Orissa High Court
Dhira Kumar Parida vs Mahanadi Coalfields Ltd. And Others on 11 April, 2014
Author: B.R.Sarangi
Bench: B.R. Sarangi
ORISSA HIGH COURT, CUTTACK
W.P.(Civil) NO. 1608 OF 2005
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Dhira Kumar Parida ......... Petitioners
Versus
Mahanadi Coalfields Ltd. and others ........... Opposite Parties
For petitioners - M/s B.S. Tripathy-1, Mr. J. Mohanty,
Mr. A. Mishra, Mr. L.M. Patra.
For opp. parties- M/s S.S. Kanungo.
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PRESENT:-
THE HON'BLE DR. JUSTICE B.R. SARANGI
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Date of hearing : 19.03.2013 | Date of judgment : 11.04.2014
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DR. B.R. SARANGI, J The petitioner has filed this petition assailing the order
dated 17.8.2002, Annexure-9 passed by opposite party no. 3 refusing
to grant compassionate appointment as per Clause- 9.3.2 of National
Coal Wage Agreement-VI (hereinafter for short ―NCWA‖) on the
ground that the deceased Dama Parida, father of the petitioner, was a
―Badli Loader‖, and the dependant of Casual/temporary/badli workers
are not entitled to avail the benefit under Clause 9.3.2 of NCWA-VI.
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2. The brief fact of the case in hand is that petitioner's
father Late Dama Parida was initially appointed as a ‗Loader' in the
establishment of Deulbera Colliery Organization on 10.01.1965 where
he continued for a period of 11 years and was issued with an Identity
Card by the Central Coalfields Ltd., Ranchi in Annexure-1 indicating
the Employee's Code No., Unit in which he was working, designation
and date of issue. But the father of the petitioner discontinued his
service for a temporary period as he was seriously ill and unable to
discharge his duties. But subsequently he was taken back into service
in November, 1985. Being an employee, he was contributing to the
Coal Men's Provident Fund(CMPF), having CMPF Account No.A/330430
and he died in harness on 30.01.1992 leaving behind his legal heirs
including the present petitioner. Prior to the death of the father of the
petitioner, the mother of the petitioner Ujala Parida, who was the
nominee under the CMPF/Gratuity of the South Eastern Coalfields Ltd.,
Deulbera Colliery had also died. The wage structure, conditions of
service and other fringe benefits of the employees of the Coal
Industries are being governed by NCWA. Clause 9.3.2 of NCWA -VI
provides for grant of employment to one of the dependants of the
worker who dies while in service. In view of such provision, the
petitioner who was well within the qualifying age of getting service in
place of his deceased father, represented on 16.06.2002 for the said
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benefit. But on consideration of the said representation dated
10.06.2002the Project Officer, Deulbera Colliery without referring the matter to the General Manager, passed the impugned order in Anneuxre-9 dated 17.08.2002 declining to entertain the said representation stating that his father was a Badli Worker, and is not entitled to the benefit under Clause-9.3.2 of NCWA-VI. Hence this writ petition.
3. Pursuant to notice, the opposite parties entered appearance and filed their counter affidavit justifying their action stating that the deceased-employee, petitioner's father, being a Badli Worker, the benefit claimed by the petitioner is not available and therefore, the petitioner is not entitled to get an employment under the said provision.
