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2006 DIGILAW 178 (CAL)

KISTO DASI v. COAL INDIA LIMITED

2006-03-22

PRATAP KUMAR RAY

body2006
Pratap Kumar Ray, JJ. ( 1 ) IN this writ application the impugned order dated 12th June, 2002 issued by Personal Manager (Employment) of Eastern Coalfields Limited, Sanctoria, p. 0. Disergarh, Dist. Burdwan as addressed to the Secretary of Koyala Mazdoor congress, Sanctoria No. 9 Colliery is under challenge. By the said impugned order annexed at page 30 of the writ application the appointment of petitioner no. 2, Smt. Hamida Khatoon, daughter of petitioner No. 1 under the Social security Scheme in terms of provision of National Coal Wage Agreement-V providing job to the dependent of an employee who has been declared as physically unfit to work was rejected only on the ground that the petitioner No. 2 was the divorcee daughter and hence was not attracted under the clause of the said agreement for consideration of her case. The factual matrix of applicability of Social Security Scheme under the National Coal Wage Agreement-V and the fact that the petitioner No. 1 due to medically unfit to work accrued right to pray for job of a dependant, are not under challenge but those are admitted and undisputed. ( 2 ) ONLY consideration accordingly arise in this writ application as to whether the divorcee daughter could be denied the benefit of employment, though under the National Coal Wage Agreement-V aforesaid, the marital status of a son is not at all the subject-matter of consideration, namely, married or divorcee or unmarried while deciding the issue of appointment applying said scheme. In the case of a daughter only it is stipulated in the said agreement that she must be unmarried to avail the benefit of appointment in the event of the employee being medically unfit to work upon whom she is dependent. Under the National coal Wage Agreement-V, there is no provision for appointment of divorcee daughter. In this writ said National Coal Wage Agreement-V is under challenge on the ground that the provision of non-consideration of divorcee daughter on the reflection of keeping the provision of such appointment to a son of the employee concerned irrespective of his marital status, is ultra vires to the constitution leading to sex discrimination and thereby violates Article 14 of the constitution of India. ( 3 ) THE relevant provision of the National Coal Wage Agreement-V reads to this effect: -"9. 4. ( 3 ) THE relevant provision of the National Coal Wage Agreement-V reads to this effect: -"9. 4. 0 Employment to one dependant of a worker who is permanently disabled in his place: i) The disablement of the worker concerned should arise from injury or desease, be of a permanent nature resulting into loss of employment. and it should be so certified by the Coal company concerned. ii) In case of disablement arising out of general physical debility so certified by the Coal Company, the employee concerned will be eligible for the benefit under this clause if he/she is upto the age of 58 years. A joint committee will be constituted by the JBCCI for considering as to what constitutes general physical debility referred to hereinabove. This committee will submit its report by 31. 03. 1996. In case of difference of opinion the matter will be referred to JBCCI which may appoint an Umpire to decide the issue. The decision of ihe Umpire shall be binding on the parties. iii) The dependant for this purpose means the wife/husband as the case may be unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment younger brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the employee and almost wholly dependent on the earning of the employees may be considered. In so far as female dependants are concerned, their employment would be governed by the provisions of Clause 9. 5. 0. iv) The dependants to be considered for employment should be physically fit and suitable for employment and aged not more than 35 years provided that the age limit in case of employment of female spouse would be 45 years as given in Clause 9. 5. 0. In so far as male spouse is concerned, there would be no age limit regarding provision of employment. " ( 4 ) THE factual matrix of this case is very short, petitioner No. 1 was declared medically unfit to work and she applied to appoint her daughter, petitioner No. 2, on compassionate ground under the Social Security Scheme of the Organization as reflected in the National Coal Wage Agreement-V. It was considered and rejected only on the ground that the petitioner No. 2 is the divorcee daughter, hence, ineligible for consideration. The impugned decision of the writ application reads to this effect: - "ref. ECL :cmd:c -6b:empl:2002/459 Dated 12. 6. The impugned decision of the writ application reads to this effect: - "ref. ECL :cmd:c -6b:empl:2002/459 Dated 12. 6. 2002 To Sri Aparajit Banerjee Secretary, Koyala Mazdoor Congress Sanctoria No. 9 Colliery Post: Disergarh , district: Burdwan. Sub: Regarding providing employment to Smt. Hamida Khatoon a divorcee daughter of Kisto Dasi , Ex. Sweeper of CHA/ Kalla Hospital. Dear Sir, Please refer to your letter No. KMC:sec:hq:02:25 (A):dated 6. 5. 