Calcutta High Court
Eastern Coalfields Limited vs Kumari Kiran Singh & Ors on 14 December, 2018
Equivalent citations: AIRONLINE 2018 CAL 1593
Author: Shampa Sarkar
Bench: Debasish Kar Gupta, Shampa Sarkar
1
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
(Original Side)
Present:
The Hon'ble Chief Justice Debasish Kar Gupta
And
The Hon'ble Justice Shampa Sarkar
A.P.O. 505 of 2017
G.A. 2449 of 2017
With
W.P. 556 of 2014
Eastern Coalfields Limited
-Vs-
Kumari Kiran Singh & Ors.
For Appellants : Mr. Malay Kr. Basu
Senior Advocate
Mr. R.N. Majumdar
Mr. Nikhil Roy
For Respondent : Mr. U.S. Agarwal
A.P.O. 344 of 2017
G.A. 2093 of 2017
With
W.P. 554 of 2014
Eastern Coalfields Limited
-Vs-
Bhuban Mejhain
For Appellants : Mr. Malay Kr. Basu
Senior Advocate
Mr. Alok Kr. Banerjee
Ms. Sanchita Barman Roy
For Respondent : Mr. U.S. Agarwal
A.P.O. 182 of 2018
G.A. 1812 of 2017
W.P. 232 of 2015
Eastern Coalfields Limited
-Vs-
Oindrila Barman & Others
2
For Appellants : Mr. Anubhav Sinha
Ms. Sanchita Barman Roy
For Respondents : Mr. Partha Ghosh
Mr. Subhojit Seal
Heard on : 05/07/2018, 13/09/2018, 20/09/2018, 27/09/2018, 04/10/2018
Judgment on : 14/12/2018
Shampa Sarkar, J. :
These three intra-court appeals involve similar questions. The appellant in all these appeals is the Eastern Coalfields Limited (hereinafter referred to as ECL). This Court has decided to hear these appeals analogously with the consent of the parties.
2. APO No.505 of 2017 arises out of W.P.No.556 of 2014 (hereinafter referred to as the writ petition no.1).
3. APO No. 3444 of 2017 arises out of W.P. No.554 of 2014 (hereinafter referred to as the writ petition no.2).
4. APO No.182 of 2018 arises out of W.P. No.232 of 2015 (hereinafter referred to as the writ petition no.3).
5. The writ petition no.1 was filed by the respondent/writ petitioner, Kumari Kiran Singh, for setting aside the order passed by the General Manager (P & IR) Eastern Coalfields Limited dated 28/29 November, 2013, by which her prayer for appointment under the appellant on compassionate grounds was rejected. A further prayer for employment in place of her father, late Dilip Kumar Singh, an ex-employee of the appellant who had died-in-harness was also made. The father of Kumari Kiran Singh died-in-harness on January 26, 2004. At the time of death 3 of her father, she was 17 years 8 months and 6 days old. Upon attaining the age of 18 years, she applied for compassionate appointment. On May 12, 2005, the General Manager, Sodepur area sent her documents to the Chairman-cum- Managing Director, Eastern Coalfields Limited, Headquarters who was the competent authority. The competent authority failed to take any action, even pursuant to two representations dated December 16, 2005 and July 6, 2006. Finally in 2011, she filed W.P. No.634 of 2011, being aggrieved by the inaction on the part of the appellant. The said writ petition was disposed of by a learned Single Judge of this court on August 12, 2013, with a direction upon the General Manager (personnel) Eastern Coalfields Limited, to consider the case for compassionate appointment of Kumari Kiran Singh in accordance with law upon giving her a hearing and by passing a reasoned order. On October 28, 2013, Kumari Kiran Singh appeared before the General Manager (P & IR), Eastern Coalfields Limited Head quarters. By an order dated November 28/29 of 2013, the General Manager (P & IR) Eastern Coalfields Limited rejected her prayer for compassionate appointment by assigning the following reasons:-
"I have gone through the representation and argument of Kumari Kiran Singh and found that:
a) Admittedly she was 17 years 8 months and 6 days old on the date of death of her father.
b) The relevant portion of National Coal Wage Agreement (NCWA) applicable to the case is reproduced below:
"9.5.0 (III): In case of death either in mine accident or for other reasons or medical unfitness under Clause 9.4.0, 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 per rates at paras (i) & (ii) above. This will be effective form 1.1.2000".
From the above it is evidently clear that there is a provision of keeping the name of male dependant in the live roster till he attains eighteen years of age, which is the minimum age for employment under Mines Act, 1952. But the same is not applied to the female dependant.
4The Petitioner Kumari Kiran Singh being the female dependant is not entitled for the same consideration.
c) The NCWA-III is a bipartite agreement between the five federations of trade unions representing the workmen of Coal Industry and the Management of Coal India, Singareni Collieries Co. Ltd. (SCCL).
The Subsidiary Companies of CIL such as ECL, has no authority to interpret the provision of said agreement or rewriting in any manner, the contents of the said agreement."
