Jharkhand High Court
Kaushilya Devi vs Central Coalfields Limited on 14 October, 2020
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(S) No. 2892 of 2019
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Kaushilya Devi, aged about 40 years, wife of late Parmeshwar Mahto, resident of Village-Govindpur, PO and PS-Bokaro Thermal, District-Bokaro ..... Petitioner
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1.Central Coalfields Limited, represented through its Chairman-cum- Managing Director, Office at-Darbhanga House, PO-GPO, PS-Kotwali, District-Ranchi
2.The General Manager(Personnel), Central Coalfields Limited, Office at-Darbhanga House, PO-GPO, PS-Kotwali, District-Ranchi
3.Project Manager, Govindpur Colliery, Central Coalfields Limited, PO-Govindpur, PS-Petarwar, District-Bokaro
4.The Senior Manager, Govindpur Colliery, Central Coalfields Limited, PO-Govindpur, PS-Petarwar, District-Bokaro
5.Medical Superintendent, Govindpur Colliery, Central Coalfields Limited, PO-Govindpur, PS-Petarwar, District-Bokaro
6.General Manager, Kathara Project, Central Coalfields Limited, PO- Kathara, PS-Petarwar, District-Bokaro
7.Commissioner, Coal Mines Provident Fund, Office at-CMPF, Region-I, RIADA Building, Namkum, PO and PS-Namkum, District-Ranchi ...... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Manish Kumar, Advocate For the Resp.CCL :- Mr. D.K. Chakraverty, Advocate For the Resp.CMPF : Ms. Prity Sinha, Advocate
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07/14.10.2020 Heard Mr. Manish Kumar, the learned counsel appearing for the petitioner, Mr. D.K. Chakraverty, the learned counsel appearing on behalf of the respondent-CCL and Ms. Prity Sinha, the learned counsel appearing for the respondent-CMPF.
2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and 2 with their consent this matter has been heard.
3. The petitioner has preferred this writ petition for quashing the order dated 09.05.2003 whereby the petitioner's husband was removed from service. The further prayer is made for a direction to appoint the petitioner on compassionate ground as her husband who was an employee of the respondent-organization died in harness and the petitioner is entitled to get appointment in view of clause-9.5.0(iii) of the NCWA-VI. Prayer for payment of retiral dues are also made.
4. The petitioner's husband was working as Mechanical Fitter, Category-IV in Govindpur Colliery of the respondent-company. The petitioner's husband was suffering from mental disease and was referred to mental hospital where he was diagnosed to be suffering from Tuberculosis and was referred to Gandhinagar Hospital, Ranchi on 26.08.1997 wherefrom he was referred to R.K. Mission T.B. Sanatorium on 02.09.1997 and thereafter he returned back to his house but went missing on 06.01.1998. The Medical Superintendent vide his letter dated 29.06.2000 asked the petitioner's husband to meet him immediately. On 18.05.2000, the respondent issued show cause to the deceased employee asking him to show cause for his long absence. The father of the deceased employee replied to the aforesaid show cause along with copy of Sanha lodged at local P.S and informed the respondents that his son is traceless since 06.01.1998 and requested them to take appropriate decision on humanitarian ground. The said letter is brought on record as Annexure-3 to the writ petition. The respondent-CCL did not consider the aforesaid reply submitted by the father of the deceased employee and decided to conduct enquiry against the charges of the deceased employee. The father of the deceased employee appeared and again submitted a representation on 10.08.2000 as contained at Annexure-4 to 3 the writ petition and requested to drop the enquiry. The matter remained pending and on 06.05.2002, the enquiry officer issued a letter to the deceased employee asking him to appear in the enquiry on 17.05.2002 failing which the enquiry would be conducted ex-parte and since the deceased employee did not appear, the enquiry officer submitted his report on 08.08.2002 holding the charge to be proved against the deceased employee. The second show cause and the enquiry report were transmitted to the house of the deceased employee and again a request was made by the father of the deceased employee not to proceed with the disciplinary proceeding as he was missing since 06.01.1998. The deceased employee was removed from service on 09.05.2003. The appeal was preferred on 16.05.2004 before the Chairman-cum-Managing Director of the respondent-CCL which was not considered after lapse of 11 years from the date her husband was missing and remained traceless. The petitioner filed a title suit being T.S.No.30/2009 for declaration that the deceased employee was no longer alive. The said suit was allowed by the judgment and decree whereby it was declared that the petitioner's husband was dead and it was ordered that death certificate of the petitioner's husband be issued in favour of the plaintiffs. The respondent-CCL was also a party to that suit. Thereafter, the petitioner submitted a representation before the respondent no.3 on 26.07.2018 along with a copy of the aforesaid judgment and decree and requested for payment of gratuity, provident fund and other death cum retiral dues. On 27.02.2019, a request was made by way of filing a representation for appointment on compassionate ground and on that representation no decision has been taken.
