The Workman vs Employers In Relation To The ...
2023 Latest Caselaw 3161 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                (Letters Patent Appellate Jurisdiction)
                       L.P.A. No. 124 of 2022

The Workman, through Mundrika Bhagat Malakar, age about 63 years, son
of Basant Bhagat Malakar, resident of 175, Telaiya Tand, Sirka, P.O. &
P.S. - Argada, Sangrakshak Central Organization, Congress Mazdoor
Union, Sirka Colliery, P.O. and P.S. - Argada, District - Ramgarh
                                                   ...       ...   Appellant
                                       Versus
Employers in relation to the management of Sirka Colliery of M/s. Central
Coalfields Limited through Sri Dhruv Kumar, General Manager (Admn.),
Central Coalfields Ltd., Darbhanga House, P.O. - Ranchi University, P.S.-
Kotwali, District - Ranchi
                                            ...         ...      Respondent
                                ---
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
   HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
                              ---
For the Appellant      : Mr. Gaurav Abhishek, Advocate
For the Respondent     : Mr. A. K. Das, Advocate
                         Mr. Shivam Utkarsh Sahay, Advocate
                              ---
                                                     ORDER

th 25 August 2023 Per, Shree Chandrashekhar, J.

This Letters Patent Appeal challenges the writ Court‟s order dated 26th November 2020 passed in W.P. (L) No. 6055 of 2008.

2. The Award dated 16th June 2001 made by the Central Government Industrial Tribunal (No. 2), Dhanbad has been set-aside by the writ Court on the ground that an application for compassionate appointment was made three years after the death of the workman. The writ Court has also taken into consideration that quarter a century has passed since the death of the workman and while so it would not be appropriate to order compassionate appointment for the dependant of the workman.

3. The writ Court has held as under:

"10. .................................................................................... (VI) Compassionate appointment is given to ward off the immediate crisis which befall the dependents of the deceased employee to prevent them from being rendered destitute and face penury. This is a case where the application was made after three years of death of the workman and by now almost more than 25 years have already passed.

11. In view of facts and circumstances, judicial pronouncements and settled principles, this Court is of the considered opinion that in this case, the impugned Award dated 16.06.2001, passed by Central Government Industrial Tribunal No. II, Dhanbad in Reference Case No. 77/2001, is devoid of any merits and as such the same is hereby quashed and set aside.

As a consequence of the aforesaid observations, this writ petition stands allowed."

4. Mr. Gaurav Abhishek, the learned counsel for the workman submits that the findings of fact recorded by the inferior Tribunal/Court is not open to challenge in a writ proceeding. It is contended that the writ Court can also not examine sufficiency or insufficiency of the evidence laid before the Tribunal/Court to examine the validity of the Award.

5. Simply put, the submission raised at the Bar is that the finding of the Industrial Tribunal in Reference No. 77 of 2001 that the application for compassionate appointment was made within time could not have been interfered by the writ Court.

6. The brief facts of the case are that the father of the claimant who was employed as permanent piece-rated mazdoor under M/s Central Coalfields Limited (in short "CCL") reported for duty on 23rd August 1995 but did not return home in the evening/night and his dead body was recovered on 24th August 1995 around the railway track. This is the case set up by the appellant that after the family recovered from the grief and shock a claim for providing employment was made and necessary papers including dependant certificate, family relation certificate, character certificate, post-mortem report etc. were submitted to the CCL. The claim for compassionate appointment was rejected by the Management on 31st March 1999 but, at the same time, it advised the dependant of the workman to wait for some time. The application for reconsideration filed on behalf of the claimant was rejected on 4th April 2000 and this led to raising of an industrial dispute before the Assistant Labour Commissioner (C) at Hazaribag. Later on, after a failure report was submitted, the Central Government in exercise of its powers under Section 10(1)(d) of the Industrial Disputes Act made the following reference for adjudication by the Tribunal:

The Schedule "Whether the action of the management of Sirka Colliery of M/s CCL in not providing employment to the dependent of late Balram Oraon is justified? If not, to what relief in the said dependent of the concerned workman entitled."

