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2009 DIGILAW 345 (CAL)

Namita Alias Nami Bauri v. Coal India Ltd

2009-04-30

G.C.GUPTA

body2009
JUDGMENT 1. JAYDEV Bauri was an employee of the Eastern Coalfields Limited. He died young age at the age of 30 years on 12th February, 2004. His widow namita the present writ petitioner applied to the employer for necessary steps in order that she might be given an employment in the place of her deceased husband. It is not in dispute that the bipartite agreement provides for such employment to a dependent of the deceased employee. Therefore, the Eastern Coalfields Limited was under an obligation to provide employment to the widow of the deceased. The deceased was survived by his parents, the widow and three minor children. The widow was at that point of time only 25 years old. Annexure "p-4" to the writ petition goes to establish that the necessary records including forms were filled up by her in august, 2004. Annexure "p-5" to the writ petition is a letter addressed by the Deputy CMC of the Eastern Coalfields Limited addressed to the Central hospital by which the hospital authorities were requested to conduct audiometry test as a measure of pre-employment medical examination. Eastern Coalfields Ltd. ultimately by a letter dated 30/31 March, 2007 rejected the prayer of the petitioner for compassionate appointment on the ground that the records of the company did not reveal that the writ petitioner was the wife of the deceased Jaydev Bauri. However, on 22nd June, 2007 gratuity payable to the estate of the deceased was paid to the writ petitioner namita by a cheque dated 22nd June, 2007. The present writ petition was filed on 23rd July, 2007 claiming a writ in the nature of mandamus directing the authorities to give a suitable employment to the writ petitioner and further and/or other ancillary reliefs. The principal defence advanced in the affidavit-in-opposition filed in Court was as follows:- "i state that Joydeb Bauri was an employee of Eastern coalfields Ltd. However, the said Joydev Bauri during his lifetime had never disclosed that Namita Bauri, the petitioner herein, was his legally married wife. The petitioner herein has also not been a position to establish the relationship that the petitioner had with joydeb Bauri". 2. WHEN the writ petition was taken up for hearing this Court found prima facie evidence to show that the writ petitioner was the widow of deceased Jaydeb. The petitioner herein has also not been a position to establish the relationship that the petitioner had with joydeb Bauri". 2. WHEN the writ petition was taken up for hearing this Court found prima facie evidence to show that the writ petitioner was the widow of deceased Jaydeb. In that view of the matter to put the controversy at rest the order dated April 1st, 2009 was passed which reads as follows:- "the petitioner is directed to file a supplementary affidavit disclosing evidence that she is the legally married wife of the deceased workman within a week from date. Copy be served upon the respondents Eastern Coalfields Limited. Within a week thereafter, the petitioner, her mother-in-law and her children would appear before the General Manager, Bankola Area, E. C. L. Burdwan for interrogation. The General Manager, who shall interrogate the writ petitioner, her children and her mother-in-law, shall file a reply also indicating therein the substance of interrogation made by him. The matter shall be taken up for further hearing three weeks hence as "part heard matter". Pursuant to the aforesaid order General Manager of the company has interrogated the writ petitioner and her in-laws amongst others and the result of such interrogation by way of a report was furnished on April 15, 2009. The General Manager arrived at the following conclusion:- "based on documentary evidences produced by the petitioner and facts revealed from the interrogation, I am of the opinion that Smt. Namita Bauri @ Nami Bauri is the wife of Late Joydev Bauri, ex- Ex-UG Loader of Kumardihi A colliery of Bankola Area, who may be considered for offer of employment by ECL subject to police verification. " 3. THE report of the General Manager has been furnished before this Court by way of a supplementary affidavit affirmed by Mr. Chinmoyananda Gupta on 28th April, 2009. 4. MR. Majumder learned Counsel appearing for the Company submitted that the identity of the widow has now been satisfactorily established and necessary step have been taken to provide her with an employment. Mr. Ghosh, learned Advocate appearing for the writ petitioner, submitted that providing an employment to the writ petitioner simpliciter shall not serve the purpose of justice. A compassionate appointment is given with the object of saving the family from ruination due to the untimely death of the bread earner. Mr. Ghosh, learned Advocate appearing for the writ petitioner, submitted that providing an employment to the writ petitioner simpliciter shall not serve the purpose of justice. A compassionate appointment is given with the object of saving the family from ruination due to the untimely death of the bread earner. In this case the bread earner Jaydev died at the young age of 30 years leaving three minor children, all aged below seven years. The Company was informed about this untimely death. Necessary