Calcutta High Court (Appellete Side)
Basudev Singh vs Eastern Coalfields Limited & Ors on 30 July, 2008
Author: S. S. Nijjar
Bench: Surinder Singh Nijjar
In the High Court at Calcutta
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Surinder Singh Nijjar, Chief Justice
And
The Hon'ble Justice Sailendra Prasad Talukdar
R.V.W. No. 60 of 2008
in
F.M.A. No. 182 of 2006
Basudev Singh
vs.
Eastern Coalfields Limited & Ors.
For Review-Petitioner : Mr. Amar Kumar Sinha
Heard & Judgment on : 30.07.2008
SURINDER SINGH NIJJAR, C.J. (Oral) : We have heard the learned
counsel for the learned counsel for the parties. This review petition
has been filed by the petitioner seeking recall of the judgment and
order dated 20th February, 2008 in FMA No. 182 of 2006. The
petitioner had filed Writ Petition No. 12566 (W) of 2004 challenging
the order dated 19/20th March, 2004 issued by the Personal Manager
whereby the prayer of the writ petitioner for employment in the
Eastern Coalfields Ltd. on compassionate grounds had been rejected.
After a detailed discussion, the learned Single Judge dismissed the
writ petition by order dated 23rd August, 2004. Aggrieved against the
aforesaid judgment of the learned Single Judge, the writ petitioner
preferred an appeal being FMA No. 182 of 2006. The aforesaid appeal
was dismissed by this Division Bench by passing an elaborate order,
after hearing the learned counsel for the parties at length. Now, the
present review petition has been filed by the petitioner claiming that
the judgments of the Supreme Court relied upon by the Division
Bench in dismissing the appeal were not applicable in the facts and
circumstances of this case. It is also pleaded and argued by the
learned counsel for the petitioner that the learned Single Judge had
wrongly dismissed the writ petition only on the ground of delay in
laches. It is submitted by the learned counsel that in the cases of
State of Manipur vs. Md. Rajaodin reported in 2003 III CLR 963
and Umesh Kumar Nagpal vs. State of Haryana & Ors. reported
in (1994) 4 SCC 138, the Supreme Court was not dealing with a
prior agreement like the National Coal Wage Agreement - II as in the
instant case. It is also submitted by the learned counsel that the
learned Single Judge had wrongly dismissed the writ petition only on
the ground of delay in laches. This, according to the learned counsel,
is contrary to the law laid down by the Supreme Court in the case of
Mohan Mahto vs. Central Coal Field Ltd. & Ors. reported in
(2007) 8 SCC 549. It has been submitted by the learned counsel
that in the aforesaid case it has been clearly held that a claim of a
dependent of a deceased employee who was governed by the
settlement known as National Coal Wage Agreement could not be
rejected on the ground of limitation. It is, therefore, submitted that
the review petition deserves to be allowed.
We have considered the submissions made by the learned
counsel for the review petitioner. We are of the opinion that the
review petition has been filed on wholly misconceived grounds. It is
not disputed that the father of the petitioner retired from service on
medical grounds on 25th of March, 1983. After retirement, in the year
1998 father of the petitioner moved a Writ Petition No. 2142 (W) of
1998 in this Court seeking an order for appointment for the second
wife on compassionate grounds. The aforesaid writ petition was
rejected by this Court by order dated 01.03.1999 on a number of
grounds including that the second marriage was not valid. The father
of the petitioner died on 27th March, 1999. Thereafter, the petitioner
approached the respondents for appointment on compassionate
grounds. His claim was based on the provisions of National Coal Wage Agreement - II which provides that "employment would be provided to the dependant of worker who are disabled permanently and also those who die while in service." This claim was rejected by a letter dated 01.02.2002. Aggrieved against the aforesaid order, the petitioner filed W. P. No. 5251 (W) of 2003. This writ petition was disposed of by the learned Single Judge on 30th September, 2003 with a direction to the concerned respondents to consider the case of the review petitioner within a period of six weeks from the date of the communication of the order. Pursuant to the aforesaid order the petitioner was called for a personal hearing. At the hearing the petitioner instead of seeking employment for himself, made a prayer that his mother may be appointed on compassionate grounds. This prayer was rejected by order dated 19/20th March, 1994, in view of the order passed by this Court in the earlier Writ Petition No. 2142 (W) of 1998 moved by the father of the petitioner. Aggrieved by this order the petitioner filed a Writ Petition No. 12566 (W) of 2004. Again the claim of the writ petitioner has been rejected by the learned Single Judge by order dated 23rd August, 2004. The learned Single Judge while dismissing the writ petition observed as follows :-
"Even otherwise I find no reason to interfere with the impugned decision. On the facts of the case the petitioner's prayer for compassionate appointment does not merit consideration at all. Admitted fact is that his father retired in June 1983 and subsequently he died on March 27, 1999. During his life time the petitioner's father made unsuccessful attempt to secure a compassionate appointment for his second wife. At no point of time any attempt was made for securing a compassionate appointment for the petitioner. Consideration of the prayer for compassionate appointment becomes absolutely out of context once there is delay in making the prayer for considering it. The prayer was made by the petitioner, apparently, only in the year 2003. Nothing has been brought to my notice to show that under law the petitioner was entitled to make such a prayer after such inordinate delay."
