Madhya Pradesh High Court
Western Coalfields Limited vs Nousabai on 21 June, 2013
1
W.A.No.02/2013
Western Coalfields Limited and others
vs
Nousabai
21/06/2013
Shri Greeshm Jain, Advocate for the appellants.
Shri Govind Prasad Dubey, Advocate for the respondent.
This appeal is directed against an order dated 06.11.2012 passed by the writ Court in case no. W.P.4581/2008(s), by which, a writ petition preferred by the respondent was allowed and directions were issued to the appellants herein to reconsider the claim of the respondent in pursuance to the settlement arrived at between the petitioner - respondent and Smt. Fagni Bai for compassionate appointment and monetary compensation in accordance with the rules and schemes applicable, within a period of three months from the date of communication of the order. This order has been assailed by the appellants mainly on the following grounds:-
(i) That, the application was rejected by the appellants herein on 12.07.2004, but inspite of this, the writ petition was filed belatedly on 09.04.2008, which was beyond the period of four years, so in the light of the decision of the Apex Court in the case of State of J. & K V. Sajad Ahmed Mir, Air 2006 SC 2743, the appellants herein had rightly rejected the application, but the learned Single Judge erred in directing for reconsideration of the matter.
(ii) That, the respondent is the second wife of deceased Gangaram, an employee of the appellants herein. The 2 application was filed for the compassionate appointment of her son Rakesh, who being a son of second wife is not entitled for compassionate appointment under paragraph 9.4.2 of the Scheme. Reliance is also placed to a judgment of the Single Bench passed in W.P.No.126 of 2002 (Bhagwandas and others vs Western Coalfields Ltd.
and another in support of his contentions.
2. Shri Govind Prasad Dubey, learned counsel for the respondent has supported the order. It was submitted by him that facts and circumstances of the present case are entirely different and ratio of the judgment in the case of Sajad Ahmed (supra) is not applicable in the present case. The respondent was continuously processed her claim immediately after death of her husband Gangaram and because of the assurance given by the appellants herein as contained in Annexure P/ 5 dated 06.05.2000, she had awaited till attaining the age of majority of her son Rakesh, then an application was filed, but it was wrongly rejected. It was submitted by Shri Dubey that this appeal preferred by the appellants is without any merit. He has also placed reliance to a judgment of the Apex Court in the case of Kuldeep Singh vs G.M. Instrument Design Development and Facilities Centre & Anr., AIR 2011 SC 4551 in support of his contentions.
3. To appreciate the rival contentions of the parties, we have perused the factual aspects of the matter. Respondent - Mst. Nousabai and Mst. Fagnibai both are the wives of late Gangaram, who was an employees of the appellants. Fagnibai is the first married wife and respondent - Nousabai is the second wife.
3Nousabai is havinig an issue from Gangaram namely Rakesh. Gangaram has died in harness on 20.09.1997. An order Annexure P/1 dated 10.10.1997 was issued by the appellants herein directing to the wives of Gangaram that they can appear in the office and produce no dues certificate for receiving terminal dues of the deceased. It was also stated specifically in the order Annexure P/1 that dependent of late Gangaram may also apply to claim for compassionate appointment. Respondent - Nousabai moved an application on 08.11.1998 to the effect that she is willing to serve the appellants and as she is not having any major male issue, so she be extended an employment. Fagnibai also moved an application for compassionate appointment. On filing the applications by both the wives of late Gangaram for compassionate appointment, the appellants herein had passed an order Annexure P/3 dated 26.06.1999, by which, both the wives were directed to file succession certificates. It appears that matter travelled to the Civil Court and before the Civil Court a compromise had arrived at between both the wives. As per order dated 14.10.1999 passed by the Civil Court in Civil Suit No.299-A/ 1998, it appears that following compromise had arrived at between both the wives:
"(i) Fagnibai would get all the terminal dues of late Gangaram, like gratuity, pension, live roster scheme etc. and respondent Nousabai would not be entitled to claim any right in the aforesaid.
(ii) Respondent - Nousabai would be entitled to apply for compassionate appointment and first wife Fagnibai shall have no right."4
Accordingly, it was ordered by the appellants by Annexure P/4 dated 22.10.1999 that all the terminal dues be paid to Fagnibai and in respect of compassionate appointment, the proceedings be initiated in favour of respondent - Nousabai.
4. Thereafter, vide order Annexure P/5 dated 06.05.2000, the appellants herein had passed an order that son of the respondent has already attained the age of more than 10 years, so it was decided not to give compassionate appointment to the respondent, but when her son would attain the age of 18 years, he will be entitled for compassionate appointment and till then her son will be kept in live roster and the respondent shall be entitled for monetary compensation. The respondent was permitted to move an application for monetary compensation. Thereafter, the respondent moved an application, Annexure P/6 for release of monetary compensation and also for employment to her son Rakesh, which had remains pending with the appellants. Vide order dated 12.7.2004, Annexure P/7, the appellants herein had intimated to the respondent that the application of the respondent was sent to the headquarter, but the headquarter vide letter dated 08.07.2004 had informed that "the respondent being the second wife and her son Rakesh, who was directed to be kept in live roster, but the competent authority has refused the aforesaid proposal". The aforesaid decision of the competent authority was communicated to the respondent. Thereafter, the respondent moved an application on 07.12.2007, Annexure P/8 to the appellants, but without any effect, so a writ petition was filed on 09.04.2008 by the respondent for extending compassionate appointment to her son and also for payment of monetary 5 compensation. By the impugned order, the learned Single Judge considered the case and found that the respondent had made out a case for issuance of directions and accordingly the aforesaid directions were issued. This order is under challenge in this appeal.
