Jharkhand High Court
Lilwa Bhuiyan vs Central Coalfields Limited (C.C.L.) on 10 February, 2021
Equivalent citations: AIRONLINE 2021 JHA 158
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.687 of 2019
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Lilwa Bhuiyan, aged about 39 years, S/o Laxmi Devi,
Resident of Village Tina Side, P.O. Sayal and P.S. Urimari,
District - Hazaribagh, Jharkhand-829125.
... ... Appellant
Versus
1. Central Coalfields Limited (C.C.L.), a subsidiary of Coal
India Limited, a government of India undertaking, having
office registered at Dharbhanga House, Ranchi, P.O.
Ranchi University, P.S. Kotwali, District Ranchi.
2. The Director (Personnel), C.C.L., having office at
Dharbhanga House, Ranchi, P.O. Ranchi University, P.S.
Kotwali, District - Ranchi.
3. The General Manager (P&IR), C.C.L., Dharbhanga House,
Ranchi, P.O. Ranchi University, P.S. Kotwali, District-
Ranchi.
4. The Manager (C/Sauda Siding) Urimari Project (Barka-
sayal area), C.C.L., P.O. - Sayal & P.S. - Urimari, District
Hazaribagh.
5. The Project Officer, Urimari Project (Barka Sayal area),
C.C.L., P.O. - Sayal & P.S. - Urimari, District Hazaribagh
... ... Respondents
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Ms. Khalida Haya Rashmi, Advocate
For the Respondents : Mr. Hardeo Prasad Singh, Advocate
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ORAL JUDGMENT
Order No. 08 : Dated 10th February, 2021 With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.
2. The instant intra-Court appeal is under Clause 10 of the Letters Patent directed against the order/judgment dated 08.07.2019 passed by learned Single Judge of this Court in -2- W.P.(S) No. 2424 of 2019 whereby and whereunder the prayer for direction upon the respondents to consider the case of the writ petitioner for appointment on compassionate ground on account of death of his mother, who died in harness, having been denied by the respondents, has been refused to be interfered with by the learned Single Judge vide impugned order.
3. The brief facts of the case which need to be enumerated herein, read as under :-
The mother of the writ petitioner, namely, Laxmi Devi, was appointed to the post of Ex-Wagon Loader on 18.12.1989, who died in harness on 19.12.2013. The petitioner, being the legal heir, approached the respondent authorities for consideration of his case for appointment on compassionate ground under the provision of Clause 9.3.0 of National Coal Wage Agreement (hereinafter to be referred to as NCWA). His case for compassionate appointment was forwarded for consideration. The writ petitioner had annexed copy of Driving License, Aadhar Card, nomination form and L.T.C. form with his application. His case was referred to the Medical Board for assessment of the correct age. The Medical Board assessed the age of the writ petitioner to be 37½ years on the date of assessment and taking into consideration the aforesaid age and keeping the fact into consideration that maximum age for appointment is 35 years, his case was -3- rejected vide order dated 16.06.2015, aggrieved thereof the writ petitioner has approached to this Court by filing writ petition being W.P.(S) No. 2424 of 2019.
Learned counsel appearing for the petitioner before the writ court has taken the ground that if the age of the dependant is medically assessed, the lower age ought to have been considered instead of considering the higher age and as such, the order dated 16.06.2015 is arbitrary, illegal and fit to be quashed and set aside.
Learned counsel appearing for the respondent C.C.L. has submitted that the writ petitioner is not entitled for compassionate appointment as he has crossed the maximum age of appointment i.e., more than the age of 35 years.
Learned Single Judge, after taking into consideration the stand of the respondent C.C.L., has found no merit in the writ petition and accordingly the writ petition has been dismissed which is the subject matter of the instant intra- court appeal.
