Jharkhand High Court
Central Coalfields Limited vs Tirath Mahto on 27 January, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
LPA No. 275 of 2017
(Against the order dated 10th March 2017, passed by the learned Single Judge of
this Court in WP(S) No. 5775 of 2016)
------
Central Coalfields Limited, a Company incorporated under the Companies
Act, having its registered Office at Darbhanga House, PO Ranchi University,
PS Kotwali, District Ranchi (Jharkhand), through its General Manager
(Administration) Sri Gopal Prasad, son of Late Basudeo Prasad, resident of
Jawahar Nagar, PO Jawahar Nagar, PS Gonda, District Ranchi, PIN 834 008
(Jharkhand) ... ... Respondent No.1/Appellant
Versus
1. Tirath Mahto, son of Ghanua Mahto, resident of village-Kuju Colliery, PO
Kuju, PS Mandu, District Ramgarh (Jharkhand)
... .... Writ Petitioner/Respondent
2. The Director (Personnel), Central Coalfields Limited, Darbhanga House,
PO Ranchi University, PS Kotwali, District-Ranchi (Jharkhand)
3. The Senior Manager (Personnel), Kuju Colliery, Central Coalfields
Limited, having its Office at Kuju Colliery, PO Kuju, PS Mandu,
District -Ramgarh (Jharkhand)
4. The Manager (P/MP), Kuju Colliery, Central Coalfields Limited, having
its Office at Kuju Colliery, PO Kuju, PS Mandu, District-Ramgarh
(Jharkhand)
5. The Project Officer, Kuju Colliery, Central Coalfields Limited, having its
Office at Kuju Colliery, PO Kuju, PS Mandu, District Ramgarh (Jharkhand)
... .... Respondents/Proforma Respondents
(Through V.C.)
-------
CORAM:HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
------
For the Appellant : Mr. A.K. Das, Advocate
For the Respondents : Mr. Mahesh Tewari, Advocate;
Mr. Nehru Mahto, Advocate
------
th
Order No. 09/ Dated: 27 January 2022
Per, Shree Chandrashekhar, J.
M/s. Central Coalfields Limited is in appeal against the order
dated 10th March 2017 passed by the learned Single Judge of this Court in
WP(S) No. 5775 of 2016.
2. In WP(S) No. 5775 of 2016, the learned Single Judge held that
age of the writ petitioner mentioned in the Service Sheet excerpts of his
father cannot be considered to be full proof for judging the age. The learned
2 LPA No. 275 of 2017
Single Judge further held that the claim of the writ petitioner for
compassionate appointment cannot be denied because there is always a
possibility of error of ''two years plus/minus''.
3. Tirath Mahto who is the writ petitioner (hereinafter referred to as
"the respondent") made an application for compassionate appointment on
15th July 2014 before the Project Officer, Kuju Colliery. His father Ghanua
Mahto was appointed on 29th October 1979 and employed as Pump Khalasi
Cat-II in Kuju Colliery, Kuju Area. He had died on 22nd May 2014 while in
service under M/s. Central Coalfields Limited (hereinafter referred to as
'CCL') and after his death the mother of the respondent who was not keeping
good health nominated him for employment under Clause 9.3.0 of National
Coal Wage Agreement (hereinafter referred to as 'NCWA'). His application
was processed by CCL and he was directed by the Deputy Manager
(Personnel), Kuju Area vide letter dated 19th January 2016 to appear before
the Medical Board, Gandhi Nagar Hospital, Ranchi for age assessment. On
the basis of the radiological and physical examination of the respondent by a
Medical Board consisting of six doctors, the age of the respondent was
assessed between 35-40 years as on 20th January 2016, that is, the date of his
examination by the Medical Board, and vide letter dated 25th April 2016 the
Manager (P/MP) informed the staff officer (P&A), Kuju Area that claim of
Tirath Mahto for compassionate appointment was rejected because he had
crossed the age of 35 years as on 2nd September 2014.
