Jharkhand High Court
Employers In Relation To ... vs Their Workman Being Represented ... on 12 December, 2022
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No.5041 of 2009
Employers in relation to Management of Bastacola Area
of M/s Bharat Coking Coal Limited, through Sri Paras
Nath Singh, Legal Manager, Koyla Bhawan, Dhanbad
...... Petitioner
Versus
Their Workman being represented by Joint General
Secretary, Janta Shramik Sangh, Ena Islampur, P.O.
Bhagatdih, Via - Jharia, district -Dhanbad
...... Respondent
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner : Mr A. K. Mehta, Advocate
For the Respondent : Mr. Ashutosh Anand, Advocate
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th
12/Dated: 12 December, 2022
1. Heard learned counsel for the petitioner-management
and learned counsel for the respondent-workman.
2. The present writ petition has been filed by the
management for quashing the Award dated 20.04.2009, passed
by the Presiding Officer, Central Government Industrial
Tribunal No.1, Dhanbad, in which the reference being
Reference No.216 of 2001 has been answered in favour of the
workman directing the management to provide employment to
Smt. Barni Devi, widow of deceased workman namely, Late
Sharat Chandra Rajwar, w.e.f January, 1994 with all arrears of
wages.
3. The undisputed fact of the case is that the concerned
workman, who was working on the post of Store-keeper, has
died in harness on 07.02.1993. After his death, the application
for compassionate appointment was made by the widow
namely, Barni Devi on 13.12.1994. The said application for the
compassionate was rejected by the petitioner-management on
10.06.2000 on the ground that the applicant is the second wife
of the deceased workman and as such she is not entitled for
compassionate appointment. On receiving such rejection order,
the industrial dispute has been raised which ultimately has
been referred for adjudication by reference dated 24.09.2001.
The terms of reference reads as under :-
"Whether the demand of Janta Shramik Sangh for
employment on compassionate ground of the second
wife Smt. Barni Devi widow of the Ex- Store Keeper,
deceased workman, Late Sharat Chandra Rajwar of
Alakdiha Coal Dump, Bastacolla Area of M/s BCCL is
legally correct and justified ? If so, to what relief, the
applicant is entitled ?"
It appears that the Tribunal after considering the
evidence brought on record and the argument advanced by the
parties, has found that the rejection of the claim for
compassionate appointment was wrong and accordingly the
Award has been passed for providing compassionate
appointment w.e.f. January, 1994 with all arrear of wages. The
operating portion of the Award dated 20.04.2009 reads as
under:-
" -----------------------
2. ------------------
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10. Accordingly, I render the following award -
The demand of Janta Shramik Sangh for
employment on compassionate ground of the second
wife, Smt. Barni Devi, widow of the Ex-storekeeper
deceased workman, Late Sharat Chandra Rajwar of
Alakdiha Coal Dump, Bastacolla Area of M/s. B.C.C.L.
Is legally correct and justified. Hence, Smt. Barni
Devi, widow wife of deceased workman, late Sharat
Chandra Rajwar, is entitled for employment with
effect from January, 1994 with all arrear of wages.
The management is directed to provide employment
to Smt. Barni Devi, widow wife of deceased
workman, Late Sharat Chandra Rajwar with effect
from January, 1994 with all arrear of wages within 30
days from the date of publication of the award.."
5. Argument has been advanced by the learned counsel for
the petitioner-management that the impugned Award is
nothing but reflection of non-application of judicial mind. Even
if the Tribunal has found that the rejection of the claim was
wrong then it had to apply the terms and conditions of the
scheme to give finding that the claimant was entitled for the
compassionate appointment as per the scheme. The law is
settled that the scheme is sacrosanct and only relief can be
granted under the four corners and parameters of the scheme
and not beyond that. In the present case, in order to come
under the zone of consideration, it was incumbent to record
the finding that the applicant was below the age of 45 years
and the marriage was otherwise legal. So far as the marriage
is concerned, the finding has been recorded by the Tribunal,
but no finding has been given with regard to the age of the
applicant.
It has further been submitted that as per the service
excerpts of the management, the age of the dependents of the
deceased workman were as follows :-
Relationship Name Date of birth Depende
as on 1.4.87 nt or not
Wife Smt. Barni Devi 40 years Dependent
Kumari
On the above basis, it has been submitted that on the
date of death, the applicant was beyond 45 years of age and as
such she was not covered under the scheme.
