Ankush vs Union Of India
2023 Latest Caselaw 1797 MP

                                                     1
                          IN    THE    HIGH COURT OF MADHYA PRADESH
                                            AT JABALPUR
                                                  BEFORE
                                    HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                         ON THE 1 st OF FEBRUARY, 2023
                                         WRIT PETITION No. 1025 of 2023

                         BETWEEN:-
                         ANKUSH S/O LATE SHRI JAYNARAYAN, AGED ABOUT 24
                         YEARS, OCCUPATION: UNEMPLOYED R/O WARD NO. 4,
                         KALICHAPAR POST DAMUA DISTRICT CHHINDWARA
                         (M.P.) (MADHYA PRADESH)

                                                                          .....PETITIONER
                         (BY SHRI SURAJ VERMA - ADVOCATE)

                         AND
                         1.    UNION OF INDIA THROUGH ITS SECRETARY
                               MINISTRY OF COAL SHASTRI BHAWAN, NEW
                               DELHI (DELHI)

                         2.    DIRECTOR PERSONNEL, COAL INDIA PRIVATE
                               LIMITED KOLKATA (WEST BENGAL)

                         3.    CHIEF MANAGING DIRECTOR, WESTERN COAL
                               FIELD   LIMITED REGISTERED OFFICE COAL
                               ESTATE CIVIL LINES NAGPUR MAHARASHTRA.
                               (MAHARASHTRA)

                         4.    DIRECTOR PERSONNEL, WESTERN COAL FIELD
                               LIM ITED REGISTERED OFFICE COAL ESTATE
                               CIVIL   LINES   NAGPUR    MAHARASHTRA.
                               (MAHARASHTRA)

                         5.    GENERAL MANAGER, WESTERN COAL FIELD
                               LIMITED KHANAN AREA, DUNGARIYA, DISTRICT
                               CHHINDWARA (MADHYA PRADESH)

                         6.    MANAGER, AMBARA COLLIERY KHANAN AREA
                               DISTRICT CHHINDWARA (MADHYA PRADESH)

                         7.    CHIEF VIGILANCE OFFICER, WESTERN COAL
                               FIELD LIMITED HQ COAL ESTATE CIVIL LINES
                               NAGPUR MAHARASHTRA. (MAHARASHTRA)
Signature Not Verified
Signed by: VAIBHAV
YEOLEKAR
Signing time: 2/4/2023
5:45:37 PM
                                                               2
                         8.    SUPERINTENDANT      OF   POLICE, CENTRAL
                               BUREAU     OF  INVESTIGATION   JABALPUR
                               DISTRICT JABALPUR (MADHYA PRADESH)

                                                                                         .....RESPONDENTS
                         (BY SHRI HARSHWARDHAN SINGH RAJPUT - ADVOCATE)

                               This petition coming on for admission this day, th e court passed the
                         following:
                                                              ORDER

This petition is filed by the dependent of one Late Shri Jaynarayan on the ground that vide Annexure P-1 Shri Jaynarayan was declared as medically unfit due to HTCDM with CAD with AntwallMI with LVF.

It is submitted that as per the policy contained in Annexure P-4 Clause

9.4.0 (ii) it is provided that in case of disablement arising out of general physical debility so certified by the Coal Company, the employee concerned will be eligible for the benefit under this clause if he/she is upto the age of 58 years. Heading of this clause is Employment to one dependent of a worker who is permanently disabled in his place.

Reading this clause and also the stipulations contained in Annexure P-10

dated 1st September 1994, it is pointed out that since petitioner's father was suffering from cardiovascular disease which will fall in the category of heart attack leading to cardiovascular complication of permanent nature, he is entitled to be considered for employment.

Shri Suraj Verma has placed reliance on a decision of a coordinate Bench of the High Court of Chhattisgarh at Bilaspur in WPS No. 3441/2011 Manoj Kumar Thakur Vs. South Eastern Coal Fields Ltd. and another and submits that under similar facts and circumstances, the writ petition was allowed and respondents were directed to make compliance of the order to consider Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 2/4/2023 5:45:37 PM

case of the petitioner for dependent employment.

