Jharkhand High Court
Shamshul Ansari Aged About - 46 Years S/O ... vs Cmd on 27 September, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 764 of 2019
With
I.A. No. 2165 of 2022
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Shamshul Ansari aged about - 46 years S/o Late Umar Mia Vill-Patrodih, P.O. Patrodih, P.S. Narayanpur, Dist- Jamtara. ...... Petitioner/Appellant Versus
1.CMD, Bharat Coking Coalfield limited, Koyla Bhawan, P.O. & P.S. Sareidelha, Dist-Dhanbad.
2.The Director (Personnel) Bharat Coking Coalfield limited, Koyla Bhawan, P.O. & P.S. Sareidelha, Dist- Dhanbad.
3.General Manager, Katras Area of BCCL, P.O. Kusunda, P.S. Katras Dist-Dhanbad.
4.Project Officer, Kusunda Coillery, BCCL, P.O. P.S. & Dist-Dhanbad.
5.Area Personnel manager, BCCL, Kusunda Area, P.O. P.S. & Dist. Dhanbad.
6.Asst. Labour Commissioner (Central) Dhanbad, P.O., P.S. & Dist-Dhanbad. ..... Respondents
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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. Onkar Nath Tiwary, Adv For the Res. Nos 1 to 5: Mr. Indrajit Sinha, Adv : Ms. Anjali Sinha, Advocate For the Res. No. 6 : Mr. Madan Prasad, CGC
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Oral Order Order No. 8: Dated 27th September, 2022: I.A. No. 2165 of 2022
As prayed for, learned counsel for the appellant is permitted to correct the quantum of delay stated in the Interlocutory Application in course of the day.
2. Heard the parties.
3. No counter affidavit has been filed to the aforesaid Interlocutory Application.2
4. Having regard to the averments made in the Interlocutory Application, we are of the view that appellant was prevented by sufficient cause from preferring the appeal within the period of limitation.
5. This Interlocutory Application is accordingly allowed and delay of 72 days in preferring the appeal is condoned.L.P.A. No. 764 of 2019
6. With the consent of learned counsel for the parties, the appeal has been heard on merit.
7. The instant intra-court appeal, under Clause 10 of the Letters Patent, has been preferred against the order/judgment dated 18.07.2019 passed by learned Single Judge in W.P. (L) No. 4675 of 2018, by which the writ petition has been dismissed declining to interfere with failure report dated 06/07.07.2017 and reference refusal order dated 02.11.2017.
8. The brief facts of the case, as per the pleadings made in the writ petition, read as under:
The father of the writ petitioner was a regular employee of the respondents-BCCL, who was declared medically unfit on 23.02.1990 and accordingly, his services was dispensed with. Subsequently, the father of the petitioner died on 27.02.1993. Thereafter, the 3 petitioner applied for employment, referring to the provision of National Coal Wages Agreement (in short 'NCWA') in-vogue. The respondents-authorities considered the case of the petitioner as per scheme and offered employment vide appointment letter dated 09.09.1994 subject to medical fitness. The Medical Board was constituted, which examined the petitioner, as per which the petitioner was not found medically fit to do underground work, however, suggestion was made to solicit the consent of the petitioner for other job/surface job.
It is the case of the petitioner that he informed the management vide letter dated 08.01.1996 that he is ready to do surface job but the respondents- management did not take any decision and kept the decision on claim of the petitioner in abeyance.
In the backdrop of aforesaid fact, the second son of the deceased-employee made an application sometimes in the year 1996 for employment but the same was rejected in the year 1999. Thereafter, an industrial dispute was raised by the Union vide application dated 29.04.2002 for the second son of the deceased-employee but no action was taken. 4
The writ petitioner made communication sometimes in the year 2013 to the management for providing employment as per Scheme and finally an industrial dispute was raised for giving appointment to the petitioner on 29.12.2015. Accordingly, conciliation took place but it failed, as would be evident from report dated 06.07.2017 furnished by respondent no 6- Asst. Labour Commissioner (Central), Dhanbad stating therein that the proceedings concluded as failure of conciliation. Thereafter, the appropriate Government vide letter dated 02.11.2017 communicated that prima facie the Ministry does not consider this dispute fit for adjudication for the reasons, as under:
"Shri Samsul Ansari S/o Late Umar Mia is not entitled for compassionate employment at this stage under the provision of NCWA by the Management of Kusunda Colliery under S.P. Mines of Ms BCCL since the Union has raised the issue after passage of more than 27 years from the cause of action as his husband was declared medically unfit in 1990. As such the purpose of this provision had already been lapsed."