4. Learned counsel appearing for the writ petitioner/appellant while assailing the order passed by the learned Single Judge has reiterated the argument and in addition thereto, it has been submitted that it is a case of the nature where no Medical Board ought to have been constituted since there is no discrepancy in the date of birth, rather if the document pertaining to PS-3 (Particulars of -4- Family) is perused, the age of the writ petitioner has been mentioned as 18 years as on 28.05.1998 and if the writ petitioner was of 18 years' of age as on 28.05.1998, he, at the time of death of his mother, had attained the age of 33 years 06 months and 21 days and, therefore, he being less than the age of 35 years, ought to have been granted appointment on compassionate ground but erroneously the respondent C.C.L. asked the writ petitioner to go for the medical assessment based upon the L.T.C. form but the said L.T.C. form where the age of the writ petitioner has been shown to be 15 years, does not stipulate that on what date the writ petitioner's age was 15 years. However, in the affidavit filed on 09.02.2021 the respondent authorities have shown the writ petitioner of the age of 15 years as on 21.11.1991 but the same is without any basis as would appear from the L.T.C. Form - A appended to the said affidavit and, therefore, the age of the writ petitioner mentioned in the PS-3 and PS-4 Forms as on 28.05.1998 to be 18 years ought to have been accepted and thereby the respondent authority ought to have provided appointment on compassionate ground but only in order to harass the writ petitioner, the respondent authorities themselves have shown contradiction in the age of the writ petitioner to deprive him from his legitimate claim for appointment on compassionate ground by relying upon one another documents i.e., L.T.C. Form which is highly arbitrary -5- and illegal.
According to learned counsel, the said aspect of the matter was required to be considered by the authority while considering the application for appointment on compassionate ground but having not done so, gross illegality has been committed.
5. Learned counsel appearing for the respondent CCL has defended the order passed by the learned Single Judge and has submitted that in view of the policy decision of the respondent CCL since there are discrepancy in the age of the writ petitioner and taking into consideration the official records i.e., L.T.C. Option Form and PS-3 and PS-4 Forms, a conscious decision was taken to ask the writ petitioner to appear before the Medical Board in which he appeared wherein the Medical Board has assessed his age between 35 to 40 years and by taking the midpoint of five years, he has been assessed to be the age of 37½ years and having crossed the maximum age of 35 years which is the maximum age for consideration for appointment, his case has been rejected and as such, there is no error in the decision taken by the authority and the learned Single Judge, after taking into consideration this aspect of the matter, has correctly rejected the claim of the writ petitioner by showing no interference in the impugned order and as such, the impugned order may not be interfered with.
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6. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge.
7. Before going to the legality and propriety of the impugned order, this Court deems it fit and proper to refer certain admitted facts of this case as has been pleaded by the parties which transpire that the writ petitioner has claimed appointment on compassionate ground under the provision of NCWA on account of death of his mother, namely Laxmi Devi, who was working as Ex-Wagon Loader and died in harness on 19.12.2013.
The writ petitioner made application on 23.01.2014 for consideration of his case for appointment on compassionate ground under the provision of Clause 9.3.0. of the NCWA. The writ petitioner claimed to be within the age of 35 years and to substantiate this, he annexed Aadhar Card, Driving License, L.T.C. Option Form and PS-3 Form.
The respondent authorities came to a finding about variation in age in different documents, therefore, at the time of consideration of the writ petitioner's case for appointment on compassionate ground, the writ petitioner was directed to appear before the Medical Board at Ranchi for the purpose of assessment of his age and thereafter his claim has been rejected by communicating the same vide letter dated 16.06.2015, 26.06.2015 and 08.07.2015 on the ground of -7- overage wherein the writ petitioner was assessed to be of the age of 37½ years on the date of assessment and 36 years, 03 months and 15 days on 23.01.2014 i.e., the date of application.
In this pretext, the writ petitioner approached to this Court by invoking the jurisdiction conferred to this Court under Article 226 of the Constitution of India questioning the decision of the authority but the said writ petition has been dismissed on the ground of being overage.
8. This Court, after hearing the learned counsel for the parties and going through the materials available on record, has considered the fact regarding the requirement to constitute a Medical board in the facts and circumstances of the instant case as because it is the admitted case of the respondent CCL that there is discrepancy in the age of the writ petitioner which necessitated for constituting the Medical Board.
We have examined as to whether there was any discrepancy in the age of the writ petitioner on the basis of the documents upon which the respondent CCL has relied upon. Admittedly, the respondent CCL has relied upon the L.T.C. Form-A, PS-3 and PS-4 Forms. In the L.T.C. Form-A the age of the writ petitioner has been shown as 15 years while in PS-3 and PS-4 Forms the age of the writ petitioner has been mentioned as 18 years as on 28.05.1998. -8-
We, in order to examine this aspect of the matter, had also issued directions to bring other documents which led the respondent CCL in asking the writ petitioner to appear before the Medical Board and in terms of the said order, the respondent CCL has come out with L.T.C. Form-A, PS-3 and PS-4 Forms which were already available on record before the writ court. However, in pursuance to our order when we put specific query that is there any decision by the competent authority of the respondent CCL to constitute a Medical Board in the facts and circumstances of the instant case, if yes, where is the order to that effect and if any decision has been taken to constitute the Medical Board, it was on what basis? The respondent CCL has not come out with any new documents as also has failed to produce any decision of the authority to constitute a Medical Board in the facts and circumstances involved in the case. However, one order has been placed on record dated 07.07.1992 in the affidavit dated 19.01.2021 filed by the respondent CCL wherein it has been stipulated that when no age is recorded in respect of any employee in any statutory records, and the Medical Board/Age Assessment Committee decide an age range, the mid-point of the age range so recommended will be taken as the age of the concerned employee, for ready reference, the said document dated 07.07.1992 is being quoted hereinbelow :-
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"Coal India Limited "Coal Bhawan"
