Jharkhand High Court
Latika Devi W/O Late Jagdish Oraon R/O ... vs Central Coal Field Ltd. Through Its ... on 10 April, 2018
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 1632 of 2013
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Latika Devi w/o Late Jagdish Oraon r/o Dhori Staff Quarter, Near Dhori Football Ground, PO-Dhori, P.S-Bermo, District-
Bokaro .... Petitioner
-Versus-
1. Central Coal Field Ltd. Through its Chairman cum Managing Director(C.M.D), Darbhanga House Ranchi, PO Kutchery Post Office P.S. Sadar District Ranchi
2. The Chief General Manager Dhori Area Central Coal Fields Limited, P.O-Dhori, P.S-Dhori, District-Bokaro
3. The Senior Manager(Personnel), N.S.D. Colliery C.C.L. Makoli, P.O Makoli, P.S. Bermo, District-Bokaro
4. The Project Officer, N.S.D. Colliery C.C.L. at and P.O Makoli, P.S. Bermo District Bokaro ....... Respondents
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mrs. Ahalya Mahato, Adv.
Mr. H.K. Mahato, Adv.
For the Resp.-M/S CCL : Mr. Bhaiya V. Kumar, Adv.
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Oral Order 16/10.04.2018 The petitioner, widow of the employee-Jagdish Oraon, is aggrieved of order dated 05.10.2012 by which she has been declined compassionate appointment.
2. Before adverting to facts of the case and the issue involved in this writ petition, it would be appropriate to recapitulate the previous orders passed in the present proceeding. These orders would reveal that there was no delay on the part of the petitioner in raising the claim for payment of post-retiral benefits, family pension and compassionate appointment to her. The aforesaid claims have yet not been settled and compassionate appointment to the petitioner has been declined; one of the grounds is that the family has survived so long. Order dated 15.01.2018 was passed, when it was found that in the counter-affidavit necessary details pertaining to employment of late Jagdish Oraon were not disclosed and post-retiral benefits have not been paid to the petitioner. Order dated 15.01.2018 reads as under:
Aggrieved of non-compliance of the order passed in W.P.(S) No.1460 of 2012 whereby the respondent-General Manage (P&IR) was directed 2 to decide the claim of the petitioner, the petitioner has approached this Court.
During the course of hearing it has been revealed that after death of the employee-Jagdish Oraon the post-retiral benefits have not been paid to his widow.
The Chief General Manager, Dhori Area-M/s Central Coal Fields Limited-respondent no.2 shall file an affidavit disclosing correct complete facts pertaining to employment of late Jagdish Oraon. It shall be revealed whether his name was struck-off from the roll of the company or not and if yes, when. The respondent no.2 shall also state (i) whether the dependants of late Jagdish Oraon were informed of their rights under NCWA and/or under any other statutory settlement/agreement, (ii) whether the format in which claim for compassionate appointment shall be made was handed-over to the dependants and
(iii) whether the dependants of the deceased employee were informed of the period within which application shall be submitted.
3. The respondents have filed an affidavit on 28.02.2018 in which they have admitted that the dependants of late Jagdish Oraon were not informed about their rights under National Coal Wage Agreement (NCWA) and they were not provided the form/format for submitting the application for compassionate appointment.
4. It further appears that even after filing three affidavits and, that too, on the direction of this Court still complete facts on employment of the husband of the petitioner and payment of post-retiral benefits were not brought on record, accordingly order dated 19.03.2018, which reads as under, was passed:
"As many as three affidavits have been filed by the respondent-M/s CCL and, that too, on the direction of this Court, however, complete facts pertaining to employment of the husband of the petitioner and payment of post-retiral benefits accrued on death of the employee have still not been brought on record. It is not known whether the petitioner has crossed the age of 45 years 3 which is the maximum age for appointment of a female dependant on compassionate ground. In its affidavits the respondent-M/s CCL has not pleaded whether monetary compensation in terms of Clause 9.5.2. and 9.5.3 of NCWA is payable to the petitioner or not.
2. The learned counsel for the respondent-M/s CCL submits that there is no application by the petitioner for payment of monetary compensation.
3. The aforesaid contention is without substance. In "Shreejith L. Vrs. Deputy Director (Education) Kerala and Others" reported in (2012) 7 SCC 248 it has been held by the Supreme Court that application for compassionate appointment cannot be rejected on the ground that it was not in the prescribed format. This judgment in "Shreejith L." case, in my opinion, is squarely attracted in cases in which claim for compassionate appointment has been declined, but the female depandant is entitled for monetary compensation. On payment of post-retiral benefits to the petitioner, after the recess, the learned counsel for the petitioner has informed the Court that arrears of salary for the months of January, May and September, 2002 and February, 2003 have been paid to the petitioner.