The writ petitioner, being aggrieved with the failure report dated 06.07.2017 and reference refusal order dated 02.11.2017, approached this Court by filing writ petition being W.P. (L) No. 4675 of 2018 on the ground that law of limitation is not applicable so far 5 Section 10 of the Industrial Disputes Act, 1947 is concerned and further the Government has to perform as an administrative functionary and not as an adjudicatory functionary, as has been done in the case in hand. On the other hand, respondents have taken the ground that cause of action since has arisen in the year 1995 when the petitioner was found medically unfit, as such the matter is stale one.
The learned Single Judge, considering the rival submissions advanced on behalf of parties, declined to interfere with the impugned orders, inter alia, on the ground that the claim of the petitioner is stale one, which is the subject matter of instant intra court appeal.
9. Mr. Onkar Nath Tiwary, learned counsel for the petitioner has assailed the impugned order on the ground that refusal of the dispute to refer before the adjudicator under the provisions of Section 10 of the Industrial Disputes Act, 1947 (in short 'Act, 1947') on the ground of limitation cannot be said to be justified since there is no lapse on the part of the writ petitioner rather the writ petitioner is pursuing his claim right from the date of death of his father but without taking into consideration this aspect of the matter the 6 appropriate government has refused to refer the dispute for its adjudication.
It has further been submitted that the concerned Government has performed as an adjudicatory body instead of performing as an administrative body so as to refer the dispute for its adjudication but the learned Single Judge without considering these aspects of the matter has declined to interfere with the order passed by the respondents-authorities, which is not sustainable in law.
10. On the other hand, Mr. Indrajit Sinha, learned counsel being assisted by Ms. Anjali Sinha, learned counsel for the respondent nos. 1 to 5 has submitted that there is no error in the order passed by the appropriate Government in refusing to refer the dispute before adjudicator for its adjudication since the very object and intent to provide appointment even under the NCWA is not available after lapse of 27 years. It has been contended that the very purpose of appointment on compassionate ground is to mete out the penury due to sudden demise of bread-earner. But, herein in the instant case, the death of the bread-earner took place on 27.02.1993 and since then 27 years has lapsed, therefore, even if the matter will be referred before the 7 adjudicator, since the claim is stale one, the same will be a sufficient ground to negate the claim of writ petitioner. Therefore, contention has been raised that if the issue will be referred to the adjudicator, the same will be a futile exercise since the result is known about rejection of claim of the petitioner on the ground of delay of 27 years.
Learned counsel for the respondents submits that the learned Single Judge taking into consideration the fact of delay of 27 years, which is contrary to the object and intent to provide compassionate appointment as per NCWA, has taken it as a valid ground for refusal of the claim of the petitioner and dismissed the writ petition, which cannot be said to suffer from error.
11. We have heard learned counsel for the parties, perused the materials available on record as also the finding recorded by learned Single Judge.
12. The fact, which are not in dispute in this case, is that the father of the writ petitioner was declared medically unfit on 23.02.1990, who subsequently died on 27.02.1993.
Thereafter, the elder son of the deceased-employee i.e., the present petitioner applied for employment, which was considered by the respondents-authorities 8 and he was offered appointment vide letter dated 09.09.1994. But the petitioner was not found medically fit to do underground work, as such, suggestion was made to do surface job. It is the case of the petitioner that though he informed the respondents-authorities that he is ready for surface job but the management did not take any decision and the claim of the petitioner was kept in abeyance.
Thereafter, the second son of the deceased- employee made an application sometimes in the year 1996 for employment but the same was rejected in the year 1999, whereupon the Union raised an industrial dispute for employment of the second son of the deceased-employee but no action was taken.
Therefore, the writ petitioner again started to pursue his claim for appointment on compassionate ground, making application sometimes in the year 2013, to the management for providing employment. But when no action was taken an industrial dispute was raised on 29.12.2015 for giving appointment to the petitioner. Accordingly, conciliation took place but it failed, as would be evident from report dated 06.07.2017. Thereafter, the appropriate Government vide letter dated 02.11.2017 has stated that prima facie the Ministry does 9 not consider the dispute fit for adjudication on the ground of delay of 27 years from the date of cause of action.
