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2010 DIGILAW 204 (CAL)

Santi Ruidas v. Coal India Ltd

2010-02-25

M.S.SHAH, PINAKI CHANDRA GHOSE

body2010
JUDGMENT 1. IN stead of hearing the stay application, we have taken up the appeal itself for final hearing with the consent of the learned Counsel for the parties by treating the same as on day's list. 2. THIS appeal is directed against the judgment dated 25th June, 2009 of the Learned Single Judge dismissing the writ petition of the appellant for compassionate appointment on the ground that the appellant being a female aged 17 years 11 months, 17 days on the date of death of her father was not entitled to keep her name on a live roster according to bipartite settlement. The appellant's father Panchu Ruidas, belonging to a backward class was an employee of the respondent company - Eastern Coal Fields Limited. Panchu died on 27th December, 1999. The appellant being the youngest of the three daughters of the deceased, who had left no male issue, made an application for compassionate appointment. The appellant, who has passed the secondary school certificate examination, was called for the Screening Test by letter dated 31st July, 2000 (Annexure P-2) and 6/7th December, 2000 (Annexure P3) and thereafter the appellant was called for the Medical Test on 4th January, 2001 by letter dated 23rd December, 2000 (Annexure P-4). Thereafter, the appellant was called by letter dated 29/30th April 2002 to meet the Personal Manager (Emp.) with all educational certificates in original. Since the appellant was not being offered any employment on compassionate ground, the appellant and her mother and workers' union went on making representations. Ultimately, the petitioner moved this Court by filing W. P. No. 1262 of 2008 which the respondents resisted on the ground of delay. Since the appellant was not being offered any employment on compassionate ground, the appellant and her mother and workers' union went on making representations. Ultimately, the petitioner moved this Court by filing W. P. No. 1262 of 2008 which the respondents resisted on the ground of delay. After overruling that objection, a learned single Judge of this Court (S.P. Talukdar, J.) disposed of the writ petition on 5.8.2008 with a direction to the appellant herein to make a fresh representation and a direction to the respondents to consider the matter "in its proper perspective." The appellant, accordingly, made a representation, but by the impugned communication dated 26th September, 2008 (Annexure - P-9) the appellant was informed that the appellant was 17 years 11 months and 17 days old as on the date of death of the appellant's father which took place on 27th December, 1999 and that the provision to keep the name of the dependant younger than 18 years on the live roster was applicable only to male dependants, but not to female dependants. The appellant was, accordingly, informed that her case for employment did not warrant any consideration. 3. AT the hearing of the writ petition filed by the appellant challenging the above communication, the respondent company relied upon Clause 9.5.0 of the Memorandum of Agreement, being the National Coal Wage Agreement - V arrived at the joint bipartite committee for the coal industry. Clause 9.5.0 reads as under: "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) In case of death due to mine accident, the female dependant would have the option to either accept the monetary compensation of Rs. 3,000/- per month or employment irrespective of her age. ii) In case of death/total permanent disablement due to causes other than mine 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. 2.000/- per month or employment. In case the female dependant is above 45 years of age she will be entitled only to monetary compensation and not to employment. 2.000/- per month or employment. In case the female dependant is above 45 years of age she will be entitled only to monetary compensation and not to employment. 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 15 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 on live roster, the female dependant will be paid monetary compensation as per rates at paras (i) and (ii) above. iv) Monetary compensation, wherever application, would be paid till the female dependant attains the age of 60 years. v) The rate of monetary compensation which stands at Rs. 2,000/- and Rs. 3,000/- per month as mentioned above would be reviewed w.e.f., 1.7.1996. vi) The rate of monetary compensation will be reviewed as and when new wage agreements are finalised. NOTE : In the case of TISCO, the matter would be settled at bipartite level. This would supersede all past agreements, circulars and instructions issued on the subject in so far as the issues are covered by the provisions hereinabove." (emphasis supplied) 4. IT was contended on behalf of the respondents