It is also stated that quarterly bonus of Rs.486.81 has been paid to the petitioner.
4. By way of last indulgence two weeks' further time is granted for filing an affidavit by the respondent-M/s CCL disclosing complete facts pertaining to service of the husband of the petitioner and on the question of payment of monetary benefits to the petitioner. The affidavit filed by the respondent-M/s CCL shall also address the question, after dismissal of the Special Leave Petition whether M/s CCL is contemplating revisiting its decision not to grant compassionate appointment in cases of civil death or not.
5. It is stated that the Special Leave Petition preferred by the respondent-M/s CCL against the order passed by this Court directing the 4 respondent-M/s CCL to grant compassionate appointment to dependant of an employee who had met civil death has since been dismissed by the Supreme Court. In the Special Leave Petition preferred by M/s BCCL the Supreme Court has issued notice to the private respondent in the light of the fact that the employee was already dismissed from service and he had attained the age of superannuation before a declaration on his civil death was rendered by the civil court.
6. Post the matter on 10.04.2018.
7. Record of W.P.(S) No.4946 of 2011, L.P.A. No.150 of 2014 and Contempt Case (Civil) No.881 of 2016 shall be tagged along with this writ petition.
8. Let a copy of this order be given to the learned counsel for the respondent-M/s CCL."
5. In the supplementary counter-affidavit dated 09.04.2018, the respondents have admitted that it was only on 03.04.2018 that a letter has been written to the petitioner for submitting details of bank account, PAN card, Aadhar card, photographs attested by a gazetted officer and family members' certificate for payment for CMPF, Gratuity and Settlement of Pension for her.
6. Accordingly, the petitioner is directed to submit within 6 weeks the documents required by letter dated 03.04.2018, whereupon necessary communication for payment of CMPF amount shall be transmitted to the office of Assistant Commissioner, Coal Mines Provident Fund, Ranchi.
7. Mr. Prashant Kumar Singh, the learned counsel for CMPF shall forward a copy of this order to the Assistant Commissioner, Coal Mines Provident Fund, Ranchi for payment of CMPF amount to the petitioner which is payable to her, within 6 weeks. The amount payable to the petitioner shall include statutory interest with effect from 21.08.2012, when name of the employee-Jagdish Oraon was struck-off from the Company's Roll.
8. In the supplementary counter-affidavit dated 09.04.2018, the respondents have admitted that an application for payment of CMPF, Gratuity and 5 compassionate appointment was submitted by the petitioner on 07.04.2005 which was followed by representations dated 15.07.2006, 17.03.2007 and 22.03.2007. There is no explanation why the respondent-M/S CCL has not paid Gratuity payable to the husband of the petitioner. Section 7(3) of Payment of Gratuity Act, 1972 provides that within 30 days when the Gratuity becomes payable the employer shall arrange amount of Gratuity for payment to the employee. Section 7(3-A) mandates that in cases where Gratuity has not been paid for no fault of the employee, it shall bear simple interest. One month after 21.08.2012 when name of the employee-Jagdish Oraon was struck-off from the Company's Roll, the petitioner becomes entitled for simple interest on the amount of Gratuity payable to her husband, till it is actually paid. Similarly, other post-retiral benefits shall also accrue interest on account of delayed payment.
9. Accordingly, Gratuity, family pension/arrears of family pension etc. shall be paid to the petitioner with statutory interest from the "due date", within 6 weeks from submission of documents by the petitioner.
10. Now, coming back to facts of the case, after husband of the petitioner had gone missing from 01.03.2000 a declaration on civil death of her husband was pronounced on 18.06.2008 in T. S. No. 70 of 2007. In the mean-time the petitioner submitted representations, however, she was not offered compassionate appointment. Constrained, she came to this Court in W.P.(S) No.1460 of 2012. The writ petition stood disposed of by order dated 28.03.2012 directing the respondent-M/s Central Coalfields Limited to decide claim of the petitioner within 12 weeks. In purported compliance of order dated 28.03.2012, the General Manager (P & IR) has passed the impugned order dated 05.10.2012 declining compassionate appointment to the petitioner, primarily on the ground that there is no clause in NCWA for providing compassionate appointment in cases of civil death. Another ground taken by the respondent-authority for declining compassionate appointment is, that the family has survived long 12 years even in absence of the bread earner and therefore in view of the object behind compassionate 6 appointment, the petitioner cannot be granted appointment on compassionate ground.