The writ petitioner, being aggrieved with the failure report dated 06.07.2017 and reference refusal order dated 02.11.2017, approached this Court by filing writ petition being W.P. (L) No. 4675 of 2018. The learned Single Judge, considering the rival submissions advanced on behalf of parties, declined to interfere with the impugned orders on the ground that the claim of the petitioner is stale one, against which, the present intra court appeal has been filed.
13. Mr. Onkar Nath Tiwary, learned counsel for the appellant-petitioner has assailed the order passed by the administrative authority i.e, the failure report dated 06.07.2017 and the reference refusal order dated 02.11.2017 as also the order passed by learned Single Judge on the ground that Section 10 of Act, 1947 does not refer any period of limitation rather the aforesaid provision begins with the word 'at any time...', which according to learned counsel 'at any time...' means at any point of time the dispute can be raised and if the dispute is not being resolved by the conciliator, the appropriate Government, on the basis of failure report, 10 is required to refer the dispute before the adjudicator but the same having not been done by the administrative authority, gross illegality has been committed.
14. Mr. Indrajit Sinha, learned counsel for the respondents has submitted that even though provision of Section 10 of the Act, 1947 begins with the word 'at any time...' that does not mean that the litigant will approach after lapse of considerable period rather the dispute is required to be made within the reasonable period.
According to him, the learned Single Judge, taking into consideration the fact of delay of 27 years in raising dispute for appointment on compassionate ground is correct in not interfering with the impugned order.
15. This Court, after having considered the rival submissions advanced by learned counsel for the parties, first deems it fit and proper to refer Section 10(1) of the I.D. Act, 1947, which reads as under:
"10.Reference of disputes to Boards, Courts or Tribunals.-
(1) Where the appropriate Government is of opinion that any industrial dispute exists or is apprehended, it may at any time], by order in writing,--
(a) refer the dispute to a Board for promoting a settlement thereof; or 11
(b) refer any matter appearing to be connected with or relevant to the dispute to a Court for inquiry; or
(c) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, if it relates to any matter specified in the Second Schedule, to a Labour Court for adjudication; or
(d) refer the dispute or any matter appearing to be connected with, or relevant to, the dispute, whether it relates to any matter specified, in the Second Schedule or the Third Schedule, to a Tribunal for adjudication:
Provided that where the dispute relates to any matter specified in the Third Schedule and is not likely to affect more than one hundred workmen, the appropriate Government may, if it so thinks fit, make the reference to a Labour Court under clause (c):] Provided further that] where the dispute relates to a public utility service and a notice under section 22 has been given, the appropriate Government shall, unless it considers that the notice has been frivolously or vexatiously given or that it would be inexpedient so to do, make a reference under this sub- section notwithstanding that any other proceedigns under this Act in respect of the dispute may have commenced: Provided also that where the dispute in relation to which the Central Government is the appropriate Government, it shall be competent for that Government to refer the dispute to a Labour Court or an Industrial Tribunal, as the case may be, constituted by the State Government;]
16. Question arises as to whether a claim can be allowed to be agitated even after lapse of reasonable period i.e, after lapse of 25 years, 30 years or more that too a claim pertains to appointment on compassionate ground?
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17. This Court, in order to answer the aforesaid issue, has thought it proper to refer the judicial pronouncement of the Hon'ble Apex Court rendered in Situ Sahu & Ors. vs. State of Jharkhand & Ors. [2004 (4) JCR SC 211] wherein it has been laid down that under section 71A of the C.N.T. Act, it has been stipulated that an application for restoration of the land can be dealt with, if filed within reasonable time. The relevant portion of the judgment is quoted hereunder as:
"13.We will assume that the surrender of tenancy on 7.2.1938 and the settlement of the lands on the present appellant on 25.2.1938 were in quick succession and could be viewed as parts of the same transaction within the meaning of the term 'transfer' as contemplated by the Act. Nonetheless, it has not been established before us that the transfer was contrary to any other provisions of the Act.
