Jharkhand High Court
Central Coalfields Limited vs Hemanti Devi on 16 August, 2018
Author: Aniruddha Bose
Bench: Chief Justice, D.N.Patel
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.196 of 2017
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Central Coalfields Limited, a Company incorporated under the Companies Act, having its registered Office at Darbhanga House, P.O-Ranchi University, P.S. Kotwali, District-Ranchi (Jharkhand), through its General Manager (Administration) Sri Gopal Prasad, son of Late Basudeo Prasad, resident of Jawahar Nagar, P.O.- Jawahar Nagar, P.S. Gonda, District-Ranchi, PIN 834 008 ..... Appellant Versus
1.Hemanti Devi, wife of Sri Jitendra Rajwar and daughter of Sri Khirodhar Rajwar, resident of Dhaura, No.5, P.O. Dhori, P.S. Bermo, District-Bokaro
2.The Director (Personnel), Central Coalfields Limited, Darbhanga House, P.O.-Ranchi University, P.S. Kotwali, District-Ranchi
3.The General Manager (P&IR), Central Coalfields Limited, Darbhanga House, P.O.-Ranchi University, P.S. Kotwali, District- Ranchi
4.The Manager (Personnel), Dhori Colliery, Central Coalfields Limited, P.O. Dhori, P.S. Bermo, District-Bokaro (Jharkhand)
5.Project Officer, Dhori Colliery, Central Coalfields Limited, P.O. Dhori, P.S. Bermo, District-Bokaro (Jharkhand) ..... Respondents
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Coram: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE D.N.PATEL
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For the Appellant Mr.A.K.Das, Advocate
For the Respondent No.1 Mrs. M.M.Pal, Sr., Advocate
Mr. N.K.Sahani, Advocate
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9/ Dated : 16th August, 2018
The appellant before us, Central Coalfields Limited, has questioned the legality of the decision of the learned First Court directing them to consider and take a fresh decision in respect of the plea of the writ petitioner for compassionate appointment. The writ petitioner is married daughter of a deceased employee of the appellant who died in harness. It is brought to our notice by the learned counsel for the writ petitioner that her client is the only child of the deceased employee. Her plea for compassionate appointment was turned down by the appellant on the ground that she was married and hence was dependent on her husband. This factor, according to the appellant, makes her ineligible for getting the benefit of the provisions relating to compassionate appointment. The learned First Court held:
"6. After hearing learned counsel for the respective parties and giving my anxious consideration to the documents on record, I am of the considered view that petitioner has been able to make out a case for interference due to the following facts and reasons:
(I) There is no denying of the fact that the mother of the deceased was -2- employee of the C.C.L and she died in harness and the petitioner is the sole legal heir of the deceased employee. After the death of the mother of the petitioner she submitted application for compassionate appointment which has been rejected vide Annexure-4 to the writ application. The only ground taken in the impugned order is that the petitioner is a married woman and as per the NCW agreement there is no scope for consideration of the married woman, therefore, the same has been rejected by the respondents. Similar matters have engaged the attention of this Court, as stated supra and this Court by referring to various decisions has been pleased to hold that the case of married woman to be considered, otherwise it would be violative of Article 16 of the Constitution of India.
7. In view of the aforesaid decision and considering the plight of the petitioner, the impugned order vide Annexure-4 to the writ petition is quashed and set aside and the respondents are directed to consider and take a fresh decision in the light of the observation made hereinabove within a period of eight weeks from the date of receipt of a copy of the order."
The appellant relies on clause 9.3.0 of the National Coal Wages Agreement-VI which deals with employment of dependents from the death in harness category. This provision stipulates:
"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 para 9.5.0.
9.3.3 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 deceased and almost wholly dependent on the earnings of the deceased may be considered to be the dependant of the deceased."
Learned counsel of the C.C.L submits that from the aforesaid clause, the married daughter is excluded from the categories of relatives who may be granted appointment on compassionate ground.
Learned counsel for the respondent-writ petitioner has brought to our notice an unreported decision of the High court of Chhattisgarh, Bilaspur in W.P.(S) No. 4994 of 2015 delivered on 15th March, 2016, in which the said clause has been quashed to the extent the same excludes from the benefits the claim of a married daughter. It has been held in that judgment:
-3-"(29) As a fallout and consequence of aforesaid discussion, the writ petition is allowed and consequently clause 9.3.3 of NCWA-VI, which has been made applicable to clause 9.4.0(I) of NCWA-IX, regarding dependent employment only to the married daughter is held to be violative and discriminatory and the said clause to the extent of impliedly excluding married daughter from consideration for dependent employment is hereby declared void and inoperative.
Resultantly, impugned order dated 15.10.2015 Annexure P-1 rejecting the petitioner's claim for dependent employment on the ground of her marriage is hereby quashed being unsustainable in law and it is directed that Clause 9.3.3 of NCWA-VI read with clause 9.4.0 of NCWA-IX be read in the manner to include the married daughter also as one of the eligible subject to fulfilment of other conditions. As a consequence, the respondents are directed to consider the claim of the petitioner for dependent employment afresh in accordance with law keeping in view that her father died way back on 08.02.2014 and her application for dependent employment was rejected on 15.10.2015, preferably within a period of 45 days from the date of receipt of certified copy of this order. No order as to costs."
In that writ petition also, married daughter of a deceased employee of an associate public sector coal company was the claimant.
In a Full Bench decision of the High Court of Calcutta delivered on 13th September, 2017, in the case of the State of West Bengal Vs Purnima Das and Ors (F.M.A. 1277 of 2016), a similar provision contained in West Bengal Scheme For Compassionate Appointment 2013 was examined. The Full Bench opined that exclusion of a daughter solely on the basis of her marital status would not be reasonable.
In this background, in our opinion, the clause 9.3.3. has to be construed to include married dependant daughter also. We are conscious of the fact that before us, vires of the aforesaid clause of the NCWA has not been challenged and what we are dealing with in this appeal is a industry-wide agreement and not a direct statutory provision. But the employer in this appeal is a public sector unit coming within the ambit of "State" under Article 12 of the Constitution of India. Thus, since the agreement directly deals with matters of employment, the said provision has to meet the tests of Articles 14 and 16 of the Constitution of India. The manner in which the appellant wants the aforesaid provision to be interpreted would render it invalid as there can be no justification for not qualifying the son's eligibility on the basis of marital status whereas a daughter has been placed under restriction on that -4- count. Such discrimination is not based on any reasonable or rational criteria. We have to read down the expression "unmarried" qualifying the expression daughter as a non-essential component of the aforesaid clause and this interpretation would otherwise save the said provision.
We accordingly sustain the decision which is appealed against. We, however, make it clear that the authority, taking decision on the basis of the direction of the learned First Court, should ascertain, upon giving the writ petitioner an opportunity of hearing, that she was dependent on her mother's income at the time of her mother's death and at present does not have sufficient means to run her household irrespective of the fact as to whether she was married or not. The appeal stands disposed of in the above terms. The exercise shall be completed within a period of eight weeks from the date of communication of this order.
As we disposed of the main appeal, the connected application (I.A Nos.1437/18) shall stand disposed of.
(Aniruddha Bose, CJ.) I agree (D.N.Patel, J) Dey/Amardeep