Jharkhand High Court
Suraj Kumar Mahato vs Bharat Coking Coal Limited Through Its ... on 10 May, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.811 of 2018
-------
1. Suraj Kumar Mahato
2. Bhabhi Devi ... ... Petitioners
Versus
1. Bharat Coking Coal Limited through its Chairman cum
Managing Director, Koyla Bhawan, Dhanbad.
2. Director (Personnel), Bharat Coking Coal Limited, Koyla
Bhawan, Dhanbad
3. Chief General Manager, Bharat Coking Coal Limited,
Ropeways, B.B.Camp Dhanbad.
4. Personnel Manager, Bharat Coking Coal Limited,
Ropeways, B.B.Camp Dhanbad.
5. Chief General Manager, Bharat Coking Coal Limited, E.J.
Area Bhoura, Dhabad.
6. Project Officer, Bharat Coking Coal Limited, E.J. Area
Bhoura, Dhabad. ... ... Respondents
-------
CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
-------
For the Petitioner : Mr. Ratnesh Kumar, Advocate
For the Res.BCCL : Mr. Anoop Kr. Mehta, Adv.
: Mr. Amit Kumar Sinha, Adv.
-------
10/Dated:10.05.2024
Heard learned counsel for the parties.
2. The instant writ application has been preferred by
the petitioner praying for a direction upon the respondent
authorities to consider the case of the petitioner No.1 for
employment in terms of para-9.5.0. (III) of NCWA-VIII and
also for monetary compensation for petitioner No.2, who is
mother of petitioner No.1.
3. The brief fact of the case is that the petitioner No.1
is the son of deceased employee late Bharat Mahto from his
2nd wife and petitioner No.2 who is the 1st wife of the deceased
employee who was working in the services of M/s BCCL as
Tyndal in the Ropeways Division of M/s BCCL. Since
petitioner No.2 was having no issue the employee, Bharat
Mahto got married with one Kalyani Devi with the consent of
petitioner No.2. The employee Bharat Mahto had only one
daughter namely, Kiran Kumari and two sons, namely, Suraj
Kumar Mahto who is the petitioner No.1 and Dhananjay
Kumar Mahto with the said Kalyani Devi.
Unfortunately, Bharat Mahto died-in-harness on
27.01.2007. After the death of employee Bharat Mahto the
biological mother of petitioner No.1, namely, Kalyani Devi
applied for employment on 05.06.2007 under para-9.3.2. of
NCWA which was effective from 01.07.2006 to 30.06.2011.
The petitioner No.2 herein also applied for employment under
the same clause of NCWA VIII. However, the respondent vide
letter dated 04.07.2007 informed the petitioner No.2 that
second wife Kalyani Devi has also claimed employment but
the same cannot be given to Kalyani Devi as the first wife i.e.
petitioner No.2 was alive and requested the petitioner No.2 to
apply for monetary compensation as she has already attained
the age of 45 years.
4. In the instant case, the first wife i.e. petitioner
No.2 was not given employment because of her over age and
second wife Kalyani Devi was also denied employment as she
has no legal right for the same. Subsequently, petitioner No.2
who is the elder mother of petitioner No.1 vide Letter dated
05.06.2008 requested the respondents to keep the name of
her husband's son from his second wife, namely, Suraj
Kumar Mahto who is petitioner No.1 in the instant case and
during relevant time he was above 12 years of age to put him
on live roaster as per the scheme and thereafter provide
employment.
It is the case of the petitioner that as per para
9.5.0. (III), if no employment has been offered and the male
dependent of the concerned worker is above 12 years but
below the age of 18 years; he will be kept on a live roaster and
would be provided employment when he attains the age of 18
years. During the period the male dependent is on live roaster
the female dependent will be also be paid monetary
compensation.
5. In the instant case, the date of birth of petitioner
No.1 is 12.11.1994 which is evident from his matriculation
certificate and at the time of death of his father, he was above
12 years and the respondents were also requested vide letter
dated 05.06.2008 of the elder mother i.e. petitioner No.2, to
keep the name of petitioner No.1 in the live roaster in terms of
para-9.5.0. (iii) of NCWA VIII. However, till date, neither any
employment has been offered to the petitioner No.1 nor the
monetary compensation has been given to the petitioner No.2
from the date of death of her deceased husband.
