Jharkhand High Court
Sukhu Manjhi vs Central Coalfields Ltd. & Ors on 27 May, 2009
Equivalent citations: 2010 LAB. I. C. 378, 2009 (3) AIR JHAR R 976, (2010) 3 SERVLR 573, (2009) 3 JCR 17 (JHA)
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S.) NO. 4234 OF 2004
...
Sukhu Manjhi ...PETITIONER
-V e r s u s-
Central Coalfields Limited and others ... RESPONDENTS
...
Coram:- THE HON'BLE MR. JUSTICE AMARESHWAR SAHAY.
For the Petitioner : Mr. Rajesh Kumar, Advocate.
Mr. Om Prakash Prasad, Advocate.
For the Respondents : Mr. Amit Kumar Das, Advocate.
Mr. Chandrajit Mukherjee, Advocate.
C.A. V. On : 28/01/2009 PRONOUNCED ON 27/05/2009
Amareshwar Sahay, J. Heard the parties.
2. The prayer of the petitioner in this application is to quash
the communication as contained in Annexure-9 made to the petitioner by
the respondent C.C.L. dated 09/10.03.2004 rejecting the application of
the petitioner for appointment on compassionate ground. Further prayer
of the petitioner is for a direction to the respondents to appoint him on
compassionate ground.
3. The relevant facts in short for consideration of the present
case are that the father of the petitioner Somra Manjhi was employed as
a labourer under the respondent C.C.L and he died in harness on
18.03.1999.
4. According to the petitioner, he applied for appointment on compassionate ground in his father's place under the Scheme of 9.3.2 of National Coal Wage Agreement. He appeared before the Screening Committee but his claim for appointment on compassionate ground was rejected on 16.03.2002 on the ground that the application for W.P.(S.) NO. 4234 OF 2004 [2] appointment on compassionate ground was made after a lapse of more than one year i.e. beyond the period prescribed for making application for such appointment.
5. The petitioner challenged the said order rejecting his claim by the respondents by filing W.P.(S) No. 3031 of 2003 before this Court. By Order dated 06.11.2003, as contained in Annexure-7, on consideration of facts found that the application for appointment on compassionate ground was not entertained on the ground of delay though the period of submission of application was already extended by the respondents from six months to 1 ½ years and therefore, direction was made to consider the application of the petitioner on merits and take a decision in accordance with law by passing a reasoned order.
6. The respondents, thereafter, examined the case of the petitioner afresh and then by issue of the impugned order contained in Annexure-9 the petitioner was intimated that his claim for appointment on compassionate ground has been rejected. It is against this order, the present writ petition has been filed.
7. The petitioner states that after he got the letter dated 9/10.03.2004 (Annexure-9), he again represented the respondents stating therein that the application for compassionate appointment in the prescribed format under Clause 9.3.2 of National Coal Wage Agreement was made by him on 23.08.2000 and not on 04.12.2000 as claimed by the respondents and thereby requested the respondents to consider his case afresh in the light of the order passed by the High Court in W.P.(S) No. 3031 of 2003. The petitioner asserts that the application dated 04.12.2000 was not his first application rather it was the 'No Objection ' of his mother for appointing him on compassionate ground which the W.P.(S.) NO. 4234 OF 2004 [3] respondent authorities have wrongly treated as the main application and they have wrongly counted the period of limitation for filing application on compassionate grounds from 04.12.2000.
8. From perusal of impugned Annexure-9, it appears that the respondents considered the fact that the father of the petitioner died on 18.03.1999 and thereafter, the mother of the petitioner Smt. Podagi Devi made an application on 04.12.2000 for appointment of the petitioner on compassionate ground, which was found by them to have been filed after a period of one year nine months from the date of death of the employee, whereas the time limit fixed for making such application for appointment was only six months, which was subsequently increased by a Circular extending the period to 1 ½ years, therefore, the application for appointment on compassionate ground was made by the petitioner belatedly i.e. beyond the period prescribed.
9. The respondent C.C.L. has filed a counter affidavit wherein it is stated by the respondents that since the application of the petitioner for appointment on compassionate ground was made after 1 ½ years from the date of death of his father and therefore, even in terms of the order dated 06.11.2003 (Annexure-7) passed by this Court, the case of the petitioner was not found to be entertainable.
