Sarju Prasad Singh vs Bharat Coking Coal Limited on 21 July, 2017

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Jharkhand High Court

Sarju Prasad Singh vs Bharat Coking Coal Limited on 21 July, 2017

3. The petitioner was initially appointed on the post of Helper Trainee in Shaft Mines, Sudamdih on 19.06.1971. Thereafter, he was promoted to the post of EP Fitter and he was posted in Chandan Open Cast Project in Sudamdih Area. On 21.11.2005, the petitioner was admitted in Central Hospital for treatment of cerebella degeneration disease. Thereafter, he was discharged from the Hospital on 26.11.2005. The Medical Officer referred him to AIIMS, New Delhi for further treatment. It is the case of the petitioner that despite advice of the Doctor and request made by the petitioner, the Management did not accord permission for such treatment in AIIMS. The petitioner was again admitted in Central Hospital, Dhanbad on 08.06.2006. The Head of the Department of Medicine, Central Hospital, reported that the petitioner is suffering from cerebella degeneration and severe disease since last 6-7 months and as such, he was advised to be referred to AIIMS, New Delhi for further treatment. Ultimately, on advice of Head of the Department of Medicine, the matter was referred to Bangur Institute of Neurology, Kolkata. Again, the Management did not accord any permission for treatment.

4. Thereafter, the competent authority of the Hospital referred the matter, after filling-up the form of medical examination, to the Area Medical Officer, Sudamdih Area showing that the petitioner was suffering from paralysis type disease. It is the case of the petitioner that by letter No. 399 (A) dated 28.06.2006, the Medical Superintendent (HQ) reported to the Area Medical Officer, BCCL Eastern Jharia Area but the same was not agreed upon. It is the further case of the petitioner that vide letter No. 6205 dated 21.08.2006, the Area Personnel Manager, Eastern Jharia Area requested the Project Officer, COCP Sudamdih to instruct the petitioner to attend the Apex Medical Board on 22.08.2006 along with requisite photographs, etc. On 22.08.2006, the petitioner appeared before the Medical Board where he was neither declared fit nor declared to be unfit and the matter remained pending. As such, on 02.09.2006, the petitioner made a representation before the respondent No. 2 with a request to provide him the benefits of NCWA-VI and VII.

5. On 03.09.2007, the petitioner made an application to the Executive Director (Central), Dhanbad stating that despite reference, he was not granted permission, as a result of which, he had to undergo treatment at CMC Vellore since 23.10.2006 to 03.11.2006 and took medicine for a period of six months at Vellore and accordingly, permission for treatment at AIIMS, New Delhi was not fruitful. When the case of the petitioner was not considered under Clause 9.4.0 of NCWA-VI, petitioner preferred a writ petition, which was registered as W.P.(S). No. 3471 of 2007. The said writ petition was disposed of vide order dated 14.02.2008 with an observation to take a decision within period of three months from the date of receipt of a copy of this order.

6. It has been stated that vide letter No. BCCL/PEH/08/119 dated 21/24.01.2008, the respondent No. 5 communicated to the petitioner that he was not entitled for the benefits under Clause 9.4.0 of the NCWA and as such, the present writ petition has been preferred challenging the said order.

7. Mr. A.K. Sahani, learned counsel for the petitioner submits that respondents-authorities have illegally and arbitrarily rejected the case of the petitioner and have not taken Clause 9.4.0 of the NCWA in its true spirit. Learned counsel further submits that one Ram Deo Singh, who was sick for a period of six months, had been granted the benefit under Clause 9.4.0 of NCWA by Office Order dated 24.05.2003 and as such, the respondents have discriminated the petitioner by not allowing the benefits under Clause 9.4.0 though several similarly situated persons have been granted the benefits of Clause 9.4.0 of NCWA. Learned counsel for the petitioner also submits that the decision of the Apex Medical Board is arbitrary and violation of Article 14 of the Constitution of India. Summing up his arguments, learned counsel has submitted that the impugned order is wholly unlawful, unjust and improper.

8. Per contra counter affidavit has been filed by the respondents. Learned counsel for the respondents-BCCL, justifies the impugned order. He submits that the petitioner has got an alternative remedy and forum under the Industrial Disputes Act for redressal of his grievance and the same cannot be sought under Article 226 of the Constitution of India. Learned counsel further submits that petitioner is not entitled to get any relief under Clause 9.4.0 of the NCWA. Learned counsel further argues that the Medical Board constituted by the Company and also the Appellate Board, after 4 examining the petitioner, have held that he was not entitled to get the benefit of Clause 9.4.0 of the NCWA. Learned counsel further submits that as petitioner has not been declared medically unfit/ disabled, he is not entitled for the benefits under Clause 9.4.0 of the NCWA. Learned counsel argued that there is no arbitrariness or perversity in the impugned order neither there is any violation of principles of natural justice.

9. Be that as it may, having gone through the rival submissions of the parties and after careful consideration of the case in hand, this Court is of the considered view that there is no illegality or infirmity in the impugned order. No error has been committed on part of the respondents. Nothing can be derived beyond the scope of law. Clause 9.4.0 of the NCWA-VI is reproduced herein below:-

"Clause 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 the Company, 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 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 dependent on the earning of the employee may be considered."

10. From the aforesaid provisions, it is quite clear that "general physical disability" has to be given by the Coal Company for invoking Clause 9.4.0 and in the instant case, when Coal Company i.e. BCCL and its competent Authority have not given the said certificate in favour of the petitioner and also the Apex Medical Board has duly examined the petitioner and did not grant the said certificate, the petitioner is not entitled to get the benefit under Clause 9.4.0 of the NCWA. The respondents authorities have categorically held in the order dated 30.05.2008 that, "the case of Sarju Prasad Singh (the petitioner) is not fit for consideration and accordingly, his case was not recommended by the Apex Medical Board for consideration under Clause 9.4.0 of the NCWA-VI."

11. It is also made clear that extra care was taken in the case of the petitioner and on the basis of his representation, the case was also examined by the Appellate Medical Board, which is the ultimate Board for consideration of the case under Clause 9.4.0 of the NCWA and the said Appellate Medical Board of BCCL also did not find the case of the petitioner fit for consideration under Clause 9.4.0 of the NCWA. The petitioner had also moved the Hon'ble High Court in W.P.(S). No. 3471 of 2007 and even the directions and observations by the Hon'ble Court, has been complied with.

12. Accordingly, I do not find any illegality or infirmity in the impugned order. Resultantly, the case of the petitioner merits dismissal.

(Dr. S.N. Pathak, J.) kunal/-

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Jharkhand High Court