7 Before the Tribunal, the claimant was represented through the Congress Mazdoor Union which produced documentary evidence and the claimant was examined as WW1. On behalf of the CCL, U.P. Narayan was

produced as MW1 who tendered evidence to the effect that Jagtu Oraon had made a belated application for compassionate appointment. The Tribunal on examination of the materials before it came to a finding that there was no delay in making the application for compassionate appointment. The Tribunal also referred to the Circular dated 3rd August 2000 whereunder six month‟s time was prescribed for making the application for compassionate appointment and held that the said Circular was not applicable in the case of the claimant as the cause of action for the claimant arose in the year 1998 whereas the Circular was issued in the year 2000. Mr. A. K. Das, the learned counsel for the respondent would submit that it was the duty of the claimant to lead evidence to prove that he made an application for compassionate appointment within time and, therefore, an adverse inference could not have been raised against the Management.

8. This is the case set up by the Management that the application for compassionate appointment was made beyond six months which was the period prescribed for making such an application. The Tribunal has taken note of this aspect of the matter and recorded a finding that there was no delay on the part of the claimant in submitting the application for compassionate appointment. The Tribunal has discussed this issue with reference to the service excerpt of the deceased employee and the family certificate to hold that the claimant was a minor aged about 15 years and further held that the claimant could have made the application for compassionate appointment only after attaining the age of 18 years and that has been done on his behalf. Furthermore, a Division Bench of this Court has found prescription of six months for making application for compassionate appointment arbitrary and illegal and the same was quashed [refer, L.P.A. No 780 of 2004]. The Tribunal also took note of the fact that the application for compassionate appointment submitted on behalf of the claimant was not produced before the Tribunal. Now once the CCL admits that an application was submitted by the claimant at least a reason must be disclosed by it for not producing the said application. The discussions by the Tribunal on this issue are recorded in paragraph 14 of the award dated 16th June 2001, as under:

"14. Now question arises what was the age of the dependent of the deceased employee at the time of death of deceased employee. WW-1 Jagto Oraon in his evidence in-chief has stated his age as 28 years. He has been examined on 1st September, 2005. MW-1 has not said anything about the age of Jagto

Oraon. However, service excerpt marked as Ext. W-2 of the deceased employee Balram Oraon shows the age of Jagto Oraon as 8 years and this service excerpt appears to have been issued in June, 1987. If the age of Jagto Oraon is considered as per this Ext. W-2 it comes about 16 years at the time of death of his father i.e. in August, 1995. Ext. W-3 is the family certificate of the deceased employee which has been issued by B.D.O. of concerned block. In this document the age of Jagto Oraon has been shown as 18 years and this has been issued on 31.12.1996. If this age is taken into consideration the age of Jagto comes between 16-17 years at the time of death of his father. However, during cross-examination WW-1 has stated that he has sworn an affidavit on 24.05.1997 in which he has disclosed his age as 18 years which appears contradictory to Ext. W-2 and W-3. However, the said affidavit has not been brought on record. In any case on the basis of the age recorded in Ext. W-2 and W-3 it appears that Jagto Oraon dependent of deceased employee was above 15 years on the date of death of his father."

9. The writ Court held that the Tribunal misconstrued the relevant provisions of limitation for making an application for compassionate appointment which are statutory and binding in nature. The writ Court referred to the judgments in "Umesh Kumar Nagpal v. State of Haryana" (1994) 4 SCC 138, "SAIL v. Madhusudan Das" (2008) 15 SCC 560, "Sanjay Kumar v. State of Bihar & Ors." (2000) 7 SCC 192, "General Manager, State Bank of India & Ors. v. Anju Jain", (2008) 8 SCC 475 and "Bhawani Prasad Sonkar v. Union of India & Ors." (2011) 4 SCC 209 and came to a conclusion that the compassionate appointment cannot be claimed as a matter of right nor that can be exercised at any time in future rather such an appointment cannot be granted after lapse of a reasonable period as specified in the Rules.

