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2012 DIGILAW 933 (JHR)

Satyendra Bhuinya v. Bhart Coking Coal Ltd.

2012-07-05

ALOK SINGH

body2012
ORDER Petitioner has approached this Court under Article 226 of the Constitution of India assailing the order dated 28.11.2005 thereby rejecting the application of the petitioner seeking compassionate appointment. 2. Brief facts of the present Case interalia are “the petitioner's father late Bhunwa Bhuinya was working as Time Rated Worker (TRW), who died on of the 24.03.2000 leaving behind 03 sons, 02 daughters and widow. Undisputedly, Smt. Jasamatiya Kamin, wife of late Bhunwa Bhuinya and mother of the present petitioner, was and is still in the employment of Bharat Cokinng Coal Ltd. As per Annexure – 5, as on 21.12.2000, the petitioner was 17 years of age, in other words, the petitioner was hardly 16 years on 24.03.2000 when his father late Bhunwa Bhuinya expired in harness. The petitioner on attaining the age of majority i.e. 18 years in the year 2002, has applied for the compassionate appointment on 24.06.2003. The petitioner was called for an interview along with other candidates vide Annexure – 7 dated 29.08.2004. Vide letter dated 27.12.2004 (Annexure-8 to the writ petition), Bharat Coking Coal Ltd. has written to the Block Development Officer to verify the genuineness of the death certificate of late Bhunwa Bhuinya. Thereafter, the application seeking compassionate appointment was rejected by the Respondents vide letter dated 28.11.2005 (Annexure – 11 to the writ petition) stating that, as per office circular No.1195-1270 dated 24.01.2004 of the department, the petitioner should have applied for compassionate appointment within 30 days from the date of death of his father, while the petitioner has applied after almost three years from the date of death of his father”. 3. The Respondents have filed counter affidavit stating therein that since the father of the petitioner has expired on 24.03.2000 and the petitioner has applied for compassionate appointment on 24.06.2003, after almost 03 years and 03 months, therefore, the application was beyond the time limit, as fixed by the circular of the Respondents dated 24.01.2004. 4. It has been further asserted by the Respondents that even prior to the circular dated 24.01.2004, time limit was one and half years to move the application seeking compassionate appointment. 5. I have heard Mr. Ratnesh Kumar, learned counsel for the petitioner and Mr. Amit Kumar Sinha, learned counsel for the respondents and have carefully perused the records. 6. Hon'ble Apex Court in the Case of Bhawani Prasad Sonkar Vs. 5. I have heard Mr. Ratnesh Kumar, learned counsel for the petitioner and Mr. Amit Kumar Sinha, learned counsel for the respondents and have carefully perused the records. 6. Hon'ble Apex Court in the Case of Bhawani Prasad Sonkar Vs. Union of India and Ors., reported in (2011) 4 SCC 209 , in para 20 has observed as under :- “20. Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind: (i) Compassionate appointment cannot be made in the absence of rules and regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment dehors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/ incapacitated employee's family at the time of his death or in capacity, as the case maybe. (iv) Compassionate employment is permissible only to one of the dependents of the deceased/ incapacitated employee viz. Parents, spouse, son or daughter and not to a relatives, and such appointments should be only to the lowest category that is Class III and IV posts. 7. Copy of the Memorandum of Agreement of the National Coal Wage Agreement dated 23rd December, 2000 is handed over to the Court by the learned counsel for the petitioner to say that there is scheme to provide compassionate appointment to the dependent of the employee. 8. There is no dispute that dependent of the employee can apply for the compassionate appointment under clause 9.3.3. As per Clause 9.3.3, the dependent includes wife/ husband, unmarried daughter, son and legally adopted son and if no such direct dependent is available then brother, widowed daughter/ widowed daughter-in-law or son-in-law residing with the deceased and are fully dependent on the earnings of the deceased are also entitled for the compassionate appointment. 9. As per Clause 9.3.3, the dependent includes wife/ husband, unmarried daughter, son and legally adopted son and if no such direct dependent is available then brother, widowed daughter/ widowed daughter-in-law or son-in-law residing with the deceased and are fully dependent on the earnings of the deceased are also entitled for the compassionate appointment. 9. Having perused Chapter -IX and keeping in mind observation of Apex Court in the Case of Bhawani Prasad Sonkar (Supra) I have no hesitation to hold that legal heir, who is not the dependent of the deceased employee, shall not be considered for the compassionate appointment and only such legal heir shall be considered for compassionate appointment who is dependent of the deceased employee. 10. Coming to the facts of the present case, as per Annexure – 5, petitioner was 17 years old as on 21.12.2001 and was almost 15-16 years on 24.03.2000 on the date of death of his father -deceased employee. There is no dispute on the question of age of the petitioner. Thereafter, on attaining the age of majority i.e. 18 years somewhere in 2002, he has moved application for compassionate appointment on 24.06.2003, since, petitioner was hardly 15-16 years old on 24.03.2000, when his father died in harness, therefore, he must be treated as dependent of the deceased employee. There is nothing on record to prove that he was not dependent on his father. Simply because mother was also working as labourer, does not mean that minor son shall not be treated as dependent of his father. Therefore, in my considered opinion, petitioner is legally entitled for the compassionate appointment on account of untimely death of his father. 