Calcutta High Court (Appellete Side)
M/S. Eastern Coalfields Ltd vs Dewanti Kumari & Ors on 12 April, 2016
Author: Nishita Mhatre
Bench: Nishita Mhatre
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
PRESENT:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Rakesh Tiwari
MAT 1013 of 2015
With
CAN 6592 of 2015
M/s. Eastern Coalfields Ltd.
... Appellant
vs.
Dewanti Kumari & Ors
... Respondents
For the Appellant : Mr. Alok Kumar Banerjee
Ms. Sanchita Barman Roy
For the Respondents : Mr. Partha Ghosh
Heard on : 21.03.2016
Judgment on : 12.04.2016
Nishita Mhatre, J.:
1. The appeal is directed against the judgment and order of the learned Single Judge allowing the writ petition filed by the Respondent No.1. It is an absolutely frivolous and dishonest appeal preferred by the Appellant as there are judgements of several different Division Benches of this Court which have already decided the issues raised before us by the appellant. These judgements have not been impugned by the Appellant before the Supreme Court and therefore are in the field today. The appeal has been filed only to harass the respondent who is a female dependant of an employee who died on duty.
2. The father of Respondent No.1 died in harness in the year 1997 while working with the Eastern Coalfields Ltd. She claimed appointment on compassionate grounds and payment of compensation on the death of her father. The application was rejected by Eastern Coalfields on the ground that she had not exercised her option immediately after her father's death as to whether she wanted employment or compensation.
3. Aggrieved by this decision of Eastern Coalfields, the Respondent No.1 filed a writ petition before this Court. The learned Single Judge in the impugned order observed that it was evident that the Respondent No.1 had applied for appointment on compassionate grounds in 2010, which the appellant here thought was not suitable for consideration. The learned Single Judge relied on the judgment of this Court in the case of Kajoli Bouri vs. Coal India Limited (W.P. No. 4 of 2014) in which two judgments of the Division Bench of this Court were noticed - one was in the case of Chhaya Singh Sardar vs. Coal India Limited (GA No.3117 of 2007, APOT No.518 of 2007, WP 300 of 2006 decided on 28th August, 2008) and the other in M/s. Eastern Coalfields Ltd vs. Bipini Marandi & Ors (APOT 88 of 2013, GA 577 of 2013, GA 578 of 2013 with WP 597 of 2012, decided on 8th March, 2013). In the impugned judgement the learned Single Judge has extracted some of the relevant paragraphs from the judgments in the case of Kajoli Bouri (supra) and Bipini Marandi (supra) wherein the judgments of another learned Single Judge in Bimli Majhian vs. Coal India Ltd. & Ors (W.P. no. 196 of 2013 decided on 21st August, 2013) was considered. The learned single judge did not accept the submission of Coal India that the claim of the respondent was delayed in view of observations and conclusions in the aforesaid judgments. The judgment in the case of Shiv Dass vs. Union of India reported in (2007) 9 SCC 274 which was cited by Coal India was distinguished. The Court found that the judgments of the Division Bench were pronounced in respect of matters directly in issue in the present case. The Court also rightly distinguished the judgment of the Supreme Court in Shiv Dass's case which was in respect of the payment of pension and not for compensation payable to a female dependant of an employee who dies- in-harness. The Court therefore, held that in view of the judgments in the case of Chhaya Singh Sardar (supra) and Kajoli Bouri (supra), the Respondent No.1 was entitled to the amount payable as compensation. The arrears have been directed to be paid from the date of death of the father of Respondent No.1 within 3 months from the date of the order together with interest on the amount payable after the institution of the writ petition. The Court further directed the Appellant to realise the monthly amounts to the Respondent No.1 with effect from May, 2015 on the 10th of each succeeding month. The Appellant has also been directed to pay costs of ` 5,000/- to the respondent.
4. The Appellant has challenged this order of the learned Single Judge mainly on the ground that the learned Single Judge has not taken note of the guidelines issued on 12th/19th December, 1994 by Coal India for the payment of monetary compensation in lieu of employment under Clause 9.4.2 of the National Coal Wage Agreement-IV. These guidelines, according to the Appellant, specify that the compensation is payable from the date when the application for compensation in lieu of employment is made by the female dependant and not from the date of death of the employee.
