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2014 DIGILAW 417 (JHR)

Binod Bhuinya v. Bharat Coking Coal Limited

2014-03-24

R.BANUMATHI, SHREE CHANDRASHEKHAR

body2014
JUDGMENT 1. By Court- This appeal has been preferred against the order dated 17th October, 2013 passed in Civil Review No. 4 of 2012, in and by which learned Single Judge declined to review the order dated 14.7.2011 passed in W.P.(S) No.6257 of 2006, whereby the claim of the appellant for compassionate appointment was rejected. 2. The appellant is the son of late Prasadi Bhuinya, who died in harness on 15.3.1994, while working as Wagon Loader in Kusunda Colliery under the respondents. After the death of the father of the appellant, the mother of the appellant submitted representation dated 21.9.1995 to the Management requesting them to keep under consideration the case of the appellant (the then minor) in the live roster till he attains the age of majority. When the appellant attained majority, the appellant wrote to the Project Officer, Kusunda Colierry stating that he had attained majority and that he is entitled to be provided with compassionate appointment. The Project Officer issued letter dated 6.6.2003 stating that after the death of the appellant's father, no application for providing compassionate appointment was submitted to the concerned respondents and therefore, the case of the appellant for compassionate appointment cannot be taken into consideration. Thereafter the mother of the appellant and the appellant filed W.P.(S) No.6257 of 2006 seeking 2.direction (i) for payment of death-cum-retiral benefits of late Prasadi Bhuinya and (ii) for providing compassionate appointment to the appellant. The Court vide order dated 20.11.2006 passed an order that the claim of the appellant for compassionate appointment is not tenable. Thereafter, the appellant filed I.A. No.1391 of 2009 in W.P.(S) No.6257 of 2006 for amendment of the pleadings as well as prayer portion of the writ petition for incorporating the prayer that the name of the appellant be directed to be kept on live roster till he attains majority. I.A. No.1391 of 2009 was dismissed holding that by order dated 20.11.2006 the claim of the appellant for his appointment on compassionate ground was already found to be not tenable and hence that issue cannot be reopened by filing Interlocutory Application. In so far as payment of death-cum-retiral benefits, the Court held that Provident fund and Pension having already been settled, nothing remains to be paid to the appellant and his mother and hence the learned Single Judge dismissed the writ petition vide order dated 14.7.2011. 3. In so far as payment of death-cum-retiral benefits, the Court held that Provident fund and Pension having already been settled, nothing remains to be paid to the appellant and his mother and hence the learned Single Judge dismissed the writ petition vide order dated 14.7.2011. 3. Seeking review of the order dated 14.7.2011 passed in W.P.(S) No.6257 of 2006, the appellant filed Civil Review No. 4 of 2012. By order dated 17.10.2013, the said Review Application was dismissed holding that vide order dated 20.11.2006, this Court had already passed an order to the effect that the claim of the petitioner no.2 (the appellant herein) for his appointment on compassionate ground is not tenable and that decision may not be a subject matter for reviewing the order. 4. The learned counsel appearing for the appellant submitted that the learned Single Judge has not taken into consideration the judgment of the Hon'ble Supreme Court rendered in the case of Mohan Mahto Vs. C.C.L. & Ors. reported in (2007) 8 SCC 549 and that the appellant is legally entitled to be provided with the 3.compassionate appointment. 5. The learned counsel appearing for the Bharat Coking Coal Ltd. has submitted that at the time of death of the employee- Prasadi Bhuinya( on 15.3.1994), the appellant was aged only seven years and as per the Scheme the name of the male dependent would be kept on live roster only if the surviving male dependent is above 12 years or 14 years, depending on the nature of his skill and qualification. The learned counsel further submitted that since the appellant was aged only seven years, he could not be considered for compassionate appointment and there cannot be any direction for considering the case of the appellant for compassionate appointment dehors the Scheme of the Bharat Coking Coal Limited. 6. We have considered the submissions of the learned counsel for the appellant and the learned counsel appearing for the respondents. 7. As per the NCWA-V, in case of death of the employee, who died in harness, if the deceased employee has left behind the surviving male dependent, the name of the male dependent would be kept on live roster, if he is above 12 years or 14 years and he would be provided employment commensurate with his skill and qualification when he attains the age of 18 years. 8. 8. As seen from Annexure-4, at the time of death of the deceased employee dated 15.3.1994 the appellant was aged only seven years and, therefore as per NCWA-V, the name of the appellant cannot be kept on the live roster. There cannot be any direction to consider the case of the dependent of the deceased employee for compassionate appointment dehors to the Scheme, when the appellant was aged only seven years at the time of death of his father-late Prasadi Bhuinya. 9. It is pointed out by the learned counsel for the respondent- BCCL that I.A. No.1391 of 2009 seeking 4.amendment in the pleading and prayer was earlier rejected. 10. By perusal of the record, it is seen that I.A. No. 1391 of 2009 was filed to make an amendment in para-1 and prayer portion of the the writ application reads as follows: “ ….....The petitioners pray for issuance of Direction commanding upon the Respondents to provide Compassionate Appointment to the petitioner no.2, who was a child of about 7 years on 15.3.1994 at the time of death of his father, in pursuant to Sub-Section 3 of Section 18 of the Industrial Disputes Act, 1947 according to which, Clause 9.5.0 of NCWA-V is binding upon both the parties and as such the Petitioner no.2 being a minor son of deceased Employee, was to be kept on Live Roster and on attaining majority, it is obligatory on the part of the Respondents to consider Compassionate Appointment of Petitioner no.2”. 11. By a reading of the above, it is seen that the appellant himself has stated that at the time of death of his father( 15.3.1994), he was aged about seven years. 12. In Civil Review no. 4 of 2012, the learned Single Judge has rightly pointed out that earlier I.A. No. 1391 of 2009 was dismissed on the ground that the case of the appellant for appointment on compassionate ground is not tenable. The order passed by the learned Single Judge in W.P.(S) No.6257 of 2006( 14.7.2011) did not suffer from any error apparent on the face of the record to entertain the review application. The learned Single Judge has rightly dismissed the review application filed by the appellant vide order dated 17.10.2013 and as such, we do not find any infirmity, warranting interference with the order of the learned Single Judge. 13. The Letters Patent Appeal is, accordingly, dismissed.