Jharkhand High Court

Gopal Bouri vs Bharat Coking Coal Limited ... on 2 February, 2023

                                         1


            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 L.P.A. No. 646 of 2015
                                          With
                                  I.A. No.6295 of 2015
      Gopal Bouri, s/o Late Govind Bouri, resident of Sinidih Basti, village
      Madhuban, P.O. and P.S. Tundu, District-Dhanbad.
                                                                ... ... Appellant
                                         Versus
   1. Bharat Coking Coal Limited through its Chairman cum Managing Director,
      Koyla Bhawan, P.O. - Koyla Nagar, P.S. Saraidhella, District-Dhanbad.
   2. The Director (Personnel), Bharat Coking Coal Limited, Koyla Bhawan,
      P.O. - Koyla Nagar, P.S. Saraidhella, District-Dhanbad.
   3. The General Manager, Block II Area, BCCL Sijua Area, BCCL, P.O.
      Bansjora, P.S. Loyabad, District-Dhanbad.
   4. Project Officer, Loyabad Colliery, BCCL, P.O. Bansjora, P.S. Loyabad,
      District-Dhanbad.
                                                              ... ... Respondents
                                          -------
      CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                       HON'BLE MR. JUSTICE SUBHASH CHAND
                                          -------
      For the Appellant     : Mr. Binod Kumar Jha, Advocate
      For the Respondents : Mr. Anoop Kumar Mehta, Advocate
                              Mr. Manish Kumar, Advocate
                            ----------------------------
ORAL ORDER
07/Dated: 02nd February, 2023
Per Sujit Narayan Prasad, J.

1. Office has pointed out the defect that the court fee to the tune of Rs.20/-

has not been deposited by the appellant.

2. Considering the aforesaid defect, office is directed to supply the certified copy to the appellant subject of deposit of court fee to the tune of Rs.20/-

I.A. No.6295 of 2015:

3. This interlocutory application has been filed for condoning the delay of 373 days, which has occurred in preferring this appeal.

4. Heard learned counsel for the parties.

5. Having regard to the averments made in this application, we are of the view that the appellant was prevented by sufficient cause from preferring the appeal within the period of limitation.

6. Accordingly, I.A. No. 6295 of 2015 is allowed and the delay of 373 days in preferring the appeal is condoned.

L.P.A. No. 646 of 2015:

7. The instant appeal under clause 10 of the Letters Patent is directed against the order/judgment dated 02.09.2014 passed by the learned Single Judge in W.P.(S) No. 4752 of 2013, whereby and whereunder, the claim of the writ petitioner for appointment on compassionate ground on account of death of his father, who died in harness on 23.12.1994, which had been rejected vide order dated 16/20.09.1999, has been refused to be interfered with by dismissing the writ petition.

8. The brief facts of the case as per the pleading made in the writ petition, which requires to be enumerated, reads as under:

The case of the writ petitioner as would appear from the pleading is that his father, namely, late Govind Bouri, was working under the respondent-BCCL and had died in harness on 23.12.1994. Application had been filed for consideration of his case for appointment on compassionate ground on the basis of the agreement as under National Coal Wage Agreement, but, his application had been rejected vide order dated 16/20.09.1999.

The writ petitioner, being aggrieved with the aforesaid order, preferred writ petition being CWJC No.3006 of 2000 which was disposed of on 09.05.2002 remitting the matter before the respondent to consider the case of the writ petitioner for appointment on compassionate ground. In pursuance thereof, the claim for appointment on compassionate ground was again rejected by the respondent-BCCL vide order dated 28/29.01.2003 on the ground that his mother Shali Bouri is already working in the company.

The writ petitioner, again challenged the said order by filing writ petition being W.P.(S) No. 1506 of 2003 but the same was dismissed vide order dated 06.07.2006 on the ground that the petitioner's mother Smt. Shali Bouri is also working in the company. The writ petitioner, being aggrieved with the order passed by the co-ordinate learned Single Judge of this Court, preferred letters patent appeal being L.P.A. No. 348

of 2006 but the same had been withdrawn as would appear from the order dated 19.09.2006 appended as Annexure-2 to the paperbook.

