Calcutta High Court (Appellete Side)
Smt. Nitu Devi vs The Union Of India & Ors on 21 December, 2020
Author: Amrita Sinha
Bench: Amrita Sinha
Item No. 28
In The High Court At Calcutta
Constitutional Writ Jurisdiction
21.12.2020
Ct. No.24
WPA No. 9612 of 2020
Smt. Nitu Devi
v.
The Union of India & Ors.
Mr. Supriyo Chattopadhyay
Mr. A. Bhattacharya
Ms. Saswati Adhikary
... for the petitioner.
Mr. Manik Das
... for the respondent nos. 2 to 5.
Leave is granted to the learned advocate-on-record of the petitioner to amend the cause title of the writ petition by impleading (i) The Eastern Coalfields Limited,
(ii) The Chairman-cum-Managing Director, Eastern Coalfields Limited and (iii) The Director (Personnel), Eastern Coalfields Limited as party respondents in the instant writ petition.
Since learned advocate is already appearing on behalf of the other respondents who are also officers of Eastern Coalfields Limited and is ready with instructions, the requirement of service of copy of the writ petition upon the added respondent stands dispensed with.
The husband of the petitioner was an employee of the Eastern Coalfields Limited. He went missing on and from the evening of March 25, 2005. A disciplinary 2 proceeding was initiated against the employee on May 9, 2005 which culminated in termination of his service by an order which was communicated in the name of the employee on May 8, 2009.
The petitioner replied to the show cause notice issued in favour of her husband clearly mentioning that the employee was missing and that she was eagerly waiting for his return.
In the meantime, the petitioner lodged a general diary before the police on June 8, 2005 reporting about the missing of her husband.
As the husband of the petitioner remained untraceable for more than seven years she approached the Court of the learned Civil Judge praying for declaration of his death and consequential reliefs. The Title Suit No. 45 of 2013 filed by the petitioner was considered and disposed of by the learned Civil Judge (Junior Division), 2nd Court, Asansol, Burdwan on June 17, 2017 whereby the Court declared the husband of the petitioner as dead in the eye of law. The Court also held that the plaintiff being one of the heirs of the deceased is entitled to get her share in the monetary benefits standing to the credit of the deceased and is also entitled to get employment on compassionate ground subject to the compliance of the Rules and Regulations of the defendant Company.
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It is pertinent to note that the Chairman-cum- Managing Director, Eastern Coalfields Limited was arraigned as defendant in the Suit for declaration.
It has been submitted by the petitioner that no appeal has been preferred by the defendant challenging the order passed by the learned Civil Judge.
After the order was passed by the learned Court a formal death certificate was issued in the name of the husband of the petitioner. The date of death mentioned in the death certificate is July 6, 2017. After obtaining the death certificate the petitioner approached the authority for payment of the amount, which was due and payable to her on account of the death of her husband. The death benefits were accordingly disbursed in favour of the petitioner.
The petitioner thereafter filed another representation dated May 26, 2020 praying for employment in terms of the order passed in the Title Suit. The prayer of the petitioner stood rejected by the order of the Deputy Manager of the Colliery by a communication dated July 13, 2020 on the ground that the Company does not provide employment on compassionate ground of deemed death cases and that the ground of compassionate does not arise in this case as more than fifteen years has passed, since the 4 employee went missing. The petitioner challenges the same in the instant writ petition.
The petitioner submits that according to law she could not have applied for the declaration of death prior to completion of seven years after the person went missing. Her husband went missing in 2005 and the Suit was filed in the year 2013 and the same was decreed in the year 2017. Immediately thereafter, an application was made for releasing the monetary benefits along with the prayer for employment.
The petitioner relies upon a decision delivered by the Madurai Bench of the Madras High Court in the matter of P. Venkatesan @ Thirumaran v. The Commissioner of Municipal Administration, 'Ezhilagam' & Another, reported in 2013 0 Supreme(Mad) 2772 wherein the Court was of the opinion that as the prayer for compassionate appointment was not sought on the natural death of the employee but was sought on the civil/legal/presumptive death the contention as to not having applied for appointment on compassionate ground within three years of death will not arise.
She prays for setting aside the impugned order of rejection and a further direction upon the Company to provide employment to her on compassionate ground.
The learned advocate representing the respondents opposes the prayer of the petitioner. He 5 submits that as per NCWA, employment can be offered if the person concerned remains in the pay roll of the Company. As the petitioner's husband was terminated from service and his name was struck off the rolls, accordingly, the petitioner will not be entitled to be considered, far less, get employment on compassionate ground.
As the husband of the petitioner was terminated from service way back in 2009 the claim of compassion of the heir as late as in 2020 does not survive and the same cannot be accepted by the authority. It has further been submitted that the petitioner was all along aware that her husband was terminated from service long back but she chose to sit tight over the matter and not challenge the termination before any Court of law. As long as the order of termination remains valid there is no scope for providing employment to the petitioner who happens to be the widow of the deceased employee.