5. Mr. Manish Kumar, the learned counsel appearing on behalf of the petitioner submits that the representation has already been filed 4 on 27.02.2019, but no decision has been taken as yet. He further submits that the deceased employee was missing with effect from 06.01.1998 and in expectation of his return, the suit was delayed to be filed in the year 2009 which was numbered as T.S.No.30/2009. He further submits that there was no occasion to file a declaratory suit at the early date in view of the fact that the family was expecting that the deceased employee will return back and after losing all the hopes the said suit was filed. He submits that the enquiry was also ex-parte in view of the fact that the deceased employee was missing, however, the step was taken on behalf of the family to communicate the same by way of filing a petition before the enquiry officer. He submits that in view of Clause-9.5.0 of the NCWA- VI, the petitioner is entitled for appointment on compassionate ground. He further submits that the case of the petitioner is fully covered in view of the judgment rendered by this Court in case of "Munni Devi v. Central Coalfields Limited" reported in 2015 (4) JCR 736. Paragraph nos.6 and 7 of the said judgment are quoted hereinbelow:
"6. In the wake of declaration by the learned Trial Court, such a proceeding therefore would have no legal value as the employee would be deemed to have died on 5.6.2003. The order of termination passed against the dead employee is therefore untenable in law and on facts and is accordingly quashed. It is also true that only after declaration of the Civil Death of the husband of the petitioner, she could make a valid claim for compassionate appointment in terms of the relevant provision of the National Coal Wage Agreement(N.C.W.A.) and the circular prescribing the time period of 1 ½ year for making such application from the date of death. Petitioner claims to have made such application within 1 ½ month from the date of such declaration vide her representation (Annexure-7 series) also claiming certain outstanding death cum retirement dues. If such a claim has been made within a period of 1 5 ½ year from the date of such declaration of Civil Death by the learned Trial Court, that is to be entertained and considered by the respondent-CCL in terms of the N.C.W.A for the purposes of compassionate appointment of the dependent of the deceased employee. The circular relied upon by the learned counsel for the respondent-CCL to the effect that the case of deemed death/missing would not be considered, would not prevail over the declaration/the judgment of this Court where no distinction between cases of civil death and natural death has been drawn taking into account the judgment rendered on the points by different High Courts such as Uttaranchal and Allahabad High Court. It is to be taken note of that there no distinction in case of civil death and natural death for the purpose of compassionate appointment as in both the cases the bread earner of the family is not there in the scene and the dependent of the deceased has been reduced to the state of penury. In such cases the person is to be presumed to be dead by operation of law under Section 108 of the Evidence Act. It would also require same and similar consideration as the dependent of an employee dying natural death in harness. Therefore, consequent to quashing of the order of termination of the employee, it would be deemed that the employee was on the roll of the company on the date on which he went missing i.e. on 05.06.2003 and presumed to be dead as per declaration made vide judgment and decree dated 30.11.2012/01.12.2012. The application for compassionate appointment made on behalf of the petitioner is required to be accorded due consideration in terms of the provisions of NCWA in vogue.
7. The respondents would now take a decision for claim of the compassionate appointment and also for any other outstanding claim of death-cum-retirement benefits. As per the respondents, the documents relating to CMPF has been forwarded to the CMPF authorities, who are also represented through their counsel. He, however, submits that such documents have not yet been received in CMPF office by the time of filing of their 6 counter affidavit. It is pointed out by the learned counsel for the respondent-CCL that the mother of the employee namely Jitani Devi was nominated in Form-A under the CMPF. It is also pointed out that the Management was inclined to deposit the gratuity amount to the controlling authority under the Payment of Gratuity Act, 1972 as no nomination of the ex-employee was on record."
