Jharkhand High Court
Employers In Relation To The ... vs Their Workman Being Represented ... on 21 September, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(L) No.7020 of 2012
....
Employers in relation to the Management of Block-II Area of
M/s BCCL at Dumra through Sri Harendra Kishore .... Petitioner
Versus
Their Workman being represented by Sri Devi Sharma, Area
Secretary, Rashtriya Colliery Mazdoor Sangh, Dhanbad .... Respondent
....
CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
For the Petitioner : Mr. Anoop Kr. Mehta, Adv.
Mr. Manish Kumar, Adv.
For the Respondent : Mr. Dinesh Choudhary, Amicus Curiae
....
09/21.09.2022 Heard learned counsel for the writ petitioner and learned Amicus Curiae
appearing on behalf of the workman as in spite of valid service of notice, nobody
has represented the workman.
The present writ petition has been filed for quashing the Award dated
21.06.2012, passed by the Central Government Industrial Tribunal No.1, Dhanbad
in Reference No.307 of 2000, whereby the Tribunal has answered the reference in
favour of the respondent and against the present petitioner.
It appears that Nageshwar Nonia was a workman under the present
petitioner management and he has died in harness on 18.04.1985. At the time of
death the employee, his wife, namely, Smt. Lolash Beldarin was in the employment
of Block-II Open Cast Project of BCCL. The son was minor and after attaining
majority, he applied for compassionate appointment on 23.02.1992 and the said
application has been rejected on 08.09.1995. After rejection of the said application
industrial dispute has been raised through the Union on 11.04.2000 and after failure
of consideration, the matter has been referred for adjudication. The reference reads
as under:
"Whether the action of the management of Block-II Area of M/s
BCCL Dhanbad to deny employment to Shri Raju Nonia, S/o Late
Nageshwar Nonia on compassionate ground after the death of his
father under clause 9.4.2 of NCWA is justified? If not, to what relief
is the concerned dependant son entitled?"
The learned Tribunal after considering the materials brought on record
has passed the Award awarding the son of the deceased employee the
compassionate appointment.
It has been assailed by the learned counsel for the petitioner on the
following grounds.
1. The compassionate appointment has to be given considering the
financial status of the family and in the present case the
wife/mother was in employment and as such the financial
condition does not required compassionate appointment.
2. The cause of action is of the year 1985. At that point of time
NCWA-III was in vogue and at that point of time there was no
concept of keeping the minor on live roaster.
3. By the passage of time, the very purpose of compassionate
appointment has been frustrated and on that ground also the
impugned Award has been assailed.
Learned counsel for the petitioner has relied upon the judgment of
Hon'ble Apex Court reported in 2021 SCC OnLine SC 299 in the case of Central
Coalfields Limited through its Chairman and Managing Director and Others
Vrs. Parden Oraon. Relevant paragraph 8 and 9 are quoted hereinbelow;
8. The whole object of granting compassionate appointment is to
enable the family to tide over the sudden crisis which arises due to the
death of the sole breadwinner. The mere death of an employee in harness
does not entitle his family to such source of livelihood. The 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 the job is
offered to the eligible member of the family. It was further asseverated in
the said judgment that compassionate employment cannot be granted
after a lapse of reasonable period as the consideration of such
employment is not a vested right which can be exercised at any time in
the future. It was further held that the object of compassionate
appointment is to enable the family to get over the financial crisis that it
faces at the time of the death of sole breadwinner, compassionate
appointment cannot be claimed or offered after a signficant lapse of time
and after the crisis is over.
9. We are in agreement with the High Court that the reasons given
by the employer for denying compassionate appointment to the
Respondent's son are not justified. There is no bar in the National Coal
Wage Agreement for appointment of the son of an employee who has
suffered civil death. In addition, merely because the respondent is
working, her son cannot be denied compassionate appointment as per the
relevant clauses of the National Coal Wage Agreement. However, the
Respondent's husband is missing since 2002. Two sons of the Respondent
who are the dependents of her husband as per the records, are also
shown as dependents of the Respondent. It cannot be said that there was
any financial crisis created immediately after Respondent's husband went
missing in view of the employment of the Respondent. Though the reasons
given by the employer to deny the relief sought by the Respondent are not
sustainable, we are convinced that the Respondent's son cannot be given
compassionate appointment at this point of time. The application for
compassionate appointment of the son was filed by the Respondent in the
year 2013 which is more than 10 years after the Respondent's husband
had gone missing. As the object of compassionate appointment is for
providing immediate succor to the family of a deceased employee, the
Respondent's son is not entitled for compassionate appointment after the
passage of a long period of time since his father has gone missing.
On the other hand, learned Amicus Curiae has supported the judgment of
award and submitted that NCWA stands on different footing. Merely a family
member is in employment cannot be a ground for denial of compassionate
appointment. In the present case, the delay has occurred due to the attitude and
approach of the respondent authority.
Having heard learned counsel for the parties and from perusal of record,
it appears that the employee in question has died in the year 1985. The
compassionate appointment has been applied in the year 1992 which has been
dismissed in the year 1995 and ultimately industrial dispute has been raised in the
year 2000. There is no time limit for application for compassionate appointment
and as such, on this ground award cannot be assailed.
The ground that the very purpose of compassionate appointment is
providing solace to the family who has gone in the crisis and the same argument
gets support from the judgment of Hon'ble Apex Court (supra). This Court finds
that even considering the core family, the mother/ wife was in employment and as
such the son was not in the arena of economic crisis requiring the immediate help.
The learned Tribunal has merely relied upon the factum that there is no
time limit and further the compassionate appointment cannot be denied only on the
ground that one of the family member is in employment and this factor has been
extracted from the NCWA. But, the learned Tribunal has failed to take into
consideration the basic object of the compassionate appointment. Since the object
of compassionate appointment has been clarified from time to time by the Hon'ble
Apex Court to the effect that it is a helping hand to the family member in the hour
of crisis.
Considering the above legal factor as established by the judicial
pronouncement and mixing it with the present fact of the case, this Court finds that
the Award in question is not sustainable and accordingly the same is, hereby, set
aside.
Assistance rendered by the learned amicus curiae is highly appreciable.
(Rajesh Kumar, J.)
Shahid/
