Chattisgarh High Court
Subhawati And Anr vs South Eastern Coalfields Limited And ... on 24 October, 2024
Author: Rajani Dubey
Bench: Rajani Dubey
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2024:CGHC:42125
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Order reserved on : 20-08-2024
Order passed on : 24-10-2024
WPS No. 6182 of 2014
1. Subhawati W/o Babulal Aged About 50 Years R/o Village
Bishunpura, P.O. Parsaon, PS Lalganj, Distt Basti U.P..
2. Guddu S/o Babulal, aged about 21 years, R/o Village-
Bishunpura, PO Parsaon, PS Lalganj, Distt. Basti (UP)
... Petitioners
versus
1 - South Eastern Coalfields Limited Through Chairman-Cum-
Managing Director, South Eastern Coalfields Ltd, Seepat Road,
Bilaspur, Dist Bilaspur (CG)
2 - Director (Personnel), South Eastern Coalfields Ltd, Seepat Road,
Bilaspur C.G.
3 - Manager South Eastern Coalfields Ltd, West Jhagrakhand Colliery,
Hasdeo Area, Teh. - Manendragarh, Distt. Korea (C.G.)
... Respondents
For Petitioners : Mr. Chandresh Shrivastava, Advocate. For Respondents : Ms. Astha Shukla, Advocate.
For State : Mr. Ruhul Ameen Memon, Panel Lawyer 2 / 12 Hon'ble Smt. Justice Rajani Dubey, J C A V ORDER In this petition, the petitioners are challenging the action of the respondent authorities who are not considering the case of the petitioners for grant of appointment under the Social Security scheme envisaged in National Coal Wage Agreement-IX despite the fact that a competent civil court has already decreed regarding civil death of husband of petitioner No.1 and father of petitioner No.2.
02. Case of the petitioners, in brief, is that husband of petitioner No.1 and father of petitioner No.2 namely Babulal was posted as Breakman at West Jhagrakhand Colliery, Hasdeo Area after being appointed on 13.8.1982 and served in the respondent company till he went missing. During his service period, he was diagnosed with chronic schizophrenia which was deteriorating. His condition was serious, so he was under treatment but the respondent company could not provide him proper and standard treatment. Therefore, one day Babulal left for his hometown in Uttar Pradesh and never returned. Though the petitioners tried their level best to trace him out but failed. A missing report was also lodged with the police and the respondent management was also informed about missing of Babulal and it was even published in the newspapers. However, the respondent authorities issued charge sheet against Babulal which was duly replied by petitioner No.1 stating therein that her husband was suffering from mental disorder and was under continuous treatment, as such no 3 / 12 departmental action be taken against him till he is cured. Thereafter, no further information was conveyed to the petitioners by the respondent authorities.
03. It is further case of the petitioners that since it was getting very difficult for the petitioners to survive as Babulal was the only earning member of the family, the petitioners enquired regarding provision for dependent employment in the respondent company but it came to their knowledge that the same is available only after death of the employee. So, the petitioners preferred a civil suit for declaration of death of Babulal and the said suit was decreed in favour of the petitioners declaring civil death of Babulal vide judgment and decree dated 31.1.2012 passed in Civil Suit No.9A/2011. Thereafter, petitioner No.1 made an application on 31.7.2012 (Annexure P/6) to the respondent authorities for clearing the dues of Babulal regarding gratuity, pension, life cover etc. She also made an application for allowing the benefit of dependent employment as per social security scheme under NCWA vide Annexure P/7. However, till date the respondent authorities have not provided dependent employment to the petitioners. Hence this petition for the following reliefs:
"10.1 The Hon'ble Court may kindly be pleased to call for the entire record pertaining to the case of the petitioners.
10.2 The Hon'ble Court may kindly be pleased to direct the respondent Company to consider the case of the petitioners for dependant employment as per the social 4 / 12 security envisaged under the National Coal Wage Agreement.
10.3 The Hon'ble Court may kindly be pleased to further direct the respondent Company to provide employment to the dependant of Late Babulal as per National Coal Wage Agreement.
10.4 Any other relief, which this Hon'ble Court may deems fit and proper may also be awarded to the petitioner including the cost of the petition."
04. Learned counsel for the petitioners would submit that action of the respondent authorities is illegal, arbitrary and discriminatory as they are not following the terms and conditions of National Coal Wage Agreement-IX, Point No.9.3 of which deals with the provision for employment to dependent. As per NCWA-VI which is applicable to the present case for compassionate appointment also, there is no such condition which the petitioners could not satisfy and they are fully eligible for compassionate appointment. He would next submit that all the requisite information and certificate have already been submitted before the respondent authorities but the same is not being considered. The competent civil court has already declared death of Babulal, even then benefit of dependent employment is not being accorded to his legal dependants. NCWA is a beneficial measure incorporated for the benefits of employees and the social security scheme is incorporated for security of the depandants/family of a deceased employee but despite that, the same has been applied 5 / 12 arbitrarily by the respondent authorities, thereby denying the benefit of dependent employment to the petitioners.