2002 regarding above noted subject. In this connection, you are requested to kindly note that Smt. Hamida Khatoon is a divorcee daughter of Smt. Kisto Dasi , Ex. Sweeper of C. H. Kalla. There is no provision for giving employment to the divorcee daughter as per the provision of NCWA. Hence her case has not been agreed for offer of employment by the competent authority. The said decision has already been communicated by CGM ( P & IR) to Sri Rakesh Kumar, Genl. Secretary vide letter No. ECL:cmd:c -6b:empl:99:317dated 11/15. 6. 99. This is for your kind information. Yours faithfully, Sd /- Personal Manager (Empl ). " ( 5 ) THE writ application subsequently after filing of writ petition was amended assailing the provision of the National Coal Wage Agreement-V aforesaid as arbitrary and sex discriminatory and a prayer has been made for consideration of the case of the petitioner No. 2 for appointment under said social Security Scheme stipulated under Clause 9. 4. 0 aforesaid in the National coal Wage Agreement-V by passing necessary direction and order. The grounds as set forth after amendment of writ application has been detailed in Paragraph-11 (d), (e), (f), (g), (h), (i), (j), (k) of this amended writ petition, which read to this effect: -" (d ). Your petitioners-State that in Clause 9. 3. 0 it is specifically mentioned that certain degree of relations will be provided with employment, but there is no indication of married daughter for the employment as dependant and the respondent-Company taking the advantage of non-inclusion of the relationship, namely, married daughter is depriving the married daughters from employment. It is not the first case that has come before the Hon'ble Court for Justice, but there are several cases are still pending for adjudication where the married daughters have come for getting the security as laid down in Social security Scheme, namely, N. C. W. A. (e) Your petitioners-State that in the instant case your petitioner no. It is not the first case that has come before the Hon'ble Court for Justice, but there are several cases are still pending for adjudication where the married daughters have come for getting the security as laid down in Social security Scheme, namely, N. C. W. A. (e) Your petitioners-State that in the instant case your petitioner no. 2 got married in the year 1985, but unfortunately was divorced by her husband in the year 1988 and since then your petitioner No. 2 is living along with the petitioner No. 1, being her mother. In the instant case your petitioner No. 2 is a divorcee and an divorcee means unmarried woman and, as such, the said Clause being 9. 3. 3 will not be applicant, but unfortunately the statutory body has deprived your petitioner No. 2 from employment by showing the Clause 9. 3. 3 wherein in the category of dependants the married daughter has not been included. (f) Your petitioner-States that an usual question has come up in the mind of your petitioners that as to why the married daughter will be deprived of from protection of Social Security Scheme in case of deceased or disabled employees. When the statutory organization has given guarantee to provide employment to the unmarried daughter, son and legally adopted son, widowed daughter/widowed daughter-in-law, son-in-law in that case it would be highly discriminatory and punishable if no employment is provided to the daughter, who is married. It is not a fact that immediately after the solemnization of marriage all the relationship in between the parents and the married daughter is defunct or ended, rather after the marriage the relationship particularly in our society, in between the married daughter and her parents becomes closeness and cloth with severe responsibility. (g) Your petitioners-State that the marriage is a social agreement being solemnized by the parties in presence of and with the consent of the parents of the respective parties. So, it is needless to think that after solemnization of marriage there will be a total segregation in between the daughter and her parents. (g) Your petitioners-State that the marriage is a social agreement being solemnized by the parties in presence of and with the consent of the parents of the respective parties. So, it is needless to think that after solemnization of marriage there will be a total segregation in between the daughter and her parents. (h) Your petitioners-State that in our Hindu Law, Custom and Vogue it is well established and prevailing practice that after the death of the parents, like brother and unmarried sister, the married sister is also equally claimant of the equal share of the properties left by the deceased father and mother, as the case may be. So, after the death of the deceased father or mother, as the case may be, who was an employee of a statutory organization, namely, Eastern Coalfields Ltd. , the married daughter will also be entitled to get employment as dependant. It is ridiculous that if there is no other dependant or claimant, in that event the respondent-company is releasing service benefits in favour of the married daughter, but while the question of providing employment comes, in that event they are refusing to give employment upon showing Clause 9. 3. 