Calcutta High Court
Kajoli Bouri vs Coal India Ltd. And Ors on 7 January, 2014
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
WP No.4 of 2014
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
KAJOLI BOURI
Versus
COAL INDIA LTD. AND ORS.
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 7th January, 2014.
Appearance:
Mr. Partha Ghosh, Adv.
..for the petitioner
Mr. R. N. Majumder, Adv.
Ms. S. B. Roy, Adv.
..for the respondents
The Court : The short question which arises in this matter appears to have been covered in a previous Division Bench judgment in GA No.3117 of 2007, APOT No.518 of 2007 (Smt. Chhaya Singh Sardar vs. Coal India Limited) which has been relied on in a recent Division Bench order of March 8, 2013 in APOT No.88 of 2013, WP No.597 of 2012 (Eastern Coalfields Limited vs. Bipini Marandi & Ors.). However, since the earlier Division Bench judgment is not immediately available and the recent Division Bench order, understandably, does not deal with the aspect in any great detail, it is necessary to revisit the issue, 2 particularly, in the light a Single Bench order of August 21, 2013 in WP No.196 of 2013 (Smt. Bimli Majhian vs. Coal India Limited).
The petitioner's husband died while in employment with the Eastern Coalfields Limited in the year 1995. The petitioner applied immediately or shortly thereafter for being appointed on compassionate grounds. The petitioner's application was either not considered or it has been rejected. The petitioner now invokes Clause 9.5.0 of the National Coal Wage Agreement VI that would govern the petitioner's claim. It is necessary that the provision applicable to the petitioner's case be seen in its entirety:
"9.5.0 Employment/Monetary compensation to female dependant Provision of employment/monetary compensation to female dependants of workmen who die while in service and who are declared medically unfit as per Clause 9.4.0 above would be regulated as under :-
(i) In case of death due to mine accident, the female dependant would have the option to either accept the monetary compensation of Rs.4000/- per month or employment irrespective of her age.
(ii) In case of death/total permanent disablement due to causes other than mine accident and medical unfitness under Clause 9.4.0, if the female dependant is below the age of 45 years she will have the option either to accept the monetary compensation of Rs.3000/- per month or employment.
In case the female dependant is above 45 years of age she will be entitled only to monetary compensation and not to employment.
(iii)...
3
(iv)...
(v)..."
The provision makes the female dependant of a deceased workman or a workman who has suffered permanent disablement due to causes other than a mining accident entitled to certain benefits. In the event the female dependant is below the age of 45 years, she would have the option to either accept a monthly compensation of Rs.3000/- or employment. In the event the female dependant is above 45 years of age she would be entitled only to the monthly compensation and not to employment. The issue is as to the time when the right accrues for receipt of the compensation in terms of Clause 9.5.0 (ii) of the said agreement.
It is evident from the provision that there is a financial security which is afforded to the female dependant of a deceased workman and the right crystallises instantaneously upon the death of the workman. The immediacy has per force to be inferred upon recognising the provision to ensure that the female dependant of the deceased workman or the bereaved family is not washed away by the calamitous loss of the bread-earner. In the event the female dependant opts for employment and it is possible to offer employment, the employment has to be given within reasonable time of the application being made. If the female dependant entitled to apply for an appointment does not apply for the employment within reasonable time after the death of the workman, she would be deemed to have exercised the option to receive compensation which would be payable from the date of death or the month following the date of death of the workman. The right that inheres in the female dependant of the deceased 4 workman gives rise to a corresponding obligation or duty on the part of the coal company to offer and reach the monthly compensation to the female dependant. The right to the compensation is unconditionally immediate and is not dependant on any application for the purpose. Indeed, given the rationale behind the provision, it is the duty of the concerned coal company to both advise the dependant female member of a deceased workman of her rights and guide her to the appropriate option. A government company as an employer cannot be heard to say that a distressed family would be deprived of the benefit by reason of any belated application therefor. The appointment sought on compassionate grounds may be declined on account of delay or other cogent grounds; but the monthly compensation has to be paid with effect from the date of death of the workman or the month following the death.
In the order pertaining to Bimli Majhian, a distinction was made, on facts, for the rule as recognised in Bipini Marandi to not be applicable in that case. The applicant in Bimli Majhian had applied several years after the death of the workman and, in such circumstances, the rule in Chhaya Singh Sardar as recognised in Bipini Marandi was found to be inapplicable.
With respect, the provision does not make room for a distinction of the kind that has been made in Bimli Majhian. The object of the provision is to give immediate benefit to the family or the female dependant of a deceased workman. The plight of the workmen working for coal companies and the lack of education of the female dependants of such workmen cannot be lost sight of to bind them to a time frame to obtain the benefit that clearly accrues to the female dependant upon the death of the workman. The provision is for the benefit of the 5 bereaved family, it has to be construed liberally in the context of the unfavourable circumstances of members of families of workmen engaged at coal mines and an applicant cannot be deprived merely because of lack of knowledge or want of access to resources to approach the authority within reasonable time of the death of the workman.
It must be appreciated that the workmen engaged in the coal industry may even be members of families whose lands may have been lost to mining; they may be members of tribes who may traditionally have had unimpeded access to the land and the produce therefrom. They offer their services as workmen for want of better opportunities; or because a smarter set of brethren may have deposed them from their land. The State makes use of their physical labour which is rendered in hazardous conditions that occasionally lead to untimely deaths. It will then not be open to the government company employer in our constitutional scheme of things and the society that the Constitution aspires to put in place under Part IV of the suprema lex, to deny the benefit to the uneducated widow or other not so worldly wise female dependant on the hypertechnicality of a belated prayer for what is rightfully due to her. It is a matter of right where discretion has no place. The constitutional mandate to a superior court is to right the wrongs in the society; to eschew and discourage feudal practices; and, to strive to secure a social order for the promotion of the welfare of the people. It would be an affront to the Constitution to mock the exploited and evlove onerous conditions for the children of a lesser god to comply with before they are allowed the benefit mandated for them as of right. A Constitutional Court would fail in its duty in not reaching the dues to the 6 marginalised and disadvantaged. It is difficult to imagine there would be many more marginalised and disadvantaged in the society than the devastated female dependant of a deceased coal worker.
In any event, the exception to the rule as appears to have been carved out in Bimli Majhian should not detain this matter since there does not appear to have been any delay on the part of the present petitioner in applying for compassionate appointment immediately after the death of the concerned workman.
WP No.4 of 2014 is allowed by directing the Eastern Coalfields Limited to pay the compensation due to the petitioner under the aforesaid provision with effect from the month following the date of death of the petitioner's husband. The respondents will also remain liable to pay interest at the rate of 6 per cent per annum for the monthly payments if the entire payment is made within a period of four months from date; or else the interest payable will be at the rate of 10 per cent per annum.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) bp.