4. Mr. B.S. Tripathy-1, learned counsel appearing for the petitioner submits that the reason for refusal to grant the benefit under Clasue-9.3.2. of NCWA-VI is an outcome of non-application of mind inasmuch as the deceased employee who was appointed as a ‗Loader' was issued with an Identity Card vide Annexure-1. In order to just deprive the petitioner to get the benefit under Clause-9.3.2 of NCWA-VI a frivolous stand has been taken that the deceased father of the petitioner was working as ―Badli Loader‖ and as such, the said
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clause is not applicable for giving compassionate employment to the petitioner. It is further stated that though the General Manager in the competent authority to decide the question, the Project Officer, who is not competent to do so, passed the order. So far as delay and latches are concerned, it is stated that after the death of the deceased- employee his elder son Pramod Kumar Parida (elder brother of the petitioner) had applied for employment in terms of paragraph 10.4.2 on 21.12.1992 in the prescribed application form in which he has described the details of the surviving members of the deceased and in the said application he has also indicated that the father of the petitioner, Late Dama Parida was a ‗Loader' with work place at Pit Top Gr.'B'. Though the application was filed by Pramod Kumar Parida, the elder brother of the petitioner on 21.12.1992, but no action was taken by the opposite parties until the fresh application was filed by the petitioner on 10.06.2002 in Annexure-8. Due to the inaction of the authorities, it cannot be construed that there is delay and latches on the part of the petitioner. It is further stated that the deceased, late Dama Parida was a workman within the meaning of Section 2(s) of the Industrial Disputes Act and even assuming without admitting that he was engaged as ―Badli Loader‖, he is also entitled to get benefit under Clause 9.3.2. of NCWA-VI. To substantiate his contention, he has relied upon the judgment rendered by the Division Bench of Madras
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High Court in P. Joseph and others v. The Management of Gopal Textile Mills, Kovilpatti and another, 1975 LLJ 336. It is emphatically argued by Mr.Tripathy-1 that the deceased, father of the petitioner had never been engaged as ‗Badli Loader' rather he was continuing as a ‗Loader' under the opposite parties and to substantiate the same he has relied upon the No Objection Certificate issued by the Personal Officer, Deulbera Colliery on 29/31.12.1992 under Anexure-
12 and the application for employment vide Annexure-13 where designation of the deceased-employee has been mentioned as ‗Loader'. It is further contended that irrespective of the fact that the deceased employee was working as a ‗Loader or ―Badli Loader‖, the petitioner is entitled to get compassionate appointment under Clause-
9.3.2. of NCWA-VI.
5. Mr. S.S. Kanungo, learned counsel appearing for the opposite parties argued with vehemence that the deceased father of the petitioner, Late Dama Parida, Son of Anadi Parida was appointed at Deulbera Colliery as a ―Badli Loader‖ on 14.11.1998 after being terminated earlier due to long absence. The service records reveal that Sri Parida expired on 30.01.1992 at Company's (M.C.L.) Regional Hospital, at Talcher. Accordingly, he was terminated w.e.f. 30.01.1992 pursuant to the order issued by the Project Officer, Deulbera Coliery. It
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is further stated that the service record of the deceased employee establishes that during tenure of his service period, he worked as a ―Badli Loader‖ and never fulfilled the attendance of 190 days or more in the underground mining in any of the Calendar year as required under the Certified Standing Order to be eligible to be treated/considered as a permanent workman/worker of the company to avail all the benefits extended to other permanent workers covered under NCWA-VI.
6. Chapter IX of the National NCWA-VI states about Social Security. Clause 9.3.2 states about employment to one dependent of the worker who dies while in service,, which is as follows:-
―In so far as female dependants are concerned, their employment/payment of monetary compensation would be governed by para-9.5.0.‖ Dependant for the purpose of Clause-9.3.2 has been explained under clause 9.3.3, which reads as follows:-
―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 dependants of the deceased.‖ As per clause 9.3.4, the dependants to be considered for employment should be physically fit and suitable for employment and aged not
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more than 35 years provided that the age limit in case of employment of female spouse would be 45 years as given in Clause 9.5.0. In so far as male spouse is concerned, there would be no age limit regarding provision of employment.
7. There is no dispute with regard to the application of NCWA- VI to the workers of the Coal Mines. It is admitted that the father of the petitioner, Late Dama Parida died in harness on 30.01.1992 at M.C.L. Regional Hospital at Talcher, on which date he was terminated from service. The only dispute relates to whether the deceased employee was working as a ‗Loader' or ―Badli Loader‖. The rejection of compassionate appointment is being done taking into account that the father of the petitioner, deceased Dama Parida was working as a ―Badli Loader‖. Therefore, the provisions contained under Clause-9.3.2 of NCWA-VI are not applicable to the petitioner. But the documents issued by the authorities as available on record vide Annexures- 1 to 12 clearly indicate that the deceased, father of the petitioner, was working as a ‗Loader' and at no point of time any materials have been produced prior to the death of the father of the petitioner that he was discharging his duties as ―Badli Loader‖. For the first time in the counter affidavit, in order to justify the order passed in Annexure-9, the opposite parties have taken a stand that in the order dated
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14.11.1985 the father of the petitioner, Late Dama Parida, son of Late Anadi Parida was appointed at Deulbera Coliery as a ―Badli Loader‖.
