Calcutta High Court (Appellete Side)
Babulal Majhi vs Eastern Coalfields Limited & Ors on 25 April, 2012
Author: Sambuddha Chakrabarti
Bench: J. N. Patel, Sambuddha Chakrabarti
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice J. N. Patel, Chief Justice
AND
The Hon'ble Justice Sambuddha Chakrabarti
M. A. T. 764 of 2009
Babulal Majhi
Vs.
Eastern Coalfields Limited & Ors.
For the Appellant : Mr. Nirmalendu Ganguly,
Advocate
For the E.C.L. : Mr. R. N. Majumdar, Advocate
Ms. Sanchita Barman Ray,
Advocate
Heard on : 03.01.2012, 21.03.2012 and
28.03.2012
Judgement on : 25.04.2012
Sambuddha Chakrabarti, J.:
This appeal is at the instance of the writ petitioner who had claimed compassionate appointment in the place of his deceased father-in-law. 2 The father-in-law was an employee of the Eastern Coalfields Limited (hereinafter referred to as 'the Colliery') who died in harness in the month of July, 2009. His widow and two daughters survived him. It appears from the writ petition that the family wanted the employment of the eldest daughter but that was rejected by the Colliery. Then the petitioner as the son-in-law applied. His application too was rejected by the Colliery, but that was unfortunately after an inordinate delay. The ground for rejection was that the widow of the deceased employee was already in employment in the said colliery. As such the application of the petitioner could not be considered.
This time the petitioner challenged the rejection. The learned single Judge declined to interfere on twofold grounds. First, the petitioner was the son-in-law and as such could not be considered to be a direct heir of the deceased. The other was the lack of explanation regarding the need for such an appointment about a decade after the death of the said deceased employee.
These findings have been challenged in the present appeal. Mr. Ganguly, the learned Advocate appearing for the appellant, has argued that the prayer for compassionate appointment was considered and 3 some directions were issued by the Colliery which the appellant had complied with and they had taken about seven years to reject the said prayer. The said deceased employee had no son and the appellant had undertaken to maintain the family. He referred to Clause 9.3.3 National Colliery Wage Agreement - VI (hereinafter referred to as 'the said Agreement'). According to him the Memorandum of Agreement which had been arrived at the meeting of the Joint Bipartite Committee for coal industries provided for employment to one dependant of a worker dying in harness. Clause 9.3.3 is quoted below:
"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 earnings of the deceased may be considered to be the dependants of the deceased."
It appears from this definition that if no direct dependant is available for employment brother, widowed daughter, widowed daughter-in-law or son-in-law residing with the deceased and almost wholly dependant on the earnings of the deceased may be considered to be the dependants of the deceased.
4Mr. Ganguly strongly relies on this provision and submits that those persons who do not have a son, the son-in-law has to take the responsibility. He further submits that the employment of the wife of the deceased cannot be an embargo for granting employment under the relevant provision of the said Agreement.
Mr. Majumder, the learned lawyer for the respondents submits that the Colliery had rightly rejected the claim of the petitioner as a direct dependant of the deceased, i.e., his widow, was already in service in the said Colliery. The letter of rejection as communicated to the petitioner inter alia showed that the case was examined by the competent authority which had not agreed to consider the proposal for employment of an indirect dependant when a direct dependant was already available and was in service.
Since the Colliery did not use any affidavit we directed the records to be produced.
It is true that the relevant clause of the Agreement speaks of the employment of only one dependant of a deceased employee who had died in harness and the question of employment to indirect dependants arises only when the direct dependants are not available. If one strictly follows 5 the provisions of the said clause, the petitioner is not eligible for compassionate employment. The question of considering an indirect dependant for employment arises only when direct dependants are not available. The wife of the deceased was a direct dependant and she was in employment. She was in employment under the said Colliery from before. Therefore, the rejection does not legally call for any interference. Mr. Ganguly has relied on a judgement of the Supreme Court in Mohan Mahato -Vs.- Central Colliery Limited and Ors., reported in 2007(2) SCC (L&S) 951 for a proposition that the denial of compassionate appointment mainly because of the elder brother is already in employment was in non-compliance with the terms of the settlement and was not fair, reasonable and bona fide. There, however, the question of direct or indirect dependant was not in issue. There the main question was whether the period of limitation mentioned in this relevant circular issued by the respondents in that case was statutory or imperative in character. In that case the appellant's application for appointment on compassionate ground was rejected on the ground that he was a minor and when subsequently he filed an application it was rejected on the ground that the elder brother was already in employment. It was held that expiry of the period of limitation was not taken as a ground for rejecting his application and, 6 therefore, it would be unfair to raise such for the first time in the writ petition. It was in this context that the Supreme Court held that it was obligatory on the part of the respondents to get the name of the appellant in Live Roaster which was not done. The Supreme Court held the conduct of the respondents to be neither fair nor reasonable nor bona fide and after holding this the Court had directed the relevant concerned respondents to offer appointment to the appellant to a suitable post. Obviously the said case is clearly distinguishable on the facts. It is not a case that the real reason for rejecting the petitioner's case was sought to be supplemented by a counter affidavit. Thus we also do not find any infirmity with the ultimate finding of the learned single Judge.