3. It is needless to mention that for the reason alone the Clause 9:3:3 of N. C. W. A. is liable to be struck out and/or deleted. (i) Your petitioners-State that apart from the Hindu Law as also prevailing practice and procedures, the Constitution of India in Articles 2 (b), 2 (c), 13,15, 21 has given equal right to the married and unmarried daughters with the sons. So, the discrimination in between the married and unmarried daughter in course of providing employment is violative of the provisions of the Constftution of India. Therefore, Coal India Ltd. and/or Eastern Coalfields Ltd. , being the statutory organization, has no right and authority to act in violation of the provisions guaranteed by the constitution of India. (j) Your petitioners-State that there is no reason to deprive the married daughter to provide her with an employment as the dependant accrued due to the death and disablement of her father. (k) Your petitioners submit that from the above discussions it is crystal clear that the respondent authorities by inserting Clause 9. 3. (j) Your petitioners-State that there is no reason to deprive the married daughter to provide her with an employment as the dependant accrued due to the death and disablement of her father. (k) Your petitioners submit that from the above discussions it is crystal clear that the respondent authorities by inserting Clause 9. 3. 3 for non-providing employment to the married daughters have given a fatal blow to the constitutional right of a citizen and not only that by depriving the married daughters the respondents have violated the principles of natural Justice and have created a waste example of discrimination in between the married daughters and other relations. Being as such, to protect those married daughters including your petitioner No. 2 from the arbitrary, mala fide, whimsical and discriminatory action of the respondents, the said Clause 9. 3. 3 of the National Coal Wage Agreement should be deleted and struck out. " ( 6 ) THIS writ application has been opposed by the respondent Nos. 2 to 6 by filing affidavit. Respondent Nos. 7 to 11 are the different Workers Union representing the different working group and they were added as party respondents by the order dated 13th July, 2005 passed by this Court. Those respondent Nos. 7 to 11 being the different Trade Unions did not file any opposition on issue of impugned Clause 9. 0. 4 sub-clause (iii), which has only limited job opportunity to a unmarried daughter but has kept the job opportunity of the son open irrespective of his marital status. In the affidavit-in-opposition it has been submitted that divorcee daughter in terms of the agreement is not entitled to get the benefit. In the opposition it has been asserted that as the petitioners are believer of Islam religion and accordingly, the petitioner No. 2 received 'denmohor' after divorce. Hence, she cannot be considered as dependant and to that effect the impugned decision was issued being the original decision dated 11 th January, 1999 addressed to the Chief Medical Officer, which reads to this effect: - "ref. ECL :cmd:c -6b:empl:99;36 Dated 11. 1. 99 To The Chief Medical Officer, C. H. Kalla Sub: Employment of Smt. Hamida Khatoon Divorced daughter of Smt. Kisto Dasi , Ex. Sweeper, C. H. Kalla. Dear Sir, We have again put up the case file of Smt. Hamida Khatoon alleged divorced daughter of Smt. Kisto Dasi , ex. ECL :cmd:c -6b:empl:99;36 Dated 11. 1. 99 To The Chief Medical Officer, C. H. Kalla Sub: Employment of Smt. Hamida Khatoon Divorced daughter of Smt. Kisto Dasi , Ex. Sweeper, C. H. Kalla. Dear Sir, We have again put up the case file of Smt. Hamida Khatoon alleged divorced daughter of Smt. Kisto Dasi , ex. Sweeper of your hospital who was declared medically unfit on 17. 10. 97. The competent authority has expressed his inability to consider the case that there is no scope of divorced daughter come under the provision of NCWA. This is for your information and please communicate the person concerned accordingly. Yours faithfully, Sd /- Dy . Ch. Personnel Manager (HQ ). " ( 7 ) ON issue of arbitrary clause providing a scope of appointment to a son irrespective of marital status and deprivation of such scope to the daughter, no categorical objection has been raised, save and except, that in terms of the bipartite agreement with the Labour Unions the issue was resolved, which cannot be the subject-matter of the writ for quashing or for any other direction. ( 8 ) HAVING regard to the rival contention of the parties, the issue is now required to be resolved. ( 9 ) THE root questions as are required to be answered in this writ are to this effect: - (1) As to whether a divorcee daughter would be denied the equal opportunity of employment on the application of an employee of the Coal india Limited who has been declared medically unfit, under the Social security Scheme only because of the martial status of the daughter. (2) When under the National Coal Wage Agreement-V and under the Social Security Scheme, son's marital status for providing employment under identical situation is not at all the subject-matter of consideration, whether marital status of the daughter, whether she is married or