The Trial Court also observed that in the order dated 19th of March, 2004 the competent authority clearly recorded in his order that the petitioner instead of praying for a compassionate appointment for himself, made a prayer that such appointment might be given to his mother. It is also observed by the Trial Court that the correctness of such fact recorded in the decision was not disputed by the petitioner by writing any letter to the authority or by making any statement in the writ petition. Therefore, the statement of the counsel for the writ petitioner that "the authority wrongly recorded the fact that the petitioner sought a compassionate appointment for his mother, and not for himself" was not also accepted.
We are of the considered opinion that in view of the findings recorded by the Trial Court it cannot be accepted that the claim of the writ petitioner was rejected only on the ground of delay in laches. Clearly, the claim of the writ petitioner has been rejected as his legal status to claim appointment was in doubt. Aggrieved by the aforesaid order, the writ petitioner had filed F.M.A No. 182 of 2006 which as noticed earlier was dismissed by this Division Bench by an order dated 20th February, 2008. Again, the entire fact situation was examined. In the judgment itself we had noticed the observation which has been held by the learned Single Judge. In the order dated 1st March, 1999 while dismissing the writ petition filed by the deceased employee being W.P. No. 2142 (W) of 1998, it was observed as follows :-
"Having considered the submissions made on behalf of the respective parties, I am inclined to accept Mrs. Mitra's submission that the status of Smt. Anita Singh being in dispute the question of her appointment on compassionate ground in place of the petitioner cannot arise."
It was also observed by us in the judgment dated 20th February, 2008 that even if it is accepted that the appellant is a legal heir of the deceased, still no relief can be granted to him. Thereafter, we have made detailed analysis of the fact situation in the present case. We had observed as follows :-
"............We have considered the submissions made by the learned counsel for the parties. We are of the considered opinion that even if it is accepted that the appellant is the legal heir of the deceased employee, still no relief can be granted to the appellant. First of all, the appropriate authority of the respondents considered the claim of the petitioner pursuant to the directions issued by this Court. It has been clearly observed that the appellant appeared for personal hearing before the said Personal Manager. It has been noticed in the impugned order that the contentions made by the appellant in the writ petition were contrary to the statements made during the hearing. Even then the entire matter has been heard on merits. It has been noticed that in the writ petition it had been averred that in spite of several representation and verbal assurances of the management, appointment had not been offered to the appellant in place of his father. However, during the personal hearing, he had stated that the employment may be given to his mother Smt. Anita Singh, second wife of the deceased employee. It is also observed in the aforesaid order that the claim of the mother of the appellant could not be considered in view of the order passed by the learned Single Judge in W. P. No. 2142 (W) of 1998. Whilst dismissing the aforesaid writ petition it had been categorically held that the claim of the mother of the appellant could not be considered as her legal status as a wife had been disputed. Therefore, it has been held that the question of offering any employment to the appellant on compensatory grounds does not arise. Thereafter, when the matter came up before the learned Single Judge again it was argued that the appellant is entitled to be considered for appointment on compensatory grounds. The learned Single Judge again noticed the entire chequered history of the claim made by the appellant. It had been categorically held that the appellant had no legal right to be considered as during the personal hearing before the competent authority he had himself made the prayer that appointment might be given to his mother. It has also been noticed that the father of the appellant who retired in June, 1983 died on 27th March, 1999. During his lifetime he had made an unsuccessful attempt to secure appointment on compassionate ground for his second wife. At no point of time any effort was made to secure appointment on compassionate grounds for the appellant. The learned Single Judge has also observed that consideration of the prayer for compassionate appointment becomes absolutely out of context once there is delay in making the prayer for considering it. The prayer was made by the appellant for appointment on compensatory grounds only in the year 2003. Therefore, the learned Single Judge has held that no legal right of the appellant has been infringed. ........."