4. Before the writ Court, the respondent placed reliance on his
Aadhaar Card and the School Transfer Certificate which record the date of
his birth on 16th June 1986, and a reference was made to a declaration by him
in the affidavit dated 24th August 2015 to the effect that he was born on
16th June 1986. The orders passed in LPA No. 117 of 2010 and WP(S)
No. 7576 of 2006 were also pressed before the writ Court on behalf of the
respondent.
5. The stand taken by CCL was that on the basis of the Service
Sheet excerpts, LTC and Form-A as well as PS-3 which were filled up on
different dates at the instance of the father of the respondent the date of birth
of the respondent was arrived at 20th July 1978 as per the company's
prevalent norms and procedure, and his having already crossed the maximum
3 LPA No. 275 of 2017
age limit for appointment as on the date of the application for compassionate
appointment his claim was rejected.
6. The learned writ Court in WP(S) No. 5775 of 2016 has held as
under:
"5. Having gone through the rival submissions of the parties, this
Court is of the considered view that the case of the petitioner
deserves reconsideration for appointment on compassionate
ground. The respondents are relying on the assessment of the
Medical Board and that of the age mentioned in the service
excerpts, cannot be considered to be full proof entered into realm of
judging the age of applicant. In my considered opinion, it is not
possible to arrive at a conclusion of definite nature when age can
be considered by the nature which is required to be established.
There is always possibility of error of two years plus/minus. In that
view of the matter, the claim of the petitioner cannot be denied for
appointment on compassionate ground. From the records of the
case, I find that different age of the petitioner at the instance of his
father was recorded at different point of time which itself suggest
that age recorded in the document of the employer must not have
been based on any document showing age of the petitioner, rather
whatever would have been disclosed by the father of the petitioner,
an illiterate person that was recorded in those documents and,
therefore, entry made in those documents relating to age of the
petitioner cannot be taken to be conclusive proof. In that event and
also keeping in view the fact that the determination of age by the
Medical Board was between 35-40 years on 20.01.2016. It is
settled principle of law that in case of determination of the age by
the Medical Board the minimum age is to be taken into
consideration not the maximum age. Therefore, fact remains that
on the date of making application the petitioner was 35 years of
age and therefore the case of the petitioner ought not to have been
rejected on the ground of radiological examination that his age was
assessed to be more than 35 years."
7. The impugned communication dated 25th April 2016 which was
appended at Annexure-10 in the paper book of the writ petition was quashed
by the learned writ Court and a direction was issued to CCL to consider the
case of the writ petitioner for appointment on compassionate ground within a
period of six weeks.
8. By the order dated 21st March 2018, the aforesaid direction
issued by the writ Court has been stayed by the Division Bench.
9. The present appeal is premised on two grounds: (i) in a writ
proceeding determination of the age of an applicant by the employer cannot
be challenged, and (ii) entries made in the Service Sheet excerpts of an
employee are normally taken as true and unless it is established by producing
indisputable document that the entries made therein were not correct, the writ
Court would accept the same binding on the parties.
4 LPA No. 275 of 2017
10. At the outset we may indicate that every claim for
compassionate appointment must be examined within four corners of the
scheme/ rules framed for compassionate appointment. Such appointments
made under the scheme/ rules do not strictly conform to the requirements of
equality clauses in the Constitution of India and, therefore, the Courts cannot
modify the scheme/ rules to the benefit of an applicant. Framing of the
scheme/ rules for compassionate appointment by the employer is in
recognition of the past services rendered by an employee whose sudden death
while in service has brought sudden crisis in the family.