The writ petitioner, thereafter, again approached this Court by filing writ petition being W.P.(S) No. 4752 of 2013 on the ground that the respondent-BCCL is having policy decision as contained in letter dated 01.07.2003 and 11.01.2008 to the effect that the appointment on compassionate ground can be provided even if mother or any dependant of the deceased employee is working under the establishment. The writ petition had been dismissed by the co-ordinate learned Single Judge of this Court vide order dated 02.09.2014 on the ground that the issue for appointment on compassionate ground has been set at rest by declining to interfere with the rejection of the claim as has been done vide order dated 16/20.09.1999 by a co-ordinate learned Single Judge of this Court vide order dated 06.07.2006 in W.P.(S) No. 1506 of 2003. Letters patent appeal was also filed but the same had been withdrawn. The learned Single Judge in that pretext had dismissed the writ petition on the ground that the issue has attained its finality, as such, the said chapter cannot be allowed to be opened again, which is the subject matter of the instant appeal.

9. Mr. Binod Kumar Jha, learned counsel for the appellant has submitted that the learned Single Judge has not appreciate the factual aspect that it is the BCCL who is having with the policy decision that even in case of the dependant of the deceased employee, if working, then also the other dependant can be provided with appointment on compassionate ground. But, the same having not been considered, therefore, the order passed by the learned Single Judge suffers from infirmity and the same is liable to be quashed and set aside.

10. Per contra, Mr. Anoop Kumar Mehta, learned counsel for the respondent-BCCL has submitted that the learned Single Judge while dismissing the writ petition has committed no error since the issue of appointment on compassionate ground has attained its finality after the dismissal of the writ petition being W.P.(S) No. 1506 of 2003 vide order dated 06.07.2006 by showing no interference with the decision of the administrative authority as taken vide order dated 28/29.01.2003.

It has been submitted that the aforesaid order has been questioned by filing intra-court appeal but the writ petitioner without contesting the appeal, had withdrawn the same resulting into attaining the order passed by the co-ordinate learned Single Judge to its finality.

11. In the backdrop of the aforesaid aspect of the matter, once the issue has been set at rest even if there is a policy decision to that effect, the same cannot be a ground to again raise the issue as has been done by the writ petitioner in the instant case.

In addition to that, it has been submitted that the appointment on compassionate ground is to provide immediate succor to the bereaved family and herein, the death took place on 23.12.1994 and almost 29 years has passed and on the date when the learned Single Judge has passed the order, it was already 20 years which is also the ground to dismiss the writ petition.

Learned counsel for the respondent in the backdrop of aforesaid fact has submitted that there is no error in the order, as such, the instant appeal may be dismissed.

12. 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. Before entering into the legality and propriety of the impugned order it requires to refer herein the settled position so far as the direction to be issued by the court of law for appointment on compassionate ground is concerned.

In Jagdish Prasad Vrs. State of Bihar and Another, (1996) 1 SCC 301, Hon'ble Apex Court, while considering the object of compassionate appointment held that the object of appointment of a dependent of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family.

In Haryana State Electricity Board Vrs. Naresh Tanwar and Another, (1996) 8 SCC 23 the Hon'ble Apex Court declined to grant

relief to the dependent of an employee who was minor at the time of death of the bread earning Government employee.

In State of U.P. and Others Vrs. Paras Nath, AIR 1998 SC 2612 the Hon'ble Apex Court held that the purpose of providing employment to a dependant of a Government servant dying in harness in preference to anybody else, is to mitigate the hardship caused to the family of the employee on account of his unexpected death while still in service. It was further observed that none of these considerations can operate while the application is made after a long period of time.

In Commissioner of Public Instructions and Others Vrs. K. R. Vishwanath, (2005) 7 SCC 206 the Hon'ble Apex Court, after taking into consideration its various judgments, reiterated that the appointment to the public service can only be made on the touchstone of Article 14 or 16 of the Constitution and compassionate appointment is an exception to general constitutional mandate in the interest of justice under peculiar circumstances.

It was further observed that where law prescribes limitation for making an application for compassionate appointment, it has to be adhered to.

Recently, a judgment has been passed by the Hon'ble Apex Court in Central Coalfields Limited through its Chairman and Managing Director and Ors. vs. Parden Oraon, (2021) SCC OnLine SC 299, wherein at paragraph-9 it has been laid down which reads as under:

"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 succour 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."