Reliance has been placed on the decisions in the matters of MP State Co-operative Marketing Federation Ltd. Vs. Aruna Pyasi, (2003) 03 MP CK 0102; Vimlesh Batham Vs. State of MP and another, (2013) 08 MP CK 0258; order dated 20.07.2017 of the High Court of MP, Jabalpur in WP No. 10859/2011 in the case of Deepak Kumar Jharbade Vs. The Western Coal Field Ltd.; Eastern Coalfields Ltd. Vs. Nitu Devi, AIR OnLine 2022 Cal 1339; and the order dated 14.07.2023 of the Hon'ble Supreme Court in Special Leave Petition (Civil) Diary No. 13083/2023 in the case of Eastern Coalfields Ltd. Vs. Nitu Devi and others.
05. On the other hand, learned counsel for the respondents would contend that plain reading of Clause 9.3 of NCWA reveals that employment on compassionate ground can be offered if the person concerned dies while in service of the company and as the husband of petitioner No.1 was terminated from service and his name was struck off the rolls on 23.8.2005, the petitioners are not entitled to be considered for employment on compassionate ground. Even otherwise, the petitioners were well aware of the fact that Late Babulal has been terminated from service since long but they chose to sit tight over the matter and did not challenge his termination before any court of law 6 / 12 and as long as the order of termination remains valid, there is no scope for providing employment to the petitioners.
He would next submit that Late Babulal remained unauthorizedly absent for a long period and the said act was condemned by the respondent authorities by means of various show cause notices dated 19.5.1992, 28.9.1999, 29.4.2001 and 22.6.2002 which were never replied to by him. He was a habitual absentee, consistently engaging in unauthorized absence without prior notice which violated the standing orders of the respondent company. In these circumstances, the respondent company was constrained to initiate disciplinary proceedings against Late Babulal for unauthorized absence and charge sheet was issued on 15.12.2003 and only thereafter petitioner No.1 lodged a General Diary reporting about missing of her husband and she never intimated the respondents that her husband was not traceable. In her reply (Annexure P/4) filed on 1.1.2004 she took a calculated risk of not informing the respondent authorities regarding missing of her husband and only requested not to initiate disciplinary proceedings on the ground that he is undergoing medical treatment. Even the petitioner's claim that Late Babulal was suffering from mental disorder during the term of his service is firmly denied as the medical report provided by the petitioners dates back to 2003 which indicates that he was fit prior to that period. Therefore, his habitual absenteeism cannot be attributed to any medical ailment as suggested by the petitioners.
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06. Learned counsel for the respondents further argued that the respondent company does not provide employment on compassionate ground in case of civil death as the provision of Clause 9.3.1 of NCWA only deals with cases of natural death while the employee is in service. Even otherwise, compassionate appointment is to be granted to the dependants of the deceased to tide over the immediate financial loss occurred on account of sudden death of the earning member. However, in the present case, the petitioners have survived several years after Babulal went missing and the application for compassionate appointment was filed on 31.7.2012, therefore also they are not entitled for any compassionate or dependent employment. The judgments relied upon by learned counsel for the petitioners being distinguishable on facts are of no help to them. Hence the present petition being without any substance is liable to be dismissed.
Reliance has been placed on the decision of the Hon'ble Apex Court in the matters of State of West Bengal Vs. Debabrata Tiwari and others, 2023 LiveLaw (SC) 175 and the judgment dated 11.12.1997 of the High Court of Allahabad in Ravi Shankar Tewari Vs. Police Maha-Nideshak and others, (1998) 2 UPLBEC 1183.
07. Heard learned counsel for the parties and perused the material available on record.
08. It is an admitted position in this case that Late Babulal Yadav, husband of petitioner No.1 and father of petitioner No.2, was an 8 / 12 employee of the respondent company. He was absent from duties w.e.f. 28.12.2002 and as per the respondents, an enquiry was initiated against him and charge sheet was issued on 15.12.2003 (Annexure R/1).
According to the petitioners, when Late Babulal was missing for a long period, they filed a civil suit for declaration of civil death of Babulal before the Civil Judge, Class-I, Manendragarh, Distt. Koriya and vide judgment and decree dated 31.1.2012 the learned Civil Judge declared civil death of Babulal. The petitioners thereafter filed an application for compassionate/dependent employment but the respondents rejected their claim for such appointment.
09. The High Court of Madhya Pradesh in the matter of MP State Co-operative Marketing Federation Ltd. (supra) held as under:
"In the case in hand, there is no dispute that husband of the petitioner is missing from 6-2-1992. The appellant has not proved that he was alive after this date, despite burden on it. Therefore, the petitioner succeeds to establish that from 6-2- 1992, her husband was not heard of for 7 years so presumed to be dead, can be drawn in the absence of proof to the contrary by the respondent. In the circumstances of the case, Court can legitimately draw this presumption from 6-2-1992 in terms of section 108 of Evidence Act, and husband of the petitioner is deemed to have died for the past 7 years.