11. In "Umesh Kumar Nagpal v. State of Haryana" (1994) 4 SCC
138 the Hon'ble Supreme Court has observed as under:
"2......The whole object of granting compassionate employment is
thus to enable the family to tide over the sudden crisis. The object
is not to give a member of such family a post much less a post for
post held by the deceased. What is further, mere death of an
employee in harness does not entitle his family to such source of
livelihood. The Government or the public authority concerned has
to examine the financial condition of the family of the deceased,
and it is only if it is satisfied, that but for the provision of
employment, the family will not be able to meet the crisis that a job
is to be offered to the eligible member of the family. The posts in
Classes III and IV are the lowest posts in non-manual and manual
categories and hence they alone can be offered on compassionate
grounds, the object being to relieve the family, of the financial
destitution and to help it get over the emergency. The provision of
employment in such lowest posts by making an exception to the rule
is justifiable and valid since it is not discriminatory. The favourable
treatment given to such dependant of the deceased employee in
such posts has a rational nexus with the object sought to be
achieved, viz., relief against destitution. No other posts are
expected or required to be given by the public authorities for the
purpose. It must be remembered in this connection that as against
the destitute family of the deceased there are millions of other
families which are equally, if not more destitute. The exception to
the rule made in favour of the family of the deceased employee is in
consideration of the services rendered by him and the legitimate
expectations, and the change in the status and affairs, of the family
engendered by the erstwhile employment which are suddenly
upturned."
12. The procedure for appointment of the dependant of an employee
who dies in harness while working under CCL has been laid down under
Clause 9.3.4 of NCWA, which came into existence pursuant to an agreement
between the Central Government, Coal Companies and Union of the
employees. In "Mohan Mahto v. Central Coalfields Limited & others"
(2007) 8 SCC 549, the Hon'ble Supreme Court has held that the agreement
5 LPA No. 275 of 2017
under NCWA is binding on the parties and the same has attained statutory
force.
13. Different clauses under paragraph No. 9.3.0 of NCWA-VI read
as under:
"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 dependant on the
earnings of the deceased may be considered to be the dependant 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."
14. As we read from the aforesaid, under Clause 9.3.4 the age of the
dependant of a deceased employee should not be more than 35 years. Clause
9.5.0 provides that the female spouse should not have crossed the age of 45
years whereas no age limit is provided for employment of a male spouse.
15. Mr. Mahesh Tewari, the learned counsel for the respondent, has
referred to an order passed in LPA No. 307 of 2018 to submit that rejection of
the claim of the respondent was unsustainable because CCL held him
ineligible as on the date of application whereas in view of the order passed in
LPA No. 307 of 2018 the respondent's eligibility should have been considered
as on the date of death of his father.
16. We are informed that by an order dated 23rd August 2021,
Special Leave to Appeal (C) No. 12648 of 2021 challenging the order passed
in LPA No. 307 of 2018 was dismissed by the Hon'ble Supreme Court.
17. The order dated 23rd August 2021 in Special Leave to Appeal (C)
No. 12648 of 2021 passed by the Hon'ble Supreme Court reads as under:
"UPON hearing the counsel the Court made the following
ORDER
We do not find any ground to interfere with the impugned
order. The Special Leave Petition is dismissed.
Pending application(s) shall stand disposed of.
However, the question of law is left open."
18. Mr. A.K. Das, the learned counsel for the appellant, has
controverted that the issue decided in LPA No. 307 of 2018 was similar to the
issue raised by CCL in the present appeal. The learned counsel would submit
that there was no dispute as regards date of birth of the applicant/dependant
in the said case whereas, in the present case, the documents produced before
the writ Court disclosed that there were wide variations in the age of the
respondent recorded in different documents.