13. Further position of law is also required to be referred herein that basis to approach the court of law if available the day when the writ petitioner or any litigation has been filed but the party concerned has not chooen to take the such ground for consideration of his case then what would be its impact. The law is well settled in this regard that the ground which is already available but choosen not to be taken then it will lead to the applicability of the principle of constructive res judicata as has been held by the Hon'ble Apex Court in Asgar and Ors. vs. Mohan Varma and Ors., (2020) 16 SCC 230, wherein at paragraph-37 it has been observed which reads as under:

"37. We are not inclined to decide this question on a priori consideration, for the simple reason that under CPC, both res judicata (in the substantive part of Section 11) and constructive res judicata (in Explanation IV) are embodied as statutory principles of the law governing civil procedure. The fundamental policy of the law is that there must be finality to litigation. Multiplicity of litigation enures to the benefit, unfortunately for the decree- holder, of those who seek to delay the fruits of a decree reaching those to whom the decree is meant. Constructive res judicata, in the same manner as the principles underlying res judicata, is intended to ensure that grounds of attack or defence in litigation must be taken in one of the same proceeding. A party which avoids doing so does it at its own peril. In deciding as to whether a matter might have been urged in the earlier proceedings, the court must ask itself as to whether it could have been urged. In deciding whether the matter ought to have been urged in the earlier proceedings, the court will have due regard to the ambit of the earlier proceedings and the nexus which the matter bears to the nature of the controversy. In holding that a matter ought to have been taken as a ground of attack or defence in the earlier proceedings, the court is indicating that the matter is of such a nature and character and bears such a connection with the controversy in the earlier case that the failure to raise it in that proceeding would debar the party from agitating it in the future."

14. This Court after having discussed the position of law and coming to the facts of the case has found therefrom that the father of the writ petitioner died on 23.12.1994. Application was filed for consideration of his claim for appointment on compassionate ground but the same had been rejected vide order dated 16/20.09.1999. The said order has been upheld by this Court by refusing to interfere with the same vide order dated 06.07.2006 passed in W.P.(S) No. 1506 of 2003. Letters patent appeal had also been filed but he same had been withdrawn.

15. This admitted fact suggests that the claim of the writ petitioner regarding appointment on compassionate ground having been rejected vide order dated 16/20.09.1999 has attained its finality. However, the writ petitioner again filed a writ petition in the year 2013, i.e., after 10 years to previous writ petition which was filed in the year 2003 agitating the claim on the basis of the policy decision of the respondent BCCL as contained in letter dated 01.07.2003 and 11.01.2008.

The said policy decision stipulates condition that even a dependant of the deceased employee is in service then also the appointment on compassionate ground on the basis of National Coal Wage Agreement can be provided to the other dependant who are not in service.

16. The learned Single Judge has considered the approach of the writ petitioner not proper on the basis of the reason that once the claim of the writ petitioner for appointment on compassionate ground having attained its finality and even the aforesaid policy decision was in existence the day when the writ petition was filed in the year 2003 but the same has not been brought to the notice of the Court and thereafter, after lapse of 10 years, again a fresh writ petition has been filed which cannot be said to be justified approach of the writ petitioner.

17. This Court after considering the aforesaid argument is of the view that the learned Single Judge has committed no error in reaching to such conclusion reason being that the very intent and object for appointment on compassionate ground is to give immediate succor to the bereaved family. Here, the deceased had died on 23.12.1994 and the second writ petition has been filed in the year 2013, i.e., after lapse of 20 years.

As has been settled by the Hon'ble Apex Court that appointment on compassionate ground cannot be treated to be an alternative source of appointment since in the teeth of Articles 14 and 16 of the Constitution of India.

18. Further herein, in the given facts of the case, the order passed by the co-

ordinate learned Single Judge in W.P.(S) No. 1506 of 2003 against which LPA was been filed which had been withdrawn, meaning thereby,

the order passed by the co-ordinate learned Single Judge has attained its finality. The question is that once the LPA has been withdrawn, whether the second letters patent appeal can be said to be maintainable, will it not be a review of the order of withdrawal of the L.P.A. No. 348 of 2006.

19. This Court, therefore, is of the view that the ground is available to the litigant but not agitated and in absence thereof, if he has not succeeded in the litigation, thereafter, it is not open for him to take the ground already available in course of the previous litigation as the fact of the case herein is.

Further, the claim of the petitioner has been rejected by the co- ordinate learned Single Judge of this Court while dismissing the writ petition while declining to interfere with the order dated 06.07.2006 against which the letters patent appeal has been filed but the same was withdrawn. The subject matter of the lis herein is again to direct the respondent to provide the writ petitioner appointment on compassionate ground.

The claim having been rejected on earlier occasion by the writ court and after withdrawal of the letters patent appeal being L.P.A. No. 348 of 2006, there cannot be any re-consideration otherwise it will lead to reviewing the order passed in earlier round of litigation which had attained its finality. Otherwise also, now it is already 29 years from the date of death of the deceased employee, as such, this Court finds no reason to interfere with the impugned order.