6. Aggrieved by the aforesaid decision Kumari Kiran Singh filed writ petition no.1.
7. The appellant filed an affidavit-in-opposition to the said writ petition and contended that for the welfare of the employees of the Coal Industry a memorandum of agreement dated December 11, 1974 was executed between the management and representing workmen, whereby and whereunder the wage structure and other conditions of service including fringe benefits under the recommendation of Central Wage Board was made applicable. The workmen category of all coal industries demanded review of the wage structure. The Government of India considered and approved the proposal for setting up a joint bipartite Wage Negotiation Committee for the Coal Industries. The committee in which the trade unions were represented came to an agreement in respect of wage scale, wage structure and other service conditions which subsequently came to be known as The National Coal Wage Agreement (in short NCWA).
8. It was the specific case of the appellant before the learned Single Judge that the age of the writ petitioner, Kiran Singh, as assessed by the Internal Medical Examination Board was 17 years 8 months and 6 days on the date of death of her father and as such she was not entitled to an appointment unlike a male dependant as her name could not have been kept alive in the live roster as per the provisions of Clause 9.5.0 of NCWA (VI). Such provision has been accepted and adopted in all subsequent NCWAs.
5
9. According to the appellant, the NCWA was a settlement within the meaning of Section 2 (p) of the Industrial Dispute Act, 1947 (hereinafter referred to as the said Act of 1947) and was binding on the employees as also on the management and the settlement could be challenged either before the Labour Court or the Industrial Tribunal.
10. The learned Single Judge upon hearing the writ petition, by judgment and order dated February 24, 2017, allowed the writ petition and held as follows:-
"This Court, therefore, deprecates the manner in which the authority had proceeded to decide the application in refusing to apply the ratio laid down in Babunti Kumari's case.
The order impugned is thus set aside and quashed.
Because of the observations of the said authority this Court feels that it would be a futile exercise to remit the matter back to the same authority for fresh consideration. The respondent no.4, who is the superior authority, is hereby directed to consider the application of the petitioner afresh and shall dispose of the same within eight weeks from the date of communication of this order in the light of the observations made hereinabove as well as the other conditions required under the said scheme.
The writ petition is thus disposed of.
There will be no order as to costs."
11. Aggrieved by the aforementioned judgment and order APO No.505 of 2017 has been filed by Eastern Coalfields Limited.
12. Writ Petition No.2 was filed by the respondent/writ petitioner Bhuban Mejhain for a direction upon the appellant (respondent therein) to set aside the order passed by the Welfare Officer (T), Pandaveswar Colliery dated February 17/20, 2009 and for a further direction upon the appellant/respondent to provide her with an appointment on compassionate ground in place of her father, late Nitai Majhi who died-in-harness on January 2, 2001. Her mother made an application for her appointment. By order dated February 17/20, 2009 the competent authority rejected the prayer for compassionate appointment of the petitioner on the ground that on the date of death of her father she was 17 years 5 months 18 days old and was not entitled to be appointed as a female dependant 6 as per the provisions of NCWA. Aggrieved by the rejection, the petitioner filed the writ petition. The appellant who was a respondent therein, filed an Affidavit-in- Opposition and the contentions raised by the appellant in the said opposition were similar to those raised by them in their Affidavit-in-Opposition filed to the writ petition no.1.
13. The learned Single Judge upon hearing the contentions of the respective parties remitted the matter back to the General Manager Pandaveswar area, by setting aside the order of rejection dated February 17/20, 2009, with a direction upon the said authority to consider the application for compassionate appointment of Bhuban Mejhain afresh in the light of the observations made in the judgment and order. The relevant portion of the judgment is set out here under:-
"In the instant case, the application for compassionate appointment is rejected as the female dependant is only entitled to monetary compensation and cannot seek the appointment on compassionate ground under the said NCWA scheme. If the male dependant was minor at the time of the death of the employee his name is required to be kept in live roster. There is no justification in rejecting the application that the female dependant was not major at the time of death. Furthermore, the Clause 9.5.0 of NCWA has been held by the Court unconstitutional and discriminatory and the female dependant was found to be equally entitled to be considered for appointment on compassionate ground, this court, therefore, feels both the grounds assigned by the authority cannot be sustained. The order dated 20th February, 2009 is hereby set aside. The matter is remitted back to the respondent no.6, being the appropriate authority, to consider the application afresh in the light of the observation made hereinabove and the other conditions envisaged under the said scheme and shall see that the same is disposed of within six weeks from the date of communication of this order.
There will be no order as to costs."
14. Aggrieved by the aforesaid judgment and order APO No. 344 of 2017 has been filed by ECL.
15. Writ petition no.3 was filed by Oindrila Barman for a declaration that the discriminatory clause in 9.5.0 (iii) in the NCWA was ultra vires the Constitution of India. A prayer was made for setting aside the decision dated 7 January 3, 2015 taken by the CMS (I/C) Administration, CH Kalla, Eastern Coalfields Limited and to provide her appointment as also monetary compensation under the died-in-harness category in place of her mother.