After being terminated earlier due to long absence. Much reliance has been placed on a document in Annexure-A where a statement has been prepared with regard to the month-wise attendance in respect of Sri Dama Parida reappointed from 14.11.1985 where he has been described as ―Badli Loader‖. Referring to the said document in Annexure-A, the opposite parties are trying to impress upon the Court that the deceased employee had never worked for 190 days in a year to claim the benefit under NCWA-VI. More so these documents have been prepared for the purpose of this proceeding but that has got nothing to do with the continuance of the deceased employee as a ‗Loader'. At the same time in the Office Order dated 29/31.12.1992, Annexure-B filed by the opposite parties it has been categorically mentioned that the name of Sri Dama Parida, son of Late Anadi Parida, Loader Gr.B.Pit is hereby struck up from the rolls of Deulbera Coliery Mahanadi Coal Fields Ltd., Talcher area with retrospective effect. But the reappointment order issued in Annexure-C w.e.f. 14.11.1985 indicates the designation of the petitioner as ―B/Loader Gr.B. (Pit)‖. On the basis of Annexure-B communication has been made to various authorities for extension of the benefits to the legal heirs of the deceased employee. When question of compassionate appointment is
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under consideration, it is stated that he is not entitled to get benefits as per Clause 9.3.2 of NCWA-VI.
8. Reliance has been placed on the definition of ―workmen‖ in the Standing Orders in respect of M/s. Mahanadi Coalfields Ltd., Burla, Sambalpur and M/s. South Eastern Coalfields Ltd., Bilaspur, MP issued by the Regional Commissioner (Central), Bombay and Certifying officer on 5.11.1992, which reads as follows:
―3. CLASSIFICATION OF WORKMEN-
3.1 For the purpose of these Standing Orders Workman shall be classified as follows:-
a) Apprentice
b) Badli or substitute
c) Casual
d) Permanent
e) Probationer
f) Temporary
It is stated that on a conjoint reading of Clause-9.3.1 of NCWA-VI and the Standing Orders, ―permanent workman‖ has been defined in clause 9.5 of the Standing Orders which states that a ‗Permanent' Workman is one who is employed on a job of permanent Nature for a period of at least (six) months or, who has satisfactorily put in 6(six) months continuous service in a permanent post as a probationer. While considering the same, the deceased's long tenure of service from 1965 to 1985 under the Central Coalfield Ltd. a subsidiary of Coal India Ltd. has not been taken into consideration. Like Central
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Coalfields Ltd. Mahanadi Coalfields Ltd. is also subsidiary of Coal India Ltd. and initially Deulbera Coliery was under the Central Coalfields Ltd., which is a subsidiary of Coal India Ltd. and due to creation of Mahanadi Coalfields Ltd. another subsidiary of Coal India Ltd. the deceased employee was discharging his duties in the very same unit at Deulbera Coliery. Therefore, the authorities should have taken into consideration the past service of the deceased employee who was discharging the duties as a Loader in the very same unit, which was subsequently brought into the Mahanadi Coal Field Ltd. a subsidiary of Coal India Ltd. Without considering the same taking into account the so-called re-employment w.e.f. 1985 indicating him as a ‗Badli Loader' the benefit admissible to the petitioner has been denied. After the death of the deceased though his elder son, Pramod Kumar Parida submitted the application form for consideration for compassionate appointment, the same has not been attended to due to the latches on the part of the authorities. But when the representation was made by the petitioner under Annexure-8 immediately the same was attended to and Annexure-9 has been issued denying the claim that the same is not admissible as the deceased was working as a ‗Badli Loader'.
