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2006 DIGILAW 797 (JHR)

Pradip Kumar Mehta v. Central Coalfields Limited

2006-07-05

DHANANJAY PRASAD SINGH, M.Y.EQBAL

body2006
ORDER 1. This appeal under Clause 10 of the Letters Patent is directed against the Judgment and Order dated 14.9.2004 passed in WPS No. 825 of 2004 whereby the learned Single Judge dismissed the writ application holding that the application for compassionate appointment was rightly rejected by the respondents on the ground of limitation. For better appreciation, the impugned judgment is quoted herein below: This application has been preferred by the petitioner against order No. POP 34/9.3.2/02/148 dated 19 th April, 2002, as contained in Annexure 7, whereby and whereunder, the application of petitioner No. 1 for appointment on compassionate ground has been rejected, being barred by limitation. The father of petitioner No. 1, who was in the services of M/s Central Coalfields Limited, died in harness on 9 th May, 1999. The petitioner at that time was minor. As such, on attaining majority, he applied for compassionate appointment on 11 th March, 2000. Admittedly as per the guideline, issued by M/s Central Coalfields Limited, six months time was prescribed at that time (in the year, 1999) for filing application for compassionate appointment. The petitioner having filed the application beyond the period of limitation, the application was rejected. Similar case fell for consideration before a Division Bench of this Court (Sushil Kumar Vengra v. The Union of India and Ors. decided on 29 th June, 2004 vide W.P.(S) No. 6589 of 2002), wherein the Court held that no application after the period of limitation can be accepted. Counsel for the petitioners submitted that there was a delay of less than a month and, therefore, the respondents should not have rejected the claim on the ground of delay. However, such submission can not be accepted as this Court has no jurisdiction to condone the delay, as held by a Division Bench of this Court in a similar case i.e. Sushil Kumar Vengra (Supra) In the facts and circumstances, this Court is not inclined to interfere with the order of rejection dated 19 th April, 2002. There being no merit, this writ petition is hereby dismissed. 2. The facts of the case lie in a narrow compass: The deceased workman late Baleshwar Mahto was in the service of the respondent-Central Coalfields Limited and working as Mining Sardar in the Pindara Colliery, Kuju Area. There being no merit, this writ petition is hereby dismissed. 2. The facts of the case lie in a narrow compass: The deceased workman late Baleshwar Mahto was in the service of the respondent-Central Coalfields Limited and working as Mining Sardar in the Pindara Colliery, Kuju Area. While he was on duty, he met with an injury and died on 9.5.1999 after 18 days of injury at Gandhi Nagar Hospital of the respondent-CCL. Since the appellant was minor at the time of death of his father and as such submitted application requesting the authorities to accept the same and he undertook to apply after attaining majority. On 11.3.2000 petitioner on attaining majority submitted application in the prescribed form and the said application was forwarded and sent to the Headquarter. The case of the appellant (writ petitioner) was that the Management decided to pay compensation to the dependant of the deceased but payment could not be made. The appellant, thereafter, submitted several representations to expedite the matter. Respondents however, communicated the decision by letter-dated 19.4.2002 by which application for compassionate appointment of the appellant was rejected on the ground of delay in submission of application. 3. Respondent-Central Coalfields Limited in the counter affidavit have inter alia stated that the appellant applied for compassionate appointment after the prescribed time limit and being belated one and further when now a considerable time period has expired, he is not entitled for the relief sought for in the writ application. It is further stated that deceased father of the appellant died on 9.5.1999 and application for compassionate appointment was filed on 11.3.2000 i.e. after expiry of Ten months as against the time prescribed for filing application is Six months from the date of death of the deceased as per the Circular dated 12.12.1995. 4. From the pleadings of the parties the undisputed facts, which emerge, are that the appellant was minor when his father died on 9.5.1999. It is also not disputed that after attaining majority the appellant applied for compassionate appointment on 11.3.2000 which is within time. 5. Respondent-C.C.L. issued Circular dated 12.12.1995 by which time limit for submission of application for compassionate appointment was fixed as Six months from the date of death of the deceased employee. It is also not disputed that after attaining majority the appellant applied for compassionate appointment on 11.3.2000 which is within time. 5. Respondent-C.C.L. issued Circular dated 12.12.1995 by which time limit for submission of application for compassionate appointment was fixed as Six months from the date of death of the deceased employee. The said Circular dated 12.12.1995 was revised and the period of Six months was enhanced to one year with effect from February 2000 by Circular dated 1.1.2002. Now, the only question that falls for consideration is as to whether the time prescribed for Six months or one year shall apply to such dependant also who were minor on the date of death of his father. 