16. The petitioner's mother Dipti Barman died-in-harness on March 6, 2007 in a road accident and her father namely Indrajit Barman made an application before the authorities on March 21, 2007 to keep the name of the petitioner in the live roster and also for monetary compensation. That the petitioner through her father on attaining the age of majority submitted her documents on December 4, 2009. There was a Pre-Employment Medical Examination and the petitioner was asked to appear before the screening committee by a letter dated July 31, 2010. The petitioner's claim for compassionate appointment was rejected by an order dated March 10, 2011 by the competent authority with the following observation:-
"The aforesaid case file was placed before the higher authority for decision as the claimant was Minor on the date of death of the deceased employee. Whereupon, after going through all the materials/documents on record the said authority has shown his inability to consider the instant claim since Kumari Oindrila Barman daughter of Lt. Dipti Barman (Roy), Ex. Dresser (F) was Minor i.e below the age of 18 years as on date of death of her mother and therefore, she is not eligible for employment as per relevant provision of NCWA". The petitioner was above 15 years at the time death of her mother"
17. The writ petitioner did not challenge the aforesaid order but made another application on April 10, 2014 before the competent authority for compassionate appointment and by an order dated July 3, 2014 her case was once again rejected on the same ground. The petitioner was informed that her claim had already been rejected by a letter dated March 10, 2011 which she had duly received as per the records of the appellant. Aggrieved by the aforesaid rejection as communicated by a letter dated July 3, 2014, the petitioner filed W.P. No.726 of 2014. The said writ petition was disposed of by an order dated August 25, 2014 by a learned Single Judge of this court directing the authorities to 8 reconsider the case of the petitioner in the light of the judgments of this court and the Hon'ble Supreme Court on the self same issue. The case of writ petitioner was once again considered and rejected by the appellants by an order dated January 3, 2015. The relevant portion of the order is set out herein below:-
"Restrictive provisions for employment of women on compassionate ground which may be looked to be discriminatory on the face of it but in view of restriction in deploying the women worker under the provisions of the Mines Act as discussed hereinabove the management of coal companies and the representative of the workmen through various federal unions have made restrictive provision in NCWA with respect to the women in giving compassionate appointment.
The above factors has limited the scope of employment of women in the Coal Mining Industries and the Company is running with surplus female employees and to get rid of such surplus female employees it has to bring Spl V.R Scheme.
The employment of Minor daughter under compassionate employment was also not provided by the functioning Trade Unions and management in line with our social customs in which the daughter after marriage goes to the father in law's house. Based on all such factors the discrimination provided in the agreement seems not to be unreasonable and irrational. More over in this particular case the petitioner who is admittedly not entitled for employment because of her under age on the cut of date i.e. Date of Death of her mother was living along with her father. Her father was economically sound and was not declared as a dependent of her mother although living in the same family. Hence there is no economic hardship to the lone daughter.
In view of the above facts and circumstances, since the Compassionate employment is not a vested right, and since the father is economically sound, I am inclined to hold that compassionate employment is a misplaced proposition stemmed not out of need but out of greed. The Hon'ble Supreme Court has already settled through its varied judgment the law that compassionate employment is not a vested right and meant to provide the livelihood of the family of the deceased ex-employee to cope up with sudden financial crisis due to death of the soul bread earner of the family. It is also stated that mere death of an employee in a government or public sector undertaking in harness does not entitle the family to claim employment as it is not a vested right. The competent authority has to examine the financial condition of the family of the deceased employee and if it satisfied that without providing employment the family will not be able to meet the financial crisis that a job is to be offered to the eligible members of the family."
18. Aggrieved by the order of rejection dated January 3, 2015 the petitioner filed the writ petition No.3.
19. The appellant was the respondent in the writ petition and filed an affidavit-in-opposition and relied upon Clause 9.5.0 of NCWA (VI) which has been 9 accepted in the subsequent NCWAs, in order to justify the order of rejection of the case of the petitioner for compassionate appointment. The appellant further contended that as per Section 46 of the Mines Act, 1952 (hereinafter referred to as the said Act of 1952), a women shall not be employed, in any part of a mine which was below the ground. As 85% of the mines of the appellant were underground mines there was very little opportunity to employ and engage women in the remaining few open caste mines. This section was elaborately explained in the opposition, which also provided that every woman should be engaged in a mine only between 6 a.m. to 7 p.m. with interval of not less than 11 hours between termination of employment on any one day and the announcement of next period of employment. It was contended that as the scope of appointment of women in coal mines, was limited the NCWA being a settlement under the Section 2 (p) of the said Act of 1947, was binding on the parties.
20. The learned Judge upon hearing the parties was pleased to allow the said writ petition and held as follows:-
"In my opinion, there is no whisper in the existing rules to what extent a female would be excluded in consideration for employment. In fact, there is nothing in the National Coal Wage Agreement which limits the employment of females in the organization. The National Coal Wage Agreement only says that a minor female dependant would not be placed in the live roster.
This issue about a minor female being excluded in the live roster has been considered at the level of the Division Bench of this Court when a finding has been entered that there was no justification for excluding females from the live roster and that if a female crossed the age of 18 years, then normally she could be appointed in the compassionate category, as noted earlier.
I feel myself bound by those judgments.
I am also of the opinion that the adjudicating authority ought to have confined himself to the issue referred to him by the order of this Court dated 25th August, 2014 instead of digressing to some other areas which were not in issue before the Court when it passed the said order. If Mr. Majumdar has to succeed, either the National Coal Wage Agreement has to be altered with retrospective effect or the decision of our Division Bench overruled by the Supreme Court.