application was also made. Pre-employment medical examination was conducted pursuant to Company's letter dated 24th september, 2004 but thereafter on a flimsy ground which was factually incorrect the employment was refused by the letter dated 30/31st March, 2007. He submitted that the Company could have no manner of doubt as regards the relationship of the writ petitioner with her deceased husband jaydev because the Company did not hesitate to pay the dues on account of gratuity to the writ petitioner by the cheque dated 22nd June, 2007 which is an ample proof, according, to him, to show that the claim for compassionate appointment was rejected with an ulterior object in gross violation of the bipartite agreement. He, therefore, submitted that adequate compensation should be directed to be paid in addition to employment. Mr. Majumder, learned Advocate submitted that no such direction can be issued for the following reasons:- " (a) The writ petition was filed only in the year 2007. Therefore, the question of granting compensation from a date prior to that cannot arise; (b) The husband of the petitioner married but he never made any declaration to the respondent authorities that he had been married. He has never declared during his employment that he was having three sons and the records of the company did not reveal that he was married. Since it is a question of employment which will have a permanent liability on the company, the authorities have a right to satisfy 'themselves as regards the status of the petitioner that she was the actual wife of the deceased employee. (c) This is a question of implementation of a settlement i. e. NCWA and there is a provision that in case of any difficulty in interpretation or implementation of any provision of that NCWA the same shall be referred to JBCCI and whose decision shall be final and binding. (c) This is a question of implementation of a settlement i. e. NCWA and there is a provision that in case of any difficulty in interpretation or implementation of any provision of that NCWA the same shall be referred to JBCCI and whose decision shall be final and binding. (d) Since the writ petitioner approached the Hon'ble Court and the order passed by this Hon'ble Court that the General Manager, bankola area of the respondent-company, shall make an investigation as regards her identity, the order was duly carried out and the authority concerned was satisfied as regards her identity as the wife of the deceased employee. Therefore, there has been no mala fide intention on the part of the respondent-authorities in the matter of providing the compassionate appointment to the petitioner. The question of granting compensation in this situation does not arise. (e) Had the employment been given to the petitioner the company would have been in a position to get the service of the petitioner and the petitioner would have been paid her salary for rendering such service. Since there was no employer and employee relationship at any point of time between the company and the petitioner such payment of compensation would really mean payment of salary for the period the petitioner did not work. (f) The law of contract is equally applicable in a contract for employment in industrial establishment and if such compensation is paid to the petitioner in absence of any such contract the same would be impermissible in view of the decision of the Hon'ble supreme Court reported in AIR 1998 SC 1681 (Uptron India Ltd. v. Shammi Bhan and Anr.) as stated in Paragraph-9 thereof. (g) There is no prayer in the writ petition that for the delayed appointment the petitioner is entitled to compensation. On the contrary a writ of mandamus has been sought for so that she may be given compassionate appointment by creating a supernumerary post. (h) The petitioner would be entitled to get an employment on compassionate ground within the time that may be specified by the Hon'ble Court subject to fulfillment of pre-employment formalities inclusive of police verification. (i) So far as the question of hardship is concerned the petitioner has been paid the provident fund after the death of her husband. (h) The petitioner would be entitled to get an employment on compassionate ground within the time that may be specified by the Hon'ble Court subject to fulfillment of pre-employment formalities inclusive of police verification. (i) So far as the question of hardship is concerned the petitioner has been paid the provident fund after the death of her husband. She has also been paid gratuity and she is also being paid pension at the rate of Rs. 400 per month. Therefore, by not providing employment within a reasonable time it cannot be said that the petitioner was kept in distress and as such, she cannot have any claim for compensation by reason of such delayed appointment. " 5. MR. Ghosh, learned Advocate appearing for the petitioner replied, as regards the identity of the writ petitioner, by submitting that the company never had any doubt nor could have any reasonable basis to doubt that the writ petitioner was the widow of the deceased Jaydev bauri, which is amply proved by admission of Mr. Majumdar that the dues on account of gratuity, provident fund including pension owing to death of the deceased was paid to the writ petitioner. Mr. Ghosh contended that these payments could not have been made in the absence of satisfaction that the writ petitioner was the widow of the deceased jaydev. He added that the satisfaction which has now been arrived at by the General Manager could have been arrived at an earlier point of time if the Company had the requisite intention of giving effect to the agreed clauses which provide as follows:- "9. 