divorcee could be the subject-matter of rejection of the application resulting the violation of Articles 14,15 (3), 16 and 21 of the Constitution of India. (3) What relief could be granted by this Writ Court with reference to the clause of the National Coal Wage Agreement-V identifying the availability of the benefit only to the unmarried daughter on the reflection of the present case in hand. (3) What relief could be granted by this Writ Court with reference to the clause of the National Coal Wage Agreement-V identifying the availability of the benefit only to the unmarried daughter on the reflection of the present case in hand. (4) Whether the economic potentiality of the petitioner No. 2 as raised by submitting the availability of the 'denmohor' after divorce when was not taken as a point to reject the prayer of consideration of appointment by the impugned decision could be agitated by setting up a new ground, which was not factually determined and proved. (5) What relief could be granted? ( 10 ) HAVING regard to the rival contentions of the parties, the only point to be considered as to whether there is any arbitrary or discriminatory action denying the job to the divorcee daughter by not considering her in the dependant category in terms of National Coal Wage Agreement, which provides availability of a job on compassionate ground to one of the dependants due to untimely death of an employee before superannuation or due to declaration that employee became medically unfit to work. ( 11 ) FOR effective adjudication the provision of National Coal Wage agreement-V for appointment under 'dependant category' is required to be scanned and analyzed under anvil of Constitution of India, which reads to this effect: -"9. 4. 0. Employment to one dependent or a worker who is permanently disabled in his place. (i ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iii) The dependant for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment younger brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the employee and almost wholly dependent on the earning of the employees may be considered. 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 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. 0 above would be regulated as under: - (i ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (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 dependant 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 dependant is one live roster, the female dependant will be paid monetary compensation as per rates at paras (i) and (ii) above. " ( 12 ) THE impugned order in this writ application as passed in verbatim is already quoted which in nutshell speaks that the divorcee daughter is not entitled to get employment under said Clause 9. 4. 0 of National Coal Wage agreement-V. ( 13 ) HENCE, the only question involved as already referred to that whether divorcee daughter would be debarred for appointment only on the ground that in the National Coal Wage Agreement the appointment of a dependant so far as daughters are concerned is limited to unmarried daughter and under fulfillment of certain contingency prescribed to widowed daughter also. For consideration of the issue, the purpose of such provision in the National Coal Wage Agreement-V will project some light on the issue. The provision to provide a job to a dependant of a deceased employee who is declared medically unfit to work is only to safeguard the family from the economic stringency after physical invalidity of a sole bread earner. The purpose of providing such a provision has a root in the social welfare object of the society evolving from the constitutional mandate in terms of Articles 41 and 46 of the Constitution of India. Job under compassionate ground after death of the employee died-in-harness or physical invalidity of employee to work is a special type of provision emanated from social Justice concept. Job under compassionate ground after death of the employee died-in-harness or physical invalidity of employee to work is a special type of provision emanated from social Justice concept. Hence, dependency of t'he member of a family either son or daughter has no nexus with the marital status for being included as direct dependants but it has only nexus with economic foundation and potentiality. Though in the Coal Wage Agreement-V, the direct dependants whose names are mentioned thereto are not qualified with the word "having no source of income" but it is explicit in view of the purpose and object providing a job on compassionate ground. On the reflection of the economic condition of the family to sustain the livelihood of the dependant members, marital status has absolutely no function and consideration of marital status of dependant is per se contrary to the object of providing a job even if such marital status relates to son or the daughter, whatever it may be. A married son may be a dependant of the family if he has no source of income independently and at the same time a married daughter also could be a dependant, if husband of the married daughter has no independent source of income to maintain his wife resulting dependency upon the income of the deceased employee. The old age