In those circumstances, the impugned decision dated 3rd January, 2015 is set aside. The petitioner is now over 18 years of age. The respondent no. 3 is directed to appoint the petitioner in any suitable post within three months of communication of this order without insisting on following a list of such candidates serially."10
21. Aggrieved by the above judgment and order APO 182 of 2018 has been filed by ECL.
22. Mr. Malay Kumar Basu, learned Senior Advocate appeared on behalf of the appellant ECL in the first two appeals and submitted that once the parties bound themselves by an agreement (NCWA), they would not be entitled to question the validity of the clauses, save and except under section 36A of the said Act. According to him, the settlement was binding and the appropriate forum to decide any issue regarding the same would either be the Labour Court or the Appropriate Government. He further contended that both the writ petitions should have been dismissed in the absence of any challenge to the vires of clause 9.5.0 of the NCWA.
23. Justifying the clauses of the agreement, Mr. Basu contended, that it was difficult for a lady to work in a colliery and the parties to the agreement, consciously did not include minor female dependants of ex-employees who died- in-harness in the live roster unlike minor male dependants but, the female dependants were entitled to appropriate monetary compensation.
24. Mr. Basu, relied upon a Full Bench decision of this court in Putul Rabidas vs Eastern Coalfields Limited & Others (In re: F.M.A No. 4401 of 2016) and contended that Their Lordships had held that as the NCWA was a settlement under the said Act, arrived at between the parties after protracted deliberation, the same was binding on the parties under Section 18 (3) of the said Act of 1947. Mr. Basu referred to the decisions of the Apex Court in the matter of Eastern Coalfields Limited & Others vs Shanti Mudi and Others (In re: Special Leave Petition No. C (s) 8320 of 2015) and in the matter of Eastern Coalfields 11 Limited & Others vs Santi Ruidas (In re: Special Leave to Appeal Civil No.(s) 16870 of 2010) and urged that the judgments relied upon by the writ petitioners/respondents in support of their claim for compassionate appointment and also relied upon by the respective learned Single Judges, were subject matters of challenge in the Special Leave Petitions mentioned hereinabove and those appeals were disposed of by the Hon'ble Supreme Court keeping the point of law raised by the appellant open and therefore, the decisions of the learned Co- ordinate Benches of this court in Eastern Coalfields Limited & Others vs. Shanti Mudi & Others (In re: A.P.O No. 106 of 2014) and Santi Ruidas vs. Coal India Limited & Another, reported in (2010) 2 CAL/LT/703 (HC) were not binding on us.
25. Per contra, Mr. U.S.Agarwal learned Advocate who appeared on behalf of the respondents in the first two appeals relied upon the decisions of the learned Co-ordinate Benches of this court mentioned hereinabove as also the decision of the Hon'ble Supreme Court in Eastern Coalfields Limited vs. Babunti Kumari & Ors. (In re: Special leave to Appeal (Civil) No. (s) 16475 of 2013) by which the Special Leave Petition was dismissed. According to him, the writ petitioners were entitled to have similar benefits as male dependants of an employee who had died- in-harness as decided by other learned Division Benches of this court.
26. Mr. Anubhav Sinha, learned Advocate appeared on behalf of the appellant in the third appeal. While adopting the contentions of Mr. Basu, he urged that the reason for excluding minor female dependants from the live roster was in furtherance of the mandate of Section 46 of The Mines Act. He submitted that NCWA was a bipartite agreement arrived at after prolonged discussion and deliberation and its clauses could not be challenged by way of a writ petition. He 12 relied upon the observations of the larger bench in Putul Rabidas (supra) in support of such submission. Reliance was also placed in the matter of Kisto Dasi vs. Coal India Limited, reported in (2006) 2 CAL LJ 15, Eastern Coalfields Limited vs. Smt. Kisto Dasi and Another (In re: A.P.O 97 of 2006), Eastern Coalfields Limited vs Dilip Singh & Others, reported in (2013) SCC Online Cal 4285, State Bank of India & Another vs. Raj Kumar, reported in (2010)11 SCC 661, Jadavpur University & Another vs. Jolly Dey Bose & Others, reported in (2015) SCC Online Cal 2097, Maino Mejhian vs. Eastern Coalfields Limited & Others, reported in (2015) 1 CAL LT 160 (HC) and Smt. Papiya Banerjee vs. The State of West Bengal & Others, reported in (2015) SCC Online Cal 1682.
27. Mr. Partha Ghosh, learned Advocate appeared for the writ petitioner/Respondent and relied on the decisions of the various Learned Co- ordinate Benches of this court by which it had already been decided that Clause 9.5.0 (iii) of the NCWA was arbitrary and violative of Article 14 and 16 of The Constitution of India. Mr. Ghose relied upon the decision of the Apex Court in Chennai Port Trust vs. The Chennai Port Trust Industrial employees Canteen Workers Welfare Association & Others, reported in 2018 (4) Supreme 487. He further submitted that as similar reliefs had been granted by this court to other female dependants of deceased employees, the petitioner being similarly placed should be granted the same relief. His next contention was that by an earlier order dated August 25, 2014 in W.P NO.726 a learned Single Judge of this court had directed the competent authority of the appellants to consider the case of the writ petitioner, Oindrila Barman, in terms of the orders of the Hon'ble Supreme Court and the learned Division Benches of this court thereby, declaring the right of the petitioner to get the same relief as Santi Ruidas (supra) , Shanti Mudi 13 (supra) and Babunti Kumari (supra) and, the appellant not having challenged the said judgment, could not turn around and maintain the instant appeal. Mr. Ghosh further submitted that the appellant had called Oindrila Barman for medical examination and had recommended her case initially which displayed an intention on the part of the authority to appoint her on compassionate ground but, thereafter the authorities rejected her application on the basis of Clause 9.5.0
(iii) of the NCWA.