14.We shall now examine the last argument of Shri Narasimha that the transfer was fraudulent. Even on this, we are afraid that the appellants are entitled to succeed. We need not go into the details of the transaction for we may even assume that the transfer was fraudulent. Even then, as held in Ibrahimpatnam (supra), the power under Section 71A could have been exercised only within a reasonable time. Looking to the facts and circumstances of the present appeal, we are not satisfied that the Special officer exercised his powers under Section 71A within a reasonable period of time. The lapse of 40 years is certainly not a reasonable time for exercise of power, even if it is not hedged in by a period of limitation. We derive support to our view from the observations made by this Court in Jai Mangal Oraon case (supra) which was also a case which arose under the very same provision of law.13
There this Court took the view that Section 46(4)(a), which envisaged a prior sanction of the Deputy Commissioner before effecting the transfer in any of the modes stated therein, was introduced only in the year 1947 (with effect from 5.1.1948) and no such provision existed during the relevant point of time when the surrender was made in that case (15.1.1942). Obviously, therefore, no such provision existed in 1938, and the same reasoning applies.
15.In the result, therefore, we are of the view that the Special Officer ought not to have exercised his powers under Section 71A of the Act after such an unreasonable long period of time, in the facts and circumstances of the case brought to light.
16.The appellants succeed. The impugned judgment of the High Court and the impugned judgments of the authorities below are all set aside and the application for restoration made by the fifth respondent being SAR 415/77-78 is dismissed.
(Emphasis supplied] However, the aforesaid judgment is on the issue of initiation of a proceeding for restoration of land under the provisions of C.N.T. Act, 1908 wherein also the provision starts from the word 'at any time...' the application for restoration of land can be filed by the tribal people if land has been transferred in favour of non-tribal without any permission from the Deputy Collector.
For better appreciation, the provision of Section 71-A of the C.N.T. Act is required to be referred here which reads as under:14
"71A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred.-
If at any time, it comes to the notice of the Deputy Commissioner that transfer of land belonging to a raiyat [or a Mundari Khunt Kattidar or a Bhuinhari] who is a member of the Scheduled Tribes has taken place in contravention of section 46 [or section 48 or Section 240] or any other provision of this Act or by any fraudulent method, [including decrees obtained in suit by fraud and collusion] he may, after giving reasonable opportunity to the transferee, who is proposed to be evicted, to show cause and after making necessary enquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir, or in case the transferor or his heir is not available or is not willing to agree to such restoration, re-settle it with another raiyat belonging to the Scheduled Tribes according to the village custom for the disposal of an abandoned holding:
Provided that if the transferee has, within 30 years from the date of transfer, constructed any building or structure on such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed:
Provided further that where the Deputy Commissioner is satisfied that the transferee has
constructed a substantial structure or building on such holding or portion thereof before coming into force of the Bihar Scheduled Areas Regulation, 1969, he may notwithstanding any other provisions of the Act, validate such transfer where the transferee either makes available to the transferor an alternative holding or portion thereof 15 as the case may be, of the equivalent value of the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor:
Provided also that if after an enquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred land should be restored or re-settled, he shall require the transferor or his heir or another raiyat, as the case may be, to deposit with the Deputy Commissioner such sum of the money as may be determined by the Deputy Commissioner having regard to the amount for which the land was transferred or the market value of the land, as the case may be, and the amount of any compensation for improvements effected to the land which the Deputy Commissioner may deem fair and equitable."
18. This Court, applying the principle laid down by Hon'ble Apex Court in Situ Sahu (supra), in the instant case, wherein argument has been advanced that as provision of Section 10 of the Act, 1947 starting from the word 'at any time...' the petitioner can apply for appointment on compassionate ground at any time, is of the considered view that at any time does not construe to be beyond reasonable period where dispute relates to appointment on compassionate ground under NCWA.
19. It cannot be disputed that under NCWA there is provision to offer employment in case of death of deceased employee, subject to fulfillment of certain eligibility criteria and it does not contain any period for 16 making such application, as would appear from the condition stipulated under Clause 9.4.0 of NCWA. But the Coal India Limited, the mother company, has come out with the circular as contained in letter dated 12.12.1995 providing six months limitation for filing such application for appointment compassionate, which was subsequently extended for one year by circular issued in the year 2000 and thereafter it was extended up-to one and half years.
