Jharkhand High Court
Kari Devi vs Bharat Coking Coal Ltd. And Ors. on 10 May, 2006
Equivalent citations: [2006(3)JCR1(JHR)]
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. "Whether under National Coal Wage Agreement (in short NCWA) a son-in-law of the deceased employee can claim compassionate appointment as a matter of right" is the moot question to be decided in this writ application.
2. The deceased husband of the petitioner, late Sitaram Ram was the permanent employee of the respondent-Bharat Coking Coal Ltd.(in short BCCL). It is stated that on 24.1.2003 while petitioner's husband was returning after attending his job, he met with an accident which resulted in his death. After his death the petitioner submitted application for giving compassionate appointment to her son-in-law, Manoj Kumar under Clause 9.4.0 of NCWA.
3. The respondent-management took a stand that the son-in-law of the petitioner being not a direct dependant and the petitioner being direct dependant is alive, no appointment could be given to the son-in-law of the deceased. The respondents, in their counter affidavit, further stated that the petitioner cannot, as a matter of right, claim compassionate appointment of her son-in- law as he is not a direct dependant. Respondents' case is that the petitioner-widow, however, can pursue her claim for monetary compensation as per eligibility under the provisions of NCWA.
4. Learned Counsel appearing for the petitioner drew my attention to Clause 9.4.0 of the NCWA-VI and submitted that under this clause, a son-in-law is entitled to get compassionate appointment. According to the learned Counsel, National Coal Wage Agreement (NCWA) is an award and it has got statutory force.
5. Before appreciating the submission made by the learned Counsel, I would like to discuss some of the principles of law with regard to compassionate appointment as decided by the Supreme Court.
6. In the case of Umesh Kumar Nagpal v. State of Haryana and Ors. , the Supreme Court observed that the whole object of granting compassionate employment is to enable the family to tide over the sudden crisis. Mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased before considering his case for compassionate appointment. If it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family.
7. In the case of Auditor General of India and Ors. v. G. Ananta Rajeswara Rao , the fact of the case was that the respondent made an application to the appellant to appoint him as a clerk as his father died in harness while working in the office of the appellant -Auditor General of India, Government of India, Andhra Pradesh. Since he was not considered for appointment, he filed a writ petition which was dismissed by the learned Single Judge of the High Court. In appeal, while dismissing, the Division Bench declared that memorandum is violative of Article 16(2) of the Constitution as the appointment of a descendant is ultra vires Article 16(2). The question that arises for consideration before the Supreme Court was whether the memorandum is violative of Article 16(2) of the Constitution. Their Lordships' held:
A reading of these clauses in the Memorandum discloses that the appointment on compassionate grounds would not only be to a son, daughter or widow but also to a near relative which was vague or undefined. A person who dies in harness and whose members of the family need immediate relief of providing appointment to relieve economic distress from the loss of the bread-winner of the family need compassionate treatment. But all possible eventualities have been enumerated to become a rule to avoid regular recruitment. It would appear that these enumerated eventualities would be breeding ground for misuse of appointments on compassionate grounds. Articles 16(3) to 16(5) provided exceptions. Further exception must be on constitutionally valid and permissible grounds. Therefore, the High Court is right in holding that the appointment on grounds of descent clearly violates Article 16(2) of the Constitution. But, however it is made clear that if the appointments are confined to the son/daughter or widow of the deceased Government employee who died in harness and who needs immediate appointment on grounds of immediate need of assistance in the event of there being no other earning member in the family to supplement the loss of income from the bread-winner to relieve the economic distress of the members of the family, it is unexceptitionable. But in other cases it cannot be a rule to take advantage of the memorandum to appoint the persons to these posts on the grounds of compassion. Accordingly, we allow the appeal in part and hold that the appointment in para 1 of the memorandum is upheld and that appointment on compassionate ground to a son, daughter or widow to assist the family to relieve economic distress by sudden demise in harness of Government employee is valid. It is not on the ground of descent simpliciter, but exceptional circumstance for the ground mentioned. It should be circumscribed with suitable modification by an appropriate amendment to the Memorandum limiting to relieve the members of the deceased employee who died in harness from economic distress. In other respects article 16(2) is clearly attracted.
8. In the case of Life Insurance Corporation of India v. Asha Ramchhandra Ambekar and Anr. , Their Lordships observed:
Of late, this Court is coming across many cases in which appointment on compassionate ground is directed by judicial authorities. Hence, we would like to lay down the law in this regard. The High Courts and the Administrative Tribunals cannot confer benediction impelled by sympathetic consideration. No doubt Shakespeare said, in "Merchant of Venice:
The quality of mercy is not strain'd;
It droppeth, as the gentle rain from heaven Upon the place beneath it is twice bless'd;
It blesseth him that gives, and him that takes;
These words will not apply to all situations. Yielding to instinct will tend to ignore the cold logic of law. It should be remembered that "law is the embodiment of all Wisdom." Justice according to law is a principle as old as the hills. The Courts are to administer law as they find it, however, inconvenient it may be.
