Calcutta High Court (Appellete Side)
Biva Mondal vs Union Of India & Ors on 17 April, 2015
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
28 17.04.2015
W.P. 27699 (W) of 2014
gd with
C.A.N. 813 of 2015
Biva Mondal
Vs.
Union of India & Ors.
Mr. Partha Sarathi Bhattacharyya
Mr. Kumaresh Dalal
..for the Petitioner
Mr. Alok Banerjee
Mr. S. M. Olaidullha
Mr. Partha Basu
Mr. Nikhil Kumar Roy
Mr. Pradiptya Bose
..for the Respondents
Sufficient grounds have been made out as to why the petitioner was not represented on January 14, 2015 when W.P. 27699 (W) of 2014 was dismissed for default.
The order dated January 14, 2015 is recalled and W.P. 27699 (W) of 2014 is restored to the file.
The restoration application, C.A.N. 813 of 2015, is allowed as above without any order as to costs.
Since the parties are represented and affidavits have been completed, the petition is taken up for immediate consideration.
At first blush, the case made out by the petitioner appears to be so convincing that it leaves no room to accommodate any contrary view. Indeed, by the order dated September 25, 2014 by which the petition was received, it was recorded that, prima facie, the petitioner being denied the benefits under the National Coal Wage Agreement-VI only on the ground of her being the unmarried sister of a 2 deceased coal miner was "irrational and illogical".
However, a closer scrutiny of the matter may require a different view to be taken.
The undisputed facts are that one Somenath Mondal, a miner employed by Eastern Coalfields Limited, died on June 3, 2012 while he was still in service and, as per the said Agreement, his dependants became entitled to the benefits in terms of such Agreement. The petitioner claims to have been dependant on the deceased miner at the time of his death, being an unmarried sister who had not crossed the age of 45 either at the time of the relevant workman's death or as at the date when she applied for an appointment to be given to her on compassionate grounds under the said Agreement. The petitioner's application for employment, and the built-in alternative prayer for compensation therein, have been turned down merely on the ground that the petitioner could not be regarded as a dependant within the meaning of the word as defined in the said Agreement.
It is necessary, first, to appreciate the circumstances in which the National Coal Wage agreement-VI came into being. A look at the genesis of such documents is imperative since a distinction has to be made between the manner of interpretation of the clauses of an agreement that is born out of negotiations between the representatives of employees and the employer and the clauses contained in a set of unilateral rules imposed or 3 introduced by the employer. The said Agreement, in its preamble, refers to the previous agreement of June 30, 1996. The terms of the previous agreement were sought to be modified upon a joint bipartite committee for the coal industry being reconstituted. Clause 0.2 of the preamble to the National Coal Wage Agreement-VI of December 23, 2000 records, inter alia, as follows:
"0.2 ... Further, the deliberation continued in the Core group set up by the JBCCI (joint bipartite committee for the coal industry) to arrive at an amicable settlement on wage structure & allowances. The composition of the re-constituted JBCCI to negotiate and arrive at NCWA-VI consisted of representatives of Management & Central TUs ...".
The names of the major trade unions, most of them affiliated to political parties as is the fashion of the day, involved are referred to in the preamble. The ultimate agreement was a culmination of the charter of demands submitted by the several unions, the negotiations thereupon and the agreement by the parties to the deliberations.
Chapter IX of the said Agreement deals with social security and covers insurance schemes and workmen's compensation benefits and the like. Clause 9.3.0 of the chapter deals with compassionate employment and compensation for dependants of deceased or incapacitated workmen. Several clauses of such provision are relevant for the present purpose but, for reasons of convenience, the following may only be noticed in full:
"9.3.0 Provision of Employment to Dependants 4 9.3.1 Employment would be provided to one dependant of workers who are disabled permanently and also those who die while in service. The provision will be implemented as follows:
9.3.2 Employment to one dependant of the worker who dies while in service In so far as female dependants are concerned, their employment/payment of monetary compensation would be governed by para 9.5.0.
9.3.3 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 earning of the deceased may be considered to be the dependants of the deceased."
Clause 9.5.0 of the relevant chapter provides for employment or monetary compensation to female dependants of workmen who die while in service or who are declared medically unfit as per Clause 9.4.0 of 5 the said chapter. A distinction is made between workmen who die in harness following any mine accident and workmen who die while still in service or are permanently disabled other than in any mine accident.
