Calcutta High Court
Sk. Amjad Maji vs Coal India Limited & Ors on 3 May, 2019
Author: Shampa Sarkar
Bench: Shampa Sarkar
1
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
(Original Side)
Present:
The Hon'ble Justice Shampa Sarkar
WP No.1279 Of 2014
SK. Amjad Maji
-Vs-
Coal India Limited & Ors.
For Appellants : Mr. Partha Ghosh, Adv.
: Mr. Subjojit Seal, Adv.
For Respondent : Mr. Alok Banerjee, Adv.
: Ms. Sanchita Barman
Roy,
Heard on : 01/03/2019, 05/03/2019 & 19/03/2019
Judgment on : 03/05/2019
Shampa Sarkar, J. :
This writ petition has been filed against the inordinate delay and harassment caused to the petitioner by the respondent in providing employment to the petitioner under the land loser scheme of the respondent in which, a provision had been made for providing employment to the land loser or nominee of the land loser if the lands were either used for extraction 2 of coal and/or purchased or acquired by the coal industries for mining operations.
2. The case of the petitioner was that his grandfather, namely, Sk. Kubed Maji was the recorded owner of Dag Nos.1936, 1925 and 1927, mouza- Pariharpur, J.L No.23, Police Station-Jamuria, Sub-Registery office- Raniganj. The Eastern Coalfields Limited (hereinafter referred to as the ECL) a subsidiary of Coal India Limited, purchased portions of the above plots of lands from Sk. Kubed Maji under different deeds, measuring about 1.05 acres. According to the petitioners, after the purchase of the land the competent authority of the ECL approved the employment in favour of his grandfather, Kubed Maji, since deceased, and the approval of the appointment was communicated to Kubed Maji by the office of the Dy.CME/Agent vide memorandum No.A/Gir/Survey/9/C-6/93/2005 dated August 16, 1993 but, the final appointment was not made. Subsequently, the approval for employment in favour of the father of the petitioner, Irsad Maji son of Kubed Maji was processed as a nominee of Kubed Maji, as would appear from a communication by the Director Personnel ECL to the General Secretary of CMU (INTUC), that is the union of the coal mine workers under memo No. ECL:HQ:D (P) 34/30. It appears from a letter dated February 22/23, 1995 written by the Area Manager (P.C & D) Sripur area of ECL that the officer-in-charge of Jamuria Police Station was asked by the authorities to certify whether any police case was pending against Sk. Irsad Maji, the father of the petitioner. By a communication dated December 11, 1995, the sub-inspector of police of Sripur area intimated to the officer-in-charge 3 Jamuria Police Station that there was nothing adverse against the petitioner's father Irsad Maji. The police verification report was complete and favourable yet, employment was delayed by the respondents. Thereafter, Irsad Maji wrote a letter to the Chief Personnel Manager, Sripur area ECL through the agent Girmint (R) Colliary ECL, stating, inter alia, that although the employment was approved in his favour under the land losers scheme in 1995 but, due to some typographical errors in his name, the appointment was held up for a long time and finding no other alternative, Irsad Maji had nominated his son, that is, the petitioner, as the grandson of the original land loser late Kubed Maji, for employment under the land loser scheme in place of late Kubed Maji and Irsad Maji. He also informed the officer that all formalities had been completed and the forms and other compliances with regard to the employment had already been filled in and submitted by the petitiner. Irshad Maji requested the authority to give employment to the petitioner. Subsequently, the petitioner himself made a representation before the Chairman-cum-Managing Director, ECL, the General Manager, Sripur Area and the Director Personnel ECL, with a prayer to expedite the process of his appointment under the land loser category as per the scheme/policy framed in this regard. No decision was taken by the authorities. Hence, this writ petition was filed on December 23, 2014.
