006, which was disposed of by the Co-ordinate Bench in terms of order dated 03.12.2007, whereby this Hon'ble Court has directed the petitioner- Smt. Sumitra Devi to file a fresh representation giving details of her claims before the General Manager, Kusunda Area, M/s BCCL, Kusunda, Dhanbad. If such representation is filed, the said respondent shall consider and pass appropriate order in accordance with law within a period of six weeks from the date of receipt of such representation. If the petitioner- Smt. Sumitra Devi is found entitled for the claim(s) made by her, the consequential order regarding her posting must be passed within a period of four weeks thereafter the monetary benefit(s), found payable to the petitioner-Smt. Sumitra Devi, shall also be paid to her with admissible statutory interest within the said period.

After disposal of the writ petition, the petitioner- Smt. Sumitra Devi filed representation along with order dated 03.12.2007 passed in W.P.(S) No.1808/2006 before the authorities. In response the authorities vide letter under Reference No. A.6/DCPM/08/972 dated 23.05.2008 passed the order under the signature of Deputy Chief Personnel Manager, Kusunda Area with direction, which is quoted hereunder:-

IN THE COURT OF THE PRESIDING OFFICER, LABOUR COURT, DHANBAD

M.J. 20/2011

Office of the Chief General Manager Kusunda Area.

Ref. No. A.6/DCPM/08/972                                           Dt. 23.05.08.
                               OFFICE ORDER

In compliance of the order of Hon'ble Jharkhand High Court, Ranchi dated 3.12.2007 in the matter of W.P. (S) 1808 / 2006 , Smt. Sumitra Devi , w/o Late Amrit Mallah, Ex Shale Picker, East Busserya Colliery is allowed monetary compensation @ Rs. 3000/- per month w.e.f.

01.05.08, till she attains the age of 60 years.

The appointment letter earlier issued by Dy. PM (MP & R), Koyla Bhawan vide letter No. BCCL/PA-VI/3/13/V1/44/91/26847-50 dt. 27.8/3.9.91 in favour of Smt. Sumitra Devi is hereby withdrawn.

The claimant Smt. Sumitra Devi being an illiterate one and claimed her age as 36 years in 1989, 1990 & 1991, also as per papers available in the records, in such situation the actual age of the claimant Smt. Sumitra Devi may be assessed by the Apex Medical Board.

In terms of I I 76 of NCWA also the age of an illiterate person/ employee may be assessed through a medical Board. Hence Smt. Sumitra Devi is directed to get her age assessed through the Apex Medical Board.

DY. CHIEF PERSONNEL MANAGER KUSUNDA AREA.

Distribution :-

1. Person concerned.

2. Project Officer, East Busserya Colly:- Please ensure all formalities in the prescribed proforma as in practice.

3. PM, East Busserya : For appropriate steps for sending the concerned Smt. Sumitra Devi before the Apex Medical Board for assessment of her age.

4. PM (Estd.), K/ Area; For inf. & n. a.

5. AFM , Kusunda Area :- do

6. PM (MP & R), Koyla Bhawan.

7. HOD (Legal), K/Bhawan.

In compliance of order dated 23.05.08, the respondent- Smt. Sumitra Devi, W/o late Amrit Mallah, Ex Shale Picker, East Busserya Colliery is allowed monetary compensation @ Rs.3,000/- per month w.e.f. 01.05.2008 till she attains the age of 60 years. The appointment letter issued by Deputy PM (MP and R), Koyla Bhawan vide Letter No. BCCL/PA-VI/3/13/VI/44/91/26847-50 dated 27.8/3.9.91 in favour of Smt. Sumitra Devi, was withdrawn.

The respondent- Smt. Sumitra Devi, being an illiterate widow lady, claimed her age to be 36 years in the year 1989, 1990 & 91, also as per papers available in the records, in such situation the actual age of respondent - Smt.

Sumitra Devi may be assessed by the Apex Medical Board. In terms of II 76 of NCWA also the age of an illiterate person / employee may be assessed through a Medical Board. Hence, Smt. Sumitra Devi was directed to get her age assessed through the Apex Medical Board.

Learned counsel for the respondent, Mr. M.B. Lal has further submitted that even there was no reason for the petitioner-BCCL to withheld the monetary benefit of Smt. Sumitra Devi, w.e.f., 01.08.1991 till 30.04.2008 when they have accepted such things in their letter as referred above dated 23.05.2008.

