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2013 DIGILAW 135 (CAL)

Eastern Coalfields Ltd. v. Dilip Singh

2013-03-07

ARUN MISHRA, JOYMALYA BAGCHI

body2013
JUDGMENT Joymalya Bagchi, J. This appeal is directed against the judgment and order dated 13th December, 2011 passed by the learned Single Judge in W.P. No. 1015 of 2011 whereby the impugned Memo No. ECL/AGENT/KDC/2011/514 dated 30th May/2nd June, 2011 issued by the Deputy CME/AGENT, Kumardhobi Colliery was quashed and the respondent authorities were directed to reexamine the claim of the petitioner in terms of the applicable Coal Wage agreement notwithstanding the fact that the petitioner was an illegitimate son born out of the second marriage of the deceased employee. The short compass of facts giving rise to the appeal is that one Mithu Singh, since deceased, was an employee of Eastern Coalfields Ltd. (respondent no. 2), a subsidiary of Coal India Ltd., respondent no. 1 herein. Mithu Singh had married one Debanti Devi during the subsistence of his earlier marriage with Nurmani Devi. The petitioner is the son of the said Mithu Singh born out of the second marriage with Debanti Devi. The fact of second marriage of Mithu Singh was noted in his service record. Mithu Singh died on 06.10.2000 while in service. Upon death of Mithu Singh, the petitioner made an application requesting for compassionate appointment. Pursuant to such representation, the petitioner appeared before the Screening Committee and after initial medical examination, his case was forwarded to the Deputy CME/Agent, Kumaradhubi Colliery, Eastern Coalfields Limited, respondent no. 6 herein. By impugned order bearing Memo No. ECL/AGENT/KDC/2011/514 dated 30th May/2nd June, 2011, the respondent no. 6 rejected the claim of the petitioner on the ground that he was born out of the second marriage of Late Mithu Singh. The petitioner challenged such decision before this Court in W.P. No. 1015 of 2011. The learned Single Judge set aside the impugned order rejecting the prayer for compassionate appointment of the petitioner by holding that the word “son” in the category of “dependants” in Clause 9.3.3 of the National Coal Wage Agreement – VI (hereinafter referred to as “NCWA”) would include an illegitimate son born out of the second marriage of a deceased employee. Mr. Mr. Alok Banerjee, learned advocate appearing for the appellant Eastern Coalfields Limited, assailed the impugned order on the ground that public post is not heritable property of the deceased employee and therefore terms of the compassionate appointment scheme as engrafted in NCWA could not have been expanded by resorting to the provisions of Section 16 of the Hindu Marriage Act, 1955. He further submitted that compassionate appointment was an exception to the general rule of recruitment through open competition and the same is to be strictly construed. In support of his argument, Mr. Banerjee relied on 2004 (100) FLR 111 (Ramesh Chand Vs. Executive Engineer, Electricity Distribution Division – II, U.P. Power Corporation Ltd., Allahabad and others). Mr. U.S. Agarwal, learned advocate appearing for the respondents submitted that the expression “son” in Clause 9.3.3 of NCWA is to be interpreted in the light of the provisions of Section 16 of the Hindu Marriage Act, 1955 and Section 20 of the Hindu Adoption and Maintenance Act and the same would include an illegitimate son born out of a second marriage. He further submitted that a beneficial provision must be liberally construed. He relied on 2005 LAB I.C. 386 (Geetha Ramani Vs. District Educational Officer, Kancheepuram) and 2000 (2) SCC 431 (Rameshwari Devi Vs. State of Bihar and Ors.). The issue which therefore falls for decision is whether the expression “son” as contained in the category of dependants in Clause 9.3.3 of Chapter X of NCWA would include an illegitimate son born out of second marriage of a deceased employee. The scheme for compassionate appointment in respect of deceased/disabled employee of the respondent company is provided in Chapter IX of NCWA. Clause 9.3.1 contained in the said Chapter reads as follows: “9.3.1 : Employment would be provided to one dependant of workers who are disabled permanently and also those who die while in service. Clause 9.3.3 defines the expression “dependants” for such purposes and reads as follows : “9.3.3 : The dependant for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. Clause 9.3.3 defines the expression “dependants” for such purposes and reads as follows : “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 dependant on the earnings of the deceased may be considered to be the dependant of the deceased.” A plain reading of clause 9.3.3 would show that dependant of a deceased/disabled employee for the purpose of compassionate appointment would mean wife/husband (as the case may), unmarried daughter, son and legally adopted son and in the absence of the aforesaid categories, employment may be provided to brother/widowed daughter/widowed daughter-in-law or son-in- law residing with the deceased and wholly dependant on the earnings of the deceased. The learned Single Judge applied provisions of Section 16 of the Hindu Marriage Act, 1955 to hold that word “son” in the aforesaid paragraph would include a son born out of second marriage