It has been denied by the respondents that the petitioner made any application for compassionate ground on 23.08.2000. It is asserted that the application was made on 04.12.2000 and a copy of the application made by the mother of the petitioner on 04.12.2000 has been annexed as Annexure-A to their counter affidavit. It is further stated in the counter affidavit that in view of the Judgment dated 27.11.2002 passed in the case of Rupna Manjhi Vs. CCL, the respondent Company W.P.(S.) NO. 4234 OF 2004 [4] issued Circular dated 19.06.2003 whereby, the time limit for submission of application for compassionate appointment was increased up to 1 ½ years and the said Circular was made effective from 27.11.2002 but the petitioner's application for appointment on compassionate ground was found to be made, even beyond the period of 1 ½ years and therefore, under the Scheme 9.3.2 of the National Coal Wage Agreement, the petitioner was not entitled to appointment on compassionate ground.
10. By filing a reply to the counter affidavit, the petitioner has added one more point in support of his claim for appointment on compassionate ground, stating therein that the respondents ought to have considered the case of the petitioner under para 9.5.0 (iii) of National Coal Wage Agreement - VI because on the date of death of his father, the petitioner was aged only 16 years 5 months and as such, he was minor at that time and he, after attaining the age of majority on 23.10.2000, applied for employment on compassionate ground on 04.12.2000 which was well within the time prescribed and therefore, the name of the petitioner should have been kept on live roster as per the provisions of para 9.5.0 (iii) of National Coal Wage Agreement - VI. It is further stated that para 9.5.0 does not provide any period of limitation.
The petitioner has annexed a Judgment passed by Division Bench of this Court in L.P.A. No. 780 of 2004 in the case of Lakhan Kumar Vs. Central Coalfields Limited and others [ANNEXURE- 13] to substantiate his points that the National Coal Wage Agreement- VI, which became effective from 1st July, 1996 was operative at the time when his father died and para 9.5.0 of National Coal Wage Agreement
- VI specifically provided that in a case where it is found that the son or dependent of the employee is minor at the time of the death of the said W.P.(S.) NO. 4234 OF 2004 [5] employee then the name of the minor son of the employee be kept in live roster till he attains the age of majority and once he becomes major, employment should be provided to him.
11. Mr. Rajesh Kumar, learned counsel appearing for the petitioner submitted that under the provisions of Clause 9.5.0 of National Coal Wage Agreement, it was the employer's obligation to keep the name of the petitioner on live roster till he became major and to provide him employment after he became major.
Mr. Rajesh Kumar, in support of his submission, relied on a decision of the Division Bench of this Court in the case of Lakhan Kumar Vs. Central Coalfields Limited and others in L.P.A. No. 780 of 2004 which has been annexed as Annexure-13 to the reply to the counter affidavit as well as the decision of the Supreme Court in the case of Mohan Mahto Vs. M/s. Central Coal Field Ltd. & Ors. [2007(4) JLJR 144(SC)] .
12. On the other hand, learned counsel appearing on behalf of the respondent C.C.L. submitted that the petitioner himself sought employment on compassionate ground under Clause 9.3.2 of National Coal Wage Agreement and now he is taking a different stand claiming the benefit under para 9.5.0 to which he is not entitled to. He further submitted that Clause 9.5.0 of National Coal Wage Agreement speaks about the employment of a female dependent and it stipulates the condition for employment/monetary compensation to the female dependent after the death of the workman and this Clause provides an option of receiving Rs. 3,000/- per month or an employment in case of death or disablement other than that in a mine accident if the female dependent is below 45 years. For female dependent above 45 years, no W.P.(S.) NO. 4234 OF 2004 [6] employment will be provided and they are only entitled for compensation. The said Clause also provides that if for the other reason, the female dependent is not offered the employment, then the male dependent aged above 12 years, shall be kept in the live roster till he attains majority. During the period the male dependent is kept on the live roster, the female dependent shall continue to receive the monetary compensation.
Learned counsel for the respondents further submitted that under clause 9.5.0, when the female dependent has not been provided employment, then she has the option to exercise her right for selection of male dependent to be kept on the live roster. But no such application from the mother of the petitioner was made stating that her son to be kept on the live roster. It is also submitted that the petitioner has tried to make out a new case that his name should have been kept in the live roster. This plea was not raised by the petitioner in the main writ petition rather it has been raised in the reply to the counter affidavit.