Further fact reveals that earlier the respondent-
BCCL vide their letter dated 04.07.2007 admits the claim of
monetary compensation for petitioner No.2 but did not
respond to the other claim of appointment which was claimed
by the petitioners in view of para- 9.5.0. (iii) of NCWA.
6. Mr. Ratnesh Kumar, learned counsel representing
the petitioners draws attention of this Court towards
Annexure-6 which is the chapter of social security under
NCWA (VIII). He further submits that as per para-9.5.0 (iii) in
case if no employment has been offered and the male
dependent of the deceased worker is 12 years and above in
age but below 18 years of age, will be kept on live roaster and
would be provided employment when he attains the age of 18
years. Further, during the period, the male dependent is on
live roaster, the female dependent will be paid monetary
compensation.
He further submits that recently in the case of
Jhambai Vrs CCL and Others (W.P.(S) No.803 of 2014) the
coal company upon direction of this Court after 11 years of
death of the deceased employee, has granted employment and
simultaneously monetary compensation under para- 9.5.0.(iii)
of NCWA. He strenuously contended that if the payment of
monetary compensation to petitioner No.2 is admitted by the
respondent BCCL then the second part of 9.5.0. (iii) regarding
employment to the male dependent has to follow.
7. Mr. Anup Kr. Mehta, learned counsel for the
respondents submits that the Late Bharat Mahto having
Personnel No. 00146407 was working as Rigger / Dredger
Operator of Ropeways Area. While in service he died on
27.01.2007 and as per his Service Excerpt he had given the
names of his dependents which are as under :-
(i) Smt. Bhabi Devi - wife aged 30 years as on 01.04.1987.
(ii) Kumari Manju - daughter aged 09 years as on
01.04.1987.
(iii) Gautam Kumar, son 06 years as on 01.04.1987.
(iv) Renu Bala Devi, mother 45 years as on 01.04.1987.
It has been further submitted by learned Counsel
that the name of the petitioner No.1 does not appear in the
Service Excerpts. As per nomination in Form "F under
Payment of Gratuity Act, 1972, the employee had furnished
details of his nominees namely Smt. Bhabi Devi wife with
50% share, (ii) Smt. Kalyani Devi - wife with 50% share in
Gratuity. Xerox copy of Form "F" is annexed and marked as
Annexure-А.
He further submits that after the death of Late
Bharat Mahto, both Smt. Bhabhi Devi and Smt. Kalyani Devi
applied for their appointment on compassionate ground. The
applications were referred to the BCCL Headquarters for their
opinion. The headquarter informed E.J. Area of BCCL that
claim of Smt. Kalyani Devi cannot be accepted as the legally
married 1st wife of Late Bharat Mahto is alive. Further as Smt.
Bhabhi Devi was aged more than 45 years at that time, she
was advised to apply for monetary compensation in lieu of
employment as per clause 9.5.0 of N.C.W.A vide letter No. 738
dated 04/05.07.2007. A Xerox copy of the letter dated
04/05.07.2007 is annexed and marked as Annexure B.
It has been further submitted that as there was a
dispute with regards to payment of Gratuity under P.G Act,
1972, the petitioner in the light of the orders dated
05.11.2009 and 30.11.2011 passed by the Controlling
Authority under P.G Act, 1972 in Application No.
36/(46)/2010.E. 5 applied for Succession Certificate in the
Court of the District Delegate (Sub Judge 1") Dhanbad vide
Succession Certificate Case No. 07/2012 and the District
Delegate by reasons of his order dated 19.07.2012 has been
pleased to issue Succession Certificate in the name of the
petitioner No.2. Xerox copies of the orders dated 05.11.2009
30.11.2011 passed by Controlling Authority under P.G Act
and the Succession Certificate dated 19.07.2012 are annexed
and marked as Annexures C, D and E respectively.
Further, Smt. Kalyani Devi (2nd wife of the
deceased) has also raised an Industrial Dispute for not
providing her employment. Conciliation was taken up by the
ALC (C) Dhanbad vide his letter / notice dated 28.02.2008
and the respondents have also appeared for Conciliation.
Xerox copy of the I.D dated 15.01.2008 and the notice of
Conciliation dated 28.02.2008 are annexed and marked as
Annexures F and G respectively. The respondents have
appeared in Conciliation and have submitted their reply dated
26.07.2011 stating that it is not possible to provide
employment to the 2nd wife of Late Bharat Mahto. Xerox copy
of the reply dated 26.07.2011 is annexed and marked as
Annexure H.
