Jharkhand High Court
Smt. Parden Oraon vs Central Coal Field Limited on 16 August, 2018
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 5651 of 2016
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Smt. Parden Oraon, wife of Late Binod Oraon @ Vinod Oraon, Ex-Operator, Helper Cat-II, Gidi Washery, Post Office & PS- Gidi-A, District- Hazaribagh, Jharkhand .... ...... Petitioner Versus
1. Central Coal Field Limited, through Chairman-Cum-Managing Director, Darbhanga House, PO & PS- Ranchi Sadar, District- Ranchi, Jharkhand
2. Director (Personnel), Central Coal Field Limited, Darbhanga House, PO & PS- Sadar, District- Ranchi, Jharkhand
3. General Manager, Argeda Area, Sirka, Hazaribagh, Post Office & PS- Argeda, District- Hazaribagh, Jharkhand
4. Project Officer, Gidi, Washery, Post Office & PS- Gidi, District- Hazaribagh, Jharkhand ..... ...... Respondents
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mrs. M.M. Pal, Sr. Adv.
Mrs. Mohua Palit, Adv.
Mrs. Leena Mukherjee, Adv.
For the Respondents : Mr. D.K. Chakraverty, Adv.
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09/16.08.2018 The petitioner is aggrieved of order dated 03.08.2016 by
which claim for appointment to her son has been rejected.
2. Briefly stated, petitioner's husband who was employed under M/s CCL was missing since 03.10.2002; a report in this regard was lodged on 06.11.2002. In Title Suit No.124 of 2009 a declaration on civil death of the petitioner's husband has been rendered on 13.07.2012. In this suit M/s CCL was impleaded as a party- defendant and it has contested the suit. The respondents have pleaded that by an order dated 20.09.2004 petitioner's husband was terminated from service on the ground of unauthorised absence from service. When compassionate 2 appointment to the petitioner's son and post-retiral benefits including pension were not paid to the petitioner and her claim was rejected vide order dated 02.11.2013, she came to this Court in W.P.(S) No.330 of 2014 and by an order dated 03.08.2015 the order of termination of the petitioner's husband from service was quashed. Noticing orders passed in "Munni Devi Vs. Central Coalfields Limited & Ors." [W.P.(S) No.7438 of 2013] and "Bijay Kumar Pradhan Vs. State of Jharkhand & Ors." [W.P.(S) No.3956 of 2011] wherein it has been held that dependant of a missing employee cannot be denied compassionate appointment, the respondents were directed to take a decision on the claim for compassionate appointment to son of the petitioner. The impugned order dated 03.08.2016 reflects that both sons of the petitioner were above 18 years of age.
3. Section 108 of the Indian Evidence Act, 1872 provides that if it is proved that a man has not been heard of for 7 years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is on the person who affirms it. The petitioner has brought on record a declaration on the civil death of her husband by the civil court in Title Suit No.124 of 2009. Various High Courts including this High Court have held that there is no distinction between civil death and natural death of an employee for the purpose of compassionate appointment to dependant of a missing employee. Order passed by this Court in "Podin Devi Vs. Central Coalfields Ltd. & Ors." [W.P.(S) No. 4946 of 2011] taking a similar view was challenged 3 by the respondent-CCL before the Division Bench in LPA No.150 of 2014 and after dismissal of the Letters Patent Appeal the matter was taken to the Supreme Court, however, the Special Leave Petition preferred by M/s CCL has been dismissed. The issue thus stands concluded that on the ground that there is no provision in NCWA for appointment of the dependant of a deceased employee, application for compassionate appointment of a missing employee cannot be rejected.
4. On the stand taken by the respondent- M/s CCL that a policy decision has been taken not to extend benefit of compassionate appointment to the dependant of a missing employee, it needs to be recorded that the document produced by the respondents vide Annexure-L dated 09.12.2013 refers to Note of Discussions of 102nd Directors (P) Meet held on 19.10.2013 at Jaipur. In the first place, the aforesaid Notes of Discussion would not become policy decision of the Coal Company and if at all such a decision has been taken, in view of the judgments of this Court, this cannot be a ground to decline compassionate appointment to the petitioner's son. Settlement between the parties which has been reduced in writing and commonly known as National Coal Wage Agreement is enforceable under section 18 of the Industrial Disputes Act, 1947 and terms thereof are binding on all the parties, which by an unilateral decision of the Coal Company cannot be modified to deny appointment to dependant of a missing employee. The aforesaid Notes of Discussion must be held not binding and contrary to provisions of NCWA. There is no exclusion 4 clause in the National Coal Wage Agreement under which dependant of a missing employee who has met with civil death can be denied compassionate appointment.
5. Another ground taken by the respondents for rejecting claim for compassionate appointment to the petitioner's son is that she herself is employed under M/s CCL; her date of retirement was 31.07.2018. In my opinion this cannot be a ground to reject the claim for compassionate appointment to the petitioner's son. Long back the policy decision which was taken by the respondents not to offer compassionate appointment in cases of double employment has been recalled. After the death of their father name of the petitioner's sons has rightly been recorded as her dependant. This fact that their names are recorded in the petitioner's service excerpts, would not make the petitioner's son ineligible for compassionate appointment.
6. On claim for pension by the petitioner, it needs to be recorded that her husband was a member of CMPS-98 under which a part of contribution is deducted from the employee's salary. No deduction for continuous 10 years' of service, which is the minimum length of service for grant of pension, was made from salary of the petitioner's husband. He was reported missing on 03.10.2002 and, therefore, no contribution from his salary could have been deducted thereafter so as to entitle him for pension under CMPS-98, however, the amount of contributions in the Contributory Provident Fund is payable with interest to the petitioner.
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7. The impugned order dated 03.08.2016 by which claim for compassionate appointment to the petitioner's son has been declined, is held illegal. The respondent no.4 shall assess suitability of the petitioner's son within 6 weeks. The Project Officer- respondent no.4 shall forward necessary papers for payment of the Contributory Provident Fund contributions to the petitioner within 6 weeks. Gratuity payable to the ex-employee for the service rendered by him shall also be paid to the petitioner within the same period.
8. The writ petition stands allowed, in the aforesaid terms.
(Shree Chandrashekhar, J.) R.K.