10 Netaji Subhas Road, Calcutta- 700001.
No.- CIL/C-5B/MP/ADVA/2704 dated- 7-7-1992. To,
1) Director (Personnel), ECL/BCCL/CCL/WCL/SECL
2) Director-in-Charge, MCL.
3) Chief General Manager (P), NCL.
4) Chief General Manager, NEC/ Dankuni Coal Complex.
Dear Sir, During the course of discussion held in 51st meeting of the Directors (P) on 21 06.1992 at CIL, Calcutta, the issue regarding age determination on the basis of the age range recommended by the Age Assessment Committees on the basis of medical jurisprudence was discussed and the following guidelines were evolved.
a) Where no age is recorded in respect of any employees in any statutory records, and the Medical Board/Age Assessment Committee decide an age range, the mid-point of the age range so recommended be taken as the age of the concerned employees.
For instance, if the range decided is 50 and 55, the age of the employee concerned will be 52 years 6 months.
b) Where there is variation of age in the various statutory records, the nearest point of the age range as recorded in Form-B register will be accepted as the age of the employee concerned.
Example :-
Form-B Age Age Age
recorded range to be
in other fixed by fixed.
statutory the
records Medical
Board
49 47 45 to 50 49
44 49 45 to 50 45
46 43 45 to 50 46
47 40 40 to 45 45
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You are requested to decide all pending cases on the above lines. Cases already settled need not be re- opened.
Yours faithfully, Sd/-
General Manager (Personnel) Calcutta"
9. It needs to clarify herein that the document dated 07.07.1992 speaks about assessment of the age of the employees but we are dealing with a case where the writ petitioner has not got the status of an employee and, therefore, the decision of the respondent CCL as contained in letter dated 07.07.1992 is not applicable in the facts and circumstances of the instant case.
10. We have considered the L.T.C. Form vis-à-vis PS-3 and PS-4 Forms which contain details about the family members wherefrom we have found that in the L.T.C. Form-A the age of the writ petitioner has been shown to be 15 years but it is very surprising that the said L.T.C. Form is having no signature of the respondent authorities and the same is without any date and as such, the age of the writ petitioner finds mentioned therein as 15 years, but on what date, is not being clarified from the said document and, therefore, according to us, the said document cannot be said to be a proof of age of the writ petitioner.
We have also perused the PS-3 Form which contains particulars of family members wherein the age of the writ petitioner has been shown to be 18 years and the said
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document is dated 28.05.1998.
It is further evident from the L.T.C. Form-A that the said application does not contain any column for signature of the employer rather it is the form to be furnished by way of self- declaration of the concerned employee but the PS-3 Form i.e., particulars of family, contains the column for signature of the employer. Likewise, PS-4 Form i.e., the nomination form, also contains column for signature of the employer and as such, in comparison in between the L.T.C. Form-A and PS-3 and PS-4 Forms, so far as its authenticity is concerned, in absence of any signature of the employer the same cannot prevail upon the details furnished either in PS-3 or PS-4 Forms and, therefore, the authority, instead of putting reliance upon L.T.C. Form-A so far as the age of the writ petitioner is concerned, ought to have considered solely the details furnished including the age of the writ petitioner on PS-3 or PS-4 Forms.
Therefore, reliance having been placed by the respondent CCL on the L.T.C. Form-A cannot be said to be justified one since the age of 15 years mentioned therein cannot be said to be conclusive age in absence of any date mentioned in L.T.C. Form-A as to on what date and year the writ petitioner was of the age of 15 years.
