Kunti Devi Aged About 52 Years vs Central Coal Field Limited (A ...
2022 Latest Caselaw 3666 Jhar

                                       [1]


            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 L.P.A. No.13 of 2020
        Kunti Devi aged about 52 years, Wife of Late Munna, Ex-Wagon Loader,
        Urimari Project Bokaro, Sayel Area, P.O.-Urimari, P.S.-Barkagao, Dist.-
        Hazaribagh, Pin no.825311.
                                                        ... ... Petitioner/Appellant
                                         Versus

     1. Central Coal Field Limited (A subsidiary of Coal India Ltd.) having its
        Registered office at Darbhanga House, Ranchi, through its Chairman-cum-
        Managing Director, Ranchi, P.O.-Ranchi, P.S.-Sadar, Dist.-Ranchi, Pin
        no.834001.

     2. Managing Director of C.C.L., Darbhanga House, Ranchi, P.O.-Ranchi,
        P.S.-Sadar, Dist.-Ranchi, Pin no. 834001.

     3. Director (A) Central Coal Field Limited, Darbhanga House, P.O.-Ranchi,
        P.S.-Sadar, Dist.-Ranchi, Pin no.834001.

     4. General Manager, Barka Sayel Area, C.C.L., P.O. & Dist.-Hazaribagh, Pin
        no.825311.

     5. Project Officer, Urimari Colliery, Barka Sayel Area, C.C.L., P.O. & Dist.-
        Hazaribagh, Pin no.825311.

                                                    ... ... Respondents/Respondents
                                          -------
        CORAM:              HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                                          -------
        For the Appellant           : Mrs. M. M. Pal, Senior Advocate
                                      Mrs. Mohini Gupta, Advocate
        For the Respondents         : Ms. Ranjana Mukherjee, Advocate
                            ----------------------------

        CAV on 08.09.2022                    Pronounced/Delivered on 13/09/2022

        Per Sujit Narayan Prasad, J.

1. This appeal under Clause 10 of the Letters Patent is directed against the

order/judgment dated 29.11.2019 passed by learned Single Judge of this

Court in W.P.(S) No. 6040 of 2018 whereby and whereunder, the claim of [2]

the writ petitioner for appointment on compassionate ground has been

rejected on the ground that the writ petitioner was not a regular employee

rather a casual worker.

2. At the outset, it requires to refer herein about the order dated 22.12.2021

passed by this Court on the basis of submission made on behalf of the

appellant to the effect that since the son of the appellant has already died

now there would be no question of appointment on compassionate ground,

therefore, this Court had confined the appeal to the issue of monetary

benefit only. The order dated 22.12.2021 is being reproduced as under:

"It is submitted on behalf of the appellant that since the son of the appellant has already died now there would be no question of appointment on compassionate ground, thus, this appeal would be confined to the issue of monetary benefit only.

........."

3. The brief facts as per the pleading which require to be enumerated herein

read as under:

The husband of the writ petitioner was appointed as Wagon

Loader of Sirka Colliery of M/s CCL and when the management has

deprived the benefit/facilities which her husband was entitled to, a dispute

was raised by the Union which was numbered as Reference Case No. 76 of

1985 making reference to the effect that:

"Whether the demand of United Coal Workers‟ Union that the Wagon Loaders mentioned in the Annexure to this Order should be paid appropriate wages directly by the management of Sirka Colliery of Messrs Central Coalfields Limited and that their record of employment should be maintained properly by the said management is justified? If so, to what relief are the said wagon loaders entitled?"

The writ petitioner claims that the nature of appointment of her

husband was of a regular employee and when he died in harness on

26.02.2006, the dependant became entitled for consideration for

appointment on compassionate ground under the National Coal Wage [3]

Agreement. But, the authority have taken no decision and as such, writ

petition being W.P.(S) No. 6040 of 2018 was filed for issuance of direction

upon the respondents to pass final order of appointment to be made in

favour of her son under para-9.3.2 of the NCWA as also for direction upon

the respondents not to discriminate the writ petitioner and to extend the

benefit of monetary compensation.

The respondents appeared and contested the case by taking the

ground that the case of the writ petitioner is not to be considered since the

nature of appointment of her husband was not of a regular employee rather

of a daily rated worker.