11. Now, next question comes as to whether application of the petitioner should have been rejected by the Respondents saying it was moved after 03 years and 03 months from the date of death of his father, employee of BCCL. 12. The Division Bench of this Court in the Case of Sushil Kumar Vengra Vs. 11. Now, next question comes as to whether application of the petitioner should have been rejected by the Respondents saying it was moved after 03 years and 03 months from the date of death of his father, employee of BCCL. 12. The Division Bench of this Court in the Case of Sushil Kumar Vengra Vs. Union of India & Ors, reported in (2005) (I) JCR 288 (Jhr), has observed as under:- “It is not for the Court to enable an authority to act arbitrarily and give that authority an undue discretion to entertain an application filed beyond time when that authority has itself taken care to limit its own discretion considering that compassionate appointment is against the scheme of regular appointment as adopted by the institution itself and in sense offends Article16oftheConstitutionofIndia.” 13. In the line on the judgment in the Case of Sushil KumarVengra(Supra) again another Division Bench of this Court in LPA No.142 of 2004 (M/S Central Coalfields Ltd Vs. Mohan Mahto), decided on 20.02.2006 has taken similar view. 14. Order of the Division bench of this Court in the Case of Central Coalfields Ltd. (Supra) was challenged before the Apex Court in Civil Appeal No.4339 of 2007 (Mohan Mahto Vs. Central Coalfields Ltd. & Ors.), the Hon'ble Apex Court has allowed the appeal and has set aside the judgment dated 20.02.2006 passed in LPA NO.142 of 2006. Hon'ble Apex Court in the Case of Mohan Mahto Vs. Central Coalfields Ltd. & Ors., reported (2007) (8) SCC 549 in paragraph Nos. 10, 11, 12, 13, 16 and 18 has held as under :- “10. A settlement within the meaning of sub-section(3) of Section 18 of the Industrial Disputes Act is binding on both the parties and continues to remain in force unless the same is altered, modified or substituted by another settlement. No period of limitation was provided in the settlement. We would assume that the respondent had jurisdiction to issue such circular prescribing a period of limitation for filing application for grant of appointment on compassionate grounds. But, such circular was not only required to be strictly complied with but also was required to be read keeping in view the settlement entered into by and between the parties. We would assume that the respondent had jurisdiction to issue such circular prescribing a period of limitation for filing application for grant of appointment on compassionate grounds. But, such circular was not only required to be strictly complied with but also was required to be read keeping in view the settlement entered into by and between the parties. The expanding definitionofworkmanascontainedinSection2(s) of the Industrial Disputes Act would confer a right upon the appellant to obtain appointment on compassionate grounds, subject, of course, to compliance with conditions precedent contained therein. 11. the right to obtain appointment on compassionate grounds emanates from the settlement. Settlement is defined in Section 2(p) of the Industrial Disputes Act to mean “a settlement arrived at in the course of conciliation proceeding and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy there of has been sent to an officer authorised in this behalf by the appropriate Government and the Conciliation Officer” 12. Even in regard to prescription of a period of limitation, the respondent ought to have kept in view the spirit there of. 13. We are not oblivious that grant of appointment on compassionate grounds is an exception to Article 16(1) of the Constitution of India. 16. The period of six months 'limitation prescribed in the Circular Letter dated 12.12.1995 was not statutory. It is also not imperative in character. Even for entertaining such an application beyond the period of six months, the headquarters of Central Coal Fields Limited is entitled to consider the facts and circumstances of each case. 18. We have indicated here in before, that it is not necessary for us to go into the question as to whether in the teeth of the provision of NCWAV, the respondent at a had any power to fix a time limit and thereby curtailing the right of the workmen concerned. We would assume that even in such a matter, it had a right. But, even for the said purpose, keeping in view the fact that a beneficial provision is made under a settlement, the “State” was expected to act reasonably” 15. We would assume that even in such a matter, it had a right. But, even for the said purpose, keeping in view the fact that a beneficial provision is made under a settlement, the “State” was expected to act reasonably” 15. In view of the judgments of the Apex Court in the Case of Bhawani Prasad Sonkar (Supra)and Mohan Mahto (Supra), it can safely be said that compassionate appointment cannot be granted as a matter of course, in the absence of rules and regulations issued by the Govt. or Public authority; an application of compassionate appointment must be preferred without undue delay and has to be considered within a reasonably period of time; even in regard to the prescription of the period of limitation, authority considering the application must keep in mind the spirit of the beneficial provision made to provide the compassionate appointment to the dependent of the deceased employee so that the family of the deceased employee working in dangerous, hazardous Coal Mines may not reach to the stage of starvation, authority considering the application is bound to consider the facts and circumstances of each case while taking decision on the question of limitation. 16. In view of the discussion made herein before, it is thus clear that petitioner, soon after attaining the age of majority, within a year, has applied for compassionate appointment on 24.06.2003. 17. The BCCL is expected to act reasonably. In view of peculiar facts and circumstances of the present case that father of the petitioner has died in harness leaving behind minor dependents and minor dependent can be provided compassionate appointment only after he attains the age of majority, request for compassionate appointment should have not been denied on hyper technical ground. 18. Therefore, the present petition is allowed. The Respondents are directed to take decision afresh on the application of the petitioner within 60 days from today and if the petitioner is otherwise qualified and eligible, he shall be provided appointment according to his qualification and eligibility.