6. The right of compassionate appointment flows from the settlement time to time arrived at between the Management and the Workers-Union as contemplated under Section 2(P) of the Industrial Disputes Act. Such settlement is called National Coal Wage Agreement (in short N.C.W.A.) which is an award within the meaning of the Act and it has got the statutory force. There is provision under the N.C.W.A for giving compassionate appointment to the deceased employee who dies in harness. By Circular issued in the year 1999 a time limit of Six months has been prescribed from date of death of the employee for the purpose of filing application for compassionate appointment. Such circular issued by the Management also has got force of law. Now the question arises as to whether the limitation prescribed for submission of application for compassionate appointment will equally applicable to the dependants who are minor at the time of the death of his father. In my considered opinion the limitation prescribed in the Circular cannot and shall not be inconsistent with the provisions of the Limitation Act. 7. Section 6 of the Limitation Act 1963 lays down the provisions enabling the persons under disability to exercise their rights within a certain time. In my considered opinion the limitation prescribed in the Circular cannot and shall not be inconsistent with the provisions of the Limitation Act. 7. Section 6 of the Limitation Act 1963 lays down the provisions enabling the persons under disability to exercise their rights within a certain time. Section 6 reads as under: Legal disability-(1) Where a person entitled tom institute a suit or make an application for the execution of a decree is, at the time front which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified there for in the third column of the Schedule. (2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified. (3) Where the disability continues up the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified. (4) Where the legal representative referred to in Sub-section (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in Sub-sections (1) and (2) shall apply. (5) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died. 8. From bare perusal of the aforesaid provisions, it is manifestly clear that the period during which a person, claiming a right, was minor can be excluded from reckoning period of limitation for filing such application. Where the prescribed period of limitation expires before the cessation of disability, for instance, before attainment of majority, minor will, no doubt, be entitled to a fresh starting point of limitation from the attainment of his majority. 9. Where the prescribed period of limitation expires before the cessation of disability, for instance, before attainment of majority, minor will, no doubt, be entitled to a fresh starting point of limitation from the attainment of his majority. 9. Considering the provision of law laid down in the Act, a Clause has been incorporated in N.C.W.A. that in the event of death of an employee in harness the dependant is a minor then his name shall be entered in the live roaster and on attaining the majority his case for compassionate appointment shall be considered. In my considered opinion, therefore, period of limitation as prescribed in the Circular issued by the Management shall begin to run as against the minor only when he attains majority. 10. In the instant case, as noticed above, it has not been disputed by the respondents that the appellant was minor when his father died and after attaining majority he immediately applied for compassionate appointment. In other words three months after the death of the employee the appellant applied for compassionate appointment within Six months from the date of attaining majority which is strictly in accordance with the period of limitation prescribed in the Circular. 11. Besides the above, respondent-CCL is an authority within the meaning of Article 12 of the Constitution of India. The Government and the Public Authorities should adopt practice of not relying upon the technical pleas for the for the purpose of defeating legitimate claim of the citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well- founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a government or public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose resisting such a claim has become unavailable. This observation has been made by his Lordship-Bhagwati, J. in the case of Madras Port Trust v. Hymanshu International By its Proprietor v. Venkatadri . 12. Learned Single Judge relied upon the ratio decided by a Division Bench of this Court in the case of Sushil Kumar Vengra v. The Union of India and Ors. This observation has been made by his Lordship-Bhagwati, J. in the case of Madras Port Trust v. Hymanshu International By its Proprietor v. Venkatadri . 12. Learned Single Judge relied upon the ratio decided by a Division Bench of this Court in the case of Sushil Kumar Vengra v. The Union of India and Ors. (WPS No. 6589 of 2002, reported in 2005 (2) JLJR-585) and held that this Court has no jurisdiction to condone the delay. The facts of the before Division Bench in Sushil Kumar Vengra was that father of the writ petitioner was died on 27.7.1997 while he was employed as Security Guard in CCL. The writ petitioner who was the son of the deceased employee made application only on 19.8.98 i.e. more than one year after the date of death of his father, which was beyond the period of Six months prescribed in the Circular of the CCL. On these facts of the case, the Division Bench held that appointment could be made only in terms of the scheme/rules/circulars and the writ court does not have jurisdiction to direct the authority to go against its own scheme. Admittedly, therefore, the facts of that case and the facts of the instant case are totally different and dissimilar and therefore principle of binding precedence will not apply in the present case. 13. What constitutes a binding precedence has been decided by the Supreme Court in the case of Union of India and Ors. v. Dhanwanti Devi and Ors. their Lordships held: A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of, the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. Their Lordships further observed: Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent technique in the use of precedents. 14. In our considered opinion, therefore, learned Single Judge is not correct in law in holding that even if a minor fails to make application within Six months from the date of death of his father, his application cannot be entertained and is liable to be rejected on the ground of delay in submission of application. 15. For the aforesaid reasons, this appeal is allowed and the impugned judgment passed by learned Single Judge is set aside. Consequently, respondents are directed to take decision within a period of two months from the date of receipt/production of a copy of this order.