28. Mr. Sinha refuted such contention of Mr. Ghosh by submitting that as a matter of course, as soon as applications were made by dependants of deceased employees, their papers were processed and medical examinations were conducted but, such actions on the part of the employer did not amount to any indication that candidates were fit for appointment on compassionate grounds. According to him, in all cases of like nature medical examinations were made as a routine activity and the papers were sent to the competent authority. It was the competent authority who was to ultimately decide the eligibility of the candidates on the basis of the NCWA which contained the scheme for compassionate appointment.
29. Having heard the arguments advanced by the respective parties at length we now proceed to deal with the issues one after the other.
30. The first issue to be decided is whether this bench sitting in coordinate jurisdiction can hear these appeals. Having gone through the judgments of the Hon'ble Supreme Court in both Santi Ruidas (supra) and Shanti Mudi (supra), we find that although, the special leave petitions were disposed of, the question of law in both the cases had been kept open. In Babunti Kumari, the special leave petition was dismissed without going into merits. Moreover, Babunti Kumari 14 (supra) was decided on the basis of the decision in Santi Ruidas (supra). The Hon'ble Supreme Court in the matter of Santi Ruidas (supra), has kept the point of law open and as such there is no bar in considering these appeals, there being no finality to the judgments of the learned Division Benches of this court.
31. Now, we proceed to deal with the nature of the NCWA. The NCWA is a negotiated agreement between the employees of a public employer and such employer, arrived at after collective bargaining and prolonged deliberation. It is a product of meeting of minds. It is not a product of a unilateral decision of the employer. It has a statutory force and is binding on the parties. It must be appreciated that the parties therein were equally represented from both employer's and employee's side and had contemplated all situations, before indentifying the classes of persons who ought to be kept in the live roster, implying thereby that the class not included in the relevant clause of the NCWA were consciously excluded. The NCWA was revised from time to time and fresh agreements and settlements were arrived at with modifications of previous settlements and introduction of additional benefits to the workers keeping pace with changed situations but the relevant provision of 9.5.0 (iii) has never been altered. The NCWA made provisions for compassionate appointment or in the alternative, monetary payment of monthly compensation for the dependants of employees of Coal Companies under Clauses 9.3.0, 9.4.0 and 9.5.0.
32. The participants in the bipartite agreement, leading to the NCWA-VI were as follows:-
Name of the Organisation No. of Members
Representing Management
a) Coal India Limited and its Subsidiary Companies 12
b) Singareni Collieries Co. Ltd. 1
15
c) Tata Iron & Steel Co. Ltd. 1
d) Indian Iron & Steel Co. Ltd. 1
Representing Workmen
a) Indian National Trade Union Congress 6
b) All India Trade Union Congress 3
c) Hindu Mazdoor Sabha 3
d) Bhartiya Mazdoor Sangh 3
e) Centre of Indian Trade Unions 3
33. It is seen that not only Coal Companies which are State under Article 12 of the Constitution of India, but private Coal Companies were also parties to the agreement. It further appears that a charter of demand of the aforementioned unions were integrated and after protracted negotiations a memorandum of understanding was arrived at on December 13, 2000 covering all the demands of the unions. In terms of the said memorandum of understanding the agreement called the National Coal Wage Agreement was born.
34. The NCWA is a settlement under Section 2(p) of the said Act of 1947. Section 2 (p) states as follows:-
" 'settlement' means a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to [an officer authorized in this behalf by] the appropriate Government and the conciliation officer;]"
The NCWA is binding under Section 18(3) of the said Act. Section 18(3) states as follows:-
"18. Persons on whom settlements and awards are binding.-
1. *********
2. ********* (3) 4 ] A settlement arrived at in the course of conciliation proceedings under this Act 5 or an arbitration award in a case where a notification has 16 been issued under sub- section (3A) of section 10A] or 6 an award 7 of a Labour Court, Tribunal or National Tribunal] which has become enforceable] shall be binding on--
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, 5 arbitrator,] 8 Labour Court, Tribunal or National Tribunal], as the case may be, records the opinion that they were so summoned without proper cause;
(c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;
(d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute and all persons who subsequently become employed in that establishment or part."
35. Reliance is placed on the decision of the Learned Full Bench of this court as to the binding nature of the NCWA. The relevant portions of the decision in Putul Rabidas (supra) are quoted below:-
"25. We agree with the learned Judge to the extent that in a given case a distinction may be made between cases where rules framed by the employer are found to be discriminatory and those cases which considered a clause in a settlement arrived at between the employees and the public employer. That is precisely the reason why no departure from whatever is provided in para 9.3.0 would be warranted. Without any addition or subtraction, the various terms of the NCWA-VI have to be read and the meaning of words used therein gathered from the context. Additionally, since a settlement in view of Section 18 of the 1947 Act (which obviously had duly been arrived at between the parties after protracted deliberations) is binding on such parties, we any have to pin down all the parties including ECL to the terms thereof."
36. The Supreme Court while considering the provisions of the aforesaid wage agreements in the case of Mohan Mahto v. M/s. Central Coal Field Ltd & Ors., reported in 2007 (6) Supreme 525 observed in the first paragraph that workmen working in coal mines were, inter alia, governed by a 'Settlement' known as National Coal Wage Agreement 17 (N.C.W.A.) V, which is indisputable a settlement in terms of sub-section (3) of Section 18 of the Industrial Disputes Act.