The question of validity of the aforesaid circulars, laying down the ground of limitation, has been considered by Hon'ble Apex Court in the case of Mohan Mahto Vs. Central Coal Field Ltd. & Ors [(1007) 8 SCC 549] wherein the Hon'ble Apex Court considering the period of limitation to be reasonable so far it is appointment on compassionate ground vis-à-vis the circulars issued in this regard, has held at paragraph 18 to 20 as under:
"18. We have indicated hereinbefore, that it is not necessary for us to go into the question as to whether in the teeth of the provision of NCWA V, the respondent at all had any power to fix a time-limit and thereby curtailing the right of the workman concerned. We would assume that even in such a matter, it had a right. But, even for the said purpose, keeping in view the fact that a beneficial provision is made under a settlement, the "State" was expected to act reasonably. While so acting, it must provide for a period of limitation which is reasonable. Apart from the fact that the 17 period of limitation provided for in the circular letter with a power of relaxation can never be held to be imperative in character, the matter should also be considered from the subsequent conduct of the respondent insofar as it had issued another circular letter in the year 2000 providing for filing of an application for appointment on compassionate grounds within a period of one year. It may be that the said circular letter has prospective operation but even in relation thereto we may notice that whereas the said circular letter was issued upon holding discussion with the unions, the circular letter of the year 1995 was a unilateral one. Furthermore, in its letter dated 2-8-2000/3-8-2000, it will bear repetition to state that expiry of the period of limitation was not taken as a ground for rejecting his application. Underage and non-placement of his name in live roster are stated to be the reasons. It is, therefore, unfair on the part of the respondent to raise such a plea for the first time in its counter-affidavit to the writ petition. If he was underage, definitely, it was obligatory on the part of the respondent to keep his name in the live roster. It was not done.
19. Reliance placed by the High Court on K.R. Vishwanath [(2005) 7 SCC 206 : 2005 SCC (L&S) 927] with respect, is misplaced. Therein, the terms and conditions of the parties were governed by a statute known as "the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996". Rule 5 of the said Rules provided for a period of limitation. The said decision, therefore, cannot be said to have any application whatsoever in the instant case.
20. In Umesh Kumar Nagpal v. State of Haryana [(1994) 4 SCC 138 : 1994 SCC (L&S) 930 : (1994) 27 ATC 537] whereupon reliance has been placed by Dr. Singhvi, this Court held : (SCC pp. 141-42, para 6) "6. For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial 18 crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.' .
This Court, considering the judgment rendered in Mohan Mahto (supra) is of the considered view that the application for appointment on compassionate ground is required to be submitted within a stipulated period, as applicable.
Therefore, this Court has no option but to reject the argument of learned counsel for the writ petitioner that 'at any times...' means the wish of the litigant to approach before the authority or the Court of law for consideration of case on compassionate ground as per the law laid down by Hon'ble Apex Court in Situ Sahu (supra) and further considering the period of limitation as has been fixed by the Coal India Limited, which is applicable also for the respondent-BCCL, the sister unit of the Coal India Limited.
20. Further, this Court is also required to refer herein the judgment rendered by Hon'ble Apex Court in Central Coalfields Limited through its Chairman and Managing Director and Ors. vs. Parden Oraon [2021 SCC OnLine SC 299] wherein, as would be evident from paragraphs-8 & 9, the Hon'ble Apex Court 19 has quashed and set aside the order passed by this Court wherein the appointment on compassionate ground has been provided without taking into consideration the fact that the period of 10 years has already lapsed from the date of death of bread earner of that case. Reference in the regard be made to paragraph nos. 8 and 9 of the judgment, which reads as under:
"8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family. It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a signficant lapse of time and after the crisis is over.
9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the Respondent's son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is 20 working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the Respondent's husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records, are also shown as dependents of the Respondent. It cannot be said that there was any financial crisis created immediately after Respondent's husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondent's son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondent's husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondent's son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing."
21. This Court, having discussed the factual aspect and legal issues, has considered the order passed by the administrative authority, whereby and whereunder the reference has been refused to be referred before the adjudicator on the ground of claim for appointment on compassionate ground is stale one as the same has been filed after delay of 27 years.