So far as PS-3 Form is concerned, the age of the writ petitioner has been mentioned as 18 years as on 28.05.1998
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and, therefore, the said document i.e., PS-3 Form, containing the particulars of family members, can be said to be a valid document to assess the age of the writ petitioner. Since herein the respondent CCL is placing reliance upon these documents i.e., L.T.C. Form-A, PS-3 and PS-4 Forms but reliance has been placed by the respondent CCL in L.T.C. Form where the age of the writ petitioner has been shown to be 15 years while in PS-3 and PS-4 Forms the age of the writ petitioner has been shown to be 18 years which led the respondent CCL to come to the conclusion about discrepancy in the age necessitating for constituting a Medical Board but as we have already said hereinabove that the age having mentioned in L.T.C. Form-A without any date and year, cannot be relied and, therefore, the age mentioned in PS-3 and PS-4 where the age of the writ petitioner has been mentioned as 18 years on 28.05.1998 can only be said to be valid document for assessment of age of the writ petitioner and as such, there was no requirement to constitute a Medical Board.
11. The respondent CCL has not considered this aspect of the matter even though an agreement has been entered into by way of National Coal Wage Agreement which is a beneficial piece of agreement as per provision of Section 18 (1) of the Industrial Disputes Act, 1947 to make out provision for providing appointment in case of death of bread earner by
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way of social security measures, meaning thereby, the NCWA which is having a statutory fervor as because the agreement has been entered in view of Section 18(1) of the Industrial Disputes Act, 1947 which confers statutory force to the agreement and as such, the same ought to have been considered by the respondent CCL taking into consideration the object and intent of the Industrial Disputes Act, 1947.
It is settled position of law that benevolent provisions should be construed taking into consideration the dominant purpose of the statute, intention of the legislature and underlying policy as laid down by Hon'ble Apex Court in National Textile Workers' Union etc. Vs. P. R. Ramakrishnan and Others reported in AIR 1983 SC 75 and in Madan Singh Shekhawat Vs. Union of India and Others reported in (1999) 6 SCC 459 wherein it has been held that it would be the duty of the Court to interpret the provision, especially a beneficial provision, liberally so as to give it a wider meaning rather than a restrictive meaning which would negate the very object of the Rule.
12. It is admitted by the respondent CCL that the Medical Board is constituted in case of discrepancy in the age. We are not disagreeing with the said policy decision but the question is that while constituting a Medical Board, there must be conscious decision by the competent authority in the backdrop of the factual aspect but we repeatedly asked the
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learned counsel appearing for the respondent CCL to place on record any decision of the competent authority to constitute a Medical Board to assess as to what led the competent authority of the respondent CCL to constitute the Medical Board but surprisingly no such decision has been produced, however, a noting sheet has been produced by way of affidavit dated 09.02.2021 wherein a hand written script has been placed on record under the signature of the General Manager (P&IR) referring therein that due to discrepancy in the age of the writ petitioner having been mentioned in L.T.C. Form, PS- 3 and PS-4, a decision was taken to constitute a Medical Board but anything contained in the noting sheet cannot be said to be a decision of the authority, rather a decision will be said to be a decision in the eyes of law if the same has been taken by the competent authority after deliberating upon the issues and communicating to all concerned for its execution/implementation and, therefore, we are left with no option but to hold that the decision of the respondent CCL asking the writ petitioner to go for the medical examination is in absence of any decision of the competent authority.
13. We have already referred hereinabove about the validity of the L.T.C. Form-A and further we have come to a conclusion that PS-3 and PS-4 Forms refer the age of the writ petitioner as 18 years as on 28.05.1998, the same being a piece of evidence to substantiate the age of the writ petitioner
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available on record and which is sole piece of evidence, there was no requirement to constitute a Medical Board for assessment of the age of the writ petitioner as because the reason for constituting a Medical Board as has been admitted by the learned counsel appearing for the respondent CCL that the same is required to be assessed in case of non- availability of any document pertaining to age of the employee but herein official documents are available by way of PS-3 and PS-4 Forms containing the age of the writ petitioner as 18 years on 28.05.1998.
Even accepting the contention of the respondent CCL that there was requirement to constitute a Medical Board and admittedly the Medical Board has assessed the age of the writ petitioner in between 35 to 40 years and respondent authorities have considered the writ petitioner to be the age of 37½ years taking the midpoint of five years but the question is why the midpoint and not 35 years.
14. We have already referred hereinabove about the principle to be followed in a case of beneficial legislation which is to be interpreted liberally so as to give it a wider meaning than a restrictive meaning which would indicate the very object of the Rule and admittedly the Industrial Disputes Act, 1947 is a beneficial legislation and as such, the provisions contained therein may be construed taking the dominant purpose of the statute, intention of the legislature
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and underlying policy.