11. Under National Coal Wage Agreement, appointment is provided to the dependant of an employee who has died in harness. Subject to fulfillment of the conditions for employment, even the minor male dependant of the deceased employee is entitled for appointment, on attaining the age of majority, and for this purpose they are kept on live-roster. The scheme under NCWA for appointment of a dependant is different from other schemes for the compassionate appointment. NCWA is a settlement which can be enforced under section 18 of the Industrial Disputes Act, 1948. Except death in harness, subject to suitability of the dependant, no other condition such as, financial condition of the family, is envisaged under NCWA for grant of appointment to the dependant of a deceased employee. The provision under NCWA for keeping a minor male dependant on live-roster is a reflection of the policy under NCWA that delay on the part of dependant of a deceased employee may be a ground, but not the procedural delay, on which a claim for compassionate appointment can be rejected. The employer on account of delay on its own part or delay in the process of submitting documents or for other procedural delays cannot decline appointment on compassionate ground, unless of course there was a complete severance of the claim by the claimant for years together. Another reason why the ground of delay taken in the impugned order dated 05.10.2012 cannot be countenance in law is, that sufferings of the family of the deceased employee without recording a finding on income of the family cannot be construed as if the family has tide over its misfortune and it no longer needs compassionate appointment for survival; in this case even post-retiral benefits have not been paid to the petitioner.
12. On compassionate appointment to the dependant of an employee, who has suffered civil death, stand taken by the respondent-M/s CCL is that there is no clause in NCWA for providing employment in cases of civil death. On this, suffice would be to indicate that if there is no exclusion in an enactment, claim by one who though 7 not specifically included can be allowed if rule of ejusdem generis is attracted. Object behind providing appointment under NCWA, which has attained statutory force [refer Mohan Mahto Vs. M/s Central Coal Field Ltd. & Ors." reported in (2007) 8 SCC 549], is to provide social security to the family of the employee. It is a beneficial provision, benefit of which must not be curtailed or restricted unless it runs contrary to the main object under NCWA; provisions for monetary compensation and compassionate appointment are under Chapter-IV which provides Social Security Measures. This being a beneficial provision for benefit of the dependant of the deceased employee must not be denied on a bald technical plea that the family has survived long enough. In "Madan Singh Shekhawat Vs. Union of India & Ors.", reported in (1999) 6 SCC 459, the Supreme Court has held that, "it is the duty of the Court to interpret the provision especially the beneficial provision, liberally so far as to give it a wider meaning, rather than restrictive meaning which would negate the very object of the Rule". In the said case expression 'at public expense' in Rule 48 of the Defence Services Regulation has been construed by the Hon'ble Supreme Court to mean travel which is undertaken 'authorisedly', even though cost of the journey was not borne by the public exchequer. There are numerous instances, for example under Workman's Compensation Act, 1923, Motor Vehicles Act, 1988, Hindu Marriage Act, 1955, Prison Rules etc., where benefits to the claimants have been extended liberally construing the provisions in law.
13. Admittedly, appointment to the dependant of an employee who has suffered civil death is not excluded under Clause 9.3.0 of NCWA. Once a decision on payment of post- retiral benefits and family pension to the petitioner is taken by the employer-M/s CCL and name of the employee-Jagdish Oraon is struck-off from the Company's Roll, it must be construed in law that the employee has died in harness and resultantly claim for compassionate appointment is maintainable. This concept of "civil death" has been evolved and has statutory recognition under section 108 of the Evidence Act, to meet situations like the present one. It is 8 pertinent to mention here that in W.P.(S) No.4946 of 2011 (Podin Devi Vrs. Central Coalfields Ltd. & Ors.) a learned Single Judge of this Court when ordered compassionate appointment to wife of the employee who was missing for seven years and thus invited a declaration on his civil death, the respondent-M/s CCL went in appeal before the Division Bench. When it suffered dismissal of L.P.A. No.150 of 2014 approached the Supreme Court in Special Leave to Appeal (C) ..... CC Nos.4826/2017, which has also been dismissed. After the Special Leave Petition preferred by M/s CCL was dismissed order passed by the writ Court in W.P.(S) No. 4946 of 2011 has attained finality. The petitioner is also identically situated to the applicant in W.P.(S) No.4946 of 2011 and while so, for the reasons recorded hereinabove, her claim for compassionate appointment could not have been rejected by the respondent-authority.
14. In view of the above discussions, finding serious infirmity in the impugned order dated 05.10.2012, it is quashed. The respondent-General Manager (P & IR) is directed to assess suitability of the petitioner for compassionate appointment in terms of Clause 9.5.0 of NCWA, within 6 weeks from the date a copy of this order is produced before the respondent-authority.
15. The writ petition is allowed, in the aforesaid terms.
16. Let a copy of the order be given to the learned counsels for the parties.
(Shree Chandrashekhar, J.) sudhir AFR