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Jharkhand High Court · body

2009 DIGILAW 1381 (JHR)

Fulmati Devi v. Bharat Coking Coal Ltd.

2009-11-06

D.G.R.PATNAIK

body2009
JUDGMENT: Heard counsel for the parties. 2. Facts of the petitioner’s case are as follows: - Petitioner’s husband, late Pokhan Mahato, while being in employment under the Respondent-B.C.C.L., working at the Katras Choitudih Colliery, had died in harness on 27.06.2001. On 19.09.2001, that is, within less than three months of the date of death of her husband, she submitted her application before the concerned authorities of her husband’s employer for giving her employment. Such claim was made on the basis of the terms of Agreement under the National Coal Wage Agreement, which was then prevailing as part of the service conditions of the employees of the B.C.C.L. On the date of her application, she was less than 45 years of age and had stated categorically in her application that she, alongwith her children, were entirely dependant on the earnings of her deceased-husband and she is in need of employment for the sustenance of her family. Though her application was received in the office of the concerned authorities of the Respondents on 28.09.2001, but she did not get any prompt response from the Respondents. About five months’ later, she received a letter dated-06.03.2002, from the Respondent No. 4 asking her to submit her option for monetary compensation in lieu of employment. The petitioner replied to the letter declaring that she would opt for employment only and not for monetary compensation. Notwithstanding her firm reply, the Respondents choose to declare by their letter dated-28.02.2002, issued more than five months from the date of her reply, that they had approved for payment of monetary compensation @ Rs.3,000/-per month. The petitioner was given to understand that her prayer for employment could not be conceded in view of the fact that she had crossed the age limit of 45 years. 3. Counter affidavit has been filed on behalf of the Respondents. 4. Heard the learned counsel for the petitioner and learned counsel for the Respondents. 5. Mr. R. A. Chamaria, learned counsel for the petitioner would submit that under the National Coal Wage Agreement-VI, which guided the service conditions of the employees of the B.C.C.L. and which was operative during the period 01.07.1996 to 30.06.2001, a specific clause vide Clause No.9.5.0 was included by way of service benefits to the employees. 5. Mr. R. A. Chamaria, learned counsel for the petitioner would submit that under the National Coal Wage Agreement-VI, which guided the service conditions of the employees of the B.C.C.L. and which was operative during the period 01.07.1996 to 30.06.2001, a specific clause vide Clause No.9.5.0 was included by way of service benefits to the employees. As per the provisions of the aforesaid sub clause (ii) of Clause 9.5.0 in case of death/total permanent disablement due to causes other than minor 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 dependent is above 45 years of age, she will be entitled only to monetary compensation and not to employment. Learned counsel explains that admittedly, the petitioner had submitted her application on 19.09.2001 i.e. within three months from the date of death of her husband, opting specifically for employment in place of her deceased-husband. Her age on the date of application, which was admittedly received in the office of the concerned authorities of the Respondents on 28.09.2001, was 44 years and three months, even as per the service records of the deceased-employee maintained by the Respondents themselves. Instead of promptly responding to the option made by the petitioner, the Respondents intentionally and deliberately delayed in taking a decision thereon by about five months and while taking such a decision, the Respondents had illegally and mala fidely insisted upon the petitioner to opt for monetary compensation in stead of employment even though she was less than 45 years of age. The petitioner refused to opt for monetary compensation and had insisted her option for employment, but again the Respondents delayed their final decision on the issue and had allowed to waste precious time only to ensure that the petitioner crosses the age of 45 years and thereby, to take advantage of the petitioner’s crossing the age limit stipulated in the aforementioned clause 9.5.0. Criticizing the acts of the respondents as arbitrary and mala fide and against the Rules, learned counsel prays that an order be issued directing the Respondent to offer employment to the petitioner and also to pay compensation for the entire period, which they had wasted by refusing to grant employment to her. 6. Criticizing the acts of the respondents as arbitrary and mala fide and against the Rules, learned counsel prays that an order be issued directing the Respondent to offer employment to the petitioner and also to pay compensation for the entire period, which they had wasted by refusing to grant employment to her. 6. On the other hand, supporting the stand taken by the Respondents to offer the petitioner monetary compensation only, Mr. A. K. Mehta, learned counsel for the Respondents would argue that the provisions introduced in Clause 9.5.0 of the N.C.W.A. VI was for the purpose of ensuring social security of the employees under which the female dependants of the deceased-employee was entitled to employment/monetary compensation. Though, it was left for the widow to exercise her other option but such option could be exercised only if the widow was less than 45 years of age on the date of death of the deceased-employee. If