concept that a married daughter gets her economic support from the in-laws family now has been diluted in view of the socio-economic condition of the society. Even there are so many cases where a married daughter leaves with her husband in the family of her father under different situations and factors and thereby becomes the dependant of the father even after marriage. ( 14 ) HENCE, by generalizing the issue that the married daughters under any circumstances could not be the dependants of the deceased employee has no logic to stand. It depends upon consideration of the factors, namely, as to whether married daughter even after marriage was staying with the family of the father being a dependant of father's family on the circumstances to that effect. It depends upon consideration of the factors, namely, as to whether married daughter even after marriage was staying with the family of the father being a dependant of father's family on the circumstances to that effect. Hence, it requires an adjudication to identify the factors, namely, the economic factors of dependency to debar married daughter from the category of dependant and in that view of the issue, specification of the word "unmarried daughter" under the category of dependants per se has no basis to oust a married daughter even from the conto'ur of dependency. Mere ipso facto, until and unless, by effective adjudication it is ascertained that the married daughter gets financial support from the husband or from the in-laws family, it cannot disentitle her to remain under dependency category. ( 15 ) THERE are many customary laws prevalent in the society where even a married daughter after marriage stays in the family of the father as dependant along with the husband and the father is responsible to maintain them. Such custom is prevalent in Hindu society of Southern India where the husbands of married daughters due to custom of that particular caste and/or creed is bound to stay in the family of the wife as dependants of that family. Similarly is the general custom of the Indian Society that the married son with the wife lives in the family of the father but there are exceptions of such rule where a married son goes to live with the in-laws family being a dependant of that family. Hence, there is no scope to generalize a formula that as soon as the daughter is married, she leaves the family of the father and thereby is debarred to be considered as dependant member of the father's family. The entire issue could be identified to test the dependency not only on consideration of the marital status of the son and daughter but by testing the economic support as received while the employee was alive and social and economic factors to that effect. ( 16 ) THE case of a divorcee daughter is in higher forum than married daughter on the said angle of economic potentiality. ( 16 ) THE case of a divorcee daughter is in higher forum than married daughter on the said angle of economic potentiality. A divorcee daughter similarly in all cases cannot be considered as dependant of only of the in-laws family, until and unless, the economic factors are identified about her source of income and her social position and status in the in-laws family and/or in the father's family. Hence, it cannot be generalised also to that way that a divorcee daughter ipso facto cannot be a dependant of father's family, which is the essence of the impugned order in this writ application passed by the authorities of Coal India limited. On the contrary, it is a natural social phenomenon that divorcee daughter takes shelter of father's family. ( 17 ) THE issue can be now looked into in the angle of genetical science also to identify whether in between son and daughter there are any material differences. As per genetical configuration of human beings it is now scientifically established that in between the male child and a female child; there is no difference in the chromosome factors as out of 23 pairs of chromosomes, only 1 pair denotes sex and other 22 pairs denotes characteristic and features of the family of father and mother by carrying the genetical ingredients and qualities by method of permutation and combination to the span of 14 generations and thereby it results a formation of different quality in the chromosome cell identifying different features. The sex chromosome identify the sex, in the female child known as XX chromosome whereas in the male child it is XY chromosome. By contribution of the one X chromosome from the mother side and one X chromosome from the father side a female child is formed, whereas in a male child it is the contribution of one X chromosome from the mother side and one y chromosome from the father. This is a sum and substance of the biological phenomenon of human beings. Hence, in the angle of the chromosome factors, even, there is no distinguishing features, save and except the sex chromosome as other chromosomes in respect of male child and/or female child is formed on contribution of The family genes from father's side and mother's side as well contributing genetical qualities by hereditary factors. Hence, in the angle of the chromosome factors, even, there is no distinguishing