19. LPA No. 307 of 2018 arose from an order passed by one of us
(Shree Chandrashekhar, J.) in WP(S) No. 1264 of 2011 wherein the writ
Court was engaged with the issue regarding the initial point for calculating
the age of an applicant - whether it should be the date of death of the
employee or the date of application for compassionate appointment. The
writ Court observed as under:
"5. In "Mohan Mahto Vrs. Central Coal Field Ltd. And
Others" reported in (2007) 8 SCC 549, it has been held that
National Coal Wage Agreement, which is culmination of an
agreement between the Central Government, Coal Companies and
the Union is binding on the parties and it has attained statutory
force. Clause 9.3.4 provides that a claimant should not have
crossed the age of 35 years and as rightly contended by the learned
counsel for the petitioner it does not provide that as on the date of
application the claimant should not have attained the age of 35
years. The petitioner had not attained the age of 35 years on
21.01.2008, when his father died in harness. The service-excerpts
records age of the claimant as 14 years as on 01.04.1987. The
respondent-Central Coalfields Limited has issued instructions
whereunder an application can be submitted within 18 months of
the death of the deceased employee. It is not in dispute that for
compassionate appointment, a claimant is not required to undergo
the regular appointment exercise. Now if a claimant can submit an
application within 18 months and his age is reckoned as on the
date of the application, the whole object for providing
compassionate appointment may be frustrated. Present is a case of
such nature. The claimant who was within the prescribed age limit
when his father died on 21.01.2008, has been denied
compassionate appointment on the ground that he had crossed the
age of 35 years as on date of application. The application was
submitted more than 05 months after the death of the employee. In
a matter of this nature in which each day counts, such a flaw in the
procedure adopted by the respondents has rendered the letter dated
17.01.2011 whereby the petitioner was communicated decision of
the competent authority declining compassionate appointment to
her son, unsustainable. The procedure adopted by the respondent-
Central Coalfields Limited is faulty and it cannot be countenanced
in law. Order contained in the impugned letter dated 17.01.2011
suffers from serious infirmity."
20. In LPA No. 307 of 2018, a Division Bench of this Court has held
as under:
"11. Apart from the above, let it be noted that the agreement is
definitely having a statutory fervor as it is either under Section
18(1) or Section 18(3) of the Industrial Disputes Act and it is a
benevolent or beneficial provision. In such a case, there could be
another method of reading the terms and conditions of the
concerned agreement, in particular, when Clause 9.3.4 does not
disclose that actually what would be the date on which the age
should be considered rather it simply says that on the date of death
of the employee, employment has to be offered to the person who
has not crossed the age of 35 years. In such a situation, it can also
be read that in case the applicant was minor on the date of death of
the employee but had attained majority within the period of 18
months, i.e., the period of limitation, such benefit would have to be
given to him for making an application for employment under the
compassionate ground but in case such person was 35 years of age
or less than 35 years of age on the date of death of the employee
then even if he had crossed the age barrier of 35 years on the date
of application but of 35 years or less in age on the date when the
period of limitation of 18 months commenced on account of death
of worker, in such case the benefit would again have to be given to
him. Any other interpretation of the aforesaid provision of the
National Coal Wage Agreement being a beneficial provision having
statutory fervor, would negate its very object. A reference in this
regard is made to the decision of the Hon'ble Apex Court in
National Textile Workers' Union etc. Vs. P.R. Ramakrishnan and
others (AIR 1983 SC 75) wherein the Hon'ble Apex Court has been
pleased to lay down the ratio to the effect that the benevolent
provisions should be construed taking into consideration the
dominant purpose of the Statute, intention of Legislature and
underlying policy. In another judgment rendered in Madan Singh
Shekhawat Vs. Union of India and others [(1999)6 SCC 459] the
Hon'ble Apex Court has held that it would be the duty of the Court
to interpret the provision, especially a beneficial provision,
liberally so as to give it a wider meaning rather than a restrictive
meaning which would negate the very object of the rule.
It is not in dispute that the relevant provision under the
agreement known as 'National Coal Wage Agreement' is for the
benefit and welfare of the dependant of the workman and the
agreement itself is under Section 18(1) of the Industrial Disputes
Act. The compassionate appointment in compliance of the
provisions of the National Coal Wage Agreement would be different
from offering compassionate appointments in the Government
offices or public sector undertakings on the basis of executive
instructions because it is a byproduct of a settlement between the
parties binding the parties for the terms thereof and has statutory
fervor. In such a situation, when the goal is benevolent, when the
provision is beneficial, any other interpretation would destroy the
very foundation of such provision."