that since the appellant was below the age of 18 years on the date of death of her father, (17 years 11 months 17 days) the appellant being a female dependant, her name was not required to be kept on the live roster. Accepting the above contention, the Learned Single Judge dismissed the writ petition. Hence this appeal. Learned Counsel for the appellant has submitted that on the date on which the appellant made her application for compassionate appointment, the appellant had already attained the age of 18 years and therefore, the appellant was eligible for compassionate appointment. He submitted that there is no disqualification to a female dependant being employed on compassionate ground, if she had completed 18 years of age and had not completed 45 years of age. Since the appellant had completed 18 years of age on the date of her application for compassionate appointment, she was eligible for compassionate appointment. He submitted that there is no disqualification to a female dependant being employed on compassionate ground, if she had completed 18 years of age and had not completed 45 years of age. Since the appellant had completed 18 years of age on the date of her application for compassionate appointment, she was eligible for compassionate appointment. In the alternative, it is submitted that in any view of the matter the appellant had already completed 17 years 11 months and 17 days on the date of death of her father and therefore, the appellant already having completed 17 years and 6 months of age, the appellant was required to be treated as 18 years of age for the purposes of her employment, especially when the employment was to be considered on compassionate ground. Lastly, it is submitted that in any view of the matter Clause (iii) of Para - 9.5.0 of the bipartite settlement, in so far as, it excludes the female dependant of the deceased workerfrom the benefit of Clause (iii) for the purpose of keeping the name alive on the live roster, is required to be read down in the light of the provisions of Articles 14, 15 and 16 of the Constitution which prohibit discrimination on the ground of sex. 5. LEARNED Counsel for the appellant has relied on several decisions of the Apex Court as also of this Court being (2006)2 Cal LJ (Cal) 15 (Smt. Kisto Dasi and Anr. v. Coal India Ltd. and Ors.), (2007) 6 Supreme 525 ( Mohan Mahtov. M/s. Central Coal Field Ltd. and Ors.), (2006)9 SCC 195 (Syed Khadim Hussainv. State of Bihar and Ors.) and also 2002 (2) Cal HN 557. Relying on the decision in "Smt. Kisto Dasi" (supra) reported in (2006)2 Cal LJ (Cal) 15, it is vehemently submitted that the respondents in the past have also practised gender discrimination and this Court has frowned upon such arbitrary discrimination on the ground of sex which is in violation of the constitutional provisions and various international covenants. 6. ON the other hand, Learned Counsel for the respondents has made the following submissions : Compassionate appointment is not a matter of right. Reliance is placed on the decision AIR 2009 SC 1153 (Para -14). 6. ON the other hand, Learned Counsel for the respondents has made the following submissions : Compassionate appointment is not a matter of right. Reliance is placed on the decision AIR 2009 SC 1153 (Para -14). It is also submitted that the settlement in question is not unilateral rule framed by the respondents, but it is a bipartite settlement arrived at between the Workers' Union of the respondent company and therefore, is binding on not only existing employees on the date of the settlement but also all those who aspire to be employees of the Company in future. It is submitted that equity cannot supplant law and that sympathy for the appellant cannot be allowed to supplant the law which prohibits the name of a female dependent below the age of 18 years to be kept on the live roster. Reliance is placed on the decision of the Bombay High Court in "S.C. Adhikary (Capt) and Ors. v. AIR-India and Ors." reported in 2001 (88) F.L.R. 793 (Para 15 and 16) and a decision of the Apex Court in "Raghunath Rai Bareja and Anr. v. Punjab National Bank and Ors." reported in (2007)2 SCC 230 (Para-29). Having heard the Learned Counsel for the parties, we find that the respondents have taken a very unreasonable stand in not considering the appellant's case for compassionate appointment merely on the ground that though the appellant had completed 17 years 11 months 17 days, she had not completed 18 years of age on the date of her father's death and that being a ,. female dependent of the deceased workman, the appellant was not entitled to have her name kept on the live roster, more particularly, when the appellant had already completed the age of 18 years, when the appellant was called by the respondents for Screening Test as per letter dated 31st July, 2000 and she was called for the Medical Test as per letter dated 6th December, 2000. 