It is further submitted that as per Annexure P-8 about 382 workers who were found to be medically unfit during the period 2012-14 under the provisions of Clause 9.4.0 of National Coal Wage Agreement were given appointment on compassionate basis, however, case of the petitioner is not considered.

Shri Harshwardhan Singh Rajput, learned counsel for the Union of India in his turn submits that petitioner's case was considered and vide order dated 30.12.2021/6.01.2022, it was informed that since petitioner's father who was an ex-employee was more than 58 years of age on the date of declaring him medically unfit, the case for employment to his son is not tenable.

It is further mentioned in the said order that there are more than 25 cases pending in W.C.L. where dependent's employment was not considered due to the age of ex-employee who had been declared medically unfit and more than 58 years of age. In this very order, it is mentioned that petitioner's father was declared medically unfit at the age of 59 years 6 months, therefore, there being no evidence to the contrary and petitioner's case being not covered under the

circular dated 1st September, 1994 Annexure P-10 because there is no evidence on record to show that petitioner's father suffered from any heart attack leading to cardiovascular complication of permanent nature. Even, exception cannot be invoked to consider case of the petitioner.

After hearing learned counsel for the parties and going through the record, firstly it is evident from order Annexure P-7 that on the date of petitioner's father being declared medically unfit i.e. 26/12/2013, his age was 59 years and 6 months, therefore, provisions of Clause II of Annexure P-4 will not be applicable because there is a specific ceiling of upto the age of 58 years.

Therefore, Annexure P-4 has no application to the case of the petitioner. Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 2/4/2023 5:45:37 PM

As far as Annexure P-10 is concerned, it has carved out certain exceptions and one of the exceptions on which learned counsel for the petitioner is placing reliance is heart attack leading to cardiovascular complication of permanent nature. However, permanent disability certificate Annexure P-1 does not reveal that his father had suffered any heart attack. He was diagnosed with hypertension with diabetes with CAD.

Thus, in the absence of any history of heart attack leading to

cardiovascular complications, even this circular of 1st September, 1994 will be of no use to the petitioner.

As far as order of Chhattisgarh High Court at Bilaspur is concerned, their case of the petitioner was that date of birth of the employee was 11/02/1951. He had moved an application to the respondents Management on 7/01/2008 requesting for sending the case of the petitioner for Medical Board for declaring him unfit so that he can avail the benefits which were otherwise provided under the service regulations i.e. National Coal Wage Agreement. His case was not forwarded in time and, therefore, under said facts and circumstances, the Chhattisgarh High Court held that consideration of employee's case was unduly delayed for no fault of his, and thus under such facts and circumstances allowed the petition.

Thus, it is evident that as per the date of birth of an employee as mentioned in para 2 of the order as 11/02/1951 on the date of making request to the management on 7/01/2008, an employee was 57 years of age. His request was not considered in time, then it is held by the Chhattisgarh High court that an employee cannot be said to be not medically fit before attaining the age of 58 years whereas in the present case, there is no such material to show that father

Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 2/4/2023 5:45:37 PM

of the petitioner had made any request to the management to send him for medical examination prior to issuance of Annexure P-1 when he had already attained the age of 59 years 6 months and therefore, under such facts and circumstances, judgment of Chhatisgarh High Court is distinguishable on its own facts and is not applicable in the facts and circumstances of this case.

Accordingly, the petition fails and is dismissed. At this stage, petitioner's counsel submits that even after declaring his father to be medically unfit, no monetary compensation is paid to the mother. However, there is no such prayer in the relief clause.

Thus, this issue is not decided by this court and petitioner will be free to seek monetary compensation for his mother if it is permissible under law and is in consonance with the terms and conditions of the policy by making an appropriate representation to the authorities within thirty days from today, which the competent authority shall decide through a speaking order in terms of rules and regulations in this behalf within ninety days thereafter.

(VIVEK AGARWAL) JUDGE vy

Signature Not Verified Signed by: VAIBHAV YEOLEKAR Signing time: 2/4/2023 5:45:37 PM