Bharat Coking Coal Limited vs Punni Devi
2022 Latest Caselaw 3722 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Letters Patent Appellate Jurisdiction)
                      L.P.A No. 341 of 2017
                               --------
1. Bharat Coking Coal Limited, through its Chairman-cum-
Managing Director, having its office at Koyla Nagar, PO-BCCL
Township, PS-Dhanbad, District-Dhanbad (Jharkhand).
2. The Chief Manager (Personnel), West Jharia Area Moonidih
Colliery, Bharat Coking Coal Limited, PO-Moonidih, PS-Moonidih,
District-Dhanbad (Jharkhand).
3. The Project Officer, West Jharia Area Moonidih Colliery, Bharat
Coking Coal Limited, PO-Moonidih, PS-Moonidih, District-Dhanbad
(Jharkhand).
4. Senior Manager (Personnel), West Jharia Area Moonidih Colliery,
Bharat Coking Coal Limited, PO-Moonidih, PS-Moonidih, District-
Dhanbad (Jharkhand).                               ... Appellants

                              Versus


Punni Devi, w/o late Tulsi Ravi Das, r/o Qr. No. JM/481,
Moonidih,    PO-Moonidih,  PS-Moonidih,   District-Dhanbad
(Jharkhand).                               ... Respondent


CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellants          : Mr. Arpan Mishra, Advocate
For the Respondent          : Mr. Rajiv Kumar Karan, Advocate
                              --------
                           ORDER

15th September 2022

Per, Shree Chandrashekhar, J.

M/s Bharat Coking Coal Limited (in short, BCCL) is in appeal against the order dated 13 th January 2017 passed in W.P.(S) No. 3303 of 2016.

2. By an order dated 9th July 2012, the husband of the writ petitioner, who is respondent before us, was dismissed from service on the ground of unauthorized absence from duty. As a sequel to this order the claim raised by the respondent seeking compassionate appointment for her son was rejected by an order dated 16th/18th March 2016.

3. The aforesaid orders were challenged by the respondent in W.P.(S) No. 3303 of 2016 which as noticed above was allowed,

with a direction to the BCCL to consider granting compassionate appointment to son of the respondent.

4. The writ Court has held as under:

"7. Be that as it may, the case of the petitioner has been rejected by the respondents on the ground that there is no provision for appointment on the ground of deemed death and as per the guidelines given by the State Government, there is no scheme to provide compassionate appointment on presumption of death or deemed death. It is an admitted fact that the husband of the petitioner has become traceless for the last several years i.e. more than seven years have elapsed and there is no possibility of the husband being traced. This Court is of the considered view that the case of the petitioner deserves consideration on the ground of deemed death. In the case of Sanjai Kumar Singh Vs. State of U.P. & Ors., reported in (2005) 3 AWC 2724 (LB) and also in case of Avinash Gupta Vs. State of U.P. & Ors., passed by learned Single Bench of Allahabad High Court in Civil Misc. Writ Petition No. 17395 of 2011, in which it has been observed that there is no distinction between the civil death and natural death for the purpose of grant of compassionate appointment inasmuch as in both the cases bread earned of the family is not at all therein who would come forward to help the incumbents who are in penury. Purpose is to provide help to the family of the deceased employee whether it is case of natural death or it is a case of civil death. It has also been held by the Division Bench of High Court of Uttrakhand in Director General of Police and Ors. Vrs. Banshidhar Bhatt passed in Special Appeal No. 173 of 2008, in which the claim of the petitioner was allowed for compassionate appointment to the dependent of a person who was missing for more than seven years and after investigation the Police could not trace out the missing person. The Circular vide memo No. 7146 dated 31.10.2008 for appointment of dependents of traceless employee on compassionate basis issued in view of the judgment of Md. Nooralam & Ors. Vrs. State of Bihar, reported in 2007(4) PLJR 200. In W.P.(S) No. 4848 of 2002 this Hon'ble Court vide order dated 13.08.2003 observed that, "In that view of the matter, whatever was applicable or is applicable to a dead person would naturally therefore by reason of the deeming fiction provided under Section 108 of the Evidence Act, should have been made applicable to a person who is presumed to be dead unless the department comes with a plea that he is still alive. In that event it would be for the department to prove his existence. That having not been done, the benefit of compassionate appointment should be accorded in favour of the petitioner." The aforesaid view was also reiterated by this Hon'ble Court in W.P.(S) No. 672 of 2015 vide order dated 25.11.2016.

