Munni Devi vs Central Coalfields Limited ... on 13 July, 2015

[Cites 2, Cited by 1]

Jharkhand High Court

Munni Devi vs Central Coalfields Limited ... on 13 July, 2015

Equivalent citations: 2015 (4) AJR 118

The petitioner is widow of late Lal Mohan Prasad, who went missing on 05.06.2003 after leaving his house to attend his office as a piece rated worker at Kargali Washery Project of the respondent-CCL. A 'sanha' was also lodged being S.D.E. No. 434 dated 24.08.2003 as a report of his missing. The petitioner's husband never appeared thereafter and after completion of seven years of his missing, she sought declaration of civil death of her husband through Title Suit No. 01 of 2011 before the Civil Judge, Junior Division, Bermo at Tenughat. Apart from dependents of the employee, the State of Jharkhand and the respondent- Central Coalfields Ltd. were also impleaded as party in the said suit. CCL had also appeared as defendent and contested the suit on merit. The learned Trial Court framed seven issues and after considering the rival evidences, pleadings and submissions of the plaintiffs and defendants, chose to decree the suit vide judgment dated 30.11.2012, Annexure-G to the counter affidavit and decree dated 01.12.2012 to the effect that Lal Mohan Prasad S/O Late Gouri Shankar Prasad resident of village-Nawadih, PS- Nawadih, District-Bokaro being husband of the plaintiff no. 1 and father of the plaintiff no. 2 to 4 had died civil death. After such declaration, the petitioner made a claim for compassionate appointment before the respondent on 19.01.2013 and also made a claim for death-cum-retiral dues i.e. pension and any -2- other admissible dues which had remained outstanding. Her representation is contained at Annexure-7 series. She has approached this Court thereafter as not only the claim for compassionate appointment and death cum retirement dues have not been redressed but also for challenging the ex-parte order of termination of petitioner's husband dated 17.1.2005 imposed by the respondent no.3, the Project Officer, Kargali Washery Project, CCL, Bermo, Bokaro on the basis of charge- sheet dated 19.6.2003 issued on the ground of unauthorized absence from duty since 5.6.2003.

Learned counsel for the petitioner submits that the order of termination cannot be upheld in the eye of law as in the wake of the declaration of Civil Death of her husband, after he went missing on 5.6.2003, any Departmental proceeding initiated for the alleged unauthorized absence would have no meaning in the eye of law. The order of termination therefore effected in ex- parte proceeding would also be of no legal consequence as the proceeding against a dead person cannot be initiated or continued. It is submitted that there is no difference between Civil Death and Natural Death as has been held by this Court in the case of Bijay Kumar Pradhan Vrs. State of Jharkhand & others in W.P.S. No. 3956 of 2011 vide judgment dated 26.9.2013. It is further submitted that on the declaration of Civil Death of an employee only, the petitioner could have been entitled to make a legal claim for compassionate appointment. Therefore, application for such consideration being made within stipulated time period of 1 ½ years from the date of declaration i.e. date of Judgment and Decree dated 30.11.2012/ 1.12.2012, the prayer for compassionate appointment is not barred by delay. She would also be entitled to any other admissible death cum retirement benefits, which has remained outstanding.

On the other hand, learned counsel for the respondent- Central Coalfields Limited, on the basis of instruction contained in the counter-affidavit submits that the respondent- CCL has lawfully taken a recourse for initiating a proceeding on the continued absence of the employee since 5.6.2003 and after service of notice which remained un-responded , the ex-parte proceeding concluded in his termination for which second show cause notice was also issued along with the copy of the inquiry report which are annexed to the counter-affidavit. It is -3- submitted that after the termination of the employee from service, this question is being raised after a long delay of 9 years which should not be allowed to be opened. Since the employee had been terminated from service, therefore, no case of compassionate appointment can be made out. The respondents also stated that the petitioner or any of the family members had not intimated the factum of missing of the employee since June, 2003 to the respondent- CCL and only in the Title Suit when they were noticed, they came to know about this fact. Therefore, such a claim for compassionate appointment on the basis of declaration of Civil Death by the Court of learned Munsif, Bermo at Tenughat after 10 years of his missing should not have any consequence to open a settled matter. He has also referred to the circular annexed as Annexure-I dated 9.12.2013 as per which employment to dependent of employees (deemed death), who have gone missing would not be considered. Therefore, the respondents are bound by their own rules and circulars where such cases of compassionate appointment cannot be considered in the eye of law.