features, save and except the sex chromosome as other chromosomes in respect of male child and/or female child is formed on contribution of The family genes from father's side and mother's side as well contributing genetical qualities by hereditary factors. Hence, genetically a male child and a female child cannot be distinguished except the sex chromosome by holding that female child is not inheriting the family qualities and culture, which are imbedded in the genetical fibres representing as ladder like helix of other 22 pairs of the chromosomes. ( 18 ) HENCE, from the biological angle, a daughter of a family retains her all hereditary qualities even after marriage while she gets a status of married daughter and even after divorce when she gets a status of divorcee daughter. Hence, there is no logic even on the genetical angle to favour a son irrespective of his marital status and an unmarried daughter by identifying her as dependant, on exclusion of married daughter or divorcee daughter. Genetical science accordingly does not support such identification. ( 19 ) A divorcee daughter's maintenance after divorce, if she has no income of herself or she is not being maintained by the in-laws families, naturally falls to the father's family and accordingly, she is brought to the family of the father after divorce. This is a moral and societal obligation on the part of biological parents to maintain a divorcee daughter who has no source of income to maintain her livelihood. A divorcee daughter under the law, save and except, a decree of permanent alimony or maintenance under Section 125 of Criminal Procedure code, from the husband has no other legal right to claim maintenance. In absence of such Court's order granting maintenance, naturally, the moral obligation is casted upon the biological parents to maintain the divorcee daughter and thereby she becomes a dependant of the biological father or mother, as the case may be and after death or physical inability to work of/by the father or mother, as the case may be, naturally she could be considered as dependant to claim benefit under social security provision. Hence, in that angle also, there is no logic to debar a divorcee daughter in providing a job under compassionate ground on the death of her mother or/in case she becomes physically incapacitated to work. Hence, in that angle also, there is no logic to debar a divorcee daughter in providing a job under compassionate ground on the death of her mother or/in case she becomes physically incapacitated to work. ( 20 ) HENCE, on analysis of all those factors, this Court is of the view that only logic to define the word "dependant" of a deceased employee or an employee declared as incapacitated to work in relation to the male child and/or female child of that employee would be the consideration of economic point of view by identifying the social liability as existing prior to death of that employee in respect of those dependants male or female child and the economic condition of the male and female child but it cannot be ipso facto on the basis of marital status of male or female child. ( 21 ) THE provision of National Coal Wage Agreement providing scope of appointment of son and daughter if is looked into in the constitutional angle under the anvil of Article 14 of the Constitution of India, another result would follow, which will stair the face of the Court on discrimination policy. A son under the said agreement is not qualified with any prefix "unmarried" similar to the case of the daughter with a prefix "unmarried". Hence, from the said agreement it is explicit that marital status of a son, whether married or unmarried, is not a factor to be looked into while considering the issue of dependency, whereas marital status of a daughter is considered to identify the issue of job appointment under dependant category, this is perse an arbitrary and discriminatory provision. It is nothing but a sex discrimination to deny a married daughter and similarly a divorcee daughter whose marriage tie has been ceased in the angle of Protection of Human Rights Act, 1993 and International Covenant "convention for elimination of all forms of Discrimination against Woman", in short, which is called as "cedaw" as ratified by United Nation Organization on 18th December, 1979, wherein Government of India was a party State of such resolution being an active participant by ratifying the same on 19th September, 1993. The relevant provision of the Protection of Human Rights Act, 1993 and the said "cedaw" reads to this effect: -"protection of Human Rights Act, 1993. 2 (d ). The relevant provision of the Protection of Human Rights Act, 1993 and the said "cedaw" reads to this effect: -"protection of Human Rights Act, 1993. 2 (d ). "human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by Courts in India. 12. Functions of the Commission.- The Commission shall perform all or any of the following functions, namely: (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (f) study treaties and other international instruments on human rights and make recommendations for their effective implementation. Convention on the Elimination of all Forms of Discrimination against Women (CEDAW ). 