10. The finding of the writ Court that the limitation prescribed by the employer is statutory in nature is contrary to the law declared in "Mohan Mahto" wherein the Hon‟ble Supreme Court has held that the Circular is non-statutory. The writ Court‟s order suffers from further error in law inasmuch as a finding has been recorded that the application for compassionate appointment was made after 3 years. The writ Court has also overlooked the fact which is very relevant that the award was made on 16th June 2001 but it was put to challenge by the CCL in W.P.(L) No. 6055 of 2008. The writ Court has allowed the writ petition by the order dated 26th November 2020 and, in the meantime, 19 years have passed for which the claimant cannot be blamed. There is no justification for filing a writ petition more than 7 years after the award was made in favor of the

respondent and no material has been placed before us to demonstrate that the decision of the writ Court was delayed on account of dilatory tactics adopted by the respondent. The writ Court has not held that the findings of fact recorded by the Tribunal are not based on the materials laid before it and therefore perverse. This is also not a finding recorded by the writ Court that the Tribunal has considered irrelevant materials or ignored some vital material produced by the Management and arrived at a wrong conclusion that there was no delay on the part of the claimant to make an application for compassionate appointment.

11. The Award made by the Industrial Tribunal is based on proper appreciation of the materials laid during the trial and discusses the provisions under NCWA in the following manner:

"15. Much argument on behalf of the management has been advanced that Jagto Oraon had applied for appointment on compassionate ground after 3 years after the death of his father. It appears that the application of Jagto Oraon was rejected on the ground that he had not applied within 6 months from the date of death of his father. Question arises what is the provision when the dependent of the deceased employee was minor on the date of death of his father.

16. Ld. Lawyer for the dependent of the deceased employee has submitted that in the circumstances when the dependent of the deceased employee was more than 15 years and less than 18 years his name is entered in the live register of the management and he has to be provided employment after attaining the age of 18 years.

17. MW-1 has stated that there is provision in NCWA if the dependent is more than 15 years and less than 18 years his name in entered is entered in the live register on the application of the dependent, In brief Provision contained in clause 9.5.0 of NCWA reads as follows-

"Compassionate Appointment-clause 9.3.2 of NCWA-V-delayed appointment- if on the date of death of the deceased employee the male dependent is fifteen years old or above in age then he will be kept on live roaster and would be provided employment commensurate with his skill and qualification when he attains the age of eighteen years - during the period the male dependent will be on live roster, the female dependent will be paid monetary compensation."

18. The above provision shows that if male dependent is 15 years old or above his name will be kept in the live roster and will be provided employment as and when he attains the age of 18 years and the monetary compensation will be paid to the female dependent. This provision has not been disputed by the management.

19. As noticed above the age of Jagto Oraon is more than 15 years and less than 18 years on the date of death of his father. His name ought to have been enrolled in the live roster maintained by the management and he ought to have been given employment when he attains the age of 18 years. Above provision does not show that any application within 6 months has to be filed. The aforesaid provision does not contain any time limit for submission of application for employment. This fact has also been stated by MW-1 in

his cross-examination that in NCWA there is no time limited for submitting application for employment. However, Ld. Lawyer for the management has pointed out that there had been circular fixing time limit of 6 months for submitting application for appointment on compassionate ground which has subsequently been raised one year vide Ext.M2. He has submitted that since the dependent of the deceased employee did not apply within one year rather he applied after three years hence in this circumstances he is not entitled for the employment as per Ext.M-2.

20. In reply the LA. Lawyer for the dependent of the deceased employee has submitted that the aforesaid circular are not legal and have no statutory force as per decision of the Hon'ble Supreme court reported in 2007 (115) FLR 487. He has submitted that since there in no time limit in NCWA, on the basis of the circular appointment on companionate ground cannot be refused and Jagto Oraon is entitled for the relief as prayed for.