21. The age of the respondent was recorded 9 years in the Service
Sheet excerpts of his father. This entry was made on 5 th April 1987. In LTC
Form-A, the respondent was shown aged about 33 years as on 4 th August
2011 and the entry in PS-3 records his age 20 years as on 6 th August 1998.
On the basis of the aforesaid entries in the Service Sheet excerpts, LTC
Form-A as well as PS-3 which also indicate that he was born in the year
1978, the date of birth of the respondent was fixed on 1st April 1978.
22. The aforesaid entries made in the service records of Late Ghanua
Mahto were not challenged by the respondent. However, the respondent
produced a copy of Aadhaar Card and School Transfer Certificate to take a
stand that his date of birth was 16th June 1986 and not 1st April 1978 as
assessed by CCL. The learned writ Court held that the different documents
regarding date of birth/age of the respondent were prepared at different point
in time at the instance of his father but disclose different dates of birth/age of
the respondent and, therefore, the same cannot be accepted as conclusive
proof as regards age of the respondent.
23. We are unable to support the aforesaid findings recorded by the
learned Single Judge. The age of the respondent was assessed by CCL in
terms of the procedure which was uniformly applied by it in every case. In a
writ proceeding it is not open to the High Court to rewrite the terms of
policy and prescribe a new yardstick. The father of the writ petitioner died on
25th May 2014 and a representation for appointment on compassionate
ground was made on 2nd September 2014. The age of the petitioner was
assessed more than 36 years as on 2nd September 2014 and even taking the
date of death of his father as the initial point for calculating the outer age the
respondent by that time had crossed the age of 35 years and was thus
rendered ineligible for appointment under CCL. A wholly unmerited claim of
the respondent was taken up by the writ Court and the impugned directions
were issued for compassionate appointment.
24. In "State of M.P. v. Amit Shrivas" (2020) 10 SCC 496 the
Hon'ble Supreme Court has observed thus:
"16. It is trite to say that there cannot be any inherent right to
compassionate appointment but rather, it is a right based on
certain criteria, especially to provide succour to a needy family.
This has to be in terms of the applicable policy as existing on the
date of demise, unless a subsequent policy is made applicable
retrospectively..."
25. On age determination of the respondent by the Medical Board,
the learned Single Judge held that in case of determination of age by the
Medical Board the minimum age is to be taken into consideration and not the
maximum age. The learned Single Judge further held that on the date of
application the writ petitioner was 35 years of age and therefore on the basis
of radiological examination which disclosed his age more than 35 years his
claim for compassionate appointment ought not have to be rejected.
26. We may indicate that M/s. Coal India Limited has laid down
procedure for determination of age on the basis of recommendation of the
Age Assessment Committee as contained in letter dated 7 th July 1992 which
reads as under:
"Coal India Limited
"Coal Bhawan"
10 Netaji Subhas Road,
Calcutta- 700001.
No.- CIL/C-5B/MP/ADVA/2704 dated 7-7-1992.
To,
1) Director (Personnel), ECL/BCCL/CCL/WCL/SECL
2) Director-in-Charge, MCL.
3) Chief General Manager (P), NCL.
4) Chief General Manager, NEC/ Dankuni Coal Complex.
Dear Sir,
During the course of discussion held in 51st meeting of the
Directors (P) on 21 06.1992 at CIL, Calcutta, the issue regarding age
determination on the basis of the age range recommended by the Age
Assessment Committees on the basis of medical jurisprudence was
discussed and the following guidelines were evolved.
a) Where no age is recorded in respect of any employees in any
statutory records, and the Medical Board/Age Assessment Committee
decide an age range, the mid-point of the age range so recommended
be taken as the age of the concerned employees.
For instance, if the range decided is 50 and 55, the age of the
employee concerned will be 52 years 6 months.
b) Where there is variation of age in the various statutory records, the
nearest point of the age range as recorded in Form-B register will be
accepted as the age of the employee concerned.