3. Mr. Partha Ghosh, learned advocate appearing on behalf of the petitioner submitted, that the grandfather of the petitioner was the original land loser, whose lands were both used and purchased by the ECL. He placed reliance on such averment made in the affidavit-in-opposition filed by 4 the respondents. He further submitted that there was no factual dispute with regard to the applicability of the scheme in the case of the petitioner in view of the fact that the employment had been approved in case of late Kubed Maji, that is, the petitioner's grandfather. Due to procedural delay and lapse of time Kubed Maji crossed the age bar and in turn nominated his son Irsad Maji, father of the petitioner, for the employment. The employment in favour of Irsad Maji was although approved and police verification report was completed, but, due to some typographical errors which were not corrected by the respondent, the appointment was delayed and thereafter Irsad Maji nominated his son, that is, the petitioner for employment in the mines. Mr. Ghosh submitted, that once the approval of employment of the original land loser and his nominee had been given by the respondents, the denial of employment to the petitioner as the grandson of the original land loser and the nominee's nominee did not arise. According to him, such nomination was permitted under the scheme. He also submitted that under the scheme, tagging of lands was permitted and if the quantum of land used and purchased were tagged together the petitioner was covered by the scheme in question and was eligible for employment. In support of his contention, Mr. Ghosh relied on the decision of a Division Bench of this Court in Eastern Coalfields Ltd vs. Sk. Nasiruddin reported in 2012 (2) CHN (CAL) 100.
4. Mr. Alok Banerjee, learned advocate appearing on behalf of the respondent submitted, that late Kubed Maji was not given any appointment but only his employment was approved. Similarly, Irsad Maji was also not 5 given any appointment due to some errors in his name although, the employment was approved. He referred to the scheme and stated that by a deed of conveyance dated March 4, 1983, ECL purchased 0.07 acres of lands and by another deed of conveyance dated January 8, 1985, ECL purchased 0.66 + 0.275 acres of land from the grandfather of the petitioner, thus totaling to 1.005 acres of lands which was less than 2 acres as required under the scheme. As such, the petitioner was not entitled to be given any employment. He further submitted, that the grandfather of the petitioner got ownership of the plots after the date of use and, clause 10 of the scheme was a bar to grant of employment to the said land loser. According to him, the petitioner's case would not be covered by the said scheme. He further submitted, that on and from January 1, 1985, the scheme provided that for use/purchase/acquisition of a minimum of 2 acre of land, one employment would be given. As the quantum of the land of the petitioner's grandfather which were partly purchased in 1983 and partly in 1985, was less than 2 acres, the petitioner was not entitled to get any employment under the scheme. He urged that more than 27 years have lapsed from the date of purchase of the lands and no employment could not given due to such delay.
5. I have heard the parties. Admittedly late Kubed Maji was a land loser. The guidelines for determining eligibility of the land losers for grant of employment as per the scheme framed by the respondents in this regard is required to be considered. The relevant portion of the said scheme which applies to the facts of this case is quoted below:-
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"For the land purchased/acquired/used between the period from 8.9.75 to 12.8.83 for eligibility:
i) Minimum one acre of land is required for one employment and in case of more than 3 acres maximum 2 employments from a family. If any person is employed earlier under L.L. Scheme that should be taken into account for determining eligibility of employment.
ii) The land should belong to the same family.
iii) The nominee should be near relation and be dependent to the land loser upper age limit is 35 yrs. and should be physically fit on medical examination.
iv) All land losers must belong to the same family and the land should be in possession of the Company."