Learned counsel for the respondent, Mr. M.B. Lal has further submitted that there is no intention on the part of the respondent-Smt. Sumitra Devi, to suppress any fact nor the facts have been suppressed before the learned Labour Court, which is apparent. So much hue and cry has been made by the BCCL for filing of W.P.(S) No.1340/2009, which has been brought on record by the BCCL itself by way of supplementary affidavit dated 01.07.2019 and it was only when M.J. Case No.20/2011 was pending before the learned Labour Court at Dhanbad, as such, no prejudice has been caused to the BCCL because of filing of such writ petition before this Hon'ble Court rather it is BCCL, who is indulged in multiplicity of the suit, instead of looking into the welfare scheme of widow of an ex-employee, who lost his life in the harness, the delay has been caused unnecessarily for which cost may be awarded.

Learned counsel for the respondent, Mr. M.B. Lal has further submitted that against the order dated 01.04.2019 passed in W.P.(S) No.1340/2009, the BCCL has preferred L.PA No. 281/2020 with abnormal delay just to delay the compliance of order passed by learned Single Judge, whereby the learned Single Judge has held in the order, which may profitably be quoted hereunder:-

"Heard counsels for the parties.

The petitioner has approached this Court for grant of monetary compensation in terms of the scheme of the Respondents. It is admitted position that husband of the petitioner had died in harness 22/23.03.1989. The application had been made for grant of Compassionate Appointment and that has been conceded vide order dated 27.08.1991 in favour of the petitioner. Subsequent incident had taken place and finally the order for appointment has been withdrawn. Monetary Compensation has been given with effect from 01.05.2008. The only controversy now involved is the date from the petitioners is entitled for Monetary Compensation. A circular dated 13/14.02.1995, has

been produced which covers the field. The relevant portion of the circular dated 13/14.02.1995 is quoted hereinbelow:-

"In this connection, it has now been decided in the CMD's meeting held on 8th February 1995 as under:-

(i) The above benefits will also be extended to the female dependents of Executives.

(ii) In case of female dependents of non-executives or Executive employees, who have already joined the services of the Coal Company and have served for a few years may also be allowed to opt for cash compensation if they so desire.

The guidelines for regulating the monetary compensation already circulate vide our letter No. CIL:C5B:MP:ECG:213A dated 12/19th December 1994 are reproduced below:-

(1) The payment of monthly basis will be made from the First day of the following month from which the application by the widow/female dependent was made for employment or each compensation.

(2) The payment of pension/cash compensation in lieu of employment will be made till the widow/female dependent reaches 60 years of age OR death OR remarriage whichever is earlier.

(3) The cash compensation amount will be paid by Money Order or through a Bank Draft to the place of settlement of the dependent without deducting charges for money order or bank draft."

(Emphasis Supplied) Thus, the law is clear that the widow of deceased employee will get the Monetary Compensation from the date of the application made for Compassionate Appointment.

In view of above facts and the scheme, the present writ petition is allowed and it is ordered that the petitioner will be entitled for Monetary Compensation with effect from 27.08.1991.

The petitioner is directed to file a detail representation before General Manager, Kusunda Area, M/s BCCL, Dist.-Dhanbad (Respondent No. 5) within four weeks from today and authorities are directed to release Monetary Compensation to the petitioner within twelve weeks thereafter."

Learned counsel for the respondent, Mr. M.B. Lal has thus submitted that instead of complying the Circular issued in compliance of the National Coal Wage Agreement, the BCCL is unnecessary lingering the matter, though the compensation has to be paid along with interest as interest is applicable in view of Section 2 of the Interest Act, 1978. Section 2 of the Interest Act, 1978 may profitably be quoted hereunder:-

2. Definition. - In this Act, unless the context otherwise requires.-

(a) "court" includes a Tribunal and an arbitrator.

(b) "current rate of interest" means the highest of the maximum rates at which interest may be paid on different classes of deposits (other than those maintained in savings account or those maintained by charitable or religious institutions) by different classes of scheduled banks in accordance with the directions given or issued to banking companies generally by the Reserve Bank of India under the Banking Regulation Act, 1949 (10 of 1949).

