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Jharkhand High Court · body

2013 DIGILAW 439 (JHR)

Dayal Mahto v. Central Coalfields Limited

2013-04-03

JAYA ROY, PRAKASH TATIA

body2013
JUDGMENT By Court.-Heard learned counsel for the parties. 2, The appellants are aggrieved against the order of learned Single Judge dated 30.01.2008 passed in W.P.(S) No.5648 of 2006 by which the petitioners' writ petition has been dismissed. 3. The appellant• No.1 is the son of the deceased employee Rama Mahto and appellant No.2 is the wife of the deceased. The employee died on 13.9.1998 while holding the post in the respondent-Company namely C.C.L. The appellant No.2. the widow of deceased employee. applied for compassionate appointment under the Scheme framed namely National Coal Wage Agreement on 12.5.1999. Her application was duly considered and was rejected on 4.11.1999 with objection that age of the appellant No.2' appears to be above 45 years and. therefore. she is not entitled to compassionate appointment. However, she was also informed that she may take monetary compensation benefit in lieu of the employment. The appellant No. 2 instead of taking monetary compensation benefit in lieu of employment. submitted an application for compassionate appointment for her son who attained the age of 19 years by the year 2002 and. therefore her son may be given compassionate appointment under Clause 9.5.0 (iii) of N.C.W.A. The said application was rejected by the respondent Company vide order dated 31.7.2006 on the ground that since the applicant has applied at a belated stage his application cannot be entertained. Aggrieved against the said order dated 31.7.2006 the petitioners preferred writ petition which has been dismissed by learned Single Judge. While dismissing the writ petition of the petitioners learned Single Judge observed that the widow of the employee did not challenge the rejection of claim of her appointment on compassionate ground and even she did not exercise option for monetary compensation in lieu of employment and if petitioner No.1 was eligible to be kept in live roster after the death of employee in 1998 and his name was not kept in live roster. no action was taken in this regard by the petitioners. Learned Single Judge also observed that the monetary compensation is required to be paid during the period the male dependant is kept on live roster with effect from 1.1.2000 till he attains majority. but there has been no claim that petitioner No. I was eligible for keeping his name on live roster petitioner No. 2 cannot claim monetary compensation in terms of Clause 9.5.0. of the said agreement. 4. but there has been no claim that petitioner No. I was eligible for keeping his name on live roster petitioner No. 2 cannot claim monetary compensation in terms of Clause 9.5.0. of the said agreement. 4. Learned counsel for the appellants Shri Ratnesh Kumar. submitted that N.C.W.A. contains Chapter-IX wherein it is specifically provided that if employees son is of the age of 12 years or above; then his name will be kept on live roster and he would be provided employment upon attaining the age of 18 years. The appellant No. 1 was of the age of 03 years as on 1.4.1987 as per the record of the respondent-Company itself. The appellant No. 1 was of the age of 14 years 05 months on 13.9.1998 i.e., at the time of death of his father. The appellant No. 1 became major in the month of April. 2002 and submitted an application for compassionate appointment on 20.6.2002. therefore, the petitioner after attaining the age of majority and after removal of his disability submitted the application for compassionate appointment which cannot be said to be the application filed belatedly. It is also submitted that till the appellant No. 1 could have been given compassionate appointment her mother i.e. appellant No. 2 was entitled to monetary compensation under Clause 9.5.0. It is submitted therefore, that learned Single Judge has committed error of law in holding that petitioners' application was belated. 5. Learned counsel for the appellant relied upon the judgment of a Division Bench of this Court delivered in L.P.A. No. 780 of 2004 in the Case of Lakhan Kumar v. Central Coalfields Limited and others dated 5.5.2005. which is against the same respondent-Company. In that case, the objection. of delay was raised and that was rejected by the Division Bench of this Court Learned counsel for the appellants also submitted that in any case. if the appellant No. I was not entitled to compassionate appointment. then the appellant No. 2 should have been given monetary compensation in lieu of the employment under the rest of the Clauses i.e.. Clause 9.5.0. (i and ii) Learned counsel for the appellant also submitted that in is clear from Chapter-1 of N.C.W.A. that the effective form 1.7.1996 to 30.6.2001. Then, he submitted that separate dated are given for operation of different Clauses. According to learned counsel for the appellants. Clause 9.5.0. (i and ii) Learned counsel for the appellant also submitted that in is clear from Chapter-1 of N.C.W.A. that the effective form 1.7.1996 to 30.6.2001. Then, he submitted that separate dated are given for operation of different Clauses. According to learned counsel for the appellants. There may be different parts in the same Clause and, therefore, separate dates have been given for making their effectiveness for different reliefs. In the same Clauses separate dates have been given. In view of the above reasons, according to learned counsel for the appellants, the word “This will be effective form 1.1.2000” mentioned in Sub-clauses (iii) of Clause 9.5.0 is referable to only for monetary compensation to the widow of the employee for which she is entitled up to the time when male dependant is given appointment by the respondent-Company upon attaining the age of majority. It has no relevance with respect to the benefit of compassionate appointment under the same Clause and for minor dependants of the deceased employee. Therefore, the minor dependant of the employee who was of the age of 12 years or above on 1.1.2000 is eligible person to remain in live roster irrespective of date of death of an employee. 6. Learned counsel for the respondent-Company Shri Ananda Sen, vehemently submitted that as per the earlier Clause, employee’s dependant who attained the age of 15 years, his name could have been kept in live roster and by amendment, with effect from 1.1.2000, the age of employee’s dependant has been reduced from 15 years to 12 years to give more benefits to the employee’s dependants. The appellant No.1 was neither eligible for keeping his name on live roster under the earlier Scheme nor in the amended Scheme which came in to force with effect form 1.1.2000. Admittedly, the appellant No. 1 was of the age of less than 15 years before 1.1.2000. therefore, he was not entitled to benefit of compassionate appointment under the earlier Scheme and the reduction of age to 12 years was made effective form 1.1.2000. therefore also. He was not entitled under even new Scheme. He further submitted that the widow of deceased. Appellant No.2, did not submit application for monetary benefit, therefore. If she submits the application for monetary benefit, then only her case can be considered for grant of monetary compensation. 