6. It is admitted by the respondent in their affidavit-in-opposition that the above lands were used by the ECL during 1973-77. The quantum of land used has not been mentioned in the affidavit-in-opposition but the quantum of land purchased has been mentioned. It appears from the eligibility criteria, that if a minimum of l acre of land was purchased/acquired/used between the period of 8.9.75 to 12.8.83, one employment would be provided subject to the condition that the lands belonged to the same family and the nominee was a near relation and dependant upon the land loser. The upper age limit of the person to be appointed was fixed as 35 years, and the person should be found to be physically fit on examination. The eligibility criteria also allowed nominees of the land losers to get employment if a minimum of 1 acre of land was used/acquired/purchased. Clause 9 of the scheme provided that tagging of the land for the purpose of employment would be allowed. As such, on the basis of the above-mentioned clauses of the scheme, in this case, if the land purchased by the company that is 0.07 acre in plot no.1927 on March 4, 1983 and the lands admittedly used by the company between 1974-77 were 7 tagged together then, the same would be more than 1 acre of land and the nominee of the original land loser was entitled to employment under the land loser scheme. The deeds of conveyance submitted by Mr. Banerjee have been taken on record. It appears that plot no.1936 was acquired by the late Kubed Maji on December 30, 1967. Part of plot no.1925 was paternal property and part of the said plot was purchased from a cousin by the late Kubed Maji on November 20, 1982. Although the respondent purchased certain portions of land in plot no.1936 and in plot no.1925 on January 18, 1985 admittedly, the said lands which were under use of the respondent ECL as per the averments in the affidavit-in-opposition between in 1973-77 were partly paternal property and self-acquired property of Kubed Maji. Moreover, even if ECL has purchased 1.005 acres of land in 1983 and 1985 by two separate deeds, it is not clear as to how much of the land in plot nos.1925 and 1936 which were paternal property and also self acquired property of the late Kubed Maji had been used by ECL for underground mining and excavation. As such, the contention of Mr. Banerjee that the petitioner was not eligible for getting employment in view of the guidelines in respect of land purchased on and from January 1, 1985 as the quantum of land was less than 2 acres cannot be accepted. The respondent also cannot deny that the petitioner was entitled to employment under the scheme as the grandson of the original land loser or the nominee's nominee of the original land loser. The eligibility of the petitioner under the scheme as a member of the family of Kubed Maji cannot be denied in view of the communication of the officers of ECL annexed to the writ petition, which show that appointment of Kubed Maji had been considered and approved by 8 ECL. An extract of the communication dated August 16, 1993 is quoted below:-
"Eastern Coalfields Ltd.
Office of the Dy. CME/Agent Girimint (P) colliery Dt. 16.8.93.
Ref. A/Gir/Survey/9/C-6/93/2055 Given before is the copy of O/order No.GM/SA/C-69/10/93/- 2387 dated 10th August, 93 of the P.M./Sripur area.
"Employment in respect of the undernoted land loosens/nominees of land losers has been approved and communicated vide letter No. of PM (MP & R), ECL, Sanctoria shown each name.
1. S/Sri Kubed Maji : ECL/CMD/MPC (R)/93/97 dtd. 31.3.93
2. Bhraman Ch. Mondal : -do-
3. Gosain Ch. Mondal : -do-
4. . . . . . . . : -do-
The aforementioned candidates are directed to appear for pre- employment medical examination before Area medical officer, Sripur Area on 20/8/93 at 10.30 a.m. They are further directed to submit the following documents/records to effect the pre-employment medical examination before the aforementioned date.
1. Attestation form dates filled in and signed 5 copies.
2. Relationship certificate.
3. No-objection certificate from the co-shears
4. Admit card/school leaving certificate in case the candidate concerned has passed be School Final examination in support of proof of age etc. As well as other educational certificates and documents etc. duly attested.9
cc to - Surveyor, Girimint Colliery (for information and necessary action) cc to - Manager -do-
cc to - persons concerned (4) with advice to appear before the medical examination on the scheduled date, place and time as above.
Dy. CNE/Agent, Gir(R)"
7. It also appears from a communication of the Director Personnel, ECL, that the employment of the petitioner's father Irshad Maji in place of Kubed Maji was also processed and all clarification had been received and finally the police verification had also been completed. Under such circumstances, the contention of Mr. Banerjee that clause 10 of the scheme would be a bar in case of grant of employment to the petitioner is not acceptable, inasmuch as, the respondents had processed and approved the employment of the grandfather and thereafter the father of the petitioner and by their above conduct, had considered the family of late Kubed Maji eligible for employment. Now, they are estopped from raising any dispute with regard to the eligibility. The relevant extract with regard to employment of Irsad Maji is set out below:-
"EASTERN COALFIELDS LIMITED (A Subsidiary of Coal India Limited) SNCTORIA P.O. DISERGARH DIST. BURDWAN-713333 (0341) 520 053-55, 520 414-15-204117-78 10 GRAM; EASTCOAL FAX- 0341202113 ECL:HQ:D(P)34/30 Sri Provat Goswami General Secretary, CMU (INTUC) 27, G.T. Road, Asansol, Dist. Burdwan, Dear Sir, Sub: Prayers raised during the meeting on 22.12.97.