Learned counsel for the respondent thus submitted that interest is payable in view of judgment passed by the Apex Court in the case of Thazhathe Purayil Sarabi and others vs. Union of India and another, reported in 2009(7) SCC 372. Para-38 of the aforesaid judgment is profitably quoted hereunder:-

"38. As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period in which the same could have been made available to the claimants. In our view, both the Tribunal, as also the High Court, were wrong in not granting any interest whatsoever to the appellants, except by way of a default clause, which is contrary to the established principles relating to payment of interest on money claims."

Learned counsel for the respondent Mr. M.B. Lal has thus submitted that admittedly the facts which is not disputed by the BCCL is like that:

The husband of the respondent Amrit Mallah was an employee of East Busseria Colliery of M/s Bharat Coking Coal Limited and while in service, he died on 22.03.1989. After death of Amrit Mallah, the respondent-Smt. Sumitra Devi applied for compassionate appointment, which was approved by the Management of M/s Bharat Coking Coal Limited vide Letter No. B.C.C.L. / PA- IV/3/13/IV/44/91 dated 27.08.91 subject to medical fitness and proper identification of the respondent Smt. Sumitra Devi.

After adjudication of Succession Case No.99/1994 and Misc. Case No.18/1997, the final succession was granted in favour of respondent Smt. Sumitra Devi, by the learned Additional District Judge, Dhanbad in Misc. Appeal No.60/2003. Thus, the respondent Smt. Sumitra Devi was declared by competent

Court of law being the heir of late Amrit Mallah. Thereafter, Smt. Sumitra Devipreferred writ petition before this Court vide W.P.(S) No.1808/2006, which was disposed of in terms of order dated 03.12.2007 with a direction to the General Manager, Kusunda Area, BCCL to consider the claim and pass appropriate order in accordance with law within a period six weeks from the date of receipt of representation along with admissible statutory interest, but they have not complied the order within six weeks, subsequently they have complied the same partly on 23.05.2008 under Reference No.A.6/DCPM/08/972 issued by Deputy Chief Personnel Manager, Kusunda Area. Thereafter, the respondent

-Smt. Sumitra Devi has preferred another writ petition before this Court vide W.P. (S) No.1340/2009 for the same relief and thereafter respondent-Smt. Sumitra Devi has also preferred an application under Section 33-C(2) of the Industrial Disputes Act, 1947 for the same relief, though the learned Labour Court decided the issue in terms of the award dated 10.07.2014 which was passed in M.J. Case No.20/2011 and after hearing both the the parties the Labour Court decided the issue in terms of award dated 10.07.2014 directing the B.C.C.L to give the monetary benefit to the applicant as provided under Clause 9.5.0. of NCWA w.e.f. 01.08.1991 till 30.04.2008 as per prescribed rule within 60 days from passing of the order, failing which the opposite party will be also liable to pay the said amount along with simple interest @ 12% per annum from the expiry of the said date till the date of actual payment.

(emphasis supplied)

Learned counsel for the respondent, Mr. M.B. Lal has further submitted that though no counter claim has been filed by respondent -Smt. Sumitra Devi nor any appeal has been preferred for enhancement of such award, but interest ought to have been granted as per the prevalent rate of interest on the amount due in view of the judgment passed by the Apex Court in the case of Thazhathe Purayil Sarabi and others (supra). Since the amount is to be paid w.e.f., 01.08.1991 till 30.04.2008, which was a period of not less than 17 years approximately for which interest ought to have been paid. This Court sitting under Article 226 of the Constitution of India being a Court of equity may consider the same and grant interest in favour of respondent-Smt. Sumitra Devi on the aforesaid amount in view of the Interest Act, 1978 and also in view of the judgment passed by the Apex court in the case of Thazhathe Purayil Sarabi and others (supra).

Learned counsel for the petitioner Mr. Anoop Kumar Mehta has submitted that as per the internal calculation of the BCCL, the amount due to respondent-Smt. Sumitra Devi is to the tune of Rs.5 lacs for the period from 01.08.1991 till 30.04.2008. As per the counsel for the respondent, Mr. M.B. Lal, this amount is Rs.5,44,000/-.

From perusal of Section 33-C(3) of the Industrial Disputes Act, 1947, it appears that for computing the money value of the benefit, the learned Labour Court, if it so think fit appoint a Commissioner, who shall after taking such evidence as may be necessary submit a report to learned Labour Court. The learned Labour Court shall award the compensation considering the report of the Commissioner and other circumstances of the case.