Second contention is that compassionate appointment cannot be given against the statutory rules.9 / 12
Reliance is placed on State of H.P. and Another Vs. Jafli Devi (Smt.). There is no dispute with respect to the question decided by the Apex Court in this case, but rules with regard to compassionate appointment deal with extraordinary circumstances when an employee dies during the course of service and his dependents are in need of compassionate appointment, to make both ends meet. Had it not been so, there would be no purpose to frame rules for compassionate appointment. Rule 8(c) of the Compassionate Appointment Rules provides for appointment of a member of the family, namely, son, adopted son, unmarried-daughter etc., totally dependent on the deceased on compassionate ground, or on the untimely death of the employee. Husband of the petitioner was permanent employee of the respondent, there is no dispute about it. From the report of the department, he was not heard of since 6-2-1992, as he did not turn up. Therefore, after the expiry of 7 years, he is deemed to have died since he was not heard of. With this background, termination of his service would be rendered inconsequential. Even otherwise, action against dead person is a nullity and proceedings, which are pending, stand vitiated."
10. In a similar matter of Deepak Kumar Jharbade (supra), the High Court of Madhya Pradesh observed in paras 5, 6, 7 & 8 as under:
"5. The petitioner also got a declaration in a civil suit regarding death of his mother whereby the Civil Court has passed an order, which has been appended to the writ petition as Annexure-P/12.10 / 12
6. On the other hand, learned counsel for the respondents submitted that since the service of the mother of the petitioner was already terminated, therefore, the case of the petitioner seeking appointment on compassionate ground has rightly been declined by the respondents. However, counsel appearing for the respondents could not substantiate his argument that the present case is distinguishable from the case of M.P. State Co-operative Marketing Federation Ltd. vs. Aruna Pyasi (supra).
7. Regard being had to the arguments advanced on behalf of the parties, this Court deems it proper to direct competent authority of the respondents to reconsider the case of the petitioner for his appointment on compassionate ground in the light of the judgment passed by a Division Bench of this Court in M.P. State Co-operative Marketing Federation Ltd. (supra) without being influenced by the previous order, as the respondents have failed to point out that the present case is distinguishable from the factual assertions made in M.P. State Co-operative Marketing Federation Ltd. (supra).
8. It is unnecessary to emphasize, the respondents will reconsider the case of the petitioner within a period of two months from the date of production of a certified copy of the order passed today and communicate the decision taken by them in the representation made by the petitioner. It is hereby made clear that this Court has not expressed any opinion on the merits of the case."
11. The High Court of Calcutta in the matter of Eastern Coalfields 11 / 12 Ltd. (supra) observed in paras 37 & 38 as under:
"37. In the light of the above discussion it is crystal clear that Ram Kumar Mahato is missing since the month of March 2005 and has expired but no exact date of death can be ascertained. As such the respondent No.1, being the wife of Ram Kumar Mahato, is entitled to appointment on compassionate ground as the said Ram Kumar Mahato was terminated from service solely on the ground of unauthorized absence and not on any ground of moral turpitude. Furthermore, the declaration of death by the Learned Civil Court in the suit where ECL was a party, must be treated to be of binding effect.
38. As such this Court finds no laches in the order and Judgment dated 21.12.2020 passed by the Hon'ble Single Bench and the same stands affirmed."
Against the above order, Eastern Coalfields Ltd. filed Special Leave Petition before the Hon'ble Supreme Court and vide order dated 14.7.2023, the said petition was dismissed.
12. From the judgment and decree dated 31.1.2012 passed in Civil Suit No. 9A/2011 it is clear that the learned trial Court found that since 27.11.2003 to 27.11.2010 nobody saw Babulal alive and hence declared civil death of Babulal. According to the respondents they issued charge sheet on 15.12.2003 against Babulal and terminated him after enquiry on 23.8.2005. It is not in dispute that he was absent from his duties since 28.12.2002 and did not turn up, therefore, his 12 / 12 family members filed a civil suit in the year 2011 for declaration of his civil death which was decreed in favour of the petitioners. So, in this background, termination of services of Late Babulal would be rendered inconsequential. Even otherwise, action against a dead person is a nullity. As such, the respondent authorities were not justified in denying the claim of the petitioners on the ground that services of Babulal were terminated by a competent authority.
13. Having regard to the facts and circumstances of the case, the writ petition is disposed of with a direction to the petitioners to submit a fresh representation with all the relevant documents before the concerned authority who in turn shall consider and decide the same treating it to be within limitation, within a period of three months from the date of receipt of such representation in accordance with law and if petitioner No.2 is found eligible, then he be given compassionate appointment as per rules.
Sd/
MOHD
Digitally
signed by (Rajani Dubey)
Judge
AKHTAR MOHD
KHAN AKHTAR
KHAN
Khan