5. Mr. Alok Kumar Banerjee, learned Counsel appearing for the appellant, has argued that these guidelines are required to be followed in the case of every employee and since the Respondent No.1 exercised her option to accept compensation only in 2015, her claim for compensation was delayed and she was therefore not entitled to any payment. The learned Counsel has placed reliance on the judgment in the case of State of Madhya Pradesh & Anr vs. Bhailal Bhai and Ors reported in AIR 1964 SC 1006 to submit that such delay on the part of the Respondent No.1 would disentitle her of the payment of compensation. Mr. Banerjee then argued that the guidelines which have been issued by Coal India must be strictly adhered to and since the Respondent No.1 had not exercised her option for payment of compensation immediately after her father's death, she was not entitled to any relief. He further submitted that the guidelines have not been noticed by this Court either in Chhaya Singh Sardar (supra) or in Kajoli Bouri (supra) and therefore, those judgments are not binding on this Court.
6. The conditions of service of the employees of the Coal industry were at the relevant point of time governed by the recommendations made by the Central Wage Board for Coal Mining Industry and as accepted by the Government of India. Such recommendations were then made applicable through settlements known as the National Coal Wage Agreement-I to V (for short NCWA) which covered the period from 1st January 1975 to 30th June 1996. The NCWA-VI was negotiated by the employers in the Coal Industry on the one hand and the workmen of the Industry represented by five different trade unions. The NCWA-VI which was made effective from 1st July, 1996, governs the payment of compensation and appoint on compassionate grounds of the Appellant whose father died while in service in the year 1997. Clause 9.5.0 of NCWA-VI regulates the grant of employment/monetary compensation to the female dependants of workmen who died while in service and reads as follow:
9.5.0 Employment/Monetary compensation to female dependant Provision of employment/monetary compensation to female dependants of workmen who die while in service and who are declared medically unfit as per Clause 9.4.0 above would be regulated as under :
(i) In case of death due to mine accident,
the female dependant would have the
option to either accept the monetary
compensation of Rs.4,000/- per month or
employment irrespective of her age.
(ii) In case of death/total permanent
disablement due to cause other than
mine accident and medical unfitness
under Clause 9.4.0., if the female
dependant is below the age of 45 years
she will have the option either to
accept the monetary compensation of
Rs.3,000/- per month or employment.
In case the female dependant is above
45 years of age she will be entitled
only to monetary compensation and not
to employment.
(iii) In case of death either in mine accident or for other reasons or medical unfitness under Clause 9.4.0, if no employment has been offered and the male dependant of the concerned worker is 12 years and above in age, he will be kept on a live roster and would be provided employment commensurate with his skill and qualifications when he attains the age of 18 years. During the period the male dependant is on live roster, the female dependant will be paid monetary compensation as per rates at paras (i) &
(ii) above. This will be effective from 1.1.2000.
(iv) Monetary compensation wherever
applicable, would be paid till the
female dependant attains the age of 60
years.
(v) the existing rate of monetary
compensation will continue. The matter
will be further discussed in the
Standardisation Committee and finalised.
7. Thus a female dependant of an employee who dies in a mine accident is entitled to opt either for monetary compensation of `4,000/-
per month or employment, irrespective of her age. If she opts for payment of compensation she is liable to be paid the same till she attains the age of 60 years. The provision does not stipulate the time within which the application is to be submitted after the death of the workman.
8. The issues before us are: Whether the guidelines of 1994 are pending on the workman or his dependant? Whether such monetary compensation is payable immediately on the death of the employee or only after an application is made by the employee? Whether it is incumbent on the female dependant to exercise her option for payment of compensation or appointment on compassionate grounds immediately after the death of the employee?
9. The Supreme Court while considering the provisions of the aforesaid wage agreements in the case of Mohan Mahto vs. M/s. Central Coal Field Ltd & Ors reported in 2007 (6) Supreme 525 observed in the first paragraph that workmen working in coal mines are inter alia governed by a 'Settlement' known as National Coal Wage Agreement (N.C.W.A.) V, which is indisputably a settlement in terms of Sub-Section (3) of Section 18 of the Industrial Disputes Act. The Supreme Court in that case considered whether compassionate appointment can be granted to the dependant of the employee in terms of Clause 9.5.0 of the NCWA-V which is pari materia with Clause 9.5.0 of the NCWA-VI with which we are concerned in this case. The quantum of compensation payable each month has been raised by `1,000/- in the subsequent NCWA. The guidelines of 1994 which have been sought to be relied on today by the Coal India were not referred to at all by the Supreme Court in the aforesaid judgment. It is necessary to consider the effect of these guidelines. It is indisputable that the settlement for the National Coal Wage Agreement is a bipartite settlement between Coal India and its subsidiary companies and other employers in the Coal Industry on the one hand and the workmen represented by several trade unions on the other. That settlement has been signed in conciliation and therefore is binding not only to those employees who were in service on the date it was signed but on all future workmen as well. Section 18 (3) reads as under:
18. Persons on whom settlements and awards are binding -
(1) ... ... ...