It is also been submitted that the petitioner No.2
was advised to apply for monetary compensation in the light
of the letter dated 06/07.06.2007 of BCCL Headquarters. The
petitioner No.2, however, has not applied for monetary
compensation till date and therefore the respondents are
unable to extend the benefit of monetary compensation.
Learned Counsel lastly submitted that the
petitioner cannot maintain an application for compassionate
appointment which has been made for the first time by filing
this writ application after about 11 years of death. Even
otherwise, petitioner No.1 is not included in the list of
dependents in the Service Excerpts enclosed with the writ
application and marked as Annexure -1.
8. Having heard learned counsel for the parties and
after going through the document annexed with the respective
affidavits and the averments made therein, it appears that the
main grievance of the petitioner is that as per para-9.5.0.(iii)
of NCWA (VIII), the petitioner No.1 is entitled to be kept on
"Live Roaster" and after attaining the age of majority, he
should be given employment and till that period his elder
mother, who is petitioner No.2, should be given monetary
compensation. As such for proper appreciation of the
contention of both the parties para-9.5.0(iii) which deals of
employment/monetary compensation to a female dependent
is to be examined. For brevity, the same is extracted
hereinbelow:
Chapter-IX
Social Security
9.5.0 Employment/Monetary compensation to female
dependant.
Provision of employment/monetary compensation to
female dependants of workmen who die while in service and
who are declared medically unfit as per Clause 9.4.0 above
would be regulated as under:
(i) In case of death due to mine accident, the female
dependant would have the option to either accept the
monetary compensation of Rs. 4,000/- per month or
employment irrespective of her age.
(ii) In case of death/total permanent disablement due
to cause other than mine accident. and medical unfitness
under Clause 9.4.0 if the female dependant is below the age
of 45 years she will have the option either to accept the
monetary compensation of Rs. 3,000/- per month or
employment.
In case the female dependant is above 45 years of age
she will be entitled only to monetary compensation and not
to employment.
(iii) In case of death either in mine accident or for
other reasons or medical unfitness under Clause 9.4.0, if no
employment has been offered and the male dependant of the
concerned worker is 12 years and above in age, he will be
kept on a live roster and would be provided employment
commensurate with his skill and qualifications when he
attains the age of 18 years. During the period the male
dependant is on live roster, the female dependant will be
paid monetary compensation as per rates at paras (i) & (ii)
above. This will be effective from 11 2000.
9. After going through the aforesaid provision made
in NCWA (VIII), it appears that there are specific clauses with
regard to employment as well as monetary compensation.
Clause-(i) of 9.5.0. stipulates that in case of death due to
mine accident, the female dependent would have the option
either to accept the monetary compensation or to accept
employment. Thus, the first clause is in the case of death due
to mine accident which is not the case here.
Clause (ii) deals with the case of death or total
disablement due to cause other than mines accident and
medical unfitness under 9.4.0. and stipulates that if the
female dependent is below the age of 45 years, she will have
the option either to accept monetary compensation or
employment. Since in the instant case the first wife (petitioner
No.2) was admittedly above 45 years; as such the respondent
BCCL has rightly offered for monetary compensation.
Now the bone of contention is Clause (iii) where
the scheme stipulates that in case of death either in mine
accident or other reason or medical unfitness under 9.4.0. if
no employment has been offered and the male dependent of
the concerned worker is 12 years and above, he will be kept
on a live roaster and would be provided employment
commensurate with his skill and qualification when he
attains the age of 18 years. It is further stipulated in Clause
(iii) that during the period the male dependent is on live
roaster, the female dependent will be paid monetary
compensation as per rate mentioned in Clause (i) and Clause
(ii). In the said clause it is also mentioned that this Clause (iii)
will be effective from 01.01.2003.
10. Thus, by going through the aforesaid clauses
stipulated in 9.5.0. in Chapter-IX which is for social security,
the contention of the petitioner that in cases where the male
child is above 12 years and below 18 years and the widow of
the deceased is more than 45 years, then both the benefits
should be given to the claimants. Accordingly, this Court
holds that as per 9.5.0.(iii) the respondent Coal Company is
under obligation to keep the minor child in the live roaster till
the age of his majority and during the said period the widow
dependent will get the monetary benefit.
