Calcutta High Court (Appellete Side)
M/S. Eastern Coalfields Limited vs Smt. Shefali Khan & Ors on 12 December, 2019
Author: Soumen Sen
Bench: Soumen Sen
1
25
12.12.2019
Ct. No.16
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
FMA 1693 of 2019
with
CAN 10430 of 2018
M/s. Eastern Coalfields Limited
Vs.
Smt. Shefali Khan & Ors.
Mr. Shiv Shankar Banerjee
Ms. Sanchita Barman Roy
... For the appellant/applicant
Mr. Partha Ghosh
Mr. Amal Kumar Datta
... For the respondent no.1/writ petitioner
By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay.
The appellant is aggrieved by an order dated 3rd October, 2018 by which the learned Single Judge directed the appellant to pay cash compensation in terms of clause 9.5(ii) of the National Coal Wage Agreement-VI from the date next to the death of her husband. The learned Single Judge has followed the law laid down by a co-ordinate Bench of this Court in the 2 case of M/s. Eastern Coalfields Limited vs. Dewanti Kumari & Ors. reported in (2016) 3 WBLR (Cal) 464.
In order to appreciate the rival contention, it is necessary to indicate the facts briefly. The husband of the petitioner was an employee of the Eastern Coalfields Limited. He died-in-harness in the year 1997. Shortly thereafter, the son-in- law of the respondent/writ petitioner made an application for employment on compassionate ground which was turned down by the authorities in the year 1998. There was a lull for about two decades and thereafter in the year 2017 the daughter of the deceased made an application for appointment on compassionate ground which was again rejected by the respondents. Then the widow of the deceased employee, i.e., the respondent/ writ petitioner made an application for monetary compensation in lieu of employment.
The contention of the appellant before the learned Single Jude is that clause 9.5 of the National Coal Wage Agreement-VI says in case of death of an employee if the female dependant is above the age of 45 years, she is entitled to monetary compensation only and not to employment. The contention of Mr. Banerjee before us is that the respondent/writ petitioner having not made a claim for monetary compensation 3 immediately after the death of her husband, cannot make any claim for monetary compensation in lieu of employment.
It is not in dispute that the son-in-law and the daughter prayed for an employment in terms of clause 9.5 of the National Coal Wage Agreement-VI, which, however, was turned down for various reasons by the Eastern Coalfields Limited. The appellant as a model employer was duty-bound to ensure that the financial distress caused to the employee by reason of untimely death is adequately compensated and keeping that aspect in mind the scheme for compassionate appointment has been framed by the appellant. It cannot be disputed that if an employment was granted to any one of the persons who had made a request contemporaneously for employment on compassionate ground, the financial burden on the appellant would have been more than the monetary compensation envisaged under the scheme. The right to claim compensation or employment in lieu of monetary compensation is the rights available to the family members of the deceased employee. Denial of the right of employment does not ipso facto result in denial of monetary compensation in which the appellant is otherwise entitled to under the scheme. The appellant is not disputing that the wife of the deceased is not entitled to monetary compensation but has raised an issue that for the 4 purpose of determination of compensation, it has to be from the date of application and not from the date next to the death of her husband.
This issue was raised unsuccessfully before a co- ordinate Bench in M/s. Eastern Coalfields Limited vs. Dewanti Kumari (supra). The Division Bench has specifically held that the settlement signed in conciliation cannot be varied by terms of any guideline issued and it would have to be changed or modified only by a separate settlement or award. The Division Bench referred clause 9.5 of the National Coal Wage Agreement-VI.
The Division Bench has gone into similar issue raised before us and decided the issue in favour of the respondent/writ petitioner in the aforementioned case. In view of such clear enunciation of law by the Division Bench in Dewanti Kumari (supra), we do not find any reason to revisit the said issue once more. The said decision is a binding precedence and the consistency and certainty of the law requires that we respect the earlier decision of the Division Bench. Moreover, the said judgment does not appear to be a judgment per incuriam or sub silentio. We are of the opinion that the learned Single Judge 5 relying upon the said judgment has allowed the writ petition and passed consequential orders.
In view thereof, we do not find any reason to interfere with the order passed by the learned Single Judge. The appeal and the application for stay stand dismissed.
There shall, however, be no order as to costs.
(Soumen Sen, J.) (Saugata Bhattacharyya, J.)