1979. Article 1. For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality or men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Article2. States parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination. Article 3. States parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. Article 13. Article 3. States parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. Article 13. States parties shall take all appropriate measures to eliminate discrimination against women in other areas of economic and social life in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) the right to family benefits; (b)The right to bank loans, mortgages and other forms of financial credit; (c) The right to participate in recreational activities, sports and all aspects of cultural life. " ( 22 ) THE issue is not at all res Integra. The Apex Court of India has already considered the issue to identify the point as to whether a married daughter would be disentitle to get a job under died-in-harness category and/or to be allotted with a railway quarter after the death of the deceased employee in the case Savita Samvedi (Ms) and Anr. v. Union of India and Ors. , reported in 1996 (2)SCC 380 , where the Apex Court held the action as discriminatory by striking down the circular letter of Indian Railway issued by the Railway Board dated 11th August, 1992, where married daughters were disentitled to have allotment of railway quarter after untimely death of father. Similarly in the case Valsamma paul (Mrs.) v. Cochin University and Ors. , reported in 1996 (3) SCC 545 , the Apex court held in para 26 to this effect: -"all forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights. Convention for Elimination of all forms of Discrimination against Women (for short, 'cedaw) was ratified by the UNO on 18. 12. 1979 and the Government of India had ratified as an active participant on 19. 6. Convention for Elimination of all forms of Discrimination against Women (for short, 'cedaw) was ratified by the UNO on 18. 12. 1979 and the Government of India had ratified as an active participant on 19. 6. 1993 acceded to CEDAW and reiterated that discrimination against women violates the principles of equality of rights and respect for human dignity and it is an obstacle to the participation on equal terms with men in the political, social, economic and cultural life of their country; it hampers the growth of the personality from society and family, making more difficult for the full development of potentialities of women in the service of the respective countries and of humanity. " ( 23 ) EVEN in the contractual matters having a provision to debar the marriage of a female child from getting the benefits of the father's family and/or to enjoy any service benefits of herself, the issue was answered to this effect that there should not be any contract as would restrain the marriage. This issue was answered by Lord Buckley sitting in the Chancery Division in the case Re: mishelham's Will Trusts, reported in 1963 (2) All. E R 188, the relevant para reads to this effect: -"i turn now to the question of public policy. A contract which is in general restraint of marriage is unenforceable on the grounds of public policy, whether it contains an express undertaking that the subject will not marry, or whether it is merely a contract of a kind which, on financial or other grounds, will tend to discourage the subject from marrying. Thus, in Baker v. White (1) a widow who gave a bond of 200 payable in the event of her remarrying was held to be entitled to have such bond delivered up and cancelled; in Laws v. Peers (2) where the defendant had convenanted not to marry any women other than the plaintiff and to pay the plaintiff 1000 in the event of his carrying any other woman, he was held not to be liable to make the payment, notwithstanding that he had married another woman on the ground that the convenant was illegal as being a restraint on matrimony. See also Hartley v. Rice (3), where the plaintiff had entered into a wager with the defendant that the plaintiff would not marry within six years. See also Hartley v. Rice (3), where the plaintiff had entered into a wager with the defendant that the plaintiff would not marry within six years. The first and third of these cases were cases which did not involve a direct obligation not to marry, but tended, for financial reasons, to discourage marriage, and they were decided on the ground that for that reason the Court would not countenance the contract because it offended against the public interest. " ( 24 ) EVEN under Section 26 of the Indian Contract Act it provides "every agreement in restrain of the marriage of any person, other than a minor is void'. The Apex Court of India considered the issue in the case Air India v. Nergesh meerza and Ors. , reported in 1981 (4) SCC 335 , a judgment of three Judges Bench wherein Regulation 46 (l) (c) of the Air India Employees Service Regulations was under challenge under the anvil of constitutional validity, which provided that antirhostess on attaining the age of 35 years or on marriage if is taken place within four years of service or on first pregnancy, whichever occurs earlier