Respondents have relied on a decision of Division Bench of this Court in the case of Sushil Kumar Vengra Vs. Union of India and others reported in 2005(2) JLJR 585, Judgment of Single Bench of this Court in the case of Tapeshwar Nonia Vs. Central Coalfields Ltd. and others reported in 2004(2) JLJR 337 and the decision of the Supreme Court in the case of Umesh Kumar Nagpal Vs. State of Haryana and others reported in 1994(2) SLR 677.
13. In view of the facts and the points raised by the respective parties, it has to be decided in the present case as to whether the case of the petitioner for appointment on compassionate ground is governed under Clause 9.3.2 or 9.5.0 of the National Coal Wage Agreement?
W.P.(S.) NO. 4234 OF 2004 [7] Secondly, whether the respondents were justified in rejecting the claim of the petitioner for appointment on compassionate ground on the ground that he made an application beyond the period of limitation prescribed under Clause 9.3.2 of the National Coal Wage Agreement?
14. There is no dispute of the fact that the father of the petitioner, who was employed with the Central Coalfields Limited, died in harness on 18.03.1999. According to the respondent C.C.L., the mother of the petitioner Smt. Podgi Devi made an application on 04.12.2000 for appointment of the petitioner on compassionate ground in place of her husband whereas, according to the petitioner, at the time of death of his father, he was minor and he attained the age of majority on 23.10.2000 and thereafter, he applied for employment on 04.12.2000. He states that his age on the date of death of his father was 16 years 5 months as would be evident from the Gratuity Nomination 'Form - F' maintained by the respondent C.C.L. itself, wherein his age has been recorded to be four years on 23.10.1986. A copy of the Gratuity Nomination 'Form-F' maintained by the C.C.L. has been annexed by the petitioner as Annexure-12 to the reply to the counter affidavit.
These facts stated by the petitioner have not been controverted by the respondent C.C.L.
15. From Annexure-12, the Gratuity Nomination 'Form-F', it appears that the name of the petitioner has been mentioned as son of the deceased employee Somra Manjhi and his age has been mentioned as four years and the date of filling up the Gratuity Nomination Form is 23.10.1986 and therefore, it is clear that when the father of the petitioner died he had not attained age of majority rather, he was a minor and if on the date of filling up the Gratuity Nomination Form the petitioner was W.P.(S.) NO. 4234 OF 2004 [8] aged 4 years then it can be said that the petitioner became major on 23.10.2000.
16. The Division Bench of this Court, in the case of Lakhan Kumar Vs. Central Coalfields Limited and others in L.P.A. No. 780 of 2004 [ANNEXURE-13], has held that the case of a minor has been specifically provided for in para 9.5.0 of National Coal Wage Agreement and the intention of the respondent Company in making the said provision is that those who are minors at the time when their parents in employment died, should be provided with employment once the minor attains the age of majority. It has further been held that the objection taken in that case that the application was made after four years from the date of death of his father was highly technical and was also not supported by the Scheme since it does not in any way indicate that the minor has to apply within six months from the date of death of the deceased.
The decision of the Division Bench in the case of Sushil Kumar Vengra Vs. Union of India and others (Supra) relied on by the respondents in the present case was also considered in this decision of the Division Bench and the same was distinguished holding that the fact of the said case was on a quite different footings.
17. Paras 10, 11 and 16 of the Judgment of the Supreme Court, in the case of Mohan Mahto Vs. M/s. Central Coal Field Ltd. & Ors. [2007(4) JLJR 144(SC)], are very much relevant to be noticed for deciding the points raised in this writ petition and as such, they are quoted herein below.
In para-11 of the said Judgment, it has been held that W.P.(S.) NO. 4234 OF 2004 [9] "The right to obtain appointment on compassionate grounds emanates from the settlement. Settlement is defined in Section 2(p) of the Industrial Disputes Act to mean a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to an officer authorized in this behalf by the appropriate Government and the conciliation officer."