The following is furnished for your information -
1. Case of Sri Amiya Kumar Chatterjee :
The ownership of the land came on 11.3.85 through purchase and the land was utilized from 28.8.74 to 28.5.76. Thus the ownership of the land has come after the date of use. Hence, earlier the case has been regretted. Now the area has indicated that Sri Chatterjee is son-in-law of one of the land owner from whom Sri Chatterjee has purchased the land. The ownership of the land is before the date of use. However, this can not be considered due to the above stated fact.
2. Case of Sri Irsad Maji son of Sk. Kubed Maji.
Previously employment was approved in the name of Kubed Maji which was communicated to the area in March, 93. Subsequently, the case was processed for employment for Irsad Maji s/o. Kubed Maji and all the clarifications asked from the area has been received and the case is under process."
3. ...............
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4. ................
5. ...............
Yours faithfully, D. Sahay 29/12/97 (D. Sahay) Director (Personnel)
8. Moreover, clause 10 of the scheme will not be a bar in this case, in view of the fact that between 1973-77 the respondent, ECL had used the land inherited by Kubed Maji, that is, plot no.1925 and land purchased by the said Kubed Maji in 1967, that is, plot no.1936. If these lands are tagged along with the land purchased by the ECL on March 4, 1983, the total quantum of land purchased and used put together would amount to more than 1 acre and the petitioner was covered by the said scheme. The applicability of the scheme cannot be questioned or disputed by the respondent at this stage as they had already processed and approved the employment of Kubed Maji and thereafter Irsad Maji way back, between 1993-97. The papers of the petitioner was also processed to a certain extent as would appear from the communications. The family of late Kubed Maji was thus entitled to employment under the land loser scheme. The petitioner as the grandson of the original land loser and son of the nominee of the original land loser Kubed Maji, is entitled to employment under the scheme. The delay in this case is not fatal inasmuch as, no third party rights have been created and the delay has been caused by the respondents themselves. In the decision of Sk. Nasiruddin (supra) it was held that the 12 right of employment of the land loser or his nominee should be treated to have accrued once the company took the land and started using the same for extraction of coal. The Division Bench also held that nominee's nominee would also be covered by the scheme and further requirement of 2 acre of land in terms of the notification for land purchased after January 1, 1985 would not render those land losers ineligible for employment in case their lands were used by the ECL prior to the purchase.
9. In this case, the respondents have already accepted the eligibility of Kubed Maji for employment in terms of their own policy and as such the respondents now cannot turn around or deviate from their own policy. Reference is made to the decision of Rameshwar Prasad vs. Managing Director U.P. Rajkiya Nirman Nigam Limited & Ors., reported in (1999) 8 SCC 381 and the relevant portion of the above decision is quoted below:-
"17. In our view, it is true that whether the deputationists should be absorbed in service or not is a policy matter, but at the same time, once the policy is accepted and rules are framed for such absorption, before rejecting the application, there must be justifiable reasons. Respondent No.1 cannot act arbitrarily by picking and choosing the deputationists for absorption. The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrarily, or at whim or caprice of any individual. In the present case, as stated earlier, the General Manager (N.E.Z.) specifically pointed out as early as in the year 1988 that appellant's service record wax excellent; he has useful in service and appropriate order of his absorption may be passed. His application for absorption was within three years as provided in Rule 5. There is nothing on record to indicate that for any reason whatsoever, he was not required or fit to be absorbed or the power under Rule 5 (1) of the U.P. Absorption of Government Servants in Public Undertakings Rules, 1984 was not required to be exercised in his favour. Interim order dated 17.7.1991 passed by the High Court would not be applicable in case of appellant because his case was considered for absorption in the year 1988. Further on completion of five years on 19.11.1990 he could not have ordinarily been continued on deputation in the service of Nigam. It is apparent that he was absorbed from 19.11.90 because from that date his deputation allowance was also discontinued. If he was to be continued on deputation, there was no reason for non-payment of deputation allowance.13
So on the basis of statutory rules as well as the policy, appellant stand absorbed in the service of Nigam."
