Jharkhand High Court
Miss. Shanti Kumari vs Employers In Relation To The Management ... on 20 September, 2019
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.3993 of 2018
.......
Miss. Shanti Kumari ... ... Petitioner
-V e r s u s -
1. Employers in relation to the Management of Katras Area of M/s Bharat Cooking Coal Limited at Koyla Bhawan, Koyla nagar, Saraidhela, Dhanbad
2. The General Manager, Office of the General Manager, Katras Area, Katras, Dhanbad
3. The Project Officer, Office of the Project Officer, Amalgamated Angarpathra Ramkanali Colliery, Katrasgarh, katras, Dhanbad ... RESPONDENTS .......
CORAM: - THE HON'BLE MR. JUSTICE DR. S.N.PATHAK
For the Petitioner : Mr. Manoj Kumar Sinha, Advocate
For the Respondents : Mr. Indrajit Sinha, Advocate
Mr. Vipul Poddar, Advocate
.......
09/ 20.09.2019 The petitioner has approached this Court for quashing the order
contained in letter vide Ref. No. 153/2018 dated 13/30.06.2018 (Annexure-6) issued by the respondent No.3, whereby and whereunder, the claim of the petitioner to provide her compassionate appointment has been rejected. Further, prayer has been made for a direction upon the respondents to provide compassionate appointment to the petitioner in accordance with the provision made under Clause 9.4.0 of National Coal Wage Agreement.
The factual exposition as has been delineated in the writ petition is that the father of the petitioner was permanent employee and was posted as Pump Operator at Ramkanali Colliery under the respondents and died in harness on 11.01.2015. At the time of death, the petitioner and her sister were minor and as such, mother of the petitioner, wife of deceased employee had submitted her representation before the concerned respondent for appointment of her daughter on compassionate ground. Thereafter, the respondent No.3 vide letter dated 07.09.2015 directed the mother of the petitioner to procure a certificate from the Block Development Officer to the effect that her daughter namely Shanti Kumari, petitioner is unmarried for the purpose of consideration of her case for compassionate appointment. Further, respondent No.3 vide letter dated 06.01.2016 informed the mother of the petitioner that as the age of the petitioner at the time of death of her father was 15 years 8 months and 24 days, there is no provision to keep a female minor dependant on live roster. It is further the case of the petitioner that on 27.12.2017, petitioner submitted a representation and stated that the ground of rejection of her claim for compassionate appointment by respondents is illegal and 2 arbitrary in view of the fact that she had applied for compassionate appointment on 01.06.2015 and she had already attained majority on 02.05.2017 and as such, she requested the respondents to consider her case for providing compassionate appointment. Subsequently, the respondent No.3 vide letter dated 13.06.2018, rejected the claim of the petitioner for compassionate appointment, which is under challenge in the instant writ petition.
Mr. Manoj Kumar Sinha, learned counsel appearing on behalf of the petitioner assails the impugned order on the ground that petitioner was fully dependent upon the deceased father, who was admittedly an employee of BCCL and died in harness. Learned counsel further submits that unmarried daughter also comes within the definition of the dependent and compassionate appointment has to be provided to unmarried daughter as per the provision of para 9.4.0 of NCWA, and as such, the action of the respondents, rejecting the claim of the petitioner is illegal, arbitrary and not tenable in the eyes of law. He further submits that the action on part of the respondent in rejecting her claim on the ground of gender is against the provision of Constitution of India. Learned counsel further argues that in terms of the NCWA, a male dependant who has not attained the age of 18 years is kept in a live roster till he attains majority but there has been apparent discrimination in the case of female dependants as would be evident from the case at hand. Learned counsel places heavy reliance on a reported judgment of this Court in case of Radha Munda Vs. Director Personnel, Central Coalfields Ltd. & Ors., reported in 2015 (3) JLJR 319 and argues that in view of the judgment/order of this Court, the impugned letter dated 13.06.2018, denying the benefit of compassionate appointment to the petitioner, who is female, is fit to be quashed and set aside Per contra, counter-affidavit has been filed., learned counsel appearing on behalf of the respondents vehemently opposes the contention of the learned counsel for the petitioner and submits that as per the service excerpts of the deceased employee, the name of the petitioner did not find place in the list of dependents and after the death of the deceased employee, the family certificate was submitted by the petitioner in which she is shown as dependent along with her sister and mother. Learned counsel further submits that earlier the mother of the petitioner requested for compassionate appointment to petitioner and same was rejected vide letter dated 06.01.2016 on the ground that petitioner is only 15 years 8 months and 24 days and she is minor and there is no provision to keep the name of female dependant in live roster, which is not under challenge and as such, petitioner is misleading the Court.