The petitioner contends that it is utterly irrational, given the context of Indian families, that an unmarried sister of a workman who is dependant on her brother would not be regarded as a dependant for the purpose of obtaining benefits upon such brother's death in harness. The petitioner implies that in the usual Indian family structure, after the death of the father, the needs of the unmarried woman are taken care of by the brother, particularly if the brother is older; and such aspect of the matter may have been completely lost on the respondent authorities while preparing the said Agreement or the definition of dependants incorporated in Clause 9.3.3 therein. It is submitted on behalf of the petitioner that an unmarried sister of a deceased workman of a coal company has to be regarded as a dependant eligible to receive the benefits under the said Agreement upon it being discovered, pursuant to any inquiry, that such person was a dependant of the workman during his lifetime. The petitioner asserts that any other interpretation would be contrary to the ethos of the social and family structure in the Indian context and an affront to the constitutional aspirations of uplifting the lot of women in the country.
Before the appropriate assessment and the rules therefor can 6 be bared, it may be profitable to recollect a poem that many may have gone through while in school. There were six blind men who attempted to assess what an elephant looked like by touching diverse parts of an elephant's body. Thus, the one who touched the tail went away with the opinion that the elephant looked like a rope; the one who touched a long ear thought the elephant was more like a fan; the one who touched a leg thought that the elephant was like a tree-trunk and the like. The moral of the poem is that if a matter is not approached in the right perspective or, in other words, if inappropriate questions are asked, the assessment would invariably go awry.
An agreement arrived at
following negotiations and
deliberations between representatives of the employees and the employer cannot be regarded on the same footing as a set of rules unilaterally imposed or formulated by the employer. There is no doubt that if Clause 9.3.3 were a part of any rules that had been laid down by the coal companies, it would have fallen foul of Article 14 of the Constitution in the seemingly laboured distinction therein being irrational, as similarly-situated persons ought to receive similar treatment. Indeed, it may have then been possible to read up the clause and interpret it to imply that the same benefits had also to be extended to any other female dependant of a deceased workman who was similarly situate as those dependant relatives specified in the clause.
However, an agreement arrived 7 at the end of prolonged deliberations and confabulations between persons who ought to have been aware of the social and family structures and surrounding circumstances pertaining to workmen in coal companies cannot be assessed or tested on the same lines. Even if the distinction between the manner of assessment of an agreement and the manner of assessing a statute is kept aside for the moment, it cannot be lost sight of that when the definition clause in a negotiated agreement refers to certain classes of persons, by necessary implication, the other classes of persons - however, similarly circumstanced - not expressly included therein have to be seen to have been consciously excluded from its sweep. The canons of statutory interpretation can scarcely be applied to an agreement that is a culmination of long-drawn negotiations between the employer, the representatives of the employees and statutory authorities.
The petitioner was conscious of the onus that she had to discharge as the petitioner has questioned the propriety of the relevant clause in the said Agreement. For the reasons indicated hereinabove and the distinction between a unilateral set of rules and an agreement which is a culmination of a process of negotiations and deliberations, the propriety of the relevant clause cannot be assessed as a provision in a statute or a clause in any statutory rule may have been.
It appears from the relevant provisions of the said Agreement that 8 only such female dependants who would be entitled to an appointment on compassionate grounds would be entitled to compensation by way of monthly payments if they opted therefor or such dependants who are not qualified for obtaining the appointment may seek the monetary compensation. Thus, if a female relative of a deceased workman does not qualify to be regarded as a dependant in terms of the said Agreement, she would also not be entitled to obtain the monthly compensation thereunder.
Since the respondent authorities have rejected the petitioner's application on cogent grounds and on the basis of the terms of the said Agreement, it cannot be said that either the impugned decision or the decision-making process was arbitrary or otherwise unfair or irrational. The petitioner was, plainly, not entitled to the benefits under the said Agreement, whether by way of a compassionate appointment or by way of any monetary compensation.
W.P. 27699 (W) of 2014 is dismissed, but this order will not affect the rights of any other dependants, if any, of the deceased workman in terms of the said Agreement.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sanjib Banerjee, J.) 9