It has also been submitted that reinstatement and back
wages are the concept of dismissed employee or terminated
employee and not in the case of compassionate appointment.
No appointment can be given with retrospective effect and
that too with the back wages and seniority. This is against the
service jurisprudence.
6. On the other hand, learned counsel for the respondent-
workman has supported the Award and argument has been
advanced that there was no dispute so far as the age criteria is
concerned. The rejection of the claim was on the ground that
the applicant was the second wife of the deceased workman
and that issue has been settled by the Tribunal. Since no issue
has been raised with regard to the age and further she has
deposed as a witness that her age was 45 years as on 2001 and
as such the same has not been decided by the Tribunal. The
relevant portion of the deposition of the wife, who has deposed
as W.W.-1, reads as under :-
" -----------------------
------------------
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My husband had two wives and I was the second
one. The name of the first wife was Balika devi, who
died in the life time of my husband itself and only
after her death he solemnised marriage with me. She
died in the year 1968. Out of his first wife my
husband had two male issues and they both are alive,
and their respective age are 34 years and 29 years.
Out of his second wedlock my husband had two sons
and one daughter. The age of my two sons is 20 years
and 15 years respectively, and my daughter is aged
about 18 years, she is still unmarried. In this case the
documents have been filed to show that I am the wife
of deceased husband. It is not a fact that in the life
time of his first wife itself my husband had
solemnised marriage with me. The document has
been filed in this case regarding the date of death of
the first wife of my husband. It is not a fact that I am
not entitled for the employment as my husband had
two living wives prior to his death. It is wrong to say
that the demand raised by me is not justified."
On the above basis, it has been submitted that there was
evidence to suggest that she was below 45 years at the time of
death of his husband and as such she was entitled for the
employment.
It also appears that in the written statement of both the
parties there was no mention regarding the age of the
claimant.
Learned counsel for the respondent-workman has relied
upon the judgment of the Hon'ble Supreme Court reported in
(2018) 11 SCC 201 and referring to paragraph - 10 of the
said judgment, it has been submitted that the wife should be
given compensation and also the son of the lady must be
offered the compassionate appointment as has been held by
the Hon'ble Apex Court.
It has further been submitted that the Award is not with
regard to the reinstatement rather it is for the employment
from the date of death with all consequential benefits.
7. Having heard learned counsel for the parties and from
perusal of record, it appears that even if the deposition of the
wife of the deceased workman is taken into account, the
disclosure of dates does not appear to be rational. It does not
appear to be correct because as per her statement she got
married in the year 1970 and the first wife had died in the year
1968 while the age of the youngest son from the second wife
has been shown to be 29 years. Thus, the birth will not be
during the life period of marriage of second wife. Further, even
if her age is accepted as 45 years in the year 2001 then her
age during marriage will be 14 years. This fact also gets
contradicted from the age disclosure as made the deceased
workman in the service excerpts where the age of Smt. Barni
Devi has been shown as 40 years on 01.04.1987.
As per the scheme for providing compassionate
appointment to the female dependent, it is necessary
ingredients that she must be below 45 years of age and to
grant such relief it was incumbent upon the Tribunal to give
finding regarding the age. Merely because the order of
rejection is bad, it cannot be a ground for giving direction for
compassionate appointment. The claim of the applicant has to
be considered by the concerned adjudicating authority as per
the terms and conditions of the scheme and only after applying
the parameters, if the Tribunal finds that she is entitled then
only order can be passed.
In the present case, the age is the criteria which has
never been applied by the Tribunal. The age disclosed by the
claimant-wife is self contradictory which does not inspire
confidence.
So far as the judgment relied upon the learned counsel
for the respondent-workman is concerned in that case the facts
were not in dispute and accordingly considering the facts of
that case, the relief has been molded. Since in the present
case, the age has not been decided by the concerned Tribunal
and without deciding the age, the order for compassionate
appointment has been made, accordingly the impugned Award
is, hereby, set aside.
8. In view of the above discussions and for doing justice to
the parties, the matter is remitted back to the concerned
Tribunal for adjudication upon the age of the claimant-wife
after giving due notice and opportunity to both the parties.
The Tribunal is directed to take a decision within three
months from the date of receipt/ production of copy of this
order.
9. With the above observations and direction, the present
writ petition stands disposed of.
(Rajesh Kumar, J.)
Chandan/-