8. As a cumulative effect of the aforesaid observations, rules and the judicial pronouncements, the order dated 09.07.2012 passed by the Project Officer, Moonidih Colliery, is hereby quashed and set aside and similarly, the letter dated 16/18.03.2016 is also quashed and set aside.

9. Accordingly, this writ petition is hereby allowed and the respondents are directed to consider the case of the petitioner within a period of four months from the date of receipt of a copy of this order and if the son of the petitioner is found fit for compassionate appointment, the letter of appointment should be issued within a further period of three weeks."

5. At the outset, Mr. Rajiv Kumar Karan, the learned counsel for the respondent, informs the Court that the order passed by the writ Court has been complied and the letter of appointment dated 19th December 2018 was issued to son of the respondent.

6. Mr. Arpan Mishra, the learned counsel for the BCCL affirms that Jitendra Ravidas who is son of the respondent has tendered his joining under M/s BCCL.

7. The issue before the writ Court was whether on lapse of 7 years an inference on civil death of husband of the respondent can be raised to hold that the employee died in harness. Section 108 of the Indian Evidence Act, 1872 provides that when the question is whether a man is alive or dead and it is proved that he has not been heard of for last 7 years by those who would naturally have heard him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

8. In view of the orders passed by the Allahabad High Court in Civil Misc. Writ Petition No. 17395 of 2011 titled "Avinash Gupta v. State of U.P & Ors.", Uttarakhand High Court in Special Appeal No. 173 of 2008 titled "Director General of Police & Ors. v. Banshidhar Bhatt", Patna High Court in "Md. Noor Alam & Ors. v. State of Bihar & Ors." 2007 (4) PLJR 200 and the orders of this Court, whereunder a claim for compassionate appointment raised by the dependent of an employee who was missing for the last 7 years was accepted by the Courts, a direction was issued in the present case to offer compassionate appointment to son of the respondent.

9. This issue again came up before this Court in W.P.(S) No. 1794 of 2014 titled "Kamaldeo Kumar v. M/s BCCL & Ors.". Following the previous directions of the Court, in "Kamaldeo Kumar" also this Court issued a direction to consider the claim of compassionate appointment of the petitioner in the matter of civil death of his father. The said order alongwith the order passed in Contempt Case (Civil) No. 881/2016 arising out of W.P.(S)

No. 1794 of 2014 were taken in appeal by M/s BCCL before the Hon'ble Supreme Court in Special Leave to Appeal (C) No(s). 25656-25657/2017 and the appeal preferred by the appellant-M/s BCCL has been dismissed by the Hon'ble Supreme Court.

10. This is in public interest that there should be an end to litigation. It is not every error of fact or law which invites exercise of powers by the Letters Patent Court. Like the writ remedy which is discretionary, a Letters Patent Appeal also does not confer any absolute right in the appellant. The writ Court's order in the present case is based on the orders passed by this Court and other High Courts. Indeed, the writ Court has followed the principle of judicial comity. Moreover, this is not a case pleaded by the appellant that the writ Court's order is patently illegal or absurd.

11. In the aforesaid background, we are not inclined to delve deep into merits of the matter and would dismiss this Letters Patent Appeal observing that this order shall not be treated as a precedence.

12. L.P.A No. 341 of 2017 is dismissed.

13. I.A No. 719 of 2018, I.A No. 7089 of 2018 and I.A No. 2937 of 2020 stand disposed of.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 15th September 2022 Amit/N.A.F.R