10. The relevant portion of the decision of Mohidur Rahaman vs. The State of W.B. & Ors., reported in 1995 (1) CHN 199, is quoted below:-
"4. From the facts aforementioned, it is evident that there exists a policy decision that the land-losers may be provided with employment and there cannot be any doubt whatsoever that the State is bound by its own policy decision. Any deviation or departure from the said policy decision could attract the wrath of Article 14 of the Constitution of India. However, the same does not mean that the respondents need not screen the candidates. In that view of the matter, in my opinion, the State was entitled to issue the aforementioned Notification dated 30th April 1990, which has been issued in exercise of the power conferred upon the State by sub-ss. (1), (4) and (5) of s. 17 of the Electricity (Supply) Act, 1948. It is stated at the Bar that the said Notification has been extended from time to time and is still in force. The relevant paragraphs of the said Notification are as under:
"The said Committee shall help the W.B.P.D.C.L. in the preparation and finalisation of priority list of the families evicted due to acquisition of land for the K.T.P.P. for employment of one member of each family under W.B.P.D.C.L. (name of one person is to be listed if the ownership of land is changed or distribution is effected after notice has been served).
The said Committee shall reconsider the priority list prepared by the previous Committee and shall prepare revised list if necessary and submit the same the W.B.P.D.C.L. and Govt. of West Bengal for consideration/approval."
11. Coming to the facts of this case, the respondents had already completed the initial screening and prepared the list of eligible candidates which included the names of Kubed Maji and Irshad Maji. The respondents now, cannot deny the petitioner employment by deviating from their policy. Thus, going by the quantum of land which was purchased in March 4, 1983 by a registered deed of conveyance by the ECL from the grandfather of the petitioner together with the quantum of land used by ECL between 1974- 1977 which were paternal property and self acquired property of the land loser, I have no hesitation to hold that the petitioner was entitled to get the 14 employment if the police verification report and medical test are found to be in his favour. The respondent themselves had considered the case in terms of the scheme and given the approval for employment to his predecessors. Moreover, it was not the case of the respondents that the approvals were mistakenly given. Even when the petitioner made representations, his eligibility was never denied.
12. Clause 10 of the said scheme does not apply in this case inasmuch as, only plot no. 1927 was purchased by the petitioner after the use of the land by ECL but the other plot of lands which were used by the ECL were either ancestral property or self acquired and late Kubed Maji was the owner thereof, much prior to the date of user. When the quantum of land purchased on August 12, 1983 and used during 1973-74 are tagged together, the quantum of land becomes more than 1 acre and as such the respondent are bound to give employment to the family of Kubed Maji. Thus the respondents are estopped from taking a new plea of ineligibility of the petitioner. Reference is made to the decision of Chandra Prakash Tiwari & Ors. vs. Shakuntala Shukla & Ors., reported in (2002) 6 SCC 127 and the relevant portion of the above decision is quoted below:-
"31. This Court in Tata Iron & Steel Co. Ltd. v. Union of India and Ors., MANU/SC/0745/2000 : 2001 (2) SCC 41 dealt with the issue of estoppel by conduct rather exhaustively and one of us (Banerjee, J) in paragraphs 20 and 21 stated the law pertaining thereto as below:-
"20. Estoppel by conduct in modern times stands elucidated with the decisions of the English Courts in Pickard v. Sears (1837 : 6Ad. & El.
469) and its gradual elaboration until placement of its true principles by the Privy Council in the case of Sarat Chunder Dey v. Gopal Chunder Laha MANU/PR/0021/1892 whereas earlier Lord Esher in the case of Seton, Laing Co. v. Lafone 1887 19 QBD 68 evolved three basic elements of the doctrine of Estoppel to wit:15
"Firstly, where a man makes a fraudulent misrepresentation and another man acts upon it to its true detriment: Secondly, another may be where a man makes a false statement negligently though without fraud and another person acts upon it: And thirdly there may be circumstances under which, where a misrepresentation is made without fraud and without negligence, there may be an extoppel."