37. In another decision M/S. Eastern Coalfields Ltd. Vs. Dewanti Kumari & Ors., reported in (2016) 3 WBLR (Cal) 464, it was held that it was indisputable that the National Coal Wage Agreement was a bipartite settlement between Coal India and its subsidiary companies and other employers in the Coal Industry on the one hand and the workmen represented by several trade unions on the other. That settlement had been signed in conciliation and therefore was binding not only on those employees who were in service on the date it was signed but on all future workmen as well. In the same decision it was also held that the guidelines issued on 12th/19th December, 1994 did not have any force of law and was not binding on the appellant.
38. Reference may also be made to the decision in Workmen of the Motor Industries vs. Management of Motor Industries, reported in (1969) 2 SCC 13 in which the Hon'ble Supreme Court held that a settlement under Section 2 (p) of the said Act of 1947, was binding on the workmen. In the decision of Bibha Mondal vs. Union of India, reported in (2016) 1 WBLR (CAL) 632, the issue was whether an unmarried sister of a coal miner who died-in-harness could be given appointment on compassionate grounds under NCWA (VI). It was held, that a distinction had to be made between the manner of interpretation of a clause of an agreement that was born out of negotiations between the representatives of employees and the employer and a clause contained in a set of unilateral rules imposed and introduced by the employer. Accordingly, the sister of an employee who died-in-harness was 18 denied any relief, as a sister did not come within the purview of Clause 9.3.3 as an indirect dependant although a brother was included therein.
39. The scheme governing the field of compassionate appointment for female dependants of employees who died-in-harness under the appellant have been incorporated in Clause 9.5.0 of the NCWA. The clause is quoted below:-
"In so far as female dependants are concerned, their employment would be governed by the provisions of Clause 9.5.0.
(iv) The dependants 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 as male spouse is concerned, there would be no age limit regarding provision of employment.
9.5.0 Employment/Monetary compensation to female dependant. Provision of employment/monetary compensation to female dependants of workmen who die while in service and who are declared medically unfit as per clause 9.4.0 above would be regulated as under:
i) In case of death due to mine accident, the female dependant would have the option to either accept the monetary compensation of Rs. 4000/- per month or employment irrespective of her age.
ii) In case of death/total permanent disablement due to causes other than mine accident and medical unfitness under Clause 9.4.0, if the female dependant is below the age of 45 years she will have the option either to accept the monetary compensation of Rs.3000/- per month or employment.
In case the female dependant is above 45 years of age she will be entitled only to monetary compensation and not to employment.
iii) In case of death either in mine accident or for other reasons or medical unfitness under Clause 9.4.0, 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 per rates at paras (ii) & (ii) above. This will be effective from 1.1.2000.
(iv) Monetary compensation, wherever applicable, would be paid till the female dependant attains the age of 60 years.
(v) The existing rate of monetary compensation will continue. The matter will be further discussed in the Standardisation Committee & finalized."
19
40. Clause 9.5.0 (i), of the NCWA provides that in case of death due to mine accidents, female dependants could claim either employment or monthly monetary compensation per month irrespective of age. Clause 9.5.0
(ii) provides that in case of death or total permanent disablement occurring for reasons other than accidents in mines the female dependant below the age of 45 years could claim either employment or monetary compensation. If a purposive construction is given to the said clauses it would be clear that monetary compensation in either case would be given to female dependants irrespective of their age which meant and included minor female dependants as well.
41. The said provision had not been made applicable in case of male dependants, and on the contrary when a male dependant of an employee who died-in-harness was 12 years of age or above his name would be kept in the live roster and he would be provided employment when he attained the age of 18 years. During the period the name of the male dependant would be in the live roster, the female dependant would be paid monetary compensation. Clause 9.5.0 (IV) stipulates that monetary compensation, wherever applicable would be paid to the female dependant up to the age of 60 years. While making provisions for female dependants, two situations have been taken care of in the NCWA. A female dependant who had attained majority could either opt for appointment or for monetary compensation. The claim for monetary compensation could be made by a female dependant irrespective of her age which, meant that the minor female dependants were also entitled to monetary compensation under the NCWA and would continue to get monetary compensation upto the age of 60 years. 20
42. In our opinion, the clauses were incorporated by a process of deliberation and negotiation by and between the employer and the employee keeping in mind the service conditions prevailing in the coal mines. Separate provisions have been made for male dependants and for female dependants as per the ground reality in coal mines. While there was an upper age limit for appointment of female dependants, there was no such embargo in case of male dependants. Although, a brother was treated as an indirect dependant in the absence of a direct dependant, a sister was not treated as one.
43. In State of Chhattisgarh & Ors. vs. Dhirjo Kumar Sengar, reported in (2009) 13 SCC 600, it was held that appointment on compassionate ground was an exception to the Constitutional Scheme of equality under Article 14 and 16 in the Constitution of India. Compassionate appointment was a special provision in the nature of a privilege given by an employer to the dependant of an employee who either dies or was in- capacitated, in order to allow the bereaved family means to tide over immediate financial crisis. It is a deviation from the general method of recruitment in public employment and is governed by a scheme.