We have also referred hereinabove that the NCWA is by way of providing social security measures by entering into an agreement with the Union under the provision of Section 18(1) of the Industrial Disputes Act, 1947 and the same having the statutory fervor, the object underlying therein is to be considered. The foremost object of the said agreement is to act by way of providing social security measures to the employees and its dependant for which various provisions have been made to provide appointment in case of death of the bread earner as under Clause 9.3.0 and 9.5.0 of the said agreement and, therefore, when the underlying object of the said agreement is to provide social security measures to the employees and their dependants, the same is to be treated by the respondent authorities in a way so that the object and intent of the agreement be achieved.
The respondent CCL, however, failed to produce any decision of the authority, in case of consideration of appointment on compassionate ground, to take the midpoint of the age assessed by the Medical Board as has been done in the instant case, rather the document dated 07.07.1992 has been produced to assess the age of an employee by taking the midpoint of the age as has been assessed by the Medical Board but since it is not a case of an employee rather the case of a candidate who is seeking appointment on
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compassionate ground and, therefore, the said circular will not be applicable in the case of the writ petitioner and in that view of the matter, when the respondent authorities have asked the writ petitioner to go for the medical examination wherein the age of the writ petitioner has been assessed in between 35 to 40 years and taking the midpoint the age of the writ petitioner has been assessed as 37½ years of age, cannot be said to be an action to achieve the object and intent of the NCWA to provide social security measures to the dependant of the deceased employee, rather the approach of the respondent authorities ought to have been to consider the age of the writ petitioner by taking its lower point so that the object and intent of NCWA be achieved.
15. It requires to refer herein about the order passed by the Coordinate Division Bench of this Court in L.P.A. No.117 of 2010 dated 01.12.2010 which has been brought on record wherein also the issue fell for consideration about judging the age of appellant on medical opinion and therein it has been observed that if the petitioner's claim that her age is 43 years and the respondents considered that as per the medical evidence her age is 45 years then there always possibility of errors of two years (plus)/(minus) and in that view of the matter the claim of the petitioner's mother could not have been denied on compassionate ground.
It has been brought to the notice of this Court by the
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learned counsel for the appellant that in pursuance to the order passed in L.P.A. No. 117 of 2010 [Md. Rahim v. Project Officer, Kuju Colliery], the appellant namely Md. Rahim has already been provided with the appointment which fact has not been disputed by the learned counsel appearing for the respondent CCL.
Further, learned counsel for the appellant has relied upon the judgment passed by the learned Single Judge of this Court in the case of Jagdish v. Central Coalfields Limited & Others in W.P.(S) No. 3339 of 2016 wherein also the dispute about the age has been set at rest by the opinion of the Medical Board after assessment of the age of the writ petitioner in that writ petition which has been questioned by the writ petitioner on the ground that when the age of the writ petitioner is available in other records what is the necessity to go for the Medical Board and in that view of the matter the writ petition was allowed with a direction to appoint the writ petitioner of the said writ petition on compassionate ground.
We are taking note of this order even though the same has been passed by the learned Single Judge only due to the reason that the respondent CCL, in pursuance to the said order, has acted upon by providing appointment to the writ petitioner of the said case without assailing the same before the higher forum and, therefore, according to us, the
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approach of the respondent CCL, being the machinery of the State, cannot be of pick and choose policy i.e., to assail one order and accept another order on almost same set of facts.
16. We, on the basis of the discussion made hereinabove, have gone across the order passed by the learned Single Judge and found therefrom that the learned Single Judge has simply gone across the contention of the respondent CCL wherein the respondent CCL has contended about the age of writ petitioner to be 37½ years which has been considered to be more than the maximum age of 35 years and, therefore, writ petition has been dismissed but we, on the basis of the discussion made hereinabove, are of the view that the learned Single Judge has failed to appreciate the fact in entirety as per the discussion made hereinabove and reached to a wrong conclusion by approving the decision of the respondent CCL which according to us, cannot be said to be sustainable in the eyes of law.
17. In view thereof, we find patent illegality in the impugned order. Accordingly, the same is quashed and set aside.
18. In the result, the instant L.P.A. is allowed and the writ petition being W.P.(S) No. 2424 of 2019 is also allowed.
19. In consequence, this Court is remitting the matter before the competent authority to take appropriate decision
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in the light of observations and findings recorded hereinabove, within a period of eight weeks from the date of receipt of copy of this order.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Birendra/ A.F.R.