which is void in law. Second 16 of the Hindu Marriage Act, 1955 reads as follows : “16. Legitimacy of children of void and voidable marriages. – (1) Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws. Amendment Act, 1976, (68 of 1976.) and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in sub-section (1) or sub- section (2) shall be construed as conferring upon any child of a marriage which is null and void or which Is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.” Section 16 (1) of the aforesaid Act creates a legal fiction whereby a child born out of void marriage shall be held to be legitimate. Section 16 (3) of the said act restricts such legal presumption to the rights of such a child only to the property of his parents and none else. It is, therefore, clear that Section 16 of Hindu Marriage Act, 1955 presumes a child born out of a void marriage as legitimate only for the purpose of entitling him to claim rights in or to the property of his parents but not to any other thing. It is settled law that public post is not a heritable property. In State Bank of India and Ors. Vs. Jaspal Kaur reported in (2007) 9 SCC 571 the Apex Court held that it is clear that public post is not heritable, therefore, the right to compassionate appointment is not a heritable property. In fact it is an exception to the rule of regular appointment by open competition. Such exception to the rule of regular appointment is therefore a privilege extended by the employer in terms of the scheme for compassionate appointment itself. It is not a property of the deceased nor is it a heritable right. In State of Chhattisgarh and Ors. Vs. Dhirjo Kumar Snegar reported in (2009) 13 SCC 600 the Apex Court held as follows: “Appointment on compassionate ground is an exception to the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution of India.” For the aforesaid reasons, we are of the opinion that the provisions of Section 16 of the Hindu Marriage Act, 1955 cannot come to the aid of the petitioner. Legal presumption of legitimacy in such provision is restricted only to the property of the deceased and not to other things. Legal presumption of legitimacy in such provision is restricted only to the property of the deceased and not to other things. Hence, such provision of law cannot be pressed into service to expand the privilege of compassionate appointment extended by an employee under the scheme as the same can by no stretch of imagination be held to be the property of the deceased employee. The appellant has relied on decision reported in 2000 (2) SCC 431 wherein the Apex Court had upheld the decision of the High Court that illegitimate children were entitled to share in the family pension and gratuity of the deceased employee until they attained majority. In the said decision, the Apex Court had referred to Section 16 of the Act and held as follows: “It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of a void marriage are legitimate. Under Hindu Succession Act, 1956, property of a male Hindu dying intestate devolves firstly on heirs clause (1) which include the widow and son. Among the widow and the son, they all get shares (See Section 8, 10 and the Schedule of the Hindu Succession Act, 1956.) Yogmaya Devi cannot be described as a widow of Narain Lal, her marriage with Narain Lal being void. The sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, the legal position when a Hindu Male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement gratuity payments which are governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned Single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment.” As discussed earlier, neither public post nor a right to compassionate appointment is heritable property. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned Single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment.” As discussed earlier, neither public post nor a right to compassionate appointment is heritable property. On the other hand, right to pension is the property of the deceased employee [See 1971 (2) SCC 330 (para 16), 1988 (3) SCC 32 (PARA 5)] and therefore a claim to pension cannot be equated with a claim to compassionate appointment under the relevant scheme. The former is a property of the deceased employee whereas the latter is a privilege extended by the employer to the dependants of the deceased to ride them over financial stringency. The aforesaid judgment is therefore not an authority for the proposition that the terms of the scheme for the compassionate appointment are to be treated as proprietary right of the deceased employee and be interpreted in the light of Section 16 of the Hindu Marriage Act, 1955. In the decision reported in 2005 LAB I.C. 386 (Geetha Ramani Vs. The District Educational Officer, Kancheepuram and Ors.) the Madras High Court applied the provisions of Section 16 of the Hindu Marriage Act, 1955 to a scheme for compassionate appointment to hold that a son born out of second marriage would be entitled to employment. We are unable to agree with such proposition. The scheme of compassionate appointment is neither property of the deceased nor a heritable right. It cannot be equated with a right to pension of the employee or his dependants upon his death. Hence, the ratio of the Madras High Court