Calcutta High Court
M/S. Eastern Coalfields Ltd. & Ors vs Premlata Devi & Ors on 8 July, 2019
Author: Biswanath Somadder
Bench: Biswanath Somadder
ORDER SHEET
GA No. 1208 of 2019
GA No. 1234 of 2019
APOT No. 49 of 2019 with
WP No. 636 of 2018
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
M/S. EASTERN COALFIELDS LTD. & ORS.
Versus
PREMLATA DEVI & ORS.
BEFORE:
The Hon'ble JUSTICE BISWANATH SOMADDER
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date : 8th July, 2019.
Mr. Manik Das, Adv.
...for the appellants
Mr. Partha Ghosh, Adv.
...for the respondent/writ petitioner
The Court : Affidavit of service filed in Court today be taken on record.
Having heard the learned advocates for the parties and upon perusing the application for condonation of delay, it appears that sufficient cause has been shown to explain the delay in filing of the appeal and as such, the delay is condoned. The application for condonation of delay, being G.A. No. 1208 of 2019, is accordingly allowed. 2
By consent of the parties, the appeal is treated as on the day's list and taken up for consideration along with the application for stay.
The instant appeal arises out of a judgment and order dated 19th Mach, 2019 passed by the learned Single Judge in W.P. No. 636 of 2018 ( Premlata Devi vs. M/s. Eastern Coalfields Ltd. & Ors.). By the impugned judgment and order, the writ petition filed by the widow of a deceased employee of M/s. Eastern Coalfields Ltd. was disposed of by the following manner :
"......Since the delay was caused by the arbitrary and illegal acts of the respondent no.1, merely because 29 years have passed due to the pendency of the litigation and disputes, the right of the writ petitioner for obtaining financial benefits in terms of the National Coal Wage Agreements
- VI cannot be held to have been defeated.
It is here that I accept part of the submission of the learned advocate for the respondents. If the rights of the petitioner are to be found from National Coal Wage Agreement- VI and if that is the fountain of her rights, then Clause 9:5:0 would govern what she gets:
"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 causes other than mine accident and medical unfitness under Clause 3 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 & finalised.
Note : In the case of TISCO, the matter would be settled at bipartite level."
In terms of Clause (ii) of the said provision, a female dependant above 45 years of age shall be entitled to only monetary compensation and not employment. As such, there is no way that any appointment can be granted to her on compassionate ground in terms of the provision of the National Coal Wage Agreements-VI. The order as in annexure P-19 to the writ petition is, therefore, clearly perverse and does not consider either the National Coal Wage Agreement-VI or the true facts of the case and attempts to take advantage of own wrong of the first respondent. It, therefore, records findings which are contrary to the materials on record and/or for 4 which there are no materials on record. The said annexure P-19 cannot stand for the grant of perversity alone. It is, therefore, quashed. She will, however, be entitled to the compensation as applicable with effect from June 21, 1997 at such rates as were applicable during the relevant period till the date that she attains the age of superannuation (60 years). The said amount of arrears shall carry interest at the rate of 10% per annum (simple) from June 21, 1997 till the date of payment. The said amount shall be calculated within a period of seven days from the date of communication of this order and the said amount shall be paid to the petitioner within a further period of two weeks from the date that the calculation is made. The amount in terms of prayer (b) of the writ petition shall be paid to the writ petitioner inasmuch as she has been held entitled to the sum by the decree of the Civil Court. This payment shall be made within a period of four weeks from the date of communication of this order.
The writ petition is allowed to the above extent. There shall be no order as to costs."
The instant appeal has been preferred by the Eastern Coalfields Ltd. and its authorities. Several technical points have been taken in the instant appeal; such as, the writ petition not being maintainable on the Original Side of this Court and also not maintainable due to filing of an earlier writ petition by the respondent/writ petitioner.
We, however, do not find any cogent and justifiable reason to interfere with the judgment and order since filing of a writ petition in our High Court - either in the Original Side or in the Appellate Side - is a matter of administrative convenience only. So far as the filing of the earlier writ petition is concerned by the respondent/writ petitioner, the said writ 5 petition appears to have been dismissed for non-prosecution. It has been contended on behalf of the appellant that the subsequent writ petition is therefore barred by the principles of constructive res judicata particularly in the absence of any leave granted to the respondent/writ petitioner under Order XXIII Rule 1(3)(a) and (b) to file a fresh writ petition. This contention of the appellant also cannot be accepted since the respondent/writ petitioner in the facts and circumstances of the instant case could not have been estopped from raising the question of monetary compensation which she was otherwise entitled to, in terms of the National Coal Wage Agreements - VI. This is more so because there was no such specific prayer in the earlier writ petition for monetary compensation. That apart and in any event, there was no adjudication of the legal right of the respondent/writ petitioner to enforce the National Coal Wage Agreements - VI, to the extent it was applicable in her case.
In an Intra-Court Mandamus Appeal, no interference is usually warranted unless palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts and circumstances of the instant case - on a plain reading of the impugned judgment and order - we do not notice any such palpable infirmity or perversity. Moreover, the impugned judgment and order is supported with cogent and justifiable reasons. However, the only issue which has drawn 6 our attention is in respect of a direction upon the appellants to pay interest at the rate of 10% per annum (simple) from June 21, 1997, till the date of payment. In our view - in the facts and circumstances of the instant case - the amount of arrear due and payable to the respondent/writ petitioner shall carry interest at the rate of 6% per annum instead of 10% per annum (simple) as directed by the Hon'ble First Court.
The impugned judgment and order is modified only to the extent as stated above.
The appeal along with the application for stay stands disposed of accordingly.
(BISWANATH SOMADDER, J.) (ARINDAM MUKHERJEE, J.) TR/