22. In this regard, it has been contended by learned counsel for the petitioner that the delay is not attributable to the writ petitioner since the petitioner has filed the application for compassionate ground 21 immediately after the death of his father and it is the respondents-management who have not offered appointment even the petitioner showed his willingness for doing surface job sometimes in the year 1996. But when no response was given by the management, the second son of the deceased-employee came forward by filing application for appointment on compassionate ground which also was not considered. At this juncture, the writ petitioner again made application sometimes in the year 2013 for revival of his claim, which according to writ petitioner accrued in the year 1996 itself.
23. The question arises even the writ petitioner has given option to do surface job sometimes in the year 1996 and the respondents have not given any positive response can it be a ground for revival of such claim after lapse of 17 years by filing second application in the year 2013.
24. The answer of this Court, in the facts and circumstances wherein involvement to provide appointment in case of death of deceased employee is concerned, is in negative reason being that even accepting that respondent-management has given no positive response, the writ petitioner ought to have approached the Court of law within a reasonable period 22 from the year 1996 or when the writ petitioner has opted for surface job but the writ petitioner chosen not to do so rather allowed his younger brother (second son of the deceased-employee) to pursue his claim and only after lapse of 17 years fresh application has been filed.
It is in these circumstances, the respondent- management has rejected the claim of the writ petitioner and if in that pretext the conciliation has failed and the appropriate government has refused to refer the dispute before the adjudicator considering the same to delayed one i.e., after lapse of 27 years, when the father of the writ petitioner has been found medically unfit, the same cannot be said to suffer from any error.
25. Another issue has also raised that under Section 10 of the I.D. Act, 1947, the dispute is only required to be referred before the adjudicator for its adjudication and even if there is delay the same can be issue of consideration by the adjudicator and in that view of the matter the order rejecting to make reference cannot be said to illegal but we are not satisfied with such argument reason being that when there is inordinate delay in pursuing the claim by raising the dispute under Section 10 of the I.D. Act, 1947 and even if the dispute will be referred before the adjudicator the same is bound 23 to be dismissed on the ground of period of limitation for filing application for consideration of case of employment under the provisions of NCWA since the period of limitation is carved out either six months, one years or one and half years, as the case may be.
The position of law is well settled that if the result is known and there is no likelihood of change of situation in the given facts of the case, making reference before the adjudicator will be nothing but a futile exercise.
Reference in this regard be made to the judgment rendered by Hon'ble Supreme Court in Escorts Farms Ltd. vs. Commissioner, Kumaon Division, Nainital, U.P and Ors., [(2004) 4 SCC 281] wherein Hon'ble the Apex Court has held at paragraph 64 as under:
"64.Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of land and some other transferees, we have found that the terms of government grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this regard appeal before this Court. Rules of natural justice are to be 12 followed for doing substantial justice and not 24 for completing a mere ritual of hearing without possibility of any change in the decision of the case on merits. In view of the legal position explained by us above, we therefore, refrain from remanding these cases in exercise of our discretionary powers under Article 136 of the Constitution of India".
In the instant case also, the application has been made after lapse of more than twenty years from the date of medical unfitness of the father of the petitioner (deceased) and as such in these circumstances there cannot be reference for adjudication of the dispute for employment on compassionate ground, the adjudicator is bound to reject the same by considering the issue of delay.
The aforesaid delay of more than twenty years is being admitted as per the material available on record by the petitioner even in such circumstances the matter will be referred before the adjudicator there is no likelihood of change of situation considering the fact that there is no delay of more than twenty years for adjudication of claim for appointment under NCWA in case of death of deceased-employee.
26. Further, question has been raised that the attributability of delay can well be adjudicated by the adjudicator if referred before the adjudicator, even on that ground if the delay of 25 years and now it is 32 25 years the question arises as to whether at such belated stage i.e., after lapse of more than three decades can a direction by issued by this Court to provide employment under NCWA.
The aforesaid question has well been considered by Hon'ble Apex Court in Central Coalfields Limited through its Chairman and Managing Director and Ors. vs. PardenOraon (supra) that even in a case of delay of ten years the Hon'ble Apex Court has declined to issue offer of appointment on compassionate ground.
27. This Court, having discussed the fact in entirety as also considering the order passed by the learned Single Judge, has found that the learned Single Judge considering the fact of delay of 27 years has declined to interfere with the with failure report dated 06.07.2017 and reference refusal order dated 02.11.2017, which according to our consider view requires no interference by this Court.
28. Accordingly, the instant intra-court appeal fails and is dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Alankar/ -