11. Now coming to the facts of the instant case, in
2008 itself vide Letter dated 05.06.2008 (Annexure-5) an
application was given to the respondents with regard to
appointment of petitioner No.1 who was son of the second
wife. The same was never considered; rather the stand of the
respondents in para- 11 of its counter affidavit is that the
petitioner No.2 was advised to apply for monetary
compensation (Annexure-B). However, petitioner No.2 has not
applied for monetary compensation till date.
This Court has already held that as per 9.5.0. (iii)
of Chapter VI which deals with social security provides for a
system of live roaster of a minor child between 12-18 years
and simultaneously for payment of monetary compensation.
As a matter of fact, it was unfair on the part of respondents to
come with a plea in the counter affidavit that now monetary
compensation could not be paid since she has not applied
and further the petitioner No.1 is not entitled for
appointment. They could have very well rejected the claim of
the petitioner no.2 for keeping her step son in live roaster.
12. Even assuming for a moment that the said letter
of the widow of the deceased was misplaced or not received by
the respondents; it was obligatory on the part of the
respondents to keep his name in the live roaster which has
not been done in the instant case. As a matter of fact, Section
73 in the Mines Rules 1955 stipulates the duties of a welfare
officer which cast certain duties upon the welfare officer. For
brevity, Section 73 of Mines Rules, is quoted herein below:
73. Duties of Welfare Officers.--[(1)] The duties of Welfare
Officers shall be--
(i) to establish contacts and hold consultations with a view to
main-tain harmonious relations between the management
and persons employed in the mine;
(ii) to bring to the notice of the management the grievances of
em-ployees, individual as well as collective, with a view to
securing their expeditious redress;
(iii) to promote relations between management and
employees which will ensure productive efficiency as well as
amelioration in the working conditions and to help work-ers
to adjust and adapt them-selves to their working
environments;
(iv) to assist in the formation of Works and Joint Production
Com-mittees, Co-operative Societies and Safety-First and
Welfare Com-mittees, and to supervise their work;
(v) to help the management in regulating the grant of leave
with wages and explain to the workers the provisions
relating to leave with wages and other leave privileges and
to guide the workers in the matter of submission of
applications for grant of leave for regulating authorised
absence;
(vi) to advise on welfare provisions, such as housing facilities
food stuffs, social and recreational facilities, sanitation,
individual per-sonnel problems and education of children;
(vii) to supervise welfare activities, statutory or otherwise,
including education and training of employees;
(viii) to suggest measures which will lend to raise the
standard of living of workers and in general promote their
well being;
(ix) to perform any other duty connected with the welfare of
the persons employed in mines.
[(2) Notwithstanding anything contained in sub-rule (1), no
Welfare Officer shall deal with any disciplinary case against
a person employed in a mine, or, appear before a Conciliation
Officer, Court or Tribunal on behalf of the management of a
mine against a person or persons employed in the mine,
except when he is required by the Conciliation Officer, Court
or Tribunal to appear as an independent witness:
Provided that nothing in this sub-rule shall be deemed to
prohibit a person employed in a mine from approaching the
Welfare Officer in respect of a grievance arising out of any
case of disciplinary action against him.]
[(3) Every Welfare Officer shall keep a record of his day-to-
day work and shall, at the end of every year, forward to the
Chief Inspector through the manager of the mine concerned,
a summary of the report of his work during the year.]
13. After going through Rule 73, it appears that it is
the duty of Mines Welfare Officer to bring to the notice of the
management the grievance of employee, individuals as well as
collective with a view to securing their expeditious redressal
and that is the reason this Court holds that it was obligatory
on the part of respondents who acts as a Welfare Officer to
bring to the notice of the management about the petitioner's
grievance which has not been done in the instant case. This
proposition is supported by the judgment passed in the case
of Mohan Mahto Vrs. CCL and other reported in (2007) 8
SCC 549 where at para-18 the Hon'ble Apex Court has held
as under-
"18. We have indicated hereinbefore, that it is not necessary
for us to go into the question as to whether in the teeth of the
provision of NCWA V, the respondent at all had any power to
fix a time-limit and thereby curtailing the right of the
workman concerned. We would assume that even in such a
matter, it had a right. But, even for the said purpose, keeping
in view the fact that a beneficial provision is made under a
settlement, the "State" was expected to act reasonably. While
so acting, it must provide for a period of limitation which is
reasonable. Apart from the fact that the period of limitation
provided for in the circular letter with a power of relaxation
can never be held to be imperative in character, the matter
should also be considered from the subsequent conduct of
the respondent insofar as it had issued another circular letter
in the year 2000 providing for filing of an application for
appointment on compassionate grounds within a period of
one year. It may be that the said circular letter has
prospective operation but even in relation thereto we may
notice that whereas the said circular letter was issued upon
holding discussion with the unions, the circular letter of the
year 1995 was a unilateral one. Furthermore, in its letter
dated 2-8-2000/3-8-2000, it will bear repetition to state that
expiry of the period of limitation was not taken as a ground
for rejecting his application. Underage and non-placement of
his name in live roster are stated to be the reasons. It is,
therefore, unfair on the part of the respondent to raise such a
plea for the first time in its counter-affidavit to the writ
petition. If he was underage, definitely, it was obligatory on
the part of the respondent to keep his name in the live roster.
