Calcutta High Court
Chief General Manager vs Sanjit Bouri & Ors on 13 September, 2018
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta, Shampa Sarkar
ORDER SHEET
A.P.O. No. 105 of 2015
With
W.P. No. 506 of 2011
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
CHIEF GENERAL MANAGER, MUGMA AREA, EASTERN COALFIELDS LTD.
Versus
SANJIT BOURI & ORS.
BEFORE:
The Hon'ble JUSTICE DEBASISH KAR GUPTA
-And-
The Hon'ble JUSTICE SHAMPA SARKAR
Date : 13th September, 2018.
For Appellant : Mr. Bijoy Kumar, Adv.
For Respondents : Mr. Subrata Ganguly, Adv.
This appeal arises out of the judgement and order dated August 18, 2014 passed in W.P. No. 506 of 2011 (Sanjit Bouri & Ors. vs. Coal India Ltd. & Ors.). The appellant, who are the respondents in the writ petition, have challenged the order impugned on three grounds. First, that this Court did not have territorial jurisdiction to entertain the writ petition. Next, that the writ petition was delayed and as such should not have been entertained by the learned Single Judge. Finally, that the writ petitioner was under age at the time of death of his elder brother, Ranjit Bouri, who was an employee under the appellant, i.e. on June 11, 1996.
Having heard the rival contentions of the learned Advocates for the parties as also upon considering the facts and circumstances of the case 2 and the decision relied upon by the learned Advocate for the respondents/writ petitioner, we find that this Court had territorial jurisdiction to entertain the writ petition. From a communication dated January 12, 2017 which is at page 28 of the paper book, we find that the Personnel Manager (Empl) had sent the same to the Deputy Chief Personnel Manager, Mugma Area and the office of the Personnel Manager (Empl) was at Sanctoria IA, Post Office - Shergarh, District - Burdwan, Pin
- 713333. From the communication it appears that the case of the respondents/writ petitioner (hereinafter referred to as writ petitioner) was considered by the Personnel Manager (Empl) in his office in the District Burdwan which is within the territorial jurisdiction of this Court and as such we are not inclined to accept the first contention of the appellant.
On the point of delay it appears from the records that upto 2007 the candidature of the writ petitioner for appointment on compassionate ground as an indirect dependant of the deceased employee of Eastern Coalfields Ltd. was being considered and it was only by a communication dated March 6, 2009 that his candidature was cancelled by the concerned authority on the ground that the writ petitioner was below 18 years of age as on the date of death of the deceased employee and did not attract any provision for employment.
3
The contention of the learned Advocate for the respondents that 18 years was not the cut-off age for appointment of a dependant of a deceased employee is not supported by any material. According to him, the dependant, after attaining the age of 15 years in terms of the circular prevalent at the relevant point of time, had a right to be appointed on compassionate ground. However, he could not produce before us the National Coal Wage Agreement-V (NCWA-V) which was valid during the period between July 1, 1991 and June 30, 1996 i.e. the relevant period when the permanent employee breathed his last.
On the other hand, it is contended by the appellant that in NCWA-V there was no provision for maintaining live roaster and also the writ petitioner was below 15 years on the date of death of the deceased employee. In support of his contention, we find a communication dated June 12, 2007 in which Senior Personnel Officer, Shyampur 'B' Colliery, had categorically pointed out that the writ petitioner's name was not kept in the live roaster as per the available records.
Form the records we find a minutes of a meeting of the Eastern Coalfields with its Unions dated March 9, 2009 and it appears that the matter of the writ petitioner was also scheduled to be discussed in the said meeting.
4
The learned Single Judge relying upon the said minutes has come to an erroneous finding that the said document was the live roaster and the case of the petitioner had been kept alive in the live roaster even in 2009 which means that NCWA-VI was applicable in the case of the writ petitioner and directed the authorities to appoint the writ petitioner upon compliance with certain formalities as mentioned in the communication dated January 12, 2007.
The above finding of the learned Single Judge, in our opinion, is incorrect in view of the fact that the document relied upon was not a live roaster whereas there is a specific communication stating that the writ petitioner's name was never kept in the live roaster and moreover, the case of the writ petitioner was cancelled on the ground that he was below 18 years at the time of death of the deceased employee which goes to show that no right had actually accrued in favour of the writ petitioner at the relevant point of time under NCWA-V. The judgement cited by the learned Advocate for the writ petitioner reported in 2002 (2) CHN 557 (Sujit Kora vs. Coal India Ltd. & Ors.) does not help the writ petitioner in view of the distinguishable facts. In the said case, the writ petitioner therein had a right to be employed as he had fulfilled the conditions of the concerned National Coal Wage Agreement (NCWA-V) unlike this case and the Division Bench of this Court was 5 pleased to hold that the time of five years which may have elapsed from the date of death till the date of application could not be a ground as a vested right had accrued in favour of the writ petitioner in the said matter.
In view of the aforesaid reasons, the appeal is allowed by quashing and setting aside the order impugned.
There shall be no order as to costs.
Urgent certified copy of this order be made avialable to the parties subject to compliance of all requisite formalities.
(DEBASISH KAR GUPTA, J.) (SHAMPA SARKAR, J.) K. Banerjee A.R. [C.R.]