9. Section 2(s) of the Industrial Disputes Act defines ‗Workman' as follows:
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― Workman‖ means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-
(i) Who is subject to the Air Force Act, 1950, (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or
(ii) Who is employed in the police service or as an officer or other employee of a prison; or
(iii) Who is employed mainly in a managerial or administrative capacity; or
(iv) Who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.]
10. On perusal of the above provisions contained in Section 2(s) of the Industrial Disputes Act, this Court is of the opinion that it does not make out a distinction between the ‗workman' vis-à-vis ―Badli Loader‖. The definition of ‗workman' under Section 2(s) of the Industrial Disputes Act does not exclude even a casual employee or a substituted employee like ―Badli Loader‖. Unless the context requires otherwise or it would be repugnant to the normal definition of ‗workman' it will have to govern the sections of the Act for the purpose of that interpretation. Applying the same analogy to the present context, the deceased employee who was working as a ‗Loader' or
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―Badli Loader‖ is coming within the wider definition of section 2(s) of the Industrial Disputes Act and he is a ‗Workman' within the meaning of the said provision. If the deceased employee comes within the meaning of Section 2(s) of the Industrial Disputes Act as a ‗Workman' then the benefits accrued as per the provisions contained in Clause 9.3.2 of NCWA-VI could not have been refused to the present petitioner.
11. The apex Court in Balbir Kaur and another v. Steel Authority of India Ltd. and others, AIR 2000 SC 1596, while considering compassionate appointment under the Steel Authority of India held that compassionate appointment benefit cannot be negatived on the ground of introduction of scheme assuring regular monthly income to disabled employee or dependants of deceased employee. The apex Court observed thus:
8. ―The employer being Steel Authority of India, admittedly an authority within the meaning of Article 12, has thus an obligation to act in terms of the avowed objective of social and economic justice as enshrined in the Constitution but has the authority in the facts of the matters under consideration acted like a model and an ideal employer -- it is in this factual backdrop, the issue needs an answer as to whether we have been able to obtain the benefit of constitutional philosophy of social and economic justice or not. Have the lofty ideals which the founding fathers placed before us any effect in our daily life -- the answer cannot however but be in the negative --
what happens to the constitutional philosophy as is available in the Constitution itself which we ourselves have so fondly conferred on to ourselves. The socialistic pattern of society as envisaged in the Constitution has to be attributed its full
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meaning. A person dies while taking the wife to a hospital and the cry of the lady for bare subsistence would go unheeded on a certain technicality. The bread earner is no longer available and prayer for compassionate appointment would be denied as ―it is likely to open a Pandora's box‖ -- this is the resultant effect of our entry into the new millennium. Can the law courts be mute spectators in the matter of denial of such a relief to the horrendous sufferings of an employee's family by reason of the death of the bread earner? It is in this context this Court's observations in Dharwad Distt. P.W.D. Literate Daily Wage Employees Assn. v. State of Karnataka(1990) 2 SCC 396: (AIR 1990 SC 883; 1990 Lab IC 625) seem to be rather apposite. This Court upon consideration of Randhir Singh v. Union of India(Daily Rated Casual Labour Employed under P & T Dept. through Bharatiya Dak Tar Mazdoor Manch v. Union of India) (1988) 1 SCC 122: (AIR 1987 SC 2342: 1988 Lab IC 37) as also Surinder Singh v. Engineer-in-Chief, (1986) 1 SCC 639:
(AIR 1986 SC 584: 1986 Lab IC 551 and D.S.Nakara v. Union of India (1983) 1 SCC 305: (AIR 1983 SC 130: 1983 Lab IC 1 ) observed in paragraphs 14 & 15 as below:
―14. We would like to point out that the philosophy of this Court as evolved in the cases we have referred to above is not that of the court but is ingrained in the Constitution as one of the basic aspects and if there was any doubt on this there is no room for that after the Preamble has been amended and the Forty-second Amendment has declared the Republic to be a socialistic one. The judgments, therefore, do nothing more than highlight one aspect of the constitutional philosophy and make an attempt to give the philosophy a reality of flesh and blood.