7. therefore also. He was not entitled under even new Scheme. He further submitted that the widow of deceased. Appellant No.2, did not submit application for monetary benefit, therefore. If she submits the application for monetary benefit, then only her case can be considered for grant of monetary compensation. 7. We have considered the submissions of learned counsel for the parties and perused the facts of the case and reasons given by the learned Single Judge. Clause 9.5.0 of N.C.W.A. is 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.4,000/-per" month. or employment irrespective of her age: (ii) In case of death/total permanent disablement due to cause 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. 3,000/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 12 years and above in age, he will be kept on a Jive 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) & (ii) above. This will be effective from 1.1.2000.--(Emphasis supplied) 8. A bare perusal of Clause (iii) will reveal that in Clause(iii) it has been mentioned in the last line' that. "This will be effective from 1.1.2000". We do not find any reason to permit the dissection of this Clause and there is no reason to read this Clause in two different categories so as to make one of the Clauses effective from 1.1.2000 and another from earlier date. "This will be effective from 1.1.2000". We do not find any reason to permit the dissection of this Clause and there is no reason to read this Clause in two different categories so as to make one of the Clauses effective from 1.1.2000 and another from earlier date. It will be worthwhile to mention here that the Clause in question being N.C.W.A. clearly provides in Chapter-I "This Agreement shall be called the NATIONAL COAL WAGE AGREEMENT-VI and will be effective from 1.7.1996 to 30.6.2001 ". Instead of making all the Clauses effective from 1.7.1996 to 30.6.2001, undisputedly, different dates have been given for operation of different Clauses which is apparent from the Clause 9.1.0 and Clause 9.2.6, in addition to Sub-clause (iii) of Clause 9.5.0, wherein in spite of making Scheme operative from 1.1.1996 in operative part of the Scheme, it is provided that different Clauses will be effective from different specific dates. 9. In view' of the above reasons, we are of the considered opinion that sub. clause (iii) of Clause 9.5.0 has been made effective from 1.1.2000. The petitioner No.1 admittedly was not covered under the Clause quoted above-and he was also not' covered under: the earlier Scheme wherein retirement of age of the' dependants of employee was 15 years or above. Therefore, petitioner's name could not have been kept in live roster. Sub-clause (iii) of Clause 9.5.0 itself has no application to the case of the petitioners in view of the fact that petitioner's father died on 13.9.1998 i.e., prior to. 1.1.2000. 10. So far as contention of the learned counsel for the appellants that the widow of the employee was entitled to monetary compensation under sub-clause (iii) of Clause 9.5.0 of N.C.W.A. is concerned, we are of the considered opinion that the same was the view taken by the employer themselves in their decision dated 30.10.99'; 4.11.99 wherein it has been observed that in view of the age of the appellant No.2, which appears to be above 45 years, she may opt for monetary compensation in lieu of, employment. The appellant may be under wrong impression that the appellant No. 1 may be entitled to compassionate appointment under sub-clause (iii) of Clause 9.5.0 was harping in more beneficial relief but that will not change the position in view of the fact that as per sub-clause (ii) of Clause 9.5.0, if the dependant is female and her other dependant is not given any compassionate appointment, then such dependant, like the appellant No.2, was entitled to monetary compensation. So far as contention of learned counsel for the respondent-Company that now, the appellant No. 2 should submit a fresh application is concerned, we are not in agreement with such plea of the employer who have not disputed any fact like, employment of the deceased employee, the status of the appellant No.2, who admittedly is' the dependant being the wife of the deceased, is entitled to benefit under the Scheme. 11. Undisputedly, application was submitted by the appellant No. 2 for her employment and decision was taken by the employer themselves that the appellant No. 2 is not entitled to compassionate appointment in view of her age which appears to be above 45 years and she may opt 'for monetary compensation till the appellants pursuing their remedy for relief of compassionate appointment. If she did not apply, that does not make any difference in the facts of the case and the appellant No. 2 was clearly entitled to take benefit under the Scheme for which she applied immediately after' the death of the employee. Therefore, for that lesser relief, relief could have been granted to the dependants without further application. Therefore, the application which was filed by the appellant NO.2 (widow of employee) on 12.5. 1999 can be treated to be an application for the relief under the Scheme and lesser relief can be granted to the appellant by the employer by taking it to be a valid application for benefit under the Scheme for which the appellant No. 2 may be entitled to. 12. Therefore, this L.P.A. is allowed partly to the extent that the appellant No.2 is entitled to the monetary benefit and the application filed by the appellant No. 2 for the relief of monetary benefit under the Scheme is treated to be a valid application for the relief. 12. Therefore, this L.P.A. is allowed partly to the extent that the appellant No.2 is entitled to the monetary benefit and the application filed by the appellant No. 2 for the relief of monetary benefit under the Scheme is treated to be a valid application for the relief. However, the appellant No. 2 is entitled to monetary benefit and not for compassionate appointment and appellant No. 1 is also not entitled to compassionate appointment and, therefore, the appellant No. 2 be given monetary compensation under the Scheme within a period of two , months from the date of receipt of a copy of this order. If any formality is required to be completed by the appellant No.2, the respondent-Company will intimate the appellant No.2 to complete that formality. Appeal partly allowed.