The learned Single Judge considered the rival submissions made

on behalf of the parties and considering the fact that the husband of the writ

petitioner was not a regular employee of the respondent-management, as

such, not found the case of the son of the writ petitioner to be fit for

consideration of appointment under the provision of para 9.3.2 of the

NCWA, against which, the present intra-court appeal has been filed.

4. Mrs. M. M. Pal, learned senior counsel assisted by Mrs. Mohini Gupta,

learned counsel appearing for the writ petitioner-appellant has submitted

that the petitioner is entitled for monetary benefit as per the condition

stipulated under the NCWA. According to the learned counsel, the

condition has been stipulated in the NCWA to the effect that the monetary

benefit will be paid by way of giving aid to the dependant of the deceased

family wherein no appointment is being provided to the dependant of the

deceased employee.

[4]

Since herein, the son of the appellant has already died, therefore,

there is no question of his appointment but the petitioner is entitled for

monetary benefit.

5. Per contra, Ms. Ranjana Mukherjee, learned counsel for the respondent-

CCL has submitted that the petitioner is not entitled for monetary benefit,

reason being that the deceased employee was not under the regular

establishment. She submits by taking aid of the condition stipulated under

NCWA that the appointment on compassionate ground or offer of

appointment or the monetary benefit is to be paid only in favour of the

dependant of the deceased employee who has died while serving in the

substantive post. Herein, since the deceased employee was not under the

regular establishment, therefore, there is no question of applicability of the

condition stipulated in the NCWA.

6. We have heard the learned counsel for the parties, perused the documents

available on record as also the finding recorded by the learned Single

Judge.

The sole dispute revolves around that as to whether the husband

of the writ petitioner was under the regular establishment of the CCL-

management so as, the petitioner may be provided monetary benefit as per

the condition contained in the NCWA.

7. This Court is of the view that in order to answer the aforesaid issue, it

requires to answer as to whether the husband of the writ petitioner was

under the regular establishment or was working in the capacity of casual

worker. The same will be having bearing upon the issue of entitlement of

the writ petitioner for getting the monetary benefit since, if this Court will [5]

answer that the nature of appointment of the husband of the writ petitioner

was under the regular establishment, certainly, the writ petitioner will be

entitled to get the monetary benefit under the NCWA but if this Court

comes to the conclusion that the husband of the writ petitioner was working

under the capacity of casual worker, in that circumstances, the writ

petitioner will not be entitled for getting the monetary benefit.

8. This Court, in order to answer the aforesaid issue, requires to refer the

award passed in Reference Case No. 76 of 1985 which was preferred by the

Union of which the husband of the writ petitioner was also one of the

members. The reference which was made for its adjudication before the

adjudicator as quoted and referred above, was for seeking a direction for

disbursement of wages directly by the management in favour of the

members of the Union.

However, the workmen have taken the plea that they were

engaged permanently and continuously for several years as Wagon Loaders

and the management in order to deprive them of the benefits and facilities

to which they are lawfully entitled, do not maintain the statutory records

relating to their employment and not issued documents.

While on the other hand, the management had denied the

relationship of employer and employee in between Sirka Colliery and the

workmen under Reference.

The said issue had been answered by the Tribunal holding

therein that the workmen as per the list mentioned in the award are the

workmen of the Sirka Coliery working as Wagon Loaders, as such,

management should pay the wages to them directly which they are entitled [6]

to. It had further been ordered that the management should verify the

identification of the persons by obtaining the certificate of their proper

identification by the Mukhiya and the B.D.O./Circle Officer of the area.

9. The question is that, if the husband of the writ petitioner was under the

regular establishment, the salary is required to be paid by the CCL

management in faovur of its employees/workmen and if the salary was not

being paid for which the husband of the writ petitioner had raised the

dispute through the Union for a direction upon the management to pay the

wages directly, this itself suggest that the service of the husband of the writ

petitioner was not under the regular establishment.

10. It also requires to be considered by this Court that what is the meaning of

„wages‟ as per the certified standing order since the husband of the writ

petitioner was being paid wages, for which, this Court has considered the

certified standing order wherein as under 2.11 under the caption heading

"Definition", „wage‟ means as defined under the Payment of Wages Act,

1936, meaning thereby, if the husband of the writ petitioner was under the

regular establishment there was no occasion to make order for payment of

wages by the Tribunal which was required to be paid as per the applicable

wages Act. This also clarifies the position about the nature of appointment.

