Jharkhand High Court
Mina Devi vs The Central Coalfields Limited Through ... on 5 April, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.394 of 2019
With
I.A. No.10953 of 2019
Mina Devi, aged about 52 years, wife of Late Moti Gope, resident of
Village Jainagar, P.O. and P.S. Patratu, District Ramgarh.
... ... Petitioner/Appellant
Versus
1. The Central Coalfields Limited through its Chairman-cum-Managing
Director, having its office at & P.O. Darbhanga House, P.S. Kotwali,
District Ranchi.
2. The Director Personnel, C.C.L., having its office at & Darbhanga
House, P.S. Kotwali, District Ranchi.
3. The General Manager (P&R), C.C.L., having its office at & P.O.
Darbhanga House, P.S. Kotwali, District Ranchi.
4. The Chief General Manager, BRK-SYL Area, C.C.L., At & P.O.
Sayal 'D', P.S. Patratu, District Ramgarh.
5. The Project Officer, Saunda 'D' Colliery, CCL, P.O. Saunda 'D', P.S.
Bhurkunda, District Ramgarh.
6. The Manager Personnel, Saunda 'D' Colliery, CCL, P.O. Saunda 'D',
P.S. Bhurkunda, District Ramgarh.
...... Respondents/Opposite Parties
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. Nand Kishore Prasad Sinha, Advocate
Mr. M. S. Ansari, Advocate
For the Respondents : Mr. Mukesh Bihari Lal, Advocate
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ORAL JUDGMENT
06/Dated 05th April, 2022 I.A. No.10953 of 2019:
1. This interlocutory application has been filed for condoning the delay of 06 days, which has occurred in preferring this appeal.
2. Heard learned counsel for the parties.
[2]
3. Having regard to the averments made in this application, we are of the view that the appellant was prevented by sufficient cause from preferring the appeal within the period of limitation.
4. Accordingly, I.A. No. 10953 of 2019 is allowed and the delay of 06 days in preferring the appeal is condoned.
L.P.A. No.394 of 2019:
5. The instant intra-court appeal preferred under Clause 10 of the Letters Patent is directed against the order/judgment dated 07.05.2019 passed by the learned Single Judge of this Court in W.P.(S) No. 2964 of 2017, whereby and whereunder, the writ petition has been dismissed, declining to interfere with the order dated 25/26.05.2012 by which the claim of the writ petitioner was rejected for appointment on compassionate ground since she had crossed the age of employment, i.e., 45 years.
6. The brief facts, as per the pleading, which are required to be enumerated, read as hereunder:
The husband of the appellant-writ petitioner, who was a regular employee of the respondent company, died in harness on 19.10.2010. The appellant-writ petitioner (widow) has filed an application under Clause 9.4.2 of the National Coal Wage Agreement (VI) (in short N.C.W.A.) dated 08.11.2010 for providing appointment to her on compassionate ground. As no action had been taken by the respondents, appellant-writ petitioner had filed a petition being W.P.(S) No.7184 of 2011 which was disposed of vide order dated 02.04.2012 directing the respondents to consider the claim of the petitioner and pass a reasoned [3] order. In pursuance thereof, an application was filed on 16.04.2012, but the same was rejected on 25/26.05.2012 on the ground that the appellant-writ petitioner had crossed the age of employment i.e. 45 years.
Thereafter, the appellant-writ petitioner filed second writ petition being W.P.(S) No.3919 of 2012, which was withdrawn and again a fresh writ petition being W.P.(S) No.947 of 2013 was filed by the son of the appellant-writ petitioner. The third writ petition filed for putting the son of the appellant-writ petitioner on live roster, was dismissed for non-prosecution. Thus, the second writ petition filed by the appellant-writ petitioner had been dismissed as withdrawn and as such, the present writ petition, i.e., W.P.(S) No. 2964 of 2017 is the fourth petition filed by the appellant-writ petitioner for issuance of a direction for appointment of her son on compassionate ground.
7. It is the case of the appellant-writ petitioner that as per the condition stipulated under Clause 9.5.0 of NCWA-VI wherein, as under condition no.(iii) thereof, it has been provided that in case of death either in mine accident or for other reasons or medical unfitness under Clause 9.4.0 if no employment has been offered and the male dependent of the concerned worker is 12 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 dependent is on live roster, the female dependent will be paid monetary compensation as per rates at para-(i) & (ii). This will be effective from 01.01.2000.
[4]
The case of the appellant-writ petitioner is that since the son of the appellant-writ petitioner was above 12 years at the time of death of his father, as such, he should have been kept in live roster and on attaining the age of 18 years, the employment should have been provided to him. However, the respondents have opposed such prayer by making reference of the order dated 25.08.2017 passed in the present writ petition whereby and whereunder the respondents were directed to file affidavit on the issue as to whether during the lifetime of her husband, the company has recognized Mr. Ujjawal Kumar as his son.
Affidavit was filed stating that the name of the son of the appellant-writ petitioner does not appear in any record of the company.