I have considered the rival submission of the parties in the aforesaid factual matrix of the case borne on record. The factum of missing of the husband of the petitioner from 5.6.2003 is an admitted fact as the respondent- CCL also initiated the departmental proceeding vide charge-sheet at Annexure-1 treating him to be in unauthorized absence from 5.6.2003 itself. The petitioner- plaintiff also instituted a suit before the Civil Judge, Junior Division, Bermo at Tenughat after completion of 7 years of missing from 5.6.2003 vide Suit No.1/2011 on the same factum of his missing since that date. The suit was decreed on contest where the respondent- CCL was also the defendant, who appeared and opposed the relief by filing written statement as would appear from para 3 of the said judgment. The initiation of departmental proceeding against the employee was also one of the fact taken in the written statement apart from other stand that the plaintiff and her family members had lodged a 'Sanha' before the Nawadih Police Station on 24.8.2003 as also informed the respondent- CCL authorities about the missing of the employee. Learned Trial Court after framing 7 issues in respect of the aforesaid relief -4- prayed for, finally came to a finding of Civil Death of the employee from 5.6.2003 vide judgment dated 30.11.2012. Admittedly, the respondent- CCL has not gone in appeal against the said judgment. Findings rendered by the learned Trial Court, therefore, are a clear declaration of Civil Death of an employee after he went missing for 7 years from 5.6.2003. As would also appear from the relevant charge-sheet, notice and second show cause notice including the order of termination dated 17.1.2005 that the proceedings were conducted and concluded ex-parte as there was no representation on behalf of the employee, who admittedly had gone missing.

In the wake of declaration by the learned Trial Court, such a proceeding therefore would have no legal value as the employee would be deemed to have died on 5.6.2003. The order of termination passed against the dead employee is therefore untenable in law and on facts and is accordingly quashed. It is also true that only after declaration of the Civil Death of the husband of the petitioner, she could make a valid claim for compassionate appointment in terms of the relevant provision of the National Coal Wage Agreement(N.C.W.A.) and the circular prescribing the time period of 1 ½ year for making such application from the date of death. Petitioner claims to have made such application within 1 ½ month from the date of such declaration vide her representation (Annexure-7 series) also claiming certain outstanding death cum retirement dues. If such a claim has been made within a period of 1 ½ year from the date of such declaration of Civil Death by the learned Trial Court, that is to be entertained and considered by the respondent- CCL in terms of the N.C.W.A for the purposes of compassionate appointment of the dependent of the deceased employee. The circular relied upon by the learned counsel for the respondent-CCL to the effect that the case of deemed death/missing would not be considered, would not prevail over the declaration/the judgment of this Court where no distinction between cases of civil death and natural death has been drawn taking into account the judgment rendered on the points by different High Courts such as Uttaranchal and Allahabad High Court. It is to be taken note of that there no distinction in case of civil death and natural death for the purpose of compassionate appointment as in both the cases the bread -5- earner of the family is not there in the scene and the dependent of the deceased has been reduced to the state of penury. In such cases the person is to be presumed to be dead by operation of law under Section 108 of the Evidence Act. It would also require same and similar consideration as the dependent of an employee dying natural death in harness. Therefore, consequent to quashing of the order of termination of the employee, it would be deemed that the employee was on the roll of the company on the date on which he went missing i.e. on 05.06.2003 and presumed to be dead as per declaration made vide judgment and decree dated 30.11.2012/01.12.2012. The application for compassionate appointment made on behalf of the petitioner is required to be accorded due consideration in terms of the provisions of NCWA in vogue.

The respondents would now take a decision for claim of the compassionate appointment and also for any other outstanding claim of death-cum-retirement benefits. As per the respondents, the documents relating to CMPF has been forwarded to the CMPF authorities, who are also represented through their counsel. He, however, submits that such documents have not yet been received in CMPF office by the time of filing of their counter affidavit. It is pointed out by the learned counsel for the respondent-CCL that the mother of the employee namely Jitani Devi was nominated in Form-A under the CMPF. It is also pointed out that the Management was inclined to deposit the gratuity amount to the controlling authority under the Payment of Gratuity Act, 1972 as no nomination of the ex-employee was on record.

Be that as it may, the claim of the petitioner for any outstanding death-cum-retirement dues including gratuity, CMPF, Pension etc. be considered in accordance with law after due scrutiny of the relevant record by the respondent employer. Such dues, which are payable by the CMPF authorities, documents in respect of them be forwarded to the office of respondent no. 5, Commissioner, Coal Mines Provident Fund, Dhanbad for processing and making payment to lawful heirs in accordance with law.

Let such decision in the matter of claim of compassionate appointment and death-cum-retirement dues as aforesaid be taken within a period of 12 weeks from the date of receipt of a -6- copy of this order by the respondent-CCL.

The respondent-CMPF on receipt of necessary documents would process the claim of lawful heirs and release the same without any unreasonable day thereafter.

The writ petition is allowed in the manner indicated hereinabove.

(Aparesh Kumar Singh, J.) Mohanti/Kamlesh/

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Jharkhand High Court