7. A female dependent in the age group of 18 to 45 years as on the date of death of the workman is eligible for compassionate appointment (Clause 9.5.0 ii). 7. A female dependent in the age group of 18 to 45 years as on the date of death of the workman is eligible for compassionate appointment (Clause 9.5.0 ii). Even if the dependent had not completed 18 years of age, but had been a male dependant of the deceased and above 15 years of age, then also the male dependent would have been kept on the live register for employment on completion of 18 years of age. The gender discrimination in clause 9.5.0(iii) is, therefore, writ large against female dependents who have completed 15 years but not completed 18 years of age on the date of death of the workmen inasmuch as their names are not allowed to be kept on the live roster for employment on completion of 18 years of age. 8. IN Savita Samvedi (Ms) and Anr. v. Union of India, (1996)2 SCC 380 , the Apex Court considered the question of gender discrimination by the Railways in respect of the benefits to be given to the dependents after the death of the deceased's employee and struck down the Circular letter of the Railway Board where married daughters were disentitled to have allotment of Railway quarters after the death of the railway employee in harness. So also, in Valsamma Paul (Mrs.) v. Cochin University and Ors., (1996)3 SCC 545 the Supreme Court made the following observations : "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 19.6.1993 acceded to CEDAW and rejterated 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." It would not be out of place to mention at this stage that the same National Coal Wage Agreement-V provides for compassionate appointment to dependents of a workman who is declared medically unfit to work. Smt. Kisto Dasi employed as a sweeper in the appellant company, was declared medically unfit to continue in employment. When her major daughter applied for compassionate appointment, the application was rejected on the ground that she was a married daughter, a divorcee. In the writ petition challenging the decision in Smt. Kisto Dasi and Anr. v. Coal India Ltd. and Ors. Ltd., (2006)2 Cal LJ (Cal) 15], Justice Pratap Kumar Ray examined in detail the provisions of National Coal Wage Agreement-V and examined them on the touchstone of the provisions of Article 14 of the Constitution of India, Sections 2(d) and 12 of the protection of Human Rights Act, 1993 and the Convention on the Elimination of all forms of discrimination against woman, 1979 (CEDAW) which read as under: "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 treating and other international 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. Article 2 - 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 : (a) .............................................. (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." The Court then held as under: "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. 20. Hence, on analysis of all those factors, this Court is of the view that only logic to define the word "dependent" 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." On the basis of the above reasoning this Court then struck down the prefix "unmarried" into 'unmarried daughter" in Clause 9.4.0 (iii) as arbitrary and unconstitutional. 9. 9. HAVING considered the relevant clauses of the National Coal Wage Agreement -V in the light of Articles 14 and 16 of the Constitution of India as well as the above provisions of the Protection of Human Rights Act, 1993 and CEDAW and the aforesaid decisions of the Apex Court and this Court, we have no hesitation in holding that the writ petitioner who had completed 15 years of age but not 18 years of age on the death of her mother who was an employee of the appellant- authority, was entitled to have her name kept on the live Register for employment upon completion of 18 years of age. 10. IN light of the above discussion, we allow this appeal. The order of the Learned Single Judge is set aside and the respondents are directed to consider the appellant's case for compassionate appointment without treating the appellant as disqualified on the ground that she was a female dependent and therefore, having not completed 18 years of age on the date of death of her father, the appellant was not eligible for compassionate appointment upon completion of 18 years of age. The appellant's case shall be considered within two months from today. At this stage, Learned Counsel for the respondents prays for stay of operation of this order. In the facts and circumstances of the case, the request is rejected, more particularly when we have already granted two months' time to consider the appellant's case. 11. SINCE the appeal is allowed, the connected application for stay (being CAN 10670 of 2009) has become infructuous and the same is also disposed of.