6. Per contra, Mr. D.K. Chakraverty, the learned counsel appearing for the respondent-CCL submits that in view of the charge sheet the petitioner's husband is found to be missing from the year 1997 itself. He submits that the petitioner has approached the respondent-CCL after 22 years of missing. He submits that in view of principles of compassionate appointment, the prayer of the petitioner cannot be entertained. He further submits that only the nominee can be considered and the petitioner is the wife. He submits that after such a long period, the petitioner has approached the respondent-CCL and in that view of the matter and in view of well settled proposition of law, the petitioner is not entitled for appointment on compassionate ground. He relied in the case of "Santosh Kumar Dubey v. State of Uttar Pradesh" reported in (2009) 6 SCC 481. Paragraph no.13 of the said judgment is quoted hereinbelow:
"13. In the present case, the father of the appellant became untraceable in the year 1981 and for about 18 years, the family could survive and successfully faced and overcame the financial difficulties that they faced on missing of the earning member. That being the position, in our considered opinion, this is not a fit case for exercise of our jurisdiction. This is also not a case where any direction could be issued for giving the appellant a compassionate appointment as the prevalent rules governing the subject do not permit us for issuing any such directions. The appeal, therefore, has no merit and is dismissed."
7. He further relied in the case of "Kumari Asha Chauhan v. 7 Central Coalfields Limited & Ors." in L.P.A. No.423 of 2017 which was disposed of by order dated 27.06.2018. He submits that in the L.P.A judgment the Division Bench has also considered the case of "Santosh Kumar Dubey" and the order of the learned Single Judge has been affirmed by the Division Bench whereby the learned has rejected the claim of the petitioner.
8. Ms. Prity Sinha, the learned counsel appearing on behalf of the respondent-CMPF submits that the CMPF has not received any request from the respondent-CCL and in view of the provisions only after such request the CMPF can proceed further.
9. Having heard the learned counsels appearing on behalf of the parties, this Court finds that the petitioner was missing since 06.01.1998 as averred in the title suit and in the title suit, the declaration was made of civil death by the judgment and decree dated 15.03.2018. Pursuant to that judgment, the petitioner has applied for compassionate appointment on 27.02.2019. The fact of the present case is fully covered by the judgment delivered by the co-ordinate Bench of this Court in "Munni Devi" [supra]. To a query from the Court, Mr. D.K. Chakraverty, the learned counsel appearing for the respondent-CCL fairly submits that the case of "Munni Devi" [supra] has been complied with. The judgment relied by Mr. Chakraverty, the learned counsel in the case of "Santosh Kumar Dubey" [supra] is distinguishable on the fact as in that case the Hon'ble Supreme Court was considered Rule-5 of the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, wherein there is a specific bar of application to be filed within 5 years whereas in that case the application was made after lapse of 5 years and in that view of the matter the Hon'ble Supreme Court has not entertained the case of Santosh Kumar Dubey. The L.P.A case relied by Mr. 8 Chakraverty, the learned counsel for the respondent-CCL is also on different footing. In that case, the mother-in-law of the appellant expired on 12.06.2001 and the first application was preferred on 04.02.2008 and thereafter another application was preferred on 30.08.2011. Here in the case in hand, the petitioner's husband was missing and a declaratory suit for death was filed and vide judgment and decree it was declared on 15.03.2018 and thereafter immediately the petitioner applied for compassionate appointment. The case of "Munni Devi" has already been complied by the respondent-CCL which is identical to the facts and circumstances of the present case.
10. The order dated 09.05.2003 of removal is quashed as against the dead person removal order cannot be passed. Consequently, it would be deemed that the employee was on the roll of the company on the date on which he went missing and presumed to be dead as per declaration made by the Civil Court. Thus, in the light of the above discussions, the respondent-CCL is required to take a decision on the representation of the petitioner which is still pending with the respondent-CCL. Let such decision in the matter of claim of compassionate appointment and death-cum-retiral dues as aforesaid be taken within 12 weeks from the date of receipt/production of a copy of this order by the respondent-CCL and pass appropriate order. The respondent-CMPF will process the claim of the legal dues in terms of the scheme.
11. The writ petition [W.P.(S) No. 2892 of 2019] is allowed in the manner indicated hereinabove and is disposed of.
12. I.A., if any, stands disposed of.
( Sanjay Kumar Dwivedi, J) SI/;