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2015 DIGILAW 316 (CAL)

Dewanti Kumari v. Eastern Coalfields Limited

2015-04-06

SANJIB BANERJEE

body2015
JUDGMENT : A lot of time has been wasted, primarily by Eastern Coalfields Limited, in citing judgments and a circular that have already been pronounced upon and could not have been taken into consideration afresh at this level. 2. The claim of the petitioner is on account of the compensation that is due to her as a dependant of a workman in Eastern Coalfields Limited who died in harness in the year 1997. Though the petitioner has also claimed to be entitled to an appointment on compassionate grounds, in view of the inordinate delay in pursuing such matter, such aspect of the claim cannot be entertained and, in any event, the petitioner has abandoned the prayer in such regard. 3. In the petition, the petitioner has referred to applications made by her shortly after her father’s death for a compassionate appointment and the compensation. The statements contained in, inter alia, paragraph 4 of the petition have been dealt with at paragraph 9 of the opposition as being matters of record. The petitioner claims that she does not have the records pertaining to the earlier applications made by her, but the petitioner has disclosed a letter dated March 19, 2010 by which the Personnel Manager of the Khottadih OCP advised the petitioner to appear before a Screening Committee on April 6, 2010 for her application for appointment to be considered. 4. What is evident, therefore, is that at least in 2010, the petitioner had applied for an appointment to her own compassionate grounds which the respondents thought was suitable to be taken up for consideration. 5. The other aspects of the National Coal Wage Agreement under which the petitioner claims need not be discussed in great detail in view of a previous judgment in similar circumstances rendered on January 7, 2014 on W.P. No.4 of 2014 (Kajoli Bouri vs. Coal India Limited). Such judgment has been affirmed in appeal, with only the additional interest levied thereby being modified therein. 6. Kajoli Bouri noticed at least two Division Bench judgments of Chhaya Singh Sardar and Bipini Marandi. Such judgment also took into account another Single Bench order in Bimli Majhian. 7. Such judgment has been affirmed in appeal, with only the additional interest levied thereby being modified therein. 6. Kajoli Bouri noticed at least two Division Bench judgments of Chhaya Singh Sardar and Bipini Marandi. Such judgment also took into account another Single Bench order in Bimli Majhian. 7. In Chhaya Singh Sardar, the appeal arose from an order by which a petition by the widow of a deceased employee of Eastern Coalfields Limited was dismissed on the ground that the widow’s application had not been rejected by the coal company. The Division Bench took into account Clause 9.5.0 of the National Coal Wage Agreement –VI and dealt with the submission made on behalf of the coal company that it would not be liable to pay the compensation due for the period prior to the submission of the application therefor by the widow. The relevant passage from the judgment is set out : “We are unable to subscribe to the aforesaid submission of the learned Counsel for the respondent Coal Company as we are of the opinion that the entitlement to get monetary compensation cannot be dependant on the date of submission of the application but from the date when the real cause of action arose for receiving such compensation. …” 8. As would be evident from Kajoli Bouri, the Division Bench judgment in Chhaya Singh Sardar was not available and, as such, it was necessary to go into the details of the National Coal Wage Agreement and the circumstances relating to the entitlement of the widows or female dependants of deceased coal mine employees. In the light of the order in Bimli Majhian, where the compensation was allowed from the date of the submission of the application therefor, the plight of widows and other female dependants of coal miners were dealt with more elaborately, “It is evident from the provision that there is a financial security which is afforded to the female dependant of a deceased workman and the right crystallises instantaneously upon the death of the workman. The immediacy has per force to be inferred upon recognising the provision to ensure that the female dependant of the deceased workman or the bereaved family is not washed away by the calamitous loss of the bread-earner. The immediacy has per force to be inferred upon recognising the provision to ensure that the female dependant of the deceased workman or the bereaved family is not washed away by the calamitous loss of the bread-earner. In the event the female dependant opts for employment and it is possible to offer employment, the employment has to be given within reasonable time of the application being made. If the female dependant entitled to apply for an appointment does not apply for the employment within reasonable time after the death of the workman, she would be deemed to have exercised the option to receive compensation which would be payable from the date of death or the month following the date of death of the workman. The right that inheres in the female dependant of the deceased workman gives rise to a corresponding obligation or duty on the part of the coal company to offer and reach the monthly compensation to the female dependant. The right to the compensation is unconditionally immediate and is not dependant on any application for the purpose. Indeed, given the rationale behind the provision, it is the duty of the concerned coal company to both advise the dependant female member of a deceased workman of her rights and guide her to the appropriate option. A government company as an employer cannot be heard to say that a distressed family would be deprived of the benefit by reason of any belated application therefor. The appointment sought on compassionate grounds may be declined on account of delay or other cogent grounds; but the monthly compensation has to be paid with effect from the date of death of the workman or the month following the death.” 