Employers In Relation To The ... vs Their Workman Being Represented ...
2023 Latest Caselaw 2945 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      (Letters Patent Appellate Jurisdiction)

                            LPA No. 292 of 2020

Employers in relation to the Management of Lodna Area of M/s BCCL, PO
Khas Jeenagora, PS Jorapokhar, District Dhanbad through Sri Kumar
Sharad Sinha, Senior Manager (Personnel) IR/Legal, BCCL, Koyla Bhawan,
Dhanbad, aged about 54 years, son of late Kumar Chandra Shekhar Sinha,
resident of Flat No. 504, Ananya Apartment, Shanti Colony, PO &PS
Saraidhela, District Dhanbad                             ......Appellant
                                   Versus
Their Workman being represented by the Assistant Secretary, Jharkhand
Mines Lal Jhanda Mazdoor Union, PO & PS Bhowra, District Dhanbad,
PIN 828302                                           ... Respondent
                          ---------------
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
     HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant      : Mr. Anoop Kumar Mehta, Advocate
                         Mr. Manish Kumar, Advocate
For the Respondent     : None
                         ---------------
                                                      ORDER

17th August 2023 Per, Shree Chandrashekhar, J.

The Management of M/s Bharat Coking Coal Limited (in short, BCCL) has challenged the writ Court's order dated 22nd August 2019 by which WP(L) No. 5271 of 2016 which was filed to challenge the Award dated 21st January 2015 has been dismissed.

2. The aforesaid Award has been made in favor of the dependant daughter of the deceased employee for her compassionate appointment.

3. At the outset, we may indicate that the present Letters Patent Appeal is founded on a judgment in "State of Maharastra and Another v. Madhuri Maruti Vidhate" 2022 SCC OnLine SC 1327 in which the Hon'ble Supreme Court has held that a married daughter is not entitled for compassionate appointment. In this regard, the provisions under Order 47 Rule 1 assumes significance. The explanation to clause (2) to Rule 1 of Order 47 of the Code of Civil Procedure provides that the decision on a question of law on which the judgment of the Court is based has been reversed and modified by the subsequent decision of the superior Court in any other case shall not be a ground for the review of such judgment.

4. In the present Letters Patent Appeal, the BCCL is seeking a sort of review of the order dated 22 nd August 2019 passed in WP(L) No. 5271 of 2016 in which the writ Court has placed reliance on a decision of this Court in "Kalyani Kumari Mishra v. State of Jharkhand" 2018 (3) JBCJ 166 (HC). Our attention has also been drawn to a judgment by a coordinate Bench of this Court in "Central Coalfields Limited v. Hemanti Devi" delivered in LPA No. 196 of 2017 wherein this Court has again reaffirmed the view that the provisions under Clause 9.3.3 of NCWA do not meet the requirements under Article 14 and 16 of the Constitution of India and exclusion of married daughter from the definition of family cannot be countenanced in law.

5. Besides the aforesaid aspect of the matter, in our opinion, the controversy sought to be raised by the BCCL does not arise in the present case. This is the case pleaded by the BCCL that Shakuntala Modin got married in the year 2000 and, in support thereof, a communication from the Superintendent of Police, DIB, Purulia in the State of West Bengal addressed to the Area Manager (P) of Lodhna Area of BCCL was produced before the writ Court. The BCCL seeks support from this communication to challenge the writ Court's order on the ground that under Clause 9.3.3 of the NCWA a married daughter is not entitled for compassionate appointment.

6. This is not in dispute that the mother of Shakuntala Modin who was employed under the BCCL died on 24 th August 1999 - her father had predeceased his wife on 18th October 1988. In respect of the dispute regarding compassionate appointment to Shakuntala Modin, a reference was made by the Ministry of Labour by an order dated 12th July 2007 and the Award has been made in favor of the claimant.

7. The following dispute was referred for adjudication before the Central Government Industrial Tribunal No. 1 at Dhanbad:

"By order No. L 20012/57/2007-IR (CM-I) dated 12.07.2007, the central Government in the Ministry of Labour has, in exercise of power conferred by clause (d) of Sub-section (1) and Sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947, referred the following disputes for adjudication to this Tribunal.

SCHEDULE Whether the action of the management of Jeanagora Colliery of M/s BCCL in not providing dependent employment to Kumari

Sakuntala Modin D/o late Chanda Modin W/Loader under the provision of NCWA is justified and legal? If not, to what relief is the dependent daughter of the concerned deceased employee entitled?"