It was not done."
Further the Division Bench of this Court in the
case of Gangia Devi Vrs. BCCL (L.P.A. No.657 of 2018), has
held in para-6 as under :- Relevant portion of paragraph-6 is
quoted hereinbelow:-
"6. We after appreciating the provisions of National Coal
Wage agreement have found therefrom that it is a bipartite
agreement entered in between the authorities of Coal India
Limited, to which, the respondent- B.C.C.L. is one of the
subsidiary and the trade unions other than in course of
conciliation which means that bipartite agreement will be
treated to be an agreement within the meaning of Section
18(1) of the Industrial Disputes Act, 1947 and as such, the
nature of agreement is having its statutory fervor, as has
been held by the Hon'ble Apex Court in the case of Mohan
Mahto Vs. Central Coalfield Ltd. & Ors., reported in (2007)
SCC 549.
This Court, therefore, is of the view that since bipartite
agreement by way of National Coal Wage Agreement is
having statutory fervor, therefore, the same is to be followed
in its strict sense by the respective parties i.e., its
signatories.
It is evident from the condition as contained under Clause
9.5.0. of N.C.W.A.-V, wherein it has been agreed to provide
immediate relief to the dependent of the bereaved family in
case of death of deceased employee in harness, two modes
have been provided to provide the said relief by way of
providing employment on compassionate ground if the
dependent is found to be eligible and less than 45 years of
age or by way of monetary compensation.
The issue as to whether the monetary compensation would
be paid from the date of death or from the date of making an
application is involved herein.
It is evident from the conditions stipulated in N.C.W.A. as
under Clause-9.5.0, wherein a condition of entitlement to
receive monetary compensation has been made, meaning
thereby, there is no stipulation made therein that the wife of
the deceased employee will only be entitled to get the
monetary compensation if she files an application for getting
such monetary compensation, and if entitlement has been
made in the agreement which has got statutory force
irrespective of the fact that the application has been
submitted or not, the wife of the deceased employee would
be entitled to get the monetary compensation."
14. The stand of the Respondents that the name of
petitioner no.1 was not appearing in the Family excerpts is
not acceptable to this Court, inasmuch as, the family excerpts
was filled up much prior to the date of birth of the Petitioner
No.1.
15. The stand of learned counsel for the respondent
that the basic object of compassionate appointment is to give
immediate relief and now after more than 15 years immediate
relief does not survive but the fact remains it was the
respondents who did the mistake and we cannot forget that
compassionate appointment in cases of other institution and
in cases of mines area; same principle cannot be adopted
keeping in view the fact that a beneficial provision is made
out under a settlement and the state is expected to act
reasonably. The matter should also be considered from the
subsequent conduct of the respondent coal company.
16. The Judgments relied upon by Mr. Mehta
rendered in the case of Parden Oraon is not applicable in the
instant case as the same was not dealing Para 9.5.0(iii);
rather the facts of the said case were under 9.4.0. Further, in
the case of Gangia Devi (Supra), the beneficiary got
employment after 11 years.
17. In view of the aforesaid facts and circumstances
this application deserves to be allowed. Accordingly, the
respondents are directed to extend employment to the
petitioner No.1, who is admittedly now more than 18 years,
and also to pay the monetary compensation to petitioner No.2
from the date of death of the deceased employee till the date
of attaining the age of 60 years as per 9.5.0 (iii) of NCWA-VIII.
18. As a result, the instant writ application stands
allowed. Pending I.A., if any, is also closed.
(Deepak Roshan, J.)
Fahim/-
AFR