15. Jawaharlal Nehru, the first Prime Minister of this Republic while dreaming of elevating the lot of the common man of this country once stated:
‗Our final aim can only be a classless society with equal economic justice and opportunity to all, a society organised on a planned basis for the raising of mankind to higher material and cultural levels. Everything that comes in the way will have to be removed gently, if possible; forcibly, if necessary, and there seems to be little doubt that coercion will often be necessary.' These were his prophetic words about three decades back. More than a quarter of century has run out since he left us but there has yet been no percolation in adequate dose of the benefits the constitutional philosophy stands for to the lower strata of society. Tolstoy wrote:
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‗The abolition of slavery has gone on for a long time. Rome abolished slavery. America abolished it and we did but only the words were abolished, not the thing.' Perhaps what Tolstoy wrote about abolition of slavery in a large sense applies to what we have done to the constitutional ethos. It has still remained on paper and is contained in the book. The benefits have not yet reached the common man. What Swami Vivekananda wrote in a different context may perhaps help a quicker implementation of the goal to bring about the overdue changes for transforming India in a positive way and in fulfilling the dreams of the Constitution fathers. These were the words of the Swami:
‗It is imperative that all these various yogas should be carried out in practice. Mere theories about them will not do any good. First we have to hear about them; then we have to think about them. We have to reason the thoughts out, impress them on our minds and meditate on them; realise them, until at last they become our whole life. No longer will religion remain a bundle of ideas or theories or an intellectual assent; it will enter into our very self. By means of an intellectual assent, we may today subscribe to many foolish things, and change our minds altogether tomorrow. But true religion never changes. Religion is realisation; not talk, nor doctrine, nor theories, however beautiful they may be. It is being and becoming, not hearing or acknowledging. It is the whole soul's becoming changed into what it believes. That is religion.' ‖
9. As a matter of fact the constitutional philosophy should be allowed to become a part of every man's life in this country and then only the Constitution can reach everyone and the ideals of the Constitution-framers would be achieved since the people would be nearer the goal set by the Constitution -- an ideal situation but a far cry presently.
13. ― xx x x x Apparently these considerations weighed with the High Court and the latter thus proceeded on the basis that by reason of adaptation of a Family Benefit Scheme by the employees' union, question of any departure therefrom or any compassionate appointment does not and cannot arise. But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed by some lump-sum amount being made available to the family -- this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made
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available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the breadearner, but that would undoubtedly bring some solace to the situation.‖
12. In view of the above provision of law laid down by the apex Court, the petitioner could not have been denied the benefit of compassionate appointment to mitigate the sudden jerk in the family by reason of the death of bread earner by taking some plea or other to deprive the legitimate claim for providing compassionate appointment and that itself amounts to violation of Article 21 of the Constitution.
Right to live in dignity being the facet of right to life, the authorities could not have taken a plea that the petitioner's father being working as a ―Badli Loader‖ is not coming within the purview of compassionate appointment in terms of Clause 9.3.2 of NCWA-VI, rather as model employer, the opposite parties should have taken into consideration the sufferings of the family because of the death of the bread earner, who suffered from cancer and succumbed to death. In that view of the matter, any other mode of benefit will not give solace to the family, rather compassionate engagement will give adequate sustenance for the survival of the family on the death of the bread earner.
13. In that view of the matter, this Court is of the considered view that the deceased employee, Late Dama Parida, the father of the
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petitioner was a ‗workman' within the meaning of Section 2(s) of the Industrial Disputes Act irrespective of whether he was discharging his duties as a ‗Loader' or ―Badli Loader‖, and the petitioner being the legal heir of the deceased employee, is entitled to be considered for compassionate appointment in terms of Clause 9.3.2 of the NCWA-VI. Accordingly, the impugned order passed under Annexure-9 is hereby set aside and the opposite parties are directed to reconsider the matter in conformity with the provisions of law within a period of three months from the date of communication of the order.
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Dr.B.R.Sarangi,J.
Orissa High Court, Cuttack.
The 11th April, 2014/ PKSahoo