9. It must also be recognised that the dictum in Chayya Singh Sardar has been accepted by another Division Bench in Bipini Marandi and Kajali Bouri has been affirmed in appeal with only the direction for payment of interest being modified. 10. The respondent coal company has referred to a judgment reported at (2007) 9 SCC 274 (Shiv Dass vs. Union of India) for the argument on an analogy that when a pensioner applied several years after he became entitled to obtain pension, the Court had allowed pension to be released to such person from a period beginning three years prior to the filing of the writ petition. The coal company says that on a parity of reasoning, the monetary compensation that the petitioner is entitled to, following the death of her father, should be directed to be paid to her from the date of her recent application in 2013 or three years prior to the institution of the present petition in 2014. The coal company also refers to a circular of December 12/19, 1994 which incorporates certain guidelines pertaining to the scheme for monetary compensation in connection with the National Coal Wage Agreement-IV. The relevant clause specifies that payment on monthly basis would be made from the first day of the month following which the application by the widow/female dependant is made for employment or cash compensation. 11. Neither argument is available to the coal company in view of the judgment in Chhaya Singh Sardar. Since the judgment in Chhaya Singh Sardar was delivered in the year 2008, the argument in terms of the 1994 guidelines may have been made and the same is deemed to have been repelled by the passage extracted above. The Supreme Court judgment cited by the coal company is distinguishable on two grounds: first, that a Division Bench judgment pronouncing directly on the matters which are in issue herein is binding; and, secondly, the Supreme Court judgment pertained to the pension of a person who was in the Army Medical Corps and not in respect of a form of subsistence allowance due to an uneducated female dependant of a deceased coal miner. 12. The judgment in Bimli Majhian appears to be contrary to the dictum in Chhaya Singh Sardar. It must also be said that Chhaya Singh Sardar was not cited before the Single Bench. 13. There is one other aspect of note. Some of the affidavits filed by the petitioner carry a rubber-stamp indicating the following: “I certify that the contents made herein are read over and explained to the deponent who seems to have understood the same fully.” The concerned Commissioner of affidavits was required to indicate the circumstances in which such rubber-stamp containing the above declaration had been affixed to some of the affidavits affirmed by the petitioner herein. It appears from the oral explanation of the concerned official that the Commissioners of affidavits do not ascertain, notwithstanding the rubber-stamp being put, whether the deponent had understood the contents of the affidavit. It appears from the oral explanation of the concerned official that the Commissioners of affidavits do not ascertain, notwithstanding the rubber-stamp being put, whether the deponent had understood the contents of the affidavit. It is made clear that such declaration as extracted above should not be affixed by way of a rubber-stamp by any Commissioner of affidavits without the Commissioner carrying out the act which is certified thereby. 14. In view of the present case being governed by the previous judgments in Chhaya Singh Sardar and Kajali Bouri, W.P.5567(W) of 2015 is allowed by directing the Eastern Coalfields Limited to ensure that the monthly payments due to the petitioner by way of compensation following the death of her father are paid to her within a period of three months from date, without the petitioner being entitled to any interest on the monthly payments except for the months after the institution of this petition. The petitioner will also be entitled to costs assessed at Rs.5,000/- which should be paid along with the arrears by the coal company. 15. The monthly amounts with effect from May, 2015 should be released to the petitioner by the 10th day of the succeeding month. The petitioner will be entitled to such payment till the petitioner attains the age as per the National Coal Wage Agreement in force or upon the petitioner marrying, whichever is earlier. It is also made clear that the compensation in terms of this order is not for the sole benefit of the petitioner but also for the benefit of the other dependants of the concerned employee, including the other siblings of the petitioner as indicated in the petition. If any complaint is received by the coal company from the other siblings as to the compensation not being shared, the coal company will be entitled to take appropriate steps in accordance with law. 16. It is made clear that the lumpsum amount on account of the past months will be made over directly to the petitioner in person and to no agent of the petitioner, particularly any lawyer, and the money will be credited to an account in any nationalised Bank that may be opened by the petitioner. Certified website copies of the order, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.