Further, the certified standing order also contains a definition as

under Clause 3.4 wherein the casual workmen has been defined which

means a workmen who has been engaged for work which in intermittent or

sporadic or of casual nature not extending beyond a maximum period of

three months at a time provided that for employment of casual wagon

loaders the time limit of three months shall not apply. For ready reference,

the same are being reproduced as under:

[7]

"2.11 „Wages‟ means wages as defined in the payment of Wages Act, 1936.

3.4 A Casual workman means a workman who has been engaged for work which in intermittent or sporadic or of casual nature not extending beyond a maximum period of three months at a time provided that for employment of casual wagon loaders the time limit of three months shall not apply."

11. The aforesaid definition of casual workman also clarifies the position that

the workman can be engaged for work which is intermittent or sporadic or

of casual nature.

Herein, it is admitted case of the writ petitioner that the husband

of the writ petitioner was not being paid wages directly by the

management, therefore, a reference was made which was answered in

favour of the workmen which also suggest that the nature of the

appointment of the husband of the writ petitioner was of a casual workman.

12. It requires to consider the contention of the learned senior counsel

appearing for the appellant-writ petitioner that the benefit of pension was

also extended in favour of the husband of the writ petitioner and such

benefit cannot be granted in favour of a casual worker. But, the same has

been clarified by the management CCL by taking the plea that the benefit

of pension was being paid under the provision of Coal Mines Pension

Scheme, 1998 which came into force w.e.f. 31st March, 1998 wherein it has

been stated that the benefit under the aforesaid scheme is to be paid to the

employee who have completed 10 years of service and as per the aforesaid

scheme, it has been provided that every employee in a coal mine to which

this scheme apply other than an excluded employee shall be required to

join the fund and become a member immediately after the end of the month

following any month in which he completes the days of attendance.

13. So far as the contention of the payment of gratuity is concerned, plea has

been taken that as per the Payment of Gratuity Act, 1972 which contains a [8]

definition of „employees‟ which means any person (other than apprentice)

who is employed for wages whether such employment are express or

implied, in any kind of work, manual or otherwise, in or in connection with

the work of a factory, mine, oil field, plantation, port, railway company,

shop or other establishment to which this Act applied. Herein, the deceased

employee was also employed for the wages as would appear from the

appointment letter dated 25.06.1990, hence, the deceased employee is

entitled for payment of gratuity.

14. This Court, has considered the aforesaid aspect of the matter and has found

substance in the said fact since the Payment Of Gratuity Act speaks about

payment of gratuity in favour of the employees as per the definition of

employees as referred above and if considering the aforesaid aspect of the

matter, the gratuity was being paid in favour of the deceased employee, it

cannot be construed that the husband of the writ petitioner was under the

regular establishment.

Likewise, if the husband of the writ petitioner was being paid

pension under the Coal Mines Provident Fund Scheme, that also does not

confer any regular status to the husband of the writ petitioner. Moreso, the

appointment of the husband of the writ petitioner also discloses the nature

of appointment of a piece rated worker (Wagon Loader).

The word „piece rate worker‟ itself clarifies the position by

taking the definition of casual worker as under certified standing order as

referred above.

15. This Court, therefore, considering the aforesaid discussion, is of the view

that the husband of the writ petitioner was not under the regular [9]

establishment of the CCL management, as such, there is no question of

applicability of the condition as stipulated in the NCWA which contains a

condition about the monetary benefit which is to be paid in favour of the

dependant of the deceased employee, if the deceased employee is under the

regular establishment.

16. The learned Single Judge has considered the aforesaid aspect of the matter

and dealing with the documents as has been discussed hereinabove, if, has

refused to pass positive direction in favour of the writ petitioner, according

to our considered view, it cannot be said to suffer from error.

17. Accordingly, the instant appeal fails and stands dismissed.

18. Pending interlocutory application(s), if any, also stands disposed of.

                I agree                                   (Dr. Ravi Ranjan, C.J.)


          (Dr. Ravi Ranjan, C.J.)

                                                         (Sujit Narayan Prasad, J.)

Saurabh   /A.F.R.