Thereafter, we had held that the law with regard to appointment on the basis of the policies of the Government, Statutory Authorities or Government Companies for the dependents of the deceased employee has been laid down in the judgment of the Supreme Court in the case of Umesh Kumar Nagpal's case (supra). Relevant parts of the judgment are reproduced as follows :-
"2. The question relates to the considerations which should guide while giving appointment in public services on compassionate ground. It appears that there has been a good deal of obfuscation on the issue. As a rule, appointments in the public services should be made strictly on the basis of open invitation of applications and merit. No other mode of appointment nor any other consideration is permissible. Neither the Governments nor the public authorities are at liberty to follow any other procedure or relax the qualifications laid down by the rules for the post. However, to this general rule which is to be followed strictly in every case, there are some exceptions carved out in the interests of justice and to meet certain contingencies. One such exception is in favour of the dependants of an employee dying in harness and leaving his family in penury and without any means of livelihood. In such cases, out of pure humanitarian consideration taking into consideration the fact that unless some source of livelihood is provided, the family would not be able to make both ends meet, a provision is made in the rules to provide gainful employment to one of the dependants of the deceased who may be eligible for such employment. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood."
We had also made reference to the fact that the law laid down in Umesh Kumar Nagpal (supra) has also been reiterated in the case of Md. Rajaodin (supra). In Md. Rajaodin (supra) case, father of the claimant had died in harness on 19th July, 1980. The writ petition was filed in the year 2001. However, the learned Single Judge allowed the writ petition with the observation that the belated approach by the respondent cannot be a ground for denying appointment under die in harness scheme and direction was given to the State to forthwith appoint the respondent. The appeal by the State before the Division Bench was also dismissed. Thereafter, the State appealed to the Supreme Court. In these circumstances, the Supreme Court observed as follows :-
"7. Admittedly, the respondent's father died before the office memorandum came into operation. In the memorandum a time period is stipulated. Since the scheme itself was not in operation when the respondent's father died, the time stipulation as provided in the scheme would not be strictly applicable to the case of the respondent and any one seeking for relief thereunder has to at least remove within the time stipulated commencing from the date of order. Nevertheless, keeping in view at any rate the object for which such appointments which are also compassionate appointments are made the minimum requirement is that the request for appointment should be made as expeditiously as the circumstances warrant. It could not be brought to our notice whether there was any scheme in operation prior to the scheme of 1984 referred to above. As the appointments of such nature envisaged under the said scheme are made to tide over immediate difficulties, there is an inbuilt requirement of urgency in making the application. Though it was contended that the respondent was a minor at the time of his father's death, it is to be noted that he was of 10 years of age in 1980 when his father died. Even if a reasonable period after he attained majority is taken, certainly the application on 25.7.1997 seeking appointment was highly belated."