the female dependant is above 45 years of age, there being no option left to her, the only eligibility, which she may have, is for claim of monetary compensation and not employment. Learned counsel argues further, that though the petitioner had filed her application on 19.09.2001, the same had to undergo a scrutiny in terms of her age and other particulars as per the service records of the deceased-employee. Such scrutiny would invariably involve a reasonable period for completion and it is only after completion of the scrutiny that a decision can be taken on the application. In all such cases, the cut off date is the date on which the approval is given by the competent authority of the Respondents. Learned counsel adds that in the instant case, the final decision on the petitioner’s application could be taken only after completion of all the requisite scrutiny but by the date, when the matter was placed before the competent authority for final approval, the petitioner had already crossed the age of 45 years and as such, the petitioner could not be offered employment and in stead, she was justly offered monetary compensation instead of employment. Learned counsel argues further, that the grant of appointment on compassionate grounds, as has been held by the Supreme Court in the case of Punjab National Bank & Others-versus-Ashivini Kumar Taneja reported in (2005) 1 SLJ 30 (SC), is an exception and cannot be given as a bounty as they are to help the family of the deceased in stringent circumstances. 7. The arguments advanced by the learned counsel for the Respondents, though persuasive, but the same is neither convincing nor acceptable in view of the particular facts and circumstances of the present case. 8. There cannot be any dispute to the proposition that the very object of grant of compassionate appointment is to mitigate the hardship due to the death of the bread-earner in the family and such appointment should therefore, be provided immediately to redeem the family in distress. As has been observed by the Supreme Court in the case of State of Haryana and others-versus-Rani Devi & Another, reported in 1996 (3) S.L.J. 88 (SC), it need not be pointed out that the claim of person concerned for appointment on compassionate ground is based on the premise that he/she was dependant of the deceased-employee. Such claim, though cannot be upheld by strict application of Articles 14 or 16 of the Constitution of India, yet such claim is considered as reasonable and permissible on the basis of sudden crisis occurring in the family of such an employee. It is on the basis of such considerations that it is necessary for the authorities/employers to frame Rules and regulations or to issue such administrative orders for the purpose of engaging the dependants in service on compassionate grounds. Viewed in this context, appointment on compassionate grounds cannot be claimed as a matter of right. In the case of Life Insurance Corporation of India-versus-Asha Ramchhandra Ambedkar (Mrs.) & Another, reported in (1994) 2 SCC 718 , it was observed that the High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations, to make appointments on compassionate grounds when the Regulations framed in respect thereof do not cover and contemplate such appointments. In the case of Life Insurance Corporation of India-versus-Asha Ramchhandra Ambedkar (Mrs.) & Another, reported in (1994) 2 SCC 718 , it was observed that the High Courts and Administrative Tribunals cannot confer benediction impelled by sympathetic considerations, to make appointments on compassionate grounds when the Regulations framed in respect thereof do not cover and contemplate such appointments. It is in the background of such considerations that the Supreme Court in the case of State of UP and others-versus-Paras Nath, reported in (1998) 2 SCC 412 , has held that none of these considerations for grant of compassionate appointments can operate when the application is made after a long period of time. 9. The claim of the petitioner in the present case, is based on the terms of settlement made between the Respondents-B.C.C.L. and its employees by way of an Agreement known as the National Coal Wage Agreement-VI. The terms of Agreement constitute the service conditions of the employees of the B.C.C.L. It is a settlement made within the meaning of the provision of Section 18 (3) of the Industrial Disputes Act. Though introduced by way of beneficial provisions but the settlement is binding on both the parties, namely, the employer and the employee and continues to remain in force unless the same is altered, modified or substituted by another settlement. It follows therefore, that unlike in other establishments, the right to obtain appointment on compassionate grounds in the case of the dependants of the B.C.C.L.-employees, emanates from the settlement as defined in Section 2 (p) of the Industrial Disputes Act. Such right would be available to the eligible persons, subject, however to compliance of the conditions precedent contained therein, in the relevant clause. 10. In the case of Deonath Manjhi-versus-Central Coalfields Ltd., reported in 2008 (4) J.L.J.R. 619 , this Court had occasion to consider a similar issue, wherein the claim for compassionate appointment was demanded by the dependents of the deceased-employee. Explaining the circumstances under which, the National Coal Wage Agreement, was arrived at and elaborating its nature and the binding effect upon the parties to the Agreement, this Court has observed that the National Coal Wage Agreement, is a settlement between the meaning of Section 18 (3) of the Industrial Disputes Act, and is therefore binding on both the parties, the right to obtain appointment on compassionate grounds emanates from the settlement. 