does not appear to be based on sound logic. Reliance on the Apex Court decision is also faulty as a judgment is an authority for what it decides and not what logically follows therefrom. On the other hand, the decision of the Allahabad High Court reported in 2004 (100) FLR 111 (Ramesh Chand Vs. Executive Engineer, Electricity Distribution Division – II, U.P. Power Corporation Ltd., Allahabad and others) has rightly interpreted the restricted import of the legal presumption in Section 16 of the Act and rejected its applicability to matters relating to compassionate appointment. Right to compassionate appointment is an exception to the general rule of recruitment by public competition. Executive Engineer, Electricity Distribution Division – II, U.P. Power Corporation Ltd., Allahabad and others) has rightly interpreted the restricted import of the legal presumption in Section 16 of the Act and rejected its applicability to matters relating to compassionate appointment. Right to compassionate appointment is an exception to the general rule of recruitment by public competition. Such privilege therefore is to be strictly construed according to the terms and conditions of the scheme and the same cannot be rewritten by the Courts. In Bhawani Prasad Sonkar Vs. Union of India and Ors. reported in (2011) 4 SCC 209 The Apex Court, inter alia, held as follows: “Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind: (i) Compassionate employment cannot be made in the absence of rules or 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.” In State Bank of India & Anr. Vs. Raj Kumar reported in (2010) 11 SCC 661 the Apex Court held as follows: “It is now well settled that appointment on compassionate grounds is not a source of recruitment. On the other hand it is an exception to the general rule that recruitment to public services should be on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. The dependants of employees, who die in harness, do not have any special claim or right to employment, except by way of concession that may be extended by the employer under the rules or by a separate scheme, to enable the family of the deceased to get over the sudden financial crisis. The claim for compassionate appointment is therefore traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme.” In view of the aforesaid ratios of the Apex Court, it is not open to the Court to rewrite the terms of the scheme for compassionate appointment. On the contrary, compassionate appointment being extended to the general rule of recruitment deserves a strict construction. Mr. On the contrary, compassionate appointment being extended to the general rule of recruitment deserves a strict construction. Mr. Agarwal argued that the word “dependant” in clause 9.3.3 of NCWA ought to include the illegitimate son as a Hindu was legally bound to maintain illegitimate children during his/here lifetime. We are unable to agree with such proposition. The liability to maintain illegitimate children as provided in Section 20 is for the purposes of the said Act and cannot have any manner of application in respect of a scheme for compassionate appointment which is in the nature of a privilege extended by an employer to the family of the deceased/incapacitated employee to tide over financial hardships. That apart, even in the aforesaid Act wherever the legislature wanted to extend any right or privilege to illegitimate children, it expressly provided for the same. The scheme for compassionate appointment has not expressly provided such privilege to illegitimate children born out of a void marriage. When the employer in its wisdom has not extended such privilege to an illegitimate son born out of a void marriage, such privilege cannot be imported by resorting to other statutory instruments which have no manner of application to the matter of compassionate appointment of a deceased employee. The matter can also be viewed from another angle. A bare reading of clause 9.3.3 which defines dependants would show that the word “son” is accompanied by the words “legally adopted son”. It is settled law that the meaning of a word is to be judged by the company it keeps. When two or more words which are susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense. They take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general (MAXWELL : Interpretation of Statute, 11th Edition, p. 321). Applying such principle, when the general expression “son” is occurring in conjunction to the qualified expression “legally adopted son” we are of the opinion that the former would take a restricted meaning of legitimacy and not a wider meaning as held by the learned Single Judge. For these reasons also we are not inclined to hold that the expression “son” in the category of “dependants” in the aforesaid scheme would include illegitimate son born out of the second wedlock of a deceased employee. For these reasons also we are not inclined to hold that the expression “son” in the category of “dependants” in the aforesaid scheme would include illegitimate son born out of the second wedlock of a deceased employee. We are unable to uphold the impugned judgment and order passed by the learned Single Judge. We set aside the same and the appeal is accordingly allowed. There shall be no order as to costs.