21. The circular in which there is mention of tine limit for one year appears to have been issued on 1.1.2002. This also shows that earlier a circular on 12.12.95 was issued in which the period of 6 months for entertaining application was provided. So far as the instant case is concerned as mentioned above the dependent of the deceased employee appears to be minor at the time of death of his father, and he appears to have become major daring the year 1998 when he submitted his application. It appears that at the relevant time circular Ext.M-2 providing time limit for one year was not in force. It appears to have been issued on 1.1.2002. All It appears that at the relevant time i.e. during 1998 the circular dt. 12.12.95 providing 6 months time has been relied on by the management."

12. This is a law too well settled that the writ Court shall not substitute its own views to the findings recorded by the inferior Tribunal/Court and wherever there is a possibility of two views the view which the Tribunal has taken should be affirmed. In "Shalini Shyam Shetty v. Rajendra Shankar Patil" (2010) 8 SCC 329 the Hon‟ble Supreme Court held that the High Court cannot exercise its powers at the drop of the hat and interfere with the order of the Tribunals or Courts inferior to it. In the present case, the writ Court has exercised its powers as a Court of appeal, and on an altogether extraneous ground interfered with the award of the Tribunal.

13. In "Heinz India (P) Ltd. v. State of U.P." (2012) 5 SCC 443 the Hon‟ble Supreme Court elucidated the law on the power of judicial review with reference to "Reid v. Secy. of State for Scotland" (1999) 2 AC 512 and held as under:

"68. ... „Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the

procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence.‟(Reid Case, AC pp. 541 F-542A)"

14. This is an admitted position that the minor dependant of a deceased employee shall remain on live-roaster till he attains the age of majority for employment. This procedure was not followed in this case and the justification put forth by the CCL is that no application was made on behalf of the claimant. Notwithstanding a provision for making an application for putting the minor dependant on live-roaster, it was the duty of the CCL to make aware the claimant about his rights and keep him on live-roaster if the service records of the deceased employee mentions the name of the dependant(s). In "Mohan Mahto v. Central Coalfields Limited & others" (2007) 8 SCC 549, the Hon‟ble Supreme Court has held that the agreement under NCWA is binding on the parties and the same has attained statutory force.

15. In "Mohan Mahto" the Hon‟ble Supreme Court has held as under:

"17. It is neither in doubt nor in dispute that the case for grant of compassionate appointment of a minor was required to be considered in terms of sub-clause (iii) of Clause 9.5.0 of NCWA V. In terms of the said provision, the name of the appellant was to be kept on a live roster. He was to remain on the live roster till he attained the age of 18 years. The respondents did not perform their duties cast on them thereunder. It took a unilateral stand that an application had been filed in the year 1999 in the prescribed form. For complying with the provisions of a settlement which is binding on the parties, bona fide or otherwise of the respondent must be judged from the fact as to whether it had discharged his duties thereunder or not. In this case, not only it failed and/or neglected to do so, but as indicated hereinbefore it took a unholy stand that the elder brother of the appellant being employed, he was not entitled to appointment on the compassionate grounds. Thus, what really impelled the respondent in denying the benefit of compassionate appointment to the appellant is, therefore, open to guess. We expect a public sector undertaking which is "State" within the meaning of Article 12 of the Constitution

of India not only to act fairly but also reasonably and bona fide. In this case, we are satisfied that the action of the respondent is neither fair nor reasonable nor bona fide."

16. The writ Court overlooked the aforesaid aspects of the matter and set aside the Award. Therefore, L.P.A. No. 124 of 2022 is allowed. Consequently, the writ Court‟s order dated 26th November 2020 is set-aside and the Award dated 16th June 2001 is restored.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) Binit/Mukul A. F. R