It appears that by the impugned order the learned Labour Court has not considered computation, rather has allowed the application by granting benefit of monetary compensation under Clause 9.5.0. of NCWA w.e.f. 01.08.1991 till 30.04.2008. Since the consensus computation is Rs. 5 lacs, which is admitted by both the parties as such, there is no dispute with regard to Rs.5 lacs.

So far Rs.44,000/- is concerned, which is claimed by respondent -Smt. Sumitra Devi, this Court will consider at the end of passing the judgment by this Court.

After hearing learned counsel for the parties, it appears that admitted fact is that Smt. Sumitra Devi W/o Workman Amrit Mallah, who was employee of East Busseria Colliery of M/s BCCL while in service died on 22.03.1989. Respondent was initially provided a compassionate appointment, subsequently she was granted monetary benefit in lieu of compassionate appointment, but admittedly the monetary benefit under NCWA was not paid to Smt. Sumitra Devi from 01.08.1991 to 30.04.2008, but Smt. Sumitra Devi was given monetary benefit since 01.05.2008. There is no dispute that writ petition has been filed by Smt. Sumitra Devi initially before this High Court vide W.P.(S) No.1808/2006, which was disposed of on 03.12.2007 and pursuant thereto the officers have acted by issuing office order dated 23.05.2008. Subsequently Smt. Sumitra Devi has preferred W.P.(S) No.1340/2009 and during pendency of the petition, Smt. Sumitra Devi has also preferred application under Section 33-C(2) of the Industrial Disputes Act, 1947 before the learned Presiding Officer, Labour Court, Dhanbad, which was instituted as M.J. Case No.20/2011, which was disposed on

10.07.2014 whereas the writ petition, which was pending before this Court vide W.P.(S) No.1340/2009 has been disposed of after long time on 01.04.2019. From perusal of these documents, it does not appear to this Court that there is any conflicting finding recorded by any court, as Smt. Simitra Devi W/o ex-employee Amrit Mallah was entitled for monetary compensation under the NCWA and as such, if all the orders of the High Court in W.P.(S) No.1808/2006 disposed on 03.12.2007, W.P.(S) No.1340/2009, disposed on 01.04.2019 and in Labour Court in M.J. Case No.20/2011 disposed of on 10.07.2014 are in harmony and there is no conflict in the order, which could have caused any prejudice to the BCCL, rather it appears that BCCL is unnecessarily compelling the widow Smt. Sumitra Devi to prefer one writ petition after another and take recourse of other legal remedy available to Sumitra Devi. Not only this, the BCCL has also preferred L.P.A. No. 281/2020 with long delay against the order dated 01.04.2019 passed in W.P.(S) No.1340/2009.

Accordingly, this Court finds that the writ petition preferred by the BCCL is itself a frivolous litigation initiated by the BCCL, as such, the writ petition is dismissed being devoid of merit.

Before parting with the judgment, it appears that once the BCCL has admitted the dues to be Rs.5,00,000/-, which is controverted by the respondent - Smt. Sumitra Devi to be Rs.5,44,000/-, it would be proper to pay Rs.5,00,000/- to Smt. Sumitra Devi with statutory interest in view of Section 2(b) of Interest Act, 1978 and in view of the judgement passed by the Apex Court in the case of Thazhathe Purayil Sarabi and others (supra) from the date due for payment of the aforesaid amount.

So far, exact computation of compensation is concerned, the respondent is at liberty to file an application before the BCCL within 30 days from today. The BCCL may consider the same by appointing any Commissioner. This Court grants liberty to the BCCL to appoint his own Finance Area Manager, who shall consider the detail representation of the respondent -Smt. Sumitra Devi in redressing her grievances. It is heart feeling incident for this Court to consider that an ex- employee, who lost his life in the year 1989 is not getting financial benefits under the NCWA by the BCCL.

Under the aforesaid circumstances, without passing any remarks upon the BCCL, this Court wants the BCCL to be very careful and diligent in deciding such issue in future.

Accordingly, the instant writ petition is hereby dismissed. The aforesaid monetary compensation along with interest shall be paid by the BCCL within 30 days from the date of receipt of the order along with the claim filed by the respondent - Smt. Sumitra Devi.

(Kailash Prasad Deo, J.) Jay/Tarun