8. Before the Industrial Tribunal, both parties laid evidence oral as well as documentary and the Tribunal after having examined the materials on record has made the Award dated 21st January 2015 in the following terms:

"3. Applicant Sakuntala is admittedly daughter of Late workman Chanda Modi. She submitted that she took the gratuity of her late mother showing her father predeceased her mother. But Management counsel filed the affidavit of her father who claims that he is alive and her daughter shown her dead and took away the Gratuity. Even the management filed the affidavit of husband of Shakuntala Modin.

4. But The applicant filed the death certificate of her father who died on 18/10/1988 and the death certificate was issued on 14.8.2002 by the competent authority. Its genuineness was challenged by the management, and for its genuiness, quarry was made to the competent authority. Who replied to enquire the matter at our level.

5. From the death certificate of father of applicant her grandfather's name was Bhagto Modi but from the affidavit of so called father's father name was mentioned as late Mohan Modi. Socalled father of the applicant filed photo copy of Bank Pass Book Marked as M-5 which shown that he is son of Mohan Modi But in the same pass book. he has filed a certificate it is shown that the Grand father of the applicant is late Bhagat Modi which tallies from the death certificate of her father.

6. The photocopies of the affidavit of so called father, and husband is misleading and evidence of management witness regarding father of the applicant is not acceptable.

7. Therefore taking into death certificate and her Gratuity order, it is clear that, She is the daughter of the deceased workman and entitled to compassionate appointment.

8. Considering the facts and circumstance of this case, I hold that the action of the management of Jeanagora Colliery of M/S BCCL in not providing dependent employment to Kumari Sakuntala Modin D/O Late Chanda Modin W/Loader under the provision of NCWA is not justified and legal, Hence the management is directed to give appointment to Sakuntala Modin soon after the publication of the award in the Gazette."

9. There is no dispute that Chanda Modin who is the mother of Shakuntala Modin died on 24th August 1999. Now the date of death of Chanda Modin shall be the date on which the cause of action first arose in favour of the claimant. A cause of action which is generally known in legal parlance as a bundle of facts which the plaintiff/petitioner is required to

prove in the Court so as to entitle him for the relief is the first breaking point when the aggrieved party can approach the Court. In "Whalley v. Whalley" (1816) 1 M.R. 436 it has been held that the cause of action arises when and only when the aggrieved party has the right to apply to the proper Tribunal for relief.

10. On the date on which the cause of action arose in favor of Shakuntala Modin, she was unmarried and squarely covered under Clause 9.3.3 of the NCWA which provides as under:

"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 depandant is available for employment, brother, widowed daughter/widowed daughter-in- law or son-in-law residing with the deceased and almost wholly dependent on the earnings of the deceased may be considered to be the dependants of the deceased."

11. Now this would be a wholly unimaginative and impractical way of adjudicating a claim holding that the daughter who was not married on the date of accrual of cause of action must remain unmarried till she is provided employment. This controversy can be seen with a different angle also. In a case the unmarried daughter gets an employment and on the next day gets married. Obviously, a controversy can be raised by the employer that the claimant has played a fraud with the statute. Moreover, this is not in dispute that the letter dated 01th July 2016 written to the Area Manager (P) of the BCCL is not among the documents produced by the Management before the Industrial Tribunal and on that basis the Award dated 21 st January 2015 cannot be challenged by the BCCL.

12. We are bound by the declaration of law by the Hon'ble Supreme Court but the facts of the present case do not bring the direction of the writ Court for compassionate appointment within the sweep of the judgment in "Madhuri Maruti Vidhate". This is too well settled a law that a judgment is an authority for what it declares and it cannot be read like a statute, and a small distinction in facts may lead to different decisions and therefore what is binding is the ratio of the case. In our opinion, the NCWA which has attained the status of a statute [refer "Mohan Mahto v. Central Coal Field Ltd." (2007) 8 SCC 549] cannot be interpreted in a manner so as to frustrate the object it seeks. A human affair is not examined like the written words of

a statute and claim for compassionate appointment cannot be decided by counting minutes or days. Moreover, the employer which has itself formulated a scheme for compassionate appointment must adhere to its own policy framed for the benefit of the employees. This is also well remembered that the writ Court does not function or take a decision on a mere possibility ["Razia Begum v. Sahebzadi Anwar Begum" AIR 1958 SC 886].

13. LPA No. 292 of 2020 is dismissed.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) Jharkhand High Court, Ranchi Dated 17th August 2023 Tanuj/N.A.F.R