will have to retire. This provision relating the retirement issue on marriage and/or first pregnancy was held as unconstitutional being violative of Article 14. ( 25 ) HAVING regard to the aforesaid settled legal position of taw as well as constitutional framework of India in terms of equality clause of the Indian constitution, this Court is of the view that the provision of National Coal Wage agreement restricting the consideration of only unmarried daughters as dependants and thereby otherwise exclusion of married daughters and/or divorcee daughters from the category of dependants is nothing but a sex discrimination, arbitrary and without any logic. It is further held that same is not satisfying the basic concept and philosophy of providing a job to a dependant, which nevertheless is dependant upon marital status of a male or female child of the deceased employee or employee incapacitated to work by medical test. ( 26 ) FURTHERMORE from the bare reading of the Clause 9. 4. It is further held that same is not satisfying the basic concept and philosophy of providing a job to a dependant, which nevertheless is dependant upon marital status of a male or female child of the deceased employee or employee incapacitated to work by medical test. ( 26 ) FURTHERMORE from the bare reading of the Clause 9. 4. 0 sub-clause (iii)of the National Coal Wage Agreement-V it appears that in the event of nonavailability of the direct dependants, namely, wife/husband as the case may be, unmarried daughter, son and legally adopted son, the employment to the younger brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the employee and almost wholly dependent on the earning of the employees may be considered. Hence, it appears that the widowed daughter and even the son-in-law are also eligible subject to the condition as stipulated thereto. If the issue is considered on reflection of said sub-clause (iii), this Court is not finding any logic that when a widowed daughter residing with the employee being solely dependent when is included under the category of dependant, then why not the divorcee daughter under identical situation would not be entitled to claim status of dependant for employment under said category. The status of widowed daughter and a divorcee daughter so far as their dependency is concerned has no distinguishing features. Like the widowed daughter, the divorcee daughter also becomes the member of the family of the employee in view of cessation of marriage tie. Hence, there is no logic to debar a divorcee daughter from getting employment under the said scheme. Having regard to all these issues, accordingly, the provision of the National coal Wage Agreement-V, which has restricted the consideration of the dependency only of the unmarried daughters and thereby impliedly excluded the scope of consideration of married daughters and/or divorcee daughters, are ultra vires to the Constitution of India in terms of Article 14 of the Constitution of India and same is on breach of Sections 2 (d) and 12 of the Protection of human Rights Act, 1993 and the infringement of convention "cedaw" as already quoted above. Hence,, the word "unmarried" as prefixed with the word "daughter" in the said Clause 9. 4. Hence,, the word "unmarried" as prefixed with the word "daughter" in the said Clause 9. 4. 0 sub-clause (iii) of said National Coal Wage agreement-V is hereby declared as ultra vires to the Constitution of India in terms of Article 14 of the Constitution of India and accordingly it is struck down and the word 'unmarried' as prefixed with the word 'daughter' in the said case stand deleted. The respondent Coal India Limited is directed to issue a circular in terms of the observation of this Court relating to the said clause and to make a wide circulation to their employees. As a consequence thereof, the impugned decision of this writ application annexed at pages 27 and 30, whereby the case of petitioner No. 2 has been rejected only on the ground of her status as divorcee daughter, is also set aside and quashed. The respondents are accordingly directed to consider the case of petitioner No. 2 de novo on deciding the issue on the economic stand point by identifying her economic condition and factor of dependency upon her mother, petitioner No. 1 when she was declared incapacitated to work by hearing the petitioners within a period of one month from this date and to pass a reasoned decision, which to be conveyed to the petitioners within a week thereafter. Question Nos. 1,2,3 and 5 is accordingly answered in favour of the petitioner. Issue No. 4 as raised is answered against the respondent in view of the settled legal position that there is no scope to supplement the impugned decision in the form of an affidavit when same is assailed in the Court proceeding. Reliance may be placed to the judgment passed in the case Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, new Delhi and Ors. , reported in AIR 1978 SC 851 , a judgment of Constitution bench as has been followed in the case Chandra Singh and Ors. v. State of rajasthan and Anr. , reported in 2003 (6) SCC 545 , a judgment of three Judges bench. Writ application accordingly is allowed to that extent.