3. 0. Provision of Employment to Dependants 9. 3. 1. Employment would be provided to one dependant of workers who are disabled permanently and also those who die while in service. The provision will be implemented as follows: 9. 3. 2. Employment to one dependant of the worker who die while in service. In so far as female dependants are concerned, the employment/payment of monetary compensation would be governed by para 9. 5. 0. 9. 3. 3. The dependant for this purpose means the wife/ husband as the case may be, unmarried daughter, son and legally adopted son. 3. 2. Employment to one dependant of the worker who die while in service. In so far as female dependants are concerned, the employment/payment of monetary compensation would be governed by para 9. 5. 0. 9. 3. 3. 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, brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the deceased and almost wholly dependent on the earnings of the deceased may be considered to be the dependants of the deceased. " 6. MR. Ghosh, therefore, contended that the defence that the relationship was not firmly established is a mere afterthought and, therefore, should be rejected outright. As regards the submission of Mr. Majurndar that reference should have been made to JBCCl, Mr. Ghosh drew my attention to the clause which reads as follows:- "13. 3. 0 The Managements of the Coal Companies on their part will not resort to unilateral interpretations of this agreement. In case of any doubt or difficulty in interpretation or implementation of any clause of this agreement, the same shall be referred to and settled by the JBCCI or a sub-Committee constituted by the JBCCI for the purpose in the spirit of mutual goodwill. " 7. HE submitted that this clause is restricted to interpretation of the clauses of the agreement and has no application insofar enforcing an obligation undertaken under this agreement is concerned. He, therefore, submitted that this submission of Mr. Majumdar is without any force altogether. 8. INSOFAR the submission of Mr. Majumdar that the question of granting compensation cannot arise, Mr. Ghosh relied on Section 21 of the Specific Relief Act, 1963. He drew my attention to sub-sections 1,2,3 and 4 of Section 21 of the Specific Relief Act, 1963 which provide as follows:- "21. Power to award compensation in certain cases.- (1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. (2) If, in any such suit, the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly. (2) If, in any such suit, the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly. (3) If, in any such suit, the Court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly. (4) In determining the amount of any compensation awarded under this section, the Court shall be guided by the principles specified in Section 73 of the Indian Contract Act, 1872. " Mr. Ghosh contended that writ Court is a Court of equity and, therefore, the principles and rules of Equity statutorily recognised in the specific Relief Act should be applied in giving effect to the contractual obligation. He submitted that even according to Mr. Majumdar law of contract is equally applicable to the case in hand. He submitted that the judgment relied upon by him does not militate against his contention that the Company should be directed to pay compensation in addition to employment. Paragraph-9 of the aforesaid judgment reads as follows:- "9. The general principles of the Contract Act applicable to an agreement between two persons having capacity to contract, are also applicable to a contract of industrial employment, but the relationship so created is partly contractual, in the sense that the agreement of service may give rise to mutual obligations, for example, the obligation of the employer to pay wages and the corresponding obligation of the workman to render services, and partly non-contractual, as the states have already, by legislation, prescribed positive obligations for the employer towards his workmen, as, for example, terms, conditions and obligations prescribed by the Payment of Wages Act, 1936; Industrial Employment (Standing Orders) Act, 1946; Minimum wages Act, 1948; Payment of Bonus Act, 1965; Payment of Gratuity act, 1972 etc. " 9. MR. " 9. MR. Ghosh added that as a matter of history one may recall that the writ of mandamus in the pre-constitutional times was contained only in the Specific Relief Act, Therefore, in providing remedy particularly under the writ jurisdiction, Court can always take assistance of the provisions contained in the Specific Relief Act. 10. AS regards the submission that there is no employer-employee relationship, Mr. Ghosh contended that the employer-employee relationship did not come into existence because of the wrongful stand taken by the company and the Company is now seeking to take advantage of its own wrong by alleging that no compensation can be granted because there was no employer-employee relationship. He submitted that such a stand should not be allowed by a writ Court. As regards the submission of Mr. Majumdar that there is no prayer in the writ petition claiming compensation, Mr. Ghosh drew my attention to Order VII Rule 7 of the Code of Civil Procedure which provides as follows:- "7. Relief to be specifically stated.-Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as If It had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. " 11. MR. Ghosh contended that it is not necessary to ask for general or other consequential relief which the Court may always grant for the purpose of doing complete justice. He added that in any event the omnibus prayer is already there in the writ petition and the Court has the jurisdiction to grant appropriate relief based on that. In the still further alternative he prayed for leave to amend the writ petition. 12. I have considered the rival submissions advanced by the learned Advocates. The only point which requires a decision is whether compensation in addition to employment should be granted because Mr. Mazumdar has already agreed to give employment to the writ petitioner within the time to be allowed by the Court. In deciding this point I am of the view that the submissions advanced by Mr. The only point which requires a decision is whether compensation in addition to employment should be granted because Mr. Mazumdar has already agreed to give employment to the writ petitioner within the time to be allowed by the Court. In deciding this point I am of the view that the submissions advanced by Mr. Ghosh are preferable, I am also of the view that merely directing the Eastern coalfields Limited to give compassionate appointment shall not serve the purpose of justice. The question which needs serious consideration is whether such a relief can be granted without a specific prayer to that effect. On merits I am convinced, for reasons already discussed, that the Company had wrongfully refused to give employment as a result whereof the benefit which would have accrued to the petitioner was denied. Therefore, the fact that the petitioner and her minor children including the parents of the deceased had to undergo a trying time is well established. I do not have to depend upon Section 21 of the Specific relief Act for the purpose of balancing the equities. Section 21 of the said Act was relied upon to show the principles of Equity. Identical provision was there in Section 19 of the Specific Relief Act, 1877 under which relief could be granted irrespective of whether any specific prayer was there or not. Identical provision is there in Section 111 (5) of the companies Act. The High Court has the jurisdiction to pass appropriate orders to do complete justice between the parties. Reference in this regard may be made to the decision in the case of Shangrila v. LIC, reported in 1996 (5) SCC 54 wherein the following view Was expressed:- "it is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief. " As regards the measure of compensation the learned advocate for the respondents was given widest possible opportunity to make his submission. All his submissions as a matter of fact have been recorded in verbatim. The reasons disclosed by him as to why such compensation should not be granted have been answered and it has been established that those reasons do not stand the test of reasonableness. As regards the measure of compensation the bipartite agreement itself under Clause 9. 5. 0 provides for payment of compensation at the rate of Rs. 2,000/- per month where the employment cannot be given because the petitioner is overage or is otherwise incapable. Therefore, I can safely direct the Company to pay compensation at the rate of Rs. 2,000/- with effect from one year after the death of the husband of the writ petitioner, because one year is a reasonable period within which the appointment should have been given. This in my view would be a safer course to follow which would also serve the purpose of justice. The submission that the writ petition was filed only in the year 2007 is without any merit because it was filed immediately after the company refused to perform its obligation, under the bipartite agreement, to give a compassionate appointment on a ground which to its knowledge was incorrect. 13. THE writ petition, in the circumstances, is disposed of by directing the respondent Nos. 2, 3 and 4 to give compassionate appointment to the writ petitioner within eight weeks from the date of communication of this order. The respondent Nos. 2,3 and 4 are also directed to pay compensation at the rate of Rs. 2,000/- per month from 1st March, 2005 until the date when the appointment is actually given to the writ petitioner. Such payment should be made within ten weeks from the date of communication of this order. The petitioner shall be entitled to costs assessed at Rs. 10,000/ -. 14. MR. 2,000/- per month from 1st March, 2005 until the date when the appointment is actually given to the writ petitioner. Such payment should be made within ten weeks from the date of communication of this order. The petitioner shall be entitled to costs assessed at Rs. 10,000/ -. 14. MR. Majumdar, learned Advocate, submitted that insofar as the direction for payment of compensation is concerned, his instructions are to pray for stay. Such prayer is considered and rejected.