The learned Single Judge after having heard the learned counsel for the parties, had declined to interfere with the impugned order by dismissing the writ petition which is the subject matter of the present intra-court appeal.
8. Mr. Nand Kishore Prasad Sinha, learned counsel for the appellant-writ petitioner has submitted that the learned Single Judge has failed to appreciate the specific condition stipulated under Clause 9.5.0 (iii) of the NCWA-VI wherein it has been provided that if the age of the male dependent is above 12 years at the time of death of the bread earner, such male dependent ought to be kept in live roster and on attaining the age of 18 years, the employment should be extended to such male dependent.
9. The son of the appellant-writ petitioner, as per the matriculation certificate, was 12 years and above at the time of the death of his father [5] and as such, he ought to have been kept in live roster and simultaneously, till providing such appointment, the mother, i.e., the widow, ought to have been provided benefit of monetary compensation. But, this specific condition has not been considered by the concerned respondent-authority and has rejected the claim of the writ petitioner on the ground that the name of the son of the appellant-writ petitioner is not available in the service excerpts of the deceased employee.
The learned Single Judge has also accepted the said reason to be valid and has rejected the same which according to the learned counsel cannot be said to be justified order, reason being that the son of the appellant-writ petitioner is having matriculation certificate showing therein his father's name, i.e., Moti Gope and mother's name also, even if there was any doubt in this regard, an enquiry ought to have been conducted regarding the genuineness of the matriculation certificate for getting the fact verified as to whether the son of the writ petitioner is the actual son of the deceased employee or not. But, no such enquiry has ever been conducted and merely on the ground that the name of the son of the appellant-writ petitioner is not available in the service excerpts, such claim has been rejected.
10. Further, the respondent authorities have also considered the fact about making payment of the monetary compensation in favour of the widow of the deceased employee and that was also taken to be a ground for denial of appointment on compassionate ground by keeping the son of the appellant/writ petitioner under the live roster, but, the said decision also cannot be said to be justified, reason being that under the condition stipulated under Clause 9.5.0 (iii) of the NCWA-VI it has specifically [6] been provided that till providing appointment on compassionate ground to the male dependent who has been kept in live roster, the widow will be given the monetary compensation and in that view of the matter, the monetary compensation was being extended in her favour that cannot be a ground to be taken for denial of the claim of the appellant/writ petitioner for providing appointment by keeping the son of the appellant/writ petitioner under live roster, therefore, submission has been made that the respondent-authorities have not passed the order by taking into consideration the very object and intent of the NCWA and the learned Single Judge has also not considered these aspect of the matter and as such, the order passed by the learned Single Judge requires interference.
11. While, on the other hand, Mr. Mukesh Bihari Lal, learned counsel for the CCL has defended the order passed by the learned Single Judge by making submission that the learned Single Judge after considering the fact in entirety, more particularly, the fact that the widow of the deceased employee was being extended with the benefit of monetary compensation, therefore, there was no requirement to keep her son in live roster.
He has submitted by taking the plea that none of the service records discloses the name of the son of the appellant/writ petitioner recognizing him to be the son of bread earner and as such, the appellant/writ petitioner cannot claim to be kept in live roster in absence of his details in the service records of the deceased employee. According to the learned counsel, the learned Single Judge has taken [7] into consideration all these aspects of the matter, as such, the order passed by the learned Single Judge requires no interference.
12. We have heard the learned counsel for the parties, perused the documents available on record and the finding recorded by the learned Single Judge. This Court, before entering into the legality and propriety of the impugned order, deems it fit and proper to refer certain undisputed facts which are relevant for proper adjudication of the lis.
Admittedly, the husband of the appellant/writ petitioner, namely, Moti Gope, while working as Bijli Helper in Saunda 'D' Colliery, died in harness on 19.10.2010. The appellant-writ petitioner approached to this Court by filing a writ petition being W.P.(S) No.7184 of 2011 which was disposed of vide order dated 02.04.2012 directing the respondents to consider the claim of the petitioner and pass a reasoned order. Thereafter, the appellant-writ petitioner had filed second writ petition being W.P.(S) No.3919 of 2012, which was withdrawn and again a fresh writ petition being W.P.(S) No.947 of 2013 was filed by the son of the appellant-writ petitioner. Thereafter, again the present writ petition being W.P.(S) No. 2964 of 2017 had been filed which is the fourth petition wherein the decision of the authorities has been assailed by which the claim of the son of the appellant/writ petitioner for keeping him in live roster has been rejected. It requires to refer herein about the terms and conditions of the NCWA- VI which has got bearing in the given facts of the case, i.e., Clause 9.5.0(iii), which reads as under:
(i) xxxx
(ii) xxxx
[8]
(iii) In case of death either in mine accident or for other reasons or medical unfitness under Clause 9.4.0 if no employment has been offered and the male dependent of the concerned worker is 12 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 dependent is on live roster, the female dependent will be paid monetary compensation as per rates at para-(i) & (ii) above. This will be effective from 01.01.2000.