(2) ... ... ...
(3) A settlement arrived at in the course of
conciliation proceedings under this Act or an
arbitration award in a case where a notification has been issued under sub-section (3A) of section 10A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on -
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in
the proceedings as parties to the
dispute, unless the Board, arbitrator
Labour Court, Tribunal or National
Tribunal, as the case may be, records
the opinion that they were so summoned
without proper cause;
(c) where a party referred to in clause (a)
or clause (b) is an employer, his
heirs, successors or assigns in respect
of the establishment to which the
dispute relates;
(d) where a party referred to in clause (a)
or clause (b) is composed of workmen,
all persons who were employed in the
establishment or part o the
establishment, as the case may be, to
which the dispute relates on the date
of the dispute and all persons who
subsequently become employed in that
establishment or part.
10. The settlement signed in conciliation cannot be varied by terms of any guidelines issued and it would have to be change or modified only by a separate settlement or award.
11. There is no dispute that the guidelines which have been issued on 12th/19th December, 1994 have not been incorporated in the further settlements which have been entered into by Coal India and its workmen. These guidelines were issued after the NCWA-V came into effect from 1st July 1991 and was in operation till 30th June 1996. The NCWA-VI came into force from 1st July 1996 and was operative for 5 years. Therefore, it was open for the employers including Coal India to incorporate these so called guidelines into the subsequent wage agreements. They have failed to do so for reasons best known to them.
Therefore, the guidelines issued cannot take precedence over the wage agreement. The wage agreement does not specify, as sought to be argued on behalf of the Appellant, that compensation is payable only from the date the claim for compassionate appointment or claim for compensation is made. The NCWA is obviously a welfare measure for the employees and their dependants. Sub-Clause (i) of Clause 9.5.0 of the agreement must be read to mean that the compensation and employment would be available on the date of death of the employee. If the employment is not sought for, the compensation would be due and payable from the date of death of the employee. Therefore, in our opinion, the guidelines of December, 1994 have no force of law and are not binding on Respondent No.1.
12. These guidelines have been introduced unilaterally by Coal India. Chapter XIII of the NCWA-VI provides for the manner in which the agreement is to be implemented. Clause 13.3.0 specifically prohibits the managements of the Coal Companies from resorting to a unilateral interpretation of the Agreement. In the case of any doubt or difficulty in its interpretation or implementation, it has to be referred to and settled by the Joint Bi-partite Committee for the Coal Industry or, its sub-committee constituted for this purpose, in a spirit of mutual good will. Clause 13.3.0 has been ignored by Coal India while issuing the guidelines which have been communicated to its subsidiaries including the Appellant.
13. These guidelines are therefore not binding on the employees or their dependants. The insistence of the appellant on their implementation is unsustainable. The issues raised by the appellant before us thus have no merit. The compensation will be payable to the female dependant of an employee who dies-in-harness from the date of the death of the employee and not from the date when the application for compensation is submitted as the cause of action is continuous, starting from the date of the death of the employee.
14. Apart from this, we have no reason to differ from the observations made by the Division Bench in the case of Chhaya Singh Sardar (supra) and Kajoli Bouri (supra). In these judgments the Division Benches have repelled the contention of Coal India Limited and have held that the right to compensation payable to the female dependant of an employee is unconditional and is not dependant on an application being made to the employer. The learned Single Judge has dealt with the aforesaid judgments carefully and we therefore have no hesitation in affirming the impugned judgement. The appeal is therefore dismissed with costs of ` 10,000/- along with the arrears payable as per the directions contained in the impugned judgement. The application CAN 6592 of 2015 is also dismissed as infructuous.
15. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.
(Rakesh Tiwari, J.) (Nishita Mhatre, J.) Later
After pronouncing the judgment in open Court, the learned Counsel appearing for the appellant seeks a stay of the same.
For the reasons mentioned in the said judgment, we refuse the prayer of stay.
(Rakesh Tiwari, J.) (Nishita Mhatre, J.)