9. In the case of Director of Education (Secondary) and Anr. v. Pushendra Kumar and Ors. , the Supreme Court discussed the principle and the object of compassionate appointment and observed:
That object underlying a provision for grant of compassionate employment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread-earner which has left the family in penury and without any means of livelihood. Out of pure humanitarian consideration and having regard to the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made for giving gainful appointment to one of the dependants of the deceased who may be eligible for such appointment. Such a provision makes a departure from the general provisions providing for appointment on the post by following a particular procedure. Since such a provision enables appointment being made without following the said procedure, it is in the nature of an exception to the general provisions. An exception cannot subsume the main provision to which it is an exception and thereby nullify the main provision by taking away completely the right conferred by the main provision. Care has, therefore, to be taken that a provision of for grant of compassionate employment, which is in the nature of an exception to the general provision, does not unduly interfere with the right of other persons who are eligible for appointment to seek employment against the post which would have been available to them, but for the provision enabling appointment being made on compassionate grounds of the dependant of a deceased employee. In Umesh Kumar Nagpal v. State of Haryana this Court has taken note of the object underlying the rules providing for appointment on compassionate grounds and has held that the Government or the public authority concerned has to examine the financial condition of the family of the deceased and it is only if it is satisfied, that by for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family.
10. In the case of State of Haryana and Ors. v. Rani Devi and Anr. , the Supreme Court again considered the scope and object of compassionate appointment and held as under:
The question of appointment of one of the dependants of an employee of the State or Central Government who dies while in service has of late assumed importance and subject-matter of controversy before different Courts. This Court in the case of Sushma Gosain v. Union of India after referring to the Government memorandum under which the appointment on compassionate ground was being claimed observed that the purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread-earner in the family. It cannot be disputed that appointment on compassionate ground is an exception to the equality clause under Article 14 and can be upheld if such appointees can be held to form a class by themselves, otherwise any such appointment merely on the ground that the person concerned happens to be a dependant of an ex-employee of the State Government or the Central Government shall be violative of Articles 14 and 16 of the Constitution. But this Court has held that if an employee dies while in service then according to rules framed by the Central Government or the State Government to appoint one of the dependants shall not be violative of Articles 14 and 16 of the Constitution because it is to mitigate the hardship due to the death of the bread-earner of the family and sudden misery faced by the members of the family of such employee who had served the Central Government or the State Government. It appears that this benefit has also been extended to the employees of the authorities which can be held to a State within the meaning of Article 12 of the Constitution. But while framing any rule in respect of appointment on compassionate ground the authorities have to be conscious of the fact that this right which is being extended to a dependant of the deceased employee is an exception to the right granted to the citizen under Articles 14 and 16 of the Constitution. As such there should be proper check and balance. Of late, it appears the right to be appointed on compassionate ground is being claimed as a right of inheritance irrespective of the nature of service rendered by the deceased employee. In many cases, applications for appointments on compassionate grounds are being made even after 10-15 years because on the date of the death of the employee the applicant was a minor and could not have been appointed. In the case of LIC v. Asha Ramchandra Ambekar, this Court pointed out that the High Court and the Administrative Tribunals cannot issue directions on sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect there of do not cover and contemplate such appointments. Any such right of appointment on compassionate ground flows on the basis of rules, regulations or some administrative order issued in the form of resolution or office memorandum. In the case of Umesh Kumar Nagpal v. State of Haryana it was impressed that as a rule, appointments in public services should be made strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground was an exception to the aforesaid rule taking into consideration the fact of the death of the employee while in service and leaving his family without any means of livlihood. In such cases, the object is 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 instructions taking into consideration the financial condition of the family of the deceased. In the case of the State of Haryana v. Naresh Kumar Bali on an appeal filed by the State of Haryana, a three-Judge Bench of this Court deprecated the direction given by the High Court to appoint the respondent of the said case against the post of an Inspector and it was observed that the High Court should have merely directed consideration of the claim of the said respondent in accordance with the rules.
It need not be pointed out that the claim of the person concerned for appointment on compassionate grounds is based on the ground that he was a dependant of the deceased employee. Strictly this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution. But this Court has upheld this claim as reasonable and permissible on the basis of sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16.