However, before we part with it is necessary to mention that the respondents had adopted a very dilatory mode in dealing with the appellant's application for appointment. It appears from the letter dated November 14/15, 2002 written by the Personnel Manger (IC), Pandaveswar area, to the agent of Madhaipur Colliery that since the appellant claimed employment more than two and a half years after the death of the deceased employee proper justification was thought to be necessary. It also appears from the writ petition that on July 22, 2002 the authorities had directed the appellant to attend the medical examination along with certain 7 documents which included radiological and pathological tests. About a month thereafter he was advised to appear before the Screening Committee. It appears from the records of the relevant respondents that the name of the wife of the deceased employee was very much known to them. Her name was mentioned as the nominee for CMPF and gratuity and she was shown there as one of the dependants. Three members of the Screening Committee had unanimously recommended the present appellant for employment as per the rules of the company. After that there was no response from the respondents authorities for a very long time. In 2007 the agent of the Madhaipur Colliery, i.e., the respondent no. 3 to the writ petition, had requested the Personnel Manager (IC), Pandaveswar area to review the proposal for appointment of the appellant and in 2008 the authorities did not agree to the proposal for employment of the appellant. This unexplained undue silence leads one to believe that the respondents in this case have not acted in a bona fide and fair manner. While we do not disturb the ultimate finding of the learned single Judge we, however, do not agree with one of the grounds for not interfering with the decision taken by the authorities. If employment about a decade after the death of the deceased employee was not permissible it 8 must be appreciated that the larger part of it was due to the inaction on the part of the respondents themselves.
As mentioned earlier in the month of July, 2002 the appellant was asked to appear for a initial/pre-employment medical examination. The appellant was thereby lulled into some kind of belief that his case was considered otherwise the medical examination would not have been done. After the screening committee had recommended the appointment of the appellant the authorities ought to have acted with all expedition. If as per the rules the appellant was not entitled to be employed they should have informed him without any delay. But it had taken them about seven years to take a decision and to inform the appellant about the rejection of his application. This reveals not only an unfortunate state of affairs but it is a case of culpable negligence on the part of the respondents to intimate the appellant about the fate of his application.
The lackadaisical attitude adopted by the respondents without showing any concern for a poor man seeking compassionate appointment and then ultimately turning down his application on the ground of availability of a direct dependant already in employment, is bad enough. That Smt. Mongli Majhi was the wife of the deceased employee and that she was already in employment of the respondent no. 1 were facts which 9 ought to have been known to them. The intimation of rejection does not reveal that this information was a belated discovery. In spite of it the authorities without any explanation had decided to sit over the application of the appellant and then intimated the appellant that the competent authorities had not agreed to consider the proposal for employment. We consider that even if the authorities were legally right in not offering the employment to the appellant their conduct was not praiseworthy.
Thus, while we cannot direct the authorities to offer an employment by reversing the impugned judgement we think the inordinate delay and loss of years that the respondents had subjected the appellant to should be compensated by them. We direct the respondent no. 1 to pay Rs. 25,000/- to the appellant towards compensatory damages for the loss of years from his life in seeking an alternative employment. Such payment is to be made within six weeks from the date of the receipt of a copy of this order failing which the appellant will be at liberty to recover the same in accordance with law.
The appeal is accordingly disposed of.
10There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties on priority basis upon compliance of all requisite formalities.
(Sambuddha Chakrabarti, J.) I agree.
(J. N. Patel, C. J.)