3Learned counsel further submits that in absence of any enabling provision that if the dependent of deceased employee was minor and not eligible for being considered for employment on compassionate ground, then he/she can claim such employment after becoming major subsequently, the respondents cannot pass order for compassionate appointment in such cases. The eligibility for employment is required to be seen at the time of death and not subsequently. Learned counsel further submits that as the petitioner has not challenge the first rejection order and if her second application is entertained then her application is time barred and as such, writ petition itself is devoid of any merit and is fit to be dismissed.
Be that that it may, having gone through the rival submissions of the parties, this Court is of the considered opinion that issue involved in the instant writ petition is now no more res integra. Admittedly, the present case exposes the prevalence of gender inequality in Coal India which compels one to contemplate whether the fundamental conception of gender empowerment and gender justice have been given effect to despite a number of legislations and judicial pronouncements. It appears that though there has been formal removal of institutionalized discrimination, yet the mind set and the attitude ingrained in the subconscious have not been erased. Women still face all kinds of discrimination and prejudice. The case of the petitioner has been rejected on the ground that there is no provision in NCWA to keep the name of female dependant on live roster and petitioner was minor at the time of death of her father and issue of 1st application for employment and other grounds.
The father of the petitioner was permanent employee and died in harness on 11.01.2015 and the petitioner and her sister were minor at that time and as such, mother of the of the petitioner i.e wife of the deceased employee had submitted application for employment to her daughter on compassionate appointment. The age of the petitioner at that time was 15 years 8 months and 24 days and as such, her case was rejected as there was no provision for keeping a female dependant on live roster. Further, on attaining the age of majority, the petitioner made application for compassionate appointment, which was rejected on 13.06.2018 on the aforesaid grounds. Admittedly, the petitioner was above 12 years of age on the date of death of her father, which has not been controverted by the respondents. The petitioner being a female cannot be deprived from the benefit provided under NCWA-VI. It appears from the applications submitted by the mother of the petitioner that the same was submitted within time on both occasions and the matter fell short on the ground that 4 petitioner is female and her name cannot be kept on live roster and she has not attained majority. The Clause of 9.5.0 of NCWA provides for employment/monetary compensation to a female dependant. Sub Para-1 of Para 9.5.0 deals with cases of death due to mines accident, wherein a female dependant would have the option either to accept monetary compensation of Rs. 4000/- per month or employment irrespective of her age. In case of a male dependant if he is 12 years and above in age he shall be kept on a live roster and would be provided employment commensurate with his skills and qualifications when he attains the age of 18 years as envisaged in Sub-para 3 of Para 9.5.0. In any case under the provisions of the NCWA a female dependant shall not be kept on a live roster and will only have the option either to accept monetary compensation or employment. The issue with respect to non- entitlement of a female dependant to be kept on a live roster is no more res integra in view of several orders which have been passed by this Court.
This Court in case of Radha Munda Vs. Director Personnel, Central Coalfield Ltd. & Ors., reported in 2015 (3) JLJR 319 has held that if the male legal heir is entitled to employment upon attaining the age of majority, female legal heir is also entitled to appointment upon attaining the age of majority, respondent cannot discriminate petitioner on the ground of sex. Further, petitioner submitted application within time, therefore, she cannot be deprived and discriminated only because she is a female dependant.