44. The above provisions in the NCWA have been consciously arrived at through a process of collective bargaining between the employer and employees and cannot be tested on those parameters applicable to state action in which, the employer imposes unilateral conditions by way of Statutes, Rules, Regulations or Schemes. In those cases the employees do not have any opportunity of putting forward their opinion and/or demands. Hence, the ratio of the decisions in Air India vs Nergesh Meerza, reported in 1982 SCR (1) 438 and Central Inland Water Transport Corp. Ltd. and 21 Anr. vs. Brojonath Ganguly and Anr., reported in (1986) 3 SCC 156 shall not be applicable here.
45. In a decision of a learned Co-ordinate Bench of this Court in Eastern Coalfields Limited vs. Dilip Singh & Others, reported in (2013) SCC Online CAL 4285, it has been held that it was not open for the court to re-write the terms of the scheme for compassionate appointment (NCWA) but, compassionate appointment being a privilege extended and an exception to the general rule of recruitment and given in terms of a scheme should be strictly construed, and such appointment was not a heritable right. The relevant portion of the said judgment is quoted below:-
"In the decision reported in 2005 LAB I.C. 386 (Geetha Ramani v. The District Educational Officer, Kancheepuram) the Madra High Court applied the provisions of Section 16 of the Hindu Marriage Act, 1955 to a scheme for compassionate appointment to hold that a son born out of second marriage would entitled to employment. We are unable to agree with such proposition. The scheme of compassionate appointment is neither property of the deceased nor a heritable right. It cannot be equated with a right to pension of the employee or his dependants upon his death. Hence, the ratio of the Madras High Court does not appear to be based on sound logic. Reliance on the Apex Court decision is also faulty as a judgement is an authority for what it decides and not what logically follows therefrom. On the other hand, the decision of the Allahabad High Court reported in 2004 (100) FLR 111 (Ramesh Chand v. Executive Engineer, Electricity Distribution Division - II, U.P. Power Corporation Ltd., Allahabad) has rightly interpreted the restricted import of the legal presumption in Section 16 of the Act and rejected its applicability to matters relating to compassionate appointment.
Right to compassionate appointment is an exception to the general rule of recruitment by public competition. Such privilege therefore is to be strictly construed according to the terms and conditions of the scheme and the same cannot be rewritten by the Courts. In Bhawani Prasad Sonkar v. Union of India reported in (2011) 4 SCC 209 THE Apex Court, inter alia, held as follows:
"Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind:
(i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme."22
46. In State Bank of India vs. Jaspal Kaur, reported in (2007) 9 SCC 571 it has been held that a public post was not heritable property. If that be so, then the daughter's claim as a class I heir like a son cannot be applied in cases of compassionate appointment.
47. Reference is made to the decision of State Bank of India & Another vs. Raj Kumar, reported in (2010) 11 SCC 661 wherein it has been held that the claim for compassionate appointment was traceable only to the specific scheme framed by the employer and there was no right outside such a scheme. In another judgment State of Haryana vs. Ankur Gupta, reported in (2003) 7 SC 704 it has been held that the court could not grant compassionate appointment de hors statutory policy.
48. It should be kept in mind that compassionate appointment is given in order to mitigate the immediate financial hardship caused to the distressed family after the sudden death of the sole bread earner. Reference is made to the decision of the Hon'ble Supreme Court in Umesh Kumar Nagpal vs. State of Haryana, reported in 1994 SCC (4) 138, JT 1994 (3) 525 wherein it was impressed that as a rule, appointments in public services should be made strictly on the basis of open invitation of application and on merit but appointment on compassionate ground was an exception to the aforesaid rule, which has given after taking into consideration the fact of the death of the employee while in service and leaving his family without any means of livelihood. In such cases, the object was to enable the family to tide over sudden crisis. However, such appointments on compassionate grounds have to be made in accordance with the rules, regulations or administrative 23 instructions taking into consideration the financial condition of the family of the deceased.
49. In Jagdish Prasad vs. The State of Bihar & Anr., reported in JT 1995 (9) SC 131, also it was held that the very object of appointment of a dependant of deceased employee who died-in-harness was to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family and such appointment could not be given where the death occurred way back even if the claimant of such benefit was a minor at the time of death of deceased Government servant. The relevant portion is quoted below:-
"1. **********
2. ***********
3. It is contended for the appellant that when his father died in harness, the appellant was minor; the compassionate circumstances continue to subsist even till date and that, therefore, the court is required to examine whether the appointment should be made on compassionate grounds. We are afraid, we cannot accede to the contention. The very object of appointment of a dependant of the deceased employees who die in harness is to relieve unexpected immediate hardship and distress caused to the family by sudden demise of the earning member of the family. Since the death occurred way back in 1971, in which year the appellant was four years old, it cannot be said that he is entitled to be appointed after he attained majority long thereafter. In other words, if that contention is accepted, it amounts to another mode of recruitment of the dependant of a deceased government servant which cannot be encouraged, de hors the recruitment rules."