11. Recently in the case of State of Manipur v. Md. Rajaodin , the Supreme Court held:
10. As was observed in State of Haryana v. Rani Devi, it need not be pointed out that the claim of the person concerned for appointment on compassionate ground is based on the premise that he was dependent on the deceased employee. Strictly, this claim cannot be upheld on the touchstone of Article 14 or 16 of the Constitution of India. However, such claim is considered as reasonable and permissible on the basis of a sudden crisis occurring in the family of such employee who has served the State and dies while in service. That is why it is necessary for the authorities to frame rules, regulations or to issue such administrative orders which can stand the test of Articles 14 and 16. Appointment compassionate ground cannot be claimed as a matter of right. Die-in-Harness Scheme cannot be made applicable to all types of posts irrespective of the nature of service rendered by the deceased employee. In Rani Devi case it was held that the Scheme regarding appointment on compassionate ground if extended to all types of casual or ad hoc employees including those who worked as apprentices cannot be justified on constitutional grounds. In LIC of India v. Asha Ramchhandra Ambekar it was pointed out that High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations to make appointments on compassionate grounds when the regulations framed in respect thereof do not cover and contemplate such appointments. It was noted in Umesh Kumar Nagpal v. State of haryana that as a rule public service appointments should be make strictly on the basis of open invitation of applications and merit. The appointment on compassionate ground is not another source of recruitment but merely an exception to the aforesaid requirement taking into consideration the fact of the death of an employee while in service leaving his family without any means of livelihood. In such cases the objection is to enable the family to get over sudden financial crisis. But such appointments on compassionate ground have to be made in accordance with the rules, regulations or administrative instructions taking into consideration the financial condition of the family of the deceased.
12. In the light of the decisions of the Supreme Court referred to hereinabove, I shall now examine the provisions contained in Clauses 9.3.0 and 9.4.0 of NCWA VI. Clauses 9.3.0 and 9.4.0 read as under:
9.3.0 : Provision of Employment to Dependants:
9.3.1 : Employment would be provided to one dependant of workers who are disabled permanently and also those who die while in service. The provision will be implemented as follows ; 9.3.2: Employment to one dependant of the worker who dies while in service:
In so far as female dependants are concerned, their employment/payment of monetary compensation would be governed by para 9.5.0.
9.3.3 The dependants for this purpose means the wife/husband, as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment, brother, widowed daughter-in-law or son-in-law residing with the deceased and almost wholly dependant on the earnings of the deceased may be considered to be the dependants of the deceased.
(emphasis given) 9.3.4. 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.
9.4.0. Employment to one dependant 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 Coal Company, the employee concerned will be eligible for the benefit under this clause if he/she is up to 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 dependant for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment, brother, widowed daughter, widowed daughter-in-law or son-in-law residing with the employee and almost wholly dependant on the earning of the employee may be considered.
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 nor 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.
13. From bare reading of Clause 9.3.2 it is manifestly clear that if an employee dies in harness, the dependants shall be provided employment or monetary compensation. Clause 9.3.3 makes if clear that the word 'dependants' means wife/husband, as the case may be, unmarried daughter, son and legally adopted son. They are termed as 'direct dependants' and anyone of them shall be provided employment. Only in case where no such direct dependant is available for employment, then in that case, the brother, widowed daughter, widowed daughter-in-law or son-in-law residing with the deceased and wholly dependant on the earning of the deceased, may be considered to be dependants of the deceased. I have, therefore, no hesitation in holding that in the event of death of a worker, only the wife/husband, as the case may be, unmarried daughter, son and legally adopted son shall be entitled to employment. For example, if a worker dies leaving behind the widow or unmarried daughter or son or adopted son, then they cannot claim employment in favour of brother, widowed daughter, widowed daughter-in-law or son-in-law inasmuch as they are not direct dependants of the deceased-employee.
14. As noticed above, appointment on compassionate ground is exception to the equality clause under Article 14 and, there fore, such exception cannot and shall not be extended to other relatives of the deceased who are not the direct dependants. In other words, if an employee dies leaving behind widow/husband, son and daughter, then their case may be considered for compassionate appointment or for payment of monetary benefits.
15. In the Instant case, the deceased, late Sita Ram, died leaving behind the widow and other direct dependants. The widow, instead of claiming compassionate appointment or monetary compensation, claimed compassionate appointment to her son-in-law. Curiously enough, in paragraph 12 of the writ petition, the petitioner has stated that she is having only one daughter and son-in-law, Manoj Kumar, who are living with her and the petitioner is wholly dependent on her son-in-law. If the widow is fully dependant on her son-in-law, then question of giving employment to the son-in-law does not arise at all. At best, if the petitioner-widow crossed her age, then she will be entitled to monetary compensation. This Court, therefore, holds that in presence of the widow, or daughter of the deceased employee, the son-in-law is not entitled to compassionate appointment. Consequently, the petitioner-widow shall get monetary compensation from the respondents.
16. For the aforesaid reasons, there is no merit in the claim of the petitioner. This writ petition is, accordingly, dismissed.