It is evident that the condition stipulated as under Clause 9.5.0
(iii) speaks that in case of death either in mine accident or for other reasons or medical unfitness under Clause 9.4.0, if no employment has been offered and the male dependent of the concerned worker is 12 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 dependent is on live roster, the female dependent will be paid monetary compensation as per rates at para-(i) & (ii). This will be effective from 01.01.2000.
13. The case of the appellant/writ petitioner has been disputed by the respondent-CCL on the ground that the name of her son does not figure in the service records of the deceased employee. To that effect an affidavit was filed in pursuance to the order passed by the writ court on 25.08.2017. The same ground has been taken by the learned counsel for the respondent-management but the concerned authority of the CCL- management or the learned Single Judge, according to our considered view, has failed to consider the matriculation certificate which has been brought to the notice of this Court as also before the learned Single Judge wherein the name of the father of the son of the appellant-writ petitioner has been shown to be Moti Gope.
[9]
No rebuttal reply has been filed before the Writ Court raising doubt about the aforesaid matriculation certificate.
Therefore, the question is, as to whether the said matriculation certificate which has been issued by the competent authority/board can be given go-by.
14. There is no dispute that such certificate can be given go-by if some enquiry would have been conducted by the CCL authority about its genuineness, but, no such enquiry has ever been conducted showing the ingenuineness of the said matriculation certificate, therefore, since the matriculation certificate has been issued by a statutory body, the same cannot be given go-by.
Further, the NCWA since is in terms of a beneficial instrument having been carved out in view of Section 18(1) of the Industrial Disputes Act by which the statutory fervor has been given to such agreement whereby and whereunder by way of security measure, decision was taken to provide appointment to the dependents of the family whose bread earner has died in harness or to provide monetary compensation, depending upon the case.
15. The learned counsel for the respondent has taken the sole plea of non- availability of the name of the son of the appellant-writ petitioner in the service excerpts of the deceased employee and basing upon the same, the learned Single Judge has declined to interfere with the impugned order as also on the ground that the appellant-writ petitioner was being paid monetary compensation.
[10]
16. So far as the first ground is considered, according to our considered view, merely on the basis of an affidavit wherein it has been stated that the name of the son of the appellant-writ petitioner is not mentioned in the service records of the deceased employee, the case of the son of the appellant-writ petitioner of keeping him in live roster should not have been denied when he was having with him the matriculation certificate showing the name of the deceased employee, i.e., Moti Gope as also of the appellant-writ petitioner.
Further, the aforesaid matriculation certificate has not been rebutted by filing counter affidavit either before the learned Single Judge or before this Court. Therefore, when the matriculation certificate, issued by a statutory body, has not been doubted, the same cannot be given go-by by the respondent-CCL over and above the submission made by the CCL-management in the affidavit.
Even accepting that the name of the son of the appellant-writ petitioner was not available in the service record of the deceased employee, in that circumstances, it was incumbent upon the respondent- CCL, in order to achieve the object and intent of the NCWA, to conduct an enquiry with respect to the genuineness of the matriculation certificate and the genuineness of the candidate, i.e., the son of the appellant-writ petitioner and if in the enquiry doubt would have been raised, the matter would have been different but no such efforts have been taken, therefore, in absence of such efforts the name of the son of the appellant-writ petitioner ought to have been kept in live roster as per the matriculation certificate, which is a valid proof to show his identity as also the date of birth.
[11]
17. So far as the second ground is concerned that the widow of the deceased employee was being paid monetary compensation as such there was no question of keeping the son of the appellant-writ petitioner in live roster, according to our considered view, the same cannot be said to be justified reason to deny the claim of the appellant-writ petitioner as the terms and conditions as stipulated under Clause 9.5.0 (iii) itself speaks that in between the period of keeping the male dependent on live roster and the date of providing employment, the female dependent will be entitled for monetary compensation and as such, merely by making payment of monetary compensation, the same cannot be a ground to deny the claim of the male dependent of keeping him in live roster.
18. The authority, therefore, while denying the claim of the appellant-writ petitioner has ignored the very object and intent of the NCWA so as also the learned Single Judge. Therefore, the order passed by the learned Single Judge requires interference.
19. Accordingly, the order passed by the learned Single Judge dated 07.05.2019 in W.P.(S) No.2964 of 2017 is quashed and set aside. In consequence thereof, the writ petition stands allowed.
20. However, the matter is remitted before the competent authority to conduct an enquiry with respect to the genuineness of the matriculation certificate which has been brought on record by getting the report, if required, from the concerned body, i.e., issuing authority of the aforesaid matriculation certificate.
The concerned body, i.e., issuing authority of the aforesaid matriculation certificate is directed to cooperate with the enquiry. [12]
The enquiry is to be concluded preferably within a period of two months from the date of receipt/production of copy of this order.
21. The CCL management is directed to take follow up action depending upon the outcome of the said enquiry by taking decision in accordance with law within a further period of two months from the date of receipt/production of such enquiry report.
22. In the result, the instant appeal stands disposed of with the aforesaid observations and directions.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Saurabh/ A.F.R.