50. In the case of Local Administration Department and Anr. Vs. Selvanayagam @ Kumaravelu, reported in 2011 (2) CLJ (SC) 209 it has been held that when a minor had applied after seven years and six months of his father's death, appointment could not be said to be sub-servient to the basic object and purpose. The Apex Court had thus laid down:-
"9. In this case the Respondent was only 11 years old at the time of the death of his father. The first application for his appointment was made on 24 July 2, 1993, even while he was a minor. Another application was made on his behalf on attaining majority after 7 years and six months of his father's death. In such a case, the appointment cannot be said to sub-serve the basis object and purpose of the scheme. It would rather appear that on attaining majority he staked his claim on the basis that his father was an employee of the Municipality and he had died while in service. In the facts of the case, the municipal authorities were clearly right in holding that with whatever difficulty, the family of Meenakshi Sundaram had been able to tide over the first impact of his death. That being the position, the case of the Respondent did not come under the scheme of compassionate appointments."
51. Reference is made to the decision of Mumtaz Yunus Mulani (Smt.) vs State of Maharashtra & Ors., reported in (2008) 11 SCC 384. In this case the husband of the appellant died in 1996 and she made an application for compassionate appointment in 1997. Another person was appointed in that vacancy. No other post was available to accommodate the appellant. Twelve years had passed since the death of appellant's husband and in the meantime her children had grown up and family pension was received. The High Court had refused to grant relief to the appellant. The Hon'ble Supreme Court upheld the decision of the High Court.
52. In all these appeals before us almost 14 years have lapsed since the death of the deceased and the family had managed to tide over the immediate financial crisis. The female dependants were entitled to monetary compensation. Moreover, Oindrila Barman had her father to look after her. In case of Bhuban Mejhain, her mother could have opted for compassionate appointment at the time of death of her husband but instead, prayed for her daughter's appointment. These crucial aspects and settled legal propositions as regards compassionate appointment have not been considered by the learned Single Judges while disposing of the respective writ petitions. 25
53. We now propose to deal with the judgments of the Learned Co- ordinate Benches of this Court which have decided this issue. In the matter of Santi Ruidas (supra), Coal India Limited was directed to consider the case of the female dependant for compassionate appointment without treating her to be disqualified on the ground that she was a female dependant and therefore, had not completed 18 years of age on the date of the death of her father. Their Lordships relied on the decision of Smt. Kisto Dasi (supra) and examined the National Coal Wage Agreement (NCWA-V) on the touchstone of the provision of Article 14 of The Constitution of India read with Section 2 (d) and 12 of the Protection of Human Rights Act, 1993 and the Convention for the Elimination of All Forms of Discrimination Against Women, 1979 (in short CEDAW). The decision of Kisto Dasi (supra) was on the point as to whether the marital status of the female child would ipso facto be a disqualification from getting appointment on compassionate ground. A learned Judge struck down the prefix "unmarried" in the expression "unmarried daughter" appearing in Clause 9.4.0 (III) to be arbitrary and unconstitutional. The said judgment in Santi Ruidas (supra) was passed without considering that in an appeal namely Eastern Coalfields Limited vs. Kisto Dasi (In re: APO No. 97 of 2006) a Division Bench of this Court had set aside the judgment of the learned Single Judge. The relevant portion of the order of the Division Bench is quoted herein below:-
"3. We do not agree with the learned Judge who holds that the word 'unmarried' was invalid on account of its being ultra vires. It is a trite law that the question of constitutionality of a term or of a provision has to be considered only when it is imperative. In this case, it is not necessary to decide that aspect at all since clearly the status of the daughter of the writ petitioner was that of an "unmarried daughter"
on the day when the writ petitioner claimed employment for her. 26 '4. Sri Dey, learned senior counsel appearing on behalf of ECL very clearly says that in pursuance of the order passed, the employment shall now be offered to the daughter of the writ petitioner. In fact, that should be the end of the controversy. We have only clarified the legal position that the term 'unmarried' preceding the word 'daughter' need not be considered as constitutionally invalid. It remains to be valid as such.
"5. With this we allow this appeal in part and dispose of the same in the light of the observations made above."
54. In Babunti Kumari (supra), Santi Ruidas (supra) and Shanti Mudi (supra) the provisions of Clause 9.5.0 of the NCWA and the binding effect of the NCWA under Section 18 of the said Act of 1947 were not considered. Moreover, all these judgments were pronounced before the decision of the Learned Full Bench in Putul Rabidas (supra). Most importantly after the decision of the learned Full Bench of this Court in Putul Rabidas(supra) the binding nature of Clause 9.5.0 (iii) is well settled.
55. We respectfully disagree with those decisions of this court. In view of the decision of the learned Full Bench in Putul Rabidas (supra) those decisions are impliedly overruled. For the above reasons, the decision in Chennai Port Trust (supra) does not have any manner of application.
56. The learned Single Judge in writ petition no. 1 and 2 erred in directing the appellants to re-consider the case of the writ petitioners in the light of the decisions in Santi Ruidas(supra), Shanti Mudi (supra) and Babunti Kumari(supra), de hors the NCWA without considering the question of inordinate delay and the ability of the family to tide over immediate financial hardship. In writ petition no.3, the learned Single Judge erred in directing appointment relying on those decisions after a lapse of several years. The orders impugned to these appeals are hereby quashed and set 27 aside. The respondents/writ petitioners are entitled to payment of monetary compensation as per the provisions of the NCWA.
57. The three appeals are allowed without however any order as to costs.
58. Urgent Photostat certified copy of this judgment, if applied for be given to the parties on priority basis.
I agree,
(Debasish Kar Gupta, CJ.) (Shampa Sarkar, J.)