The defendants rely upon an unreported order dated August 5, 2014 passed by the Madras High Court in WP (MD) No. 5128 of 2010 and MP (MD) No. 3 of 2010 in the matter M.G. Lalitha Pearson & Anr. v. The Union of India & Ors. wherein under similar circumstances a learned Single Judge of the Court was of the opinion that as the service of the petitioner stood terminated prior to the date of declaration of civil death, it is not 6 open for the petitioner to claim any employment on compassionate ground, except the terminal benefits, pension etc. The Court upheld the rejection of the claim of the petitioner for appointment on compassionate ground.
After hearing the submissions made on behalf of both the parties it appears that the husband of the petitioner went missing on and from March 25, 2005. The disciplinary proceeding was initiated in May 2005. The petitioner lodged a general diary reporting the missing of her husband in June 2005 and immediately by a letter dated June 13, 2005 intimated the respondents that her husband was not traceable. The show cause notice which was issued in the name of the husband of the petitioner was replied to by the petitioner intimating that the employee remained untraceable. The petitioner thereafter made series of representations before the authority to bring to their knowledge that her husband was missing. The employer however terminated the service of the employee on the ground of unauthorized absence.
After seven years of non-return of her husband the petitioner approached the civil Court for declaration of his death. The said declaration was allowed by the judgment delivered by the Ld. Civil Court on June 17, 2017.
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The Issue No. 5 as framed by the learned Court below reads as follows:-
" Whether the plaintiff is entitled to receive all the dues standing in the name of Ram Kumar Mahato and employment on dependent quota".
The learned Court below, after perusal of all the records, was of the opinion that the petitioner being one of the successors of the deceased employee was entitled to get employment on compassionate ground subject to the compliance of the rules and regulations of the defendant Company and also subject to the no objection of the other dependent of the said deceased. The Suit was disposed of and decreed in favour of the petitioner on contest. The Chairman-cum-Managing Director of the Eastern Coalfields Limited who was the defendant in the said Suit chose not to appeal against the same and accepted the order of the learned Court below regarding entitlement of the petitioner to get employment on compassionate ground. Not being challenged before any higher forum, the judgment attained finality.
Death benefits which the petitioner was entitled to receive has since been paid i.e, a part of the order has been complied, but her prayer for employment stood rejected on the ground that the Company does not provide employment on compassionate ground on deemed death cases.
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The learned Civil Judge declared the employee to be dead. The death has to be treated as civil death. There is no plausible explanation as to why employment cannot be provided in case of declaration of civil death. A family which deals with natural death of the bread earner is no different from a family where civil death of the bread earner is declared by the Court. Both the families may pass through similar financial crunch. As there is already a provision for providing employment on compassionate ground in case of natural death, there is no reason as to why the same benefit will not be extended to the dependents of families where order of declaration of death was passed in their favour by the competent Court of law. In such case the time period for making application for compassionate appointment has to be different.
An application for declaration of civil death cannot be filed prior to expiry of seven years from the date of missing. Thereafter, the matter proceeds in the Court of law and it usually takes some time for the learned Court to decide and pass a judgment. The entire process is a time consuming one. Rejecting the prayer of the petitioner on the ground that more than fifteen years has lapsed since the person went missing, in my opinion, was not appropriate in the instant case. The petitioner on repeated occasions drew the attention of 9 the employer that her husband was not traceable. She could not have done more.
The contention of the respondents that she did not challenge the order of termination even though she knew the same do not appeal to the Court. Admittedly, the employee remained absent. The reason was that he was not traceable. Had it been a fact that the person was available and even then he did not report to duty, then the question of unauthorized absence would arise. As the person was missing at the relevant point of time and subsequently declared dead by the competent Court the ground for termination, i.e, unauthorized absence becomes baseless. Had the person been alive then the question of being absent would arise. There is no scope for a dead person to attend duty.
From the records of the case it does not appear that there is any intentional delay or laches on the part of the petitioner to approach the authority praying for employment. On the contrary, it appears that the petitioner all along proceeded with her claim diligently and steadfastly.
It is true that the law is very well settled in respect of providing employment on compassionate ground. Compassionate appointment can never be claimed as a matter of right. It can neither be a source of regular employment. The same is granted strictly in accordance 10 with the provision of the scheme to tide over the immediate financial need of the family on the untimely death of the bread winner. The Scheme of the Company has a provision for providing employment on compassionate ground. The same is liable to be extended in case of death declared by the civil court.
The Director (Personnel) is accordingly directed to assess the financial condition of the petitioner and take a decision whether employment is required to be provided to her on compassionate ground. If it appears that the financial condition of the petitioner is such that the family will not survive but for the employment, then necessary steps shall be taken by the said authority to consider the prayer of the petitioner by relaxing the time period for making application. The consideration shall be made by the Director (Personnel) within a period of eight weeks from the date of communication of a copy of this order. The said respondent shall pass a reasoned order and communicate the same to the petitioner immediately thereafter.
Since the writ petition is being disposed of at the motion stage without calling for any affidavits, the allegations made in the writ petition are deemed not to have been admitted by the respondents.
The impugned order of rejection dated July 13, 2020 stands set aside.
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WPA No. 9612 of 2020 stands disposed of.
Urgent photostat certified copy of this order, if applied for, be given to the parties after completion of all legal formalities.
sh ( Amrita Sinha, J.)