5. So far as the contention of the appellants that Rakesh being a son of second wife is not a legitimate son and is not entitled for compassionate appointment under the scheme is concerned, it would be appropriate to consider paragraph 9.4.2 of the Scheme, which is referred by Shri Jain, learned counsel for the appellants, the same is reproduced as under:-
"9.4.2. Employment of one dependent of the worker who dies while in service:
(i) The dependent for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependent is available for employment, younger 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 dependents of the deceased.
(ii) The dependents to be considered for employment should be physically fit and suitable for employment and aged not more than 35 years provided that the age limit shall not apply in the case of spouse."
From the perusal of the aforesaid Scheme, it is apparent that nothing has been provided in the said Scheme in respect of son of second wife.
6. In the case of Bhagwandas (supra), which has been 6 referred to by the appellants, the learned Single Judge has held that as per paragraph 9.4 of the National Coal Wage Agreement the son of the second wife of the deceased employee would not entitle for compassionate appointment, but it appears that the provisions as contained in Section 16 of the Hindu Marriage Act, 1955 were not brought to the notice of learned Single Judge. Section 16 of the Hindu Marriage Act, 1955, which is substituted by the Act No.68 of 1976 with effect from 27.05.1976 read thus:-
"16. Legitimacy of children of void and voidable marriages:-
(i) Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws(Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(ii) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
(iii) Nothing contained in sub-section (1) or sub-
section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the 7 property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable or possession or acquiring any such rights by reason of his not being the legitimate child of his parents." The aforesaid provisions clearly provides that even a son of illegitimate wife during subsistence of the marriage is the legitimate son and is entitled for all the rights in the property of his parents.
7. A similar issue has been considered by the Apex Court in the case of Vidhyadhari and others vs. Sukhrana Bai and others (2008) 2 SCC 238 where in para 9, the Apex Court has held that a son of a deceased Government servant, though he was born out of second marriage during subsistence of first marriage, is a son for all purposes. It was also a case of compassionate appointment and the Apex Court after considering this aspect has held that such son shall be entitled for compassionate appointment and rejection of the application merely on the ground that petitioner is second son, was not justified.
8. In view of the aforesaid position of law, it appears that the judgment relied on by the appellants in Bhagwandas (supra) does not consider the correct position of law and has been decided without considering the provisions as contained in Section 16 of the Hindu Marriage Act, 1955 and on the basis of which, the appellants herein was not entitled to reject the claim of the respondent.
9. Now, the contention of the appellants that the petition of the respondent was highly belatedly and the learned Single Judge ought to have rejected the petition on the ground of delay and 8 laches can be looked into.
10. From the perusal of the documents filed by the respondent before the writ Court, it is apparent that after death of Gangaram on 27th September, 1997, the appellants herein itself had come forward on 10.10.1997 by offering employment to the dependent of the deceased employee. It appears that because of peculiar situation that Gangaram had left two wives, vide order Annexure P/3 dated 26.06.1999, both the wives were directed to obtain succession certificates and thereafter they filed Civil Suit bearing No.299-A/1998, in which, a settlement had arrived at between both the wives on 14.10.1999, which is referred to in the order of the appellants dated 22.10.1999, Annexure P/4 and on the basis of such settlement, Fagnibai was extended all the monetary benefits and respondent Nousabai was allowed to proceed for compassionate appointment, but the matter had remains pending with the appellants and vide Annexure P/5 dated 06.05.2000, the appellants herein had intimated to the respondent that the application of the respondent for compassionate appointment cannot be considered, because her son had attained the age of 10 years and her son would be entitled for compassionate appointment after attaining age of 18 years, till then her son will be kept in live roster, however, the respondent was allowed to proceed for grant of monetary compensation. But, it appears that no monetary compensation was paid to the respondent and ultimately vide order Annexure P/7 dated 12.7.2004 her claim was turned down. Thought, it appears that after 12.7.2004, the respondent had not filed writ petition immediately, but the writ petition was filed on 09.04.2008, but from the perusal of the 9 aforesaid facts, it is apparent that the respondent was not at fault and she was continuously assured by the appellants for compassionate appointment and she was also assured for monetary compensation and that her son will be considered for compassionate appointment after attaining the age of majority. In the case of Sajad Ahmed(supra) the Apex Court had rejected the application on the ground that such an application itself was filed after four and half years after the death of employee and there was delay in challenging the rejection, but in the present case case, the application was filed immediately after death of employee on 08.11.1998 and the application of the respondent had remained pending with the appellants and ultimately on 12.07.2004, such prayer was turned down. In the aforesaid circumstances, even though there was some delay on the part of the respondent, but the respondent cannot only be attributed for such delay and the appellants have also owes some responsibility for delaying the matter.
11. In the aforesaid circumstances, the learned Single Judge has rightly allowed the writ petition and directed the appellants to reconsider the matter of the respondent for compassionate appointment to her son Rakesh and for payment of monetary compensation. Thus, the appeal is found without any merit and is accordingly dismissed. No order as to costs.
(Krishn Kumar Lahoti) (Subhash Kakade) SJ/- Acting Chief Justice Judge