In para-10 of the said Judgment, it has been held that:
"A settlement within the meaning of sub-section (3) of Section 18 of the Industrial Disputes Act is binding on both the parties and continues to remain in force unless the same is altered, modified or substituted by another settlement. No period of limitation was provided in the settlement. We would assume that the respondent had jurisdiction to issue such circular prescribing a period of limitation for filing application for grant of appointment on compassionate ground. But, such circular was not only required to be strictly complied with but also was required to be read keeping in view the settlement entered into by and between the parties. The expanding definition of workman as contained in Section 2(s) of the Industrial Disputes Act would confer a right upon the appellant to obtain appointment on compassionate ground, subject, of course, to compliance of the conditions precedent contained therein."
In para-16 of the said Judgment, it has been held that "It is neither in doubt nor in dispute that the case for grant of compassionate appointment of a minor was required to be considered in terms of sub-clause (iii) of Clause 9.5.0 of the N.C.W.A. - V. In terms of the said provision, the name of the appellant was also to be kept on a live roster. He was to remain on the live roster till he attained the age of 18 years. Respondents did not perform their duties cast on them thereunder. It took an unilateral stand that an application has been filed in the year 1999 in the prescribed form. For complying with the provisions of a settlement which is binding on the parties, bona fide or otherwise of the respondent must be judged from the fact as to whether it had discharged his duties thereunder or not. In this case, not only it failed and/or neglected to do so, but as indicated hereinbefore, it took an unholy stand that the elder brother of the appellant being employed, he was not entitled to appointment on the compassionate ground. Thus, what really impelled the respondent in denying the benefit of compassionate appointment to the appellant is, therefore, open to guess. We expect a public W.P.(S.) NO. 4234 OF 2004 [10] sector undertaking which is a 'State' within the meaning of Article 12 of the Constitution of India, not only to act fairly but also reasonable and bonafide. In this case, we are satisfied that the action of the respondent is neither fair nor reasonable nor bona fide."
The Supreme Court, after considering the case of Umesh Kumar Nagpal Vs. State of Haryana reported in 1994(4) SCC 138 which has been relied by the respondents in the present case, distinguished the same.
18. It may be that in the main writ petition, the petitioner claimed the benefits of Clause 9.3.2 of the National Coal Wage Agreement whereas after filing reply to the counter affidavit, now he is claiming the benefit of Clause 9.5.0 of National Coal Wage Agreement but that does not make any difference, since under the terms of the settlement of the agreement, it is for the employer to provide the benefits thereunder to the dependents of the deceased workman. It is the bounden duty of the employer to respect and give effect to the terms of the settlement of National Coal Wage Agreement.
19. I find that the present case is fully covered by the decision of the Division Bench of this Court in the case of Lakhan Kumar Vs. Central Coalfields Limited and others in L.P.A. No. 780 of 2004 [ANNEXURE-13] and the decision of the Supreme Court in the case of Mohan Mahto Vs. M/s. Central Coal Field Ltd. & Ors. [2007(4) JLJR 144(SC)].
20. In view of the discussions and findings above, I hold that the case of the petitioner is governed by Clause 9.5.0 of the National Coal Wage Agreement since he was a minor at the time his father died on 18.03.1999. Relying on the decision of the Supreme Court in the W.P.(S.) NO. 4234 OF 2004 [11] case of Mohan Mahto Vs. M/s. Central Coal Field Ltd. & Ors. [2007(4) JLJR 144(SC)] as well as decision of the Division Bench of this Court in the case of Lakhan Kumar Vs. Central Coalfields Limited and others in L.P.A. No. 780 of 2004 [ANNEXURE-13], it is further held that Clause 9.5.0 of National Coal Wage Agreement does not provide any period of limitation for making an application for appointment on compassionate ground and therefore, rejection of claim of the petitioner by the respondents on the ground that it was filed beyond the period of limitation prescribed, cannot be sustained.
21. Accordingly, this application is allowed. The order as contained in Annexure-9 is hereby quashed and the respondent C.C.L. is directed to offer appointment to the petitioner on a suitable post within a period of eight weeks from the date of receipt/ production of a copy of this order. Since the petitioner has been denied the employment for quite a long time and as such, he is held entitled to cost also which is assessed at Rs.10,000/-.
RC/ (Amareshwar Sahay, J.)