Thereafter, the Supreme Court considered the other judgments on the issue of appointment on compassionate grounds. The appeal was allowed with the following observations :-
"11. When case of the respondent is considered in the panorama of aforesaid legal principles, the inevitable conclusion is that he was not entitled for appointment. Even after 1984 scheme came into force, the application was filed after a long lapse of time. He, therefore, had no right much less a legal right to ask for an appointment. Learned Single Judge of the High Court was not justified in directing the appellant to give appointment. It is also on record that there was a ban on direct recruitment under die-in- harness scheme as is evidenced by office memorandum dated 24th July, 2001. The scheme itself provided for a clearance from the government in the Department of Personnel and Administrative Reforms (Personnel Division)."
We are of the considered opinion that the facts and circumstances of this case are squarely covered by the ratio of the judgment in Md. Rajaodin's case (supra). In this case also it is doubtful as to whether the appellant would fall within the category of a dependent of a deceased employee. The claim of his mother was resisted by the first wife till she passed away on 19th October, 1998. This apart, the father of the appellant never made any effort to secure employment for the appellant during his lifetime. In fact, he filed a writ petition seeking employment on compassionate grounds for his second wife, which as noticed above was dismissed by this Court on 1st March, 1999.
It is evident that even after the death of his father, the writ petitioner claimed employment only for his mother. It was only when that claim was rejected, the writ petitioner filed W.P. No. 5251 (W) of 2003. This prayer was again rejected. Aggrieved against the aforesaid order, the petitioner preferred W.P. No. 12566 (W) of 2004. We are of the considered opinion that the judgment relied upon by the writ petitioner in the case of Mohan Mahto (supra) would be of no assistance to the appellant. We are, therefore, not inclined to accept the submissions made by the learned counsel for the review petitioner. As noticed earlier, the learned Single Judge did not dismiss the writ petition only on the ground of delay. Similarly, the appeal was also not dismissed only on the ground of delay in laches. Even otherwise, we are of the considered opinion that the ratio of law laid down by the Supreme Court in the judgment which is now relied upon by the learned counsel for the review petitioner would not be applicable in the facts and circumstances of this case. In the aforesaid case it has been clearly observed that the father of the applicant/appellant died in harness on 23rd February, 1987. The deceased employee was governed by a settlement known as National Coal Wage Agreement (NCWA) V. Clause 9.3.2 of NCWA V refers to appointment of dependants of the deceased employees working in the coal mines. Sub-Clause (iii) of Clause 9.5.0 reads as under :-
"2. ........ .............. ..........
"(iii) In case of death either in mine accident or for other reasons or medical fitness under Clause 9.4.0, if no employment has been offered and the male dependant of the worker concerned is 15 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) and
(ii) above." "
The appellant filed an application for appointment on compassionate grounds on 25th October, 1997. He was, however, not given employment on the ground that he was a minor at the relevant time. He renewed his application upon attaining majority on 26th September, 1999. This was rejected by the employer with the following observations :-
"3. ... ... ... ...
"With reference to Letter No. GM(K)/PD-
9.3.2/2007/749 dated nil of Staff Officer (P), Kuju Area this is to inform you that the proposal has not been agreed by the competent authority since the dependant was not eligible for employment as he was underage and also his name was not kept in live roster. Also there was considerable delay in applying for employment by the dependant."
The appellant challenged the aforesaid order by filing a writ petition in the High Court of Jharkhand at Ranchi. The learned Single Judge allowed the writ petition. However, the appeal against the aforesaid order filed before the Division Bench was allowed. It was observed as follows :-
"7. ...... .......... ......
"In Commr. of Public Instructions v. K.R. Vishwanath the Supreme Court held that the Court has no jurisdiction to extend the period of limitation and so was the view of the Division Bench of this Court in Sushil Kumar Vengra v. Union of India." "
Hence, the dependent of the deceased employee was in appeal before the Supreme Court. After considering the entire fact situation as also the applicable law, the Supreme Court observed as follows :-
"16. The period of six months' limitation prescribed in the Circular Letter dated 12.12.1995 was not statutory. It is also not imperative in character. Even for entertaining such an application beyond the period of six months, the headquarters of the Central Coal Field Limited is entitled to consider the facts and circumstances of each case. Admittedly, the appellant filed an application for grant of appointment on compassionate grounds when he was a minor. His application was rejected on that premise at the first instance but even at that point of time the respondent did not take a stand that the same had not been entertained on the ground that the same was filed after expiry of the period of six months."