Lord Shand, however, was pleased to add one further element to the effect that there may be statements made, which have induced other party to do that from which otherwise he would have abstained and which cannot properly be characterised as misrepresentation. In this context, reference may be made to the decisions of the High Court of Australia in the case of Craine v. Colonial Mutual Fire Insurance Co. Ltd. 1920 28 C.L.R. 305 Dixon, J. in his judgment in Grundt v. Great Boulder Gold Mines Pvt. Ltd. 1939 59 C.L.R. 641 stated that:
"In measuring the detriment, or demonstrating its existence, one does not compare the position of the represented, before and after acting upon the representation, upon the assumption that the representation is to be regarded as true, the question of estoppel does not arise. It is only when the representor wished to disavow the assumption contained in his representation that an estoppel arises, and the question of detriment is considered, accordingly, in the light of the position which the represented would be in if the representor were allowed to disavow the truth of the representation."
(In this context see Spencer Bower and Turner: Extoppel by Representation 3rd Edn.) Lord Denning also in the case of Central Newbury Car Auctions Ltd. v. Unity Finance Ltd. 1956 (3) All ER 905 appears to have subscribed to the view of Lord Dixon, J. pertaining to the test of 'detriment' to the effect as to whether it appears unjust or unequitable that the representator should now be allowed to resile from his representation, having regard to what the represented has done or refrained from doing in reliance on the representation, in short, the party asserting the estoppel, must have been induced to act to his detriment. So long as the assumption is adhered to, the party who altered the situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs, the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. [vide Grundts : High Court of Australia 1939 (59) CLR 641]"
13. The unreported decision in Santosh Samanta vs. M/s. Eastern Coalfields Limited & Ors. (In re: W.P. No. 33882(W) of 2013) relied upon by Mr. Banerjee does not apply in this case as the learned Single Judge in that case had held that the said writ petition was time barred and the court could not issue a direction upon the competent authority. The order was 16 passed relying upon a decision of the Hon'ble Apex Court in Union of India & Another vs. Ashok Kumar Aggarwal reported in (2013) 16 SCC 147. Paragraph 18 of the judgment of the Apex Court is quoted below:-
"A representation may be considered by the competent authority if it is so provided under the statutory provisions and the court should not pass an order directing any authority to decide the representation for the reason that many a time, unwarranted or time-barred claims are sought to be entertained before the authority. More so, once a representation has been decided, the question of making second representation on a similar issue is not allowed as it may also involve the issue of limitation, etc. (Vide Rabindranath Bose v. Union of India Esi Corpn v. All India ITDC Employees' Union, A.P. SRTC v. G. Srinivas Reddy, Karnataka Power Corpan. Ltd. v. k. Thangappan, Eastern Coalfields Ltd. v. Dugal Kumar and Udai Shankar Awasthi v. State of U.P)"
14. The delay in granting employment has been caused by the respondents. They had approved the appointment of Kubed Maji and Irshad Maji but due to the procedural delay on the part of the respondent the employment could not be given. The eligibility of Kubed Maji and/or his nominee to get the employment was never disputed. The petitioner has a right to be granted employment as discussed hereinabove, if he was found physically fit and there was no adverse police report. The respondents cannot change their stand subsequently, before this court as the same would be arbitrary and violative of Article 14 of the Constitution of India
15. Within two weeks from the date of communication of this order the respondent, ECL is directed to obtain the police verification report in respect of the petitioner and also send him for medical test. If both the reports are favourable, then employment should be given to the petitioner. The petitioner will comply with other official formalities. If the reports are not favourable in that case the petitioner should be accordingly informed. The 17 entire exercise should be completed within three months from the date of the communication of the order.
16. The writ petition is allowed.
17. There will be, however no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for be given to the parties on priority basis.
(Shampa Sarkar, J.)