Bombay High Court
Smt. Geeta Wd/O Ramchandra Dhurvey And ... vs Director (Pers), Western Coalfields ... on 21 February, 2019
Author: R.K. Deshpande
Bench: R.K. Deshpande, Vinay Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.1843 of 2015
1. Smt. Geeta wd/o Ramchandra Dhurvey,
Aged about 48 years,
Occupation - Household.
2. Pawan s/o Ramchandra Dhurvey,
Aged about 26 years,
Occupation - Nil,
R/o Deolapar, Po. Deolapar,
Tehsil - Ramtek, District - Nagpur. ... Petitioners
Versus
Director (Pers),
Western Coalfields Limited,
Coal Estate, Seminary Hills,
Nagpur 440 006. ... Respondent
Shri Satish Kumar Pashine, Advocate for Petitioners.
Shri A.M. Ghare, Advocate for Respondent.
Coram : R.K. Deshpande & Vinay Joshi, JJ.
Dated : 21st February, 2019 Oral Judgment (Per R.K. Deshpande, J.) :
1. This petition challenges the communication dated 30/31-3-2013 issued by the respondent- Western Coalfields Limited by which the claim of the petitioners for ::: Uploaded on - 26/02/2019 ::: Downloaded on - 20/03/2019 21:13:00 ::: 2 wp1843.15.odt employment on compassionate ground has been rejected. The petitioners seek a direction to the respondent- employer to provide the employment to the petitioner No.2 on compassionate ground and to pay the monetary compensation with effect from 5-9-2014.
2. One Ramchandra Fagoji Dhurvey was working as a Loader in Patansaongi Mine of Western Coalfields Limited, Saoner Sub-Area. On 1-11-2004, he went missing after leaving the house for some work and did not return back. The complaint in writing was made on 15-11-2004 in the Police Station at Saoner about missing.
3. The employer- Western Coalfields Limited considered that Ramchandra Fagoji Dhurvey was absent without leave. An enquiry was conducted, and for willful absence on duty, the order of dismissal was issued on 15-2-2007 terminating his service from 16-2-2007.::: Uploaded on - 26/02/2019 ::: Downloaded on - 20/03/2019 21:13:00 ::: 3
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4. The petitioner No.1 is the widow and the petitioner No.2 is the son of Ramchandra Fagoji Dhurvey. They filed a civil suit for declaration about the civil death of Ramchandra Fagoji Dhurvey on 30-3-2012. The suit was decree on 1-11-2012 granting a declaration that Ramchandra Fagoji Dhurvey is dead.
5. An application was filed for employment on compassionate ground on 28-1-2013 before the employer as per the provisions of the National Coal Wage Agreement, Chapter -IX. The application was rejected on the ground that there was no date of death mentioned in the decree passed by the Trial Court. Hence, the petitioners filed a fresh application on 14-7-2014 for correction in the judgment, and on 5-9-2014, the judgment was corrected by granting a declaration that Ramchandra Fagoji Dhurvey died prior to 7-4-2005. Thereafter also, the claim of the petitioners for employment on compassionate ground was rejected and, therefore, this petition is filed.
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6. Shri Pashine, the learned counsel appearing for the petitioners, has placed reliance upon the decision of the Division Bench of this Court, rendered on 28-4-2015 in Writ Petition No.2315 of 2014 [Smt. Bhuribai W/o Nemsai Koshle and others v. The Sub-Area Manager, Umrer Sub-Area, Western Coalfields Ltd., Nagpur], wherein this Court directed providing employment on compassionate ground by enforcing Clause 9.5.0 of the National Coal Wage Agreement. Special Leave Petition No.21968 of 2015 preferred against this decision was dismissed on 16-12-2015, observing that the questions of law involved in the case are left open to be decided in appropriate case.
7. Shri Ghare, the learned counsel appearing for the respondent- Western Coalfields Limited, has relied upon the decision of the Apex Court in the case of Sail and another v. Awadhesh Singh and others, reported in (2001) 10 SCC 621, and it is urged that the provisions of the National Coal Wage Agreement are not enforceable under Article 226 of the ::: Uploaded on - 26/02/2019 ::: Downloaded on - 20/03/2019 21:13:00 ::: 5 wp1843.15.odt Constitution of India, and that in the absence of any specific date of death mentioned in the decree passed by the Trial Court, it cannot be presumed that the employee has died prior to the institution of enquiry against him by the Management. It is urged that the burden is upon the petitioners to establish the date of death and the correction to that effect made in the decree is the subject-matter of challenge in Writ Petition No.6252 of 2015 filed by the employer, which is pending before this Court.
8. In the decision of this Court delivered in Writ Petition No.2315 of 2014, referred to above, it was not the question raised or decided as to the enforceability of the National Coal Wage Agreement. It was a case where a specific date of civil death was declared by the Civil Court and on that basis the petition was allowed and the relief was granted. In the present case, the original decree passed by the Civil Court does not give a declaration of a specific date in respect of the civil death of the employee. The clarification issued is the subject-matter of challenge in a petition which is pending.
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9. In Paragraph 6 of the decision of the Apex Court in the case of Sail and another v. Awadhesh Singh and others, cited supra, it is held as under :
"6. Having regard to the submissions made by the learned counsel for both parties, the only question that crops up for our consideration is whether under the memorandum of agreement it is permissible for a dependant of the deceased to claim an appointment on compassionate ground, even when some other dependant of the deceased is already in service. Be it stated that the memorandum of agreement in question is not a statutory scheme and therefore would be unenforceable in an application under Article 226 of the Constitution of India. The memorandum of agreement for appointment on compassionate ground had been evolved by the employer so that on the sudden death of an employee his dependants would not be on the road as destitutes and can maintain themselves if an appointment is given to any one of the dependants of the deceased. Such a Scheme cannot at all be conceived if some other dependant of the deceased is already in service. The very purpose for which such Scheme had been evolved would get frustrated if a claim on priority basis is made by a dependant of the deceased notwithstanding the fact that the other dependant of the deceased is already in service. In this view of t he matter, we are unable to sustain the decision of the Patna High Court in the impugned judgments. It may be stated that a Bench of this Court has already taken a similar view 1 (1998) 9 SCC 485 : 1998 SCC (L&S) 1231 in the case of S. Mohan v. Govt. of T.N. 1 with which we have our respectful concurrence."::: Uploaded on - 26/02/2019 ::: Downloaded on - 20/03/2019 21:13:00 ::: 7
wp1843.15.odt Even if we assume that the employee has died prior to the year 2007, i.e. before the initiation of the enquiry by the Management against him for unauthorized absence on duty, the substantial period has lapsed. The rigor of pressing need for getting employment on compassionate ground cannot be said to subsist after lapse of so many years. We, therefore, do not find that the petitioner is entitled for enforcement of the terms of the agreement in the year 2019 at this belated stage.
10. The petition is dismissed. Rule stands discharged. No order as to costs.
(Vinay Joshi, J.) (R.K. Deshpande, J.)
Lanjewar, PS
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