Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 212 (JHR)

Buchi Kamin v. Bharat Coking Coal Limited

2009-02-10

AJIT KUMAR SINHA

body2009
Order The present writ petition has been preferred for the following reliefs:- (i) For quashing the order dated 1/ 6.8.2002 issued by respondent No.4 by which the said respondent has communicated the decision of rejection of the prayer of appointment of petitioner's son Upendra Bhuiya on compassionate ground. (ii) For commanding the respondents to reconsider the matter of appointment of the petitioner's son on compassionate ground in view of the clear provisions of National Coal Wage Agreement which has got a force of law and applicable so far the respondents are concerned. (iii) For commanding the respondents to calculate and pay the monetary compassion to the petitioner in view of the provisions of N.C.WA 2. The facts, in brief, as stated by the petitioner is set out as under:- The petitioner's husband died-in- harness on 26.4.1994 and after his death the petitioner approached the respondents requesting for compassionate appointment of her son Upendra Bhuiya who was a minor at that time. The respondents vide their letter dated 28.8.2000 asked the petitioner's son to submit the details with regard to late submission of his application. The petitioner vide its reply dated 7.9.2000 clarified the position stating that he had applied earlier and had informed vide his another letter dated 29.7.2004 that her son was minor and also enclosed the same alongwith the letter. One another query subsequently raised as to why the eldest son Yogendra Bhuiya whose name was mentioned in the file was not the claimant for compassionate appointment. The petitioner gave a reply indicating that Yogendra Bhuiya had died in the year 1997 itself and the second son being a minor all the documents were also filed for the same. Thereafter the respondents vide its impugned letter dated 1.8.2002 regretted (sic-rejected ?) the claim of compassionate appointment on the ground that it was at a belated case of 1994. 3. The main contention raised by the petitioner is that the very ground of belated application is incorrect since the petitioner had intimated everything in the year 1994 itself and also informed that her second son was minor. It is also submitted in the subsequent other letters, two queries were raised, which were duly answered and the first query was as to why the eldest son whose name was in the file has not been named as claimant. The second query was in case of minor file proof of it. It is also submitted in the subsequent other letters, two queries were raised, which were duly answered and the first query was as to why the eldest son whose name was in the file has not been named as claimant. The second query was in case of minor file proof of it. 4. The respondents in their contention have submitted that the application was highly belated and was made in the year 2000. 5. I have considered the pleadings and the rival contention and the fact remains that as per Clause 9.5.0 of N.C.W.A. the minor son has to be kept in a live roster and on attaining the majority he would have been considered for compassionate appointment. It appears that the respondents vide its letter dated 28.8.2000 addressed to the petitioner have raised certain queries on which the impugned order is based and that is why it has applied after six years and three months. The petitioner vide its reply dated 7.9.2000 has clearly assigned the reasons and indicated that it had given the written information to the Colliery Office on 29.7.1994, it also enclosed copy of the same and there is no denial of that fact in the subsequent letter. This fact will be evident vide letter dated 3.4.2001 wherein the only query raised is why it has not given the name of Yogendra Bhuiya who was the eldest son for compassionate appointment. This goes to indicate that the explanation was accepted by the respondents with regard to delay and a reply to that fact was given on 7.5.2001 followed by other letters. However, in the impugned order the claim of compassionate appointment has been recorded only on the ground that the same was a belated case of 1994. The law in this regard is well settled, that if the order impugned itself has been passed belatedly then the candidate or the claimant for compassionate appointment cannot be made to suffer for this and the period of limitation will be taken into consideration from the date of rejection. 6. The Hon'ble Supreme Court in a recent judgment concerning the Coal Company while considering an identical issue in Mohan Mahto's case (2007) 8 SCC page 549 [:2007(4) JLJR (SC)144] at paragraph17 held as under:- "17. 6. The Hon'ble Supreme Court in a recent judgment concerning the Coal Company while considering an identical issue in Mohan Mahto's case (2007) 8 SCC page 549 [:2007(4) JLJR (SC)144] at paragraph17 held as under:- "17. It is neither in doubt nor in dispute that the case for grant of compassionate appointment of a minor was required to be considered in terms of sub-clause (iii) of Clause 9.5.0 of NCWAV. In terms of the said provision, the name of the appellant was to be kept on a live roster. He was to remain on the live roster till he attained the age of 18 years. The respondents did not perform their duties cast on them thereunder. It took a unilateral stand that an application had been filed in the year 1999 in the prescribed form. For complying with the provisions of a settlement which is binding on the parties, bona fide or otherwise of the respondent must be judged from the fact as to whether it had discharged his duties thereunder or not. In this case, not only it failed and/or neglected to do so, but as indicated hereinbefore it took a unholy stand that the elder brother of the appellant being employed, he was not entitled to appointment on the compassionate grounds. Thus, what really impelled the respondent in denying the benefit of compassionate appointment to the appellant is, therefore, open to guess. We expect a public sector undertaking which is "State" within the meaning of Article 12 of the Constitution of India not only to act fairly but also reasonably and bona fide. In this case, we are satisfied that the action of the respondent is neither fair nor' reasonable nor bona fide." 7. Considering the aforesaid facts and circumstances of the case, this writ petition is allowed, without any order as to costs and the respondents are directed to consider the case of petitioner.