The Supreme Court also observed that in the peculiar facts of the case the respondents had acted arbitrarily as no clear-cut reasons had been given for not appointing the appellant. It was also observed that public sector undertaking which is "State" within the meaning of Article 12 of the Constitution of India not only to act fairly but also reasonably and bona fide. It was observed that the action of the respondents was neither fair nor reasonable nor bona fide. The appellant had been denied the appointment initially on the ground that he was underage and subsequently on the ground that his name had not been kept in live roster. We may also notice that the father of the appellant therein died on 23rd February, 1997 and the appellant filed the application for appointment on 25th October, 1997. It was in these circumstances, the Supreme Court observed that the respondents had acted arbitrarily.
In our opinion, in the present case the claim of the review petitioner having been consistently rejected at all levels, the respondents cannot be said to have acted arbitrarily. In our opinion, the review petition is wholly misconceived. The judgment dated 20th February, 2008 does not suffer from an error apparent on the face of it, even if the judgment of the Supreme Court in the case of Mohan Mahto (supra) now sought to be relied upon by the learned counsel for the writ petitioner was not cited before the Division Bench at the time when the judgment under review was rendered. It is noteworthy that the Supreme Court had decided the case on 18th September, 2007. It was reported in 2007 8 SCC 549, therefore, the judgment was very much available to the learned counsel for the review petitioner at the time when the appeal was decided by the Division Bench.
The scope and ambit of the review jurisdiction of the High Court has been considered and delineated by the Supreme Court in a number of cases. We may just notice some of the judgments in the case of Shivdeo Singh & Ors. vs. State of Punjab & Ors., reported in AIR 1963 SC 1909. The Supreme Court recognized the plenary jurisdiction of the High Court under Article 226 of the Constitution of India to review its earlier orders. It was observed as follows :-
"(8) The other contention of Mr. Gopal Singh pertains to the second order of Khosla, J. which, in effect, reviews his prior order.
Learned counsel contends that Art.226 of the Constitution does not confer any power on the High Court to review its own order and, therefore, the second order of Khosla, J., was without jurisdiction. It is sufficient to say that there is no thing in Art. 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. ... ..."
Earlier in the case of Satanarayan Laxminarayan Hegde & Ors. vs. Mallikarjun Bhavanappa Tirumale, reported in AIR 1960 SC 137, the Supreme Court has clearly laid down that the review petition can only be entertained if there is an error apparent on the face of the record, even in exercise of the power under Article 226 of the Constitution of India. It has been observed as follows :-
"(17) ... ... ... An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments. ... ... ..."
It was held that such an error cannot be cured by the High Court in exercise of its jurisdiction under Article 226/227 of the Constitution of India. The law laid down by the Supreme Court in the case of Shivdeo Singh & Ors. (supra) was further considered in the case of Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma & Ors., reported in (1979) 4 SCC 389. In this case, the limits within which the review jurisdiction can be invoked has been laid down by the Supreme Court in the following words :-
"(3) The Judicial Commissioner gave two reasons for reviewing his predecessor's order. The first was that his predecessor had overlooked two important documents Exs.A/1 and A/3 which showed that the respondents were in possession of the sites even in the year 1948-49 and that the grants must have been made even by them. The second was that there was a patent illegality in permitting the appellant to question, in a single writ petition, settlement made in favour of different respondents.
We are afraid that neither of the reasons mentioned by the learned Judicial Commissioner constitutes a ground for review. It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate Court to correct all manner of errors committed by the subordinate Court."
The aforesaid proposition of law has been reiterated by the Supreme Court in the case of Meera Bhanja (Smt.) vs. Nirmala Kumari Choudhury (Smt.), reported in (1995) 1 SCC 170, wherein it has been observed as follows :-
"(9) Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground or error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. ... ... ..."
In view of the settled position of law, as noticed above, we see no reason to review our earlier judgment.
The review application is, thus, dismissed.
( Surinder Singh Nijjar, C.J.) I agree, ( Sailendra Prasad Talukdar, J.)