This Court in W.P.(S) No.1048 of 2011 in case of Urmila Marandi Vs. Central Coalfield Limited & Ors. while consider the provisions of Clause 9.5.0 of the NCWA has held thus :
(V) It is contended by the counsel for the respondent that as per clause 9.5.0 (iii) of the NCWA, if there is a male legal heir of deceased employee, below age of 12 years, his name will be entered in 'Live Roster' who will be offered employment later on, after he attains age of majority, but petitioner is female, therefore, her name cannot be entered into 'Live Roster'. This argument is not accepted by the Court mainly for the reasons that respondent being 'State' within the meaning of Article 12 of the Constitution of India, cannot discriminate petitioner on the ground of sex. If the male legal heir is entitled to employment, upon attaining age of majority, equally, female legal heir is entitled to compassionate appointment, upon attaining the age of majority. As per Article 16 5 of the Constitution of India, discrimination on the ground of race, religion, sex, caste, place of birth is not permissible.
Similar orders have been passed in W.P.(S) No.6603 of 2011 (Jamuni Kumari Vs. CCL & Ors.) and W.P.(S) No.3386 of 2014 (Geeta Kumari Vs. CCL & Ors.).
The Hon'ble Apex Court in case of Charu Khurana Vs. Union of India reported in (2015) 1 SCC 192 at para 37 & 41 has held thus :
37. Having referred to the aforesaid provisions of the Constitution, and taking note of the submissions, we may presently refer to Articles 14, 19(1)(g) and 21 of the Constitution of India. Article 14 provides that the State shall not deny to any person equality before the law, or the equal protection of laws within the territory of India.
Article 19(1)(g) provides that all citizens have the right to practise any profession or to carry on any occupation, trade or business. Needless to emphasise that the said right is subject to reasonable restrictions to be imposed, as permissible under Article 19(6) of the Constitution. Article 21 deals with the concept of life, which has been extended to a great extent by this Court.
41. The aforesaid pronouncement clearly spells out that there cannot be any discrimination solely on the ground of gender. It is apt to note here that reservation of seats for women in panchayats and municipalities have been provided under Articles 243(d) and 243(t) of the Constitution of India. The purpose of the constitutional amendment is that the women in India are required to participate more in a democratic set-up especially at the grass root level. This is an affirmative step in the realm of women empowerment. The 73rd and 74th Amendments of the Constitution which deal with the reservation of women has the avowed purpose, that is, the women should become parties in the decision-making process in a democracy that is governed by the rule of law. Their active participation in the decision-making process has been accentuated upon and the secondary role which was historically given to women has been sought to be metamorphosed to the primary one. The sustenance of gender 6 justice is the cultivated achievement of intrinsic human rights. Equality cannot be achieved unless there are equal opportunities and if a woman is debarred at the threshold to enter into the sphere of profession for which she is eligible and qualified, it is well-nigh impossible to conceive of equality. It also clips her capacity to earn her livelihood which affects her individual dignity.
The claim of the petitioner for compassionate appointment is based on the provisions enumerated in NCWA under which applications were duly submitted. The applications so submitted were without undue delay in order to enable the petitioner to be granted compassionate appointment and be the breadearner of the family on account of the death of her father who was a Govt. employee. Criteria/Provisions enumerated by the Hon'ble Apex Court in case of Bhawani Prasad Sonkar Vs. Union of India & Ors. reported in (2011 4 SCC 209, has been clearly fulfilled by the petitioner., but since there was an apparent discrimination in excluding female dependants from the purview of being kept on live roster, denial of appointment to the petitioner was made by the respondents.
Article 15 (1) abolishes discrimination and removed disability, liability or restriction on the grounds of sex and ensures equality of status. Article 16 (1) accords equality of opportunity in public service for an appointment or employment to an office or post under the State and prohibits gender discrimination. Article 29 (2) give equal right to education.
As a cumulative effect of the aforesaid Rules, guidelines and judicial pronouncement, the impugned order dated 30.06.2018 is not sustainable in the eyes of law and it is fit to be quashed and set aside as it is unconstitutional not meeting the requirement under Article 14 & 16 and as such, is hereby quashed and set aside. As a result of quashment of the impugned order, the respondents are directed to consider the case of the petitioner for appointment on compassionate ground, within a period of ten weeks from the date of receipt/production of a copy of this order.
With the aforesaid observation and direction, writ petition stands allowed.
(Dr. S.N. Pathak, J.) punit/-