Madhya Pradesh High Court
Virendra Chand vs Northern Coalfield Lt.D Judgement ... on 12 November, 2013
Writ Petition No.9018/2011(s)
12/11/2013
Shri S.K.Dubey, learned counsel for the
petitioner.
Shri Anoop Nair, learned counsel for
respondents.
With consent of learned counsel for the parties petition is heard finally.
This petition has been filed at the instance of employee and his son. That during pendency of the petition, petitioner no.1 who was employed with respondent as Foremen-in-charge expired. Accordingly, his name has been deleted and the petition is prosecuted by petitioner no.2 son of the deceased employee.
Petitioner claims compassionate appointment in lieu of illness of his father (petitioner no.1 since deceased) who was employed as Foremen-in- charge at Khadia Project NCL, Singrauli and while in service suffered serious ailment of paralytic attack on 16.12.2009. Petitioner's father (petitioner no.1 since deceased ) on strength of clause 9.4.3(1) and 9.4.3 (2)of NCWA IV and the circular No. C- 58:MPADV/2735-52 dated 7.7.1992 sought employment of his son petitioner no.2 on compassionate ground. The request was turned down by order 5/6.3.2010 whereon it was held that petitioner's father having crossed 58 years as per provision as in NCWA-VIII, is not entitled to seek compassionate appointment in favour of his son. Aggrieved, the petitioner filed this petition.
On being noticed the respondents have contradicted the claim by the petitioner. It is stated that at the time when petitioner's father (petitioner no.1 since deceased) fell ill ,i.e, 16.11.2009, NCWA
-VIII was applicable and as per condition stipulated therein if an employee attained the age of 58 years then his dependents cannot be given employment as per clause 9.4 (iii) NCWA.
It is further contended that NCWA -VIII adopted clause 9.3,9.4 and 9.5 of NCWA VI vide letter dated 16.1.2010. It is contended that with advent of NCWA VI and NCWA VIII. The provision contained NCWA IV and circular dated 7.7.1992 stood superseded. It is urged that petitioner's father having crossed 58 years. Petitioner was not held entitled for appointment on compassionate ground.
No rejoinder has been filed by the petitioner. Considered the rival submission. Question which crops up for consideration is as to whether petitioner would be entitled for the appointment on compassionate ground as per provision contained under the NCWA IV and circular issued on 7.7.1992.
True it is that it was provided therein that disablement under clause 9.4.3 (1) arising from Cancer, paralysis, heart disease depending onnatura of job of the employee laprosy with complication like deformation ulcer with auto-amputation etc, complete blindness and deafness and serious physical disability arising out of and in course of employment leading to declaration of being unfit were the ground for valid consideration for appointment on compassionate ground under the NCWA IV. The question however is whether these provisions are applicable with coming into force of NCWA VI and VIII respectively.
Respondents have relied upon circular dated 16.1.2010 which stipulates :
"National Coal Wage Agreement- VIII finalized by the Joint Bipartite Committee by the Coal Industry on 24.01.2009 which has come into force w.e.f. 01.07.2006 provides the following in respect of Social Security ( Chapter IX ). 9.3.0, 9.4.0 & 9.5.0. Provision of Employment/payment of monthly monetary compensation to dependant.
i) The Clauses 9.3.0, 9.4.0 & 9.5.0 of NCWA-VI will be operative in NCWA-VIII till a revised scheme is jointly prepared keeping in view the various verdict of Hon'ble Supreme Court at the earliest.
ii) A Sub-committee of JBCCI will formulate a scheme keeping in view various directives of Supreme Court on the subject within three months of signing of the Agreement.
iii) Meanwhile provision of employment as mentioned at (i) above, shall be on basic wage of Cat.I as trainee for a period of 6 months. During the training period they will have the status of permanent employee. On completion of training they shall be regularised as Cat.-I employee.
iv) The monthly monetary compensation payable to the female dependant in case of death either in mine accident or for other reasons or medical unfitness of the employee shall be @ Rs.6000/- with effect from 1.5.2008.
v) In case of death either in mine accident or due to other reasons or medical unfitness, 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 given in (iv) above.
You are requested to take necessary action to implement the above provisions. Clause 9.4.0 chapter IX of NCWA VI which brought on record provide for :
"9.4.0.'Employment to one dependent of a worker. who is permanently disabled in his place :
(i) The disablement of the worker concerned should arise from injury or disease, be of a permanent nature resulting into loss of employment and it should be so certified by the Coal Company concerned.
(ii) In case of disablement arising out of general physical debility so certified by Coal Company concerned, the employee concerned will be eligible for the benefit under this clause if he/she is upto the age of 58 years.
The term "general physical debility' would mean deficiency of a workman due to any disease or other health reason leading to his/her disablement to perform his/her duties regularly and/or efficiently.
(iii) The dependent for this purpose means the wife/husband, as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependent is available for employment, brother, widowed daughter/widowed daughter-in- law or son-in-law residing with the employee and almost wholly dependant on the earnings of the employee may be considered.
In so far as female dependants are concerned their employment would be governed by the provision of clause 9.5.0.
(iv) The dependant to be considered for employment should be physically fit and suitable for employment and aged not more than 35 years provided that the age limit in case of employment of female spouse would be 45 years as given in Clause 9.5.0. In so far, male spouse is concerned, there would be no age limit regarding provision of employment ."
Fair reading of this provision no way establishes that an employee crossing 58 years of age retiring on medical ground would entitle him to seek appointment of his dependent on compassionate ground.
In view whereof, relief as sought for petitioner seeking appointment on compassionate ground cannot be granted.
In the result petition fails and is dismissed.
(SANJAY YADAV) JUDGE das