11. 11. Thus, since the beneficial provision has been included in the terms of settlement and it confers a right upon the dependents of the deceased-employee, as per the provisions of Clause 9.5.0 for claiming appointment on compassionate grounds, the terms of such provisions as envisaged in the Clause, have to be strictly adhered. 12. Even as conceded by the learned counsel for the Respondents, the provisions under sub-clause ii of Clause 9.5.0 declares that in case of death/permanent total disablement due to causes other than minor accident and medical unfitness under Clause 9.4.0. On a plain reading of the provisions of Clause 9.5.0 of the N.C.W.A.-VI, it would be manifest that if the female dependent is below the age of 45 years, “she will have the option either to accept the monetary compensation of Rs.3,000/-per month or employment.” (emphasis supplied)”. The age of such female dependant will have to be reckoned from the date on which she submits her option, if not from the date of death of the deceased-employee. There is nothing in the terms of Clause 9.5.0 or in any other analogous clause of the N.C.W.A. Agreement to suggest that a privilege is extended to the employer to fix any arbitrary date, according to its convenience, as a cut off date for taking a decision on the option exercised by the female dependent of the deceased-employee. 13. In the instant case, admittedly, the petitioner had submitted her application exercising her option for employment on 19.09.2001 i.e. within three months of the date of death of the deceased-employee. The service records of the deceased-employee as maintained by his employer, admittedly affirms that on the date of application, the petitioner was aged 44 years and 3 months. Thus, she being less than 45 years of age on the date of submitting her option for employment, it was incumbent upon the Respondents to consider the same promptly. The Respondents were left with no other option but to offer her employment, unless her candidature had suffered from any defect other than what is sought to be claimed by the Respondents in the instant case. From the letter dated-06.03.2002, which was admittedly, sent to the petitioner in response to her application opting for employment, it appears that the Project Officer of the Colliery had directed the petitioner to submit her option for monetary compensation instead of employment. From the letter dated-06.03.2002, which was admittedly, sent to the petitioner in response to her application opting for employment, it appears that the Project Officer of the Colliery had directed the petitioner to submit her option for monetary compensation instead of employment. The Project Officer had no right or business to issue any such directions to the petitioner by way of compelling her to opt for only one benefit and not the other. 14. From the facts narrated, it is obvious that instead of taking a prompt decision on her application, opting for employment, the concerned authorities of the Respondents had not only delayed taking a proper decision on the matter, but had also deliberately tried to dissuade the petitioner from making her demand for employment and in process, had caused undue delay in declaring their approval only to frustrate the petitioner’s claim, I am not convinced by any of the arguments advanced by the learned counsel for the Respondents made in his attempt to justify the delay in taking the decision. 15. The decision of the Supreme Court in the case of Punjab National Bank & Others-versus-Ashivini Kumar Taneja (Supra), was passed on the basis of the particular facts of the case and on the basis of the specific scheme adopted by the appellant-Bank for grant of employment on compassionate grounds. The Scheme, inter alia, had provided a privilege to the employer to consider the financial condition of the family. The discretion to consider the grant of compassionate appointment to the dependents of the employee, dying in harness had enabled the employer under the Scheme to consider the amount of family pension, Gratuity, Provident Fund, income to the family from other sources etc. before taking a decision to grant compassionate appointment. In the instant case, the terms of settlement as envisaged under Clause 9.5.0 of the N.C.W.A.-VI, does not offer any such discretion or scope for the employer to consider the financial condition of the family. The employer has to consider as to whether the conditions stipulated in the relevant clause of the N.C.W.A. Agreement are fulfilled or not. 16. In the light of the above discussions, I find merit in this writ application. Accordingly, the same is allowed. The employer has to consider as to whether the conditions stipulated in the relevant clause of the N.C.W.A. Agreement are fulfilled or not. 16. In the light of the above discussions, I find merit in this writ application. Accordingly, the same is allowed. The concerned authorities of the Respondents are directed to grant appointment to the petitioner on any post which they may deem suitable for her, within two months from the date of receipt/production of a copy of this order. The service period of the petitioner shall be computed from the date of her appointment. Furthermore, for the period, the petitioner was wrongly deprived of the benefits of employment, the Respondents shall pay compensation to her at a reasonable rate, calculated from the date of her original application till the date of granting her appointment. 17. Let a copy of this order be given to the learned counsel for the Respondents.