Example :-
Form-B Age recorded in Age range fixed by Age to be
other statutory the Medical Board fixed.
records
You are requested to decide all pending cases on the above lines.
Cases already settled need not be re-opened.
Yours faithfully,
Sd/-
General Manager (Personnel)
Calcutta"
27. In the above context, the learned counsel for the respondent has
referred to the order passed in LPA No. 687 of 2019 wherein the Hon'ble
Division Bench has held as under:
"Even accepting the contention of the respondent CCL that
there was requirement to constitute a Medical Board and
admittedly the Medical Board has assessed the age of the writ
petitioner in between 35 to 40 years and respondent authorities
have considered the writ petitioner to be the age of 37½ years
taking the midpoint of five years but the question is why the
midpoint and not 35 years.
14. We have already referred hereinabove about the principle to
be followed in a case of beneficial legislation which is to be
interpreted liberally so as to give it a wider meaning than a
restrictive meaning which would indicate the very object of the
Rule and admittedly the Industrial Disputes Act, 1947 is a
beneficial legislation and as such, the provisions contained therein
may be construed taking the dominant purpose of the statute,
intention of the legislature and underlying policy.
We have also referred hereinabove that the NCWA is by way
of providing social security measures by entering into an
agreement with the Union under the provision of Section 18(1) of
the Industrial Disputes Act, 1947 and the same having the statutory
fervor, the object underlying therein is to be considered. The
foremost object of the said agreement is to act by way of providing
social security measures to the employees and its dependant for
which various provisions have been made to provide appointment
.......... ........ ......
The respondent CCL, however, failed to produce any
decision of the authority, in case of consideration of appointment
on compassionate ground, to take the midpoint of the age assessed
by the Medical Board as has been done in the instant case, rather
the document dated 07.07.1992 has been produced to assess the
age of an employee by taking the midpoint of the age as has been
assessed by the Medical Board but since it is not a case of an
employee rather the case of a candidate who is seeking
appointment on compassionate ground and, therefore, the said
circular will not be applicable in the case of the writ petitioner and
in that view of the matter, when the respondent authorities have
asked the writ petitioner to go for the medical examination wherein
the age of the writ petitioner has been assessed in between 35 to 40
years and taking the midpoint the age of the writ petitioner has
been assessed as 37½ years of age, cannot be said to be an action
to achieve the object and intent of the NCWA to provide social
security measures to the dependant of the deceased employee,
rather the approach of the respondent authorities ought to have
been to consider the age of the writ petitioner by taking its lower
point so that the object and intent of NCWA be achieved."
28. In the first place, CCL was not required to ask the respondent to
undergo fresh age assessment by the Medical Board. The dependants of the
deceased employees are provided opportunity for fresh assessment of their
age provided they were in possession of Aadhaar Card, Driving License,
Voter ID, Ration Card, School Leaving Certificate etc. under which their age
is recorded different from what were recorded in the service records of the
employees. This procedure was applicable only in cases where the service
records of the employee disclosed wide variation in the age of his
dependants. In the present case, we do not find any such irreconcilable
variation in the age of the respondent recorded in the service records of his
father. In all the forms/documents filled up at the instance of his father the
age of the respondent was almost the same.
29. Even then, the age of the respondent was assessed by the
Medical Board and in terms of the instructions contained in letter dated
7th July 1992 the employer assessed his age at 37 ½ years. There is wide
variation of more than 8 years in the date of birth of the respondent recorded
in Aadhaar Card and School Transfer Certificate compared to his age
recorded in the service records of his father, for which we do not see any
plausible explanation in the materials on record.
30. In the aforesaid circumstances, the order passed in LPA No. 687
of 2019 is of no avail to the respondent.
31. For the aforesaid reasons, the order dated 10th March 2017
passed in WP(S) No. 5775 of 2016 by the learned Single Judge is set-aside
and, consequently, the communication contained in letter dated 25 th April
2016 is approved.
32. LPA No. 275 of 2017 is allowed.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 27th January 2022
Sharda/SB-AFR
