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2015 DIGILAW 447 (JHR)

Kiran Devi v. Central Coal Field Ltd.

2015-04-08

APARESH KUMAR SINGH

body2015
ORDER : Heard learned counsel for the parties. 2. The facts of the present case are peculiar in some respect and therefore require interpretive foray into the provisions, under which compassionate appointment is granted to a dependant of an employee dying in harness. 3. In the instant case, the petitioner is the widow of deceased employee, namely, Rameshwar Das, who died on account of an accident on 13th December, 2009 while he was posted as Sweeper under C.C.L. Hospital, Giridih. The incidence of death of the employee led to the institution of an F.I.R. by his brother, in which the petitioner-widow and one Dhaneshwar Das were implicated as accused persons alleging that they had conspired to commit the murder of Rameshwar Das. The petitioner was taken into custody on 14th December, 2009 itself and suffered incarceration till she has been acquitted vide judgment dated 23rd August, 2011 passed in Sessions Trial Case no. 286 of 2010 by 1st Additional Sessions Judge, Giridih, Annexure3. The learned trial court in concluding part of the judgment, has held that as a matter of fact there is no shred of evidence on record to establish the charge levelled against the accused persons, namely, Dhaneshwar Das and Kiran Devi. As a matter of fact not only did the other prosecution witnesses turned hostile but informant himself also stated that he did not have knowledge of the cause of his death and turned hostile. After having been released from jail custody pursuant to acquittal, the petitioner made a representation on 11th October, 2011, Annexure4 before Manager (Personnel), Central Coalfields Ltd. for granting permission to apply for employment under Clause 9.3.0. She explained the circumstances, in which she was arrested with an allegation of causing death of her husband and thereafter has been acquitted by trial court and released from custody on 23rd August, 2011. She also stated that due to non-availability of any adult member in her family, information regarding death of her husband could not be given to the management earlier. She also stated that due to non-availability of any adult member in her family, information regarding death of her husband could not be given to the management earlier. She therefore sought appointment under Clause 9.3.0 of N.C.W.A. Her request for grant of permission to apply for appointment on compassionate ground, has been rejected by communication dated 17/18th November, 2013 by Manager (personnel) Giridih, Annexure5 on the ground that such an application was made after the stipulated period of 1 year 6 months from the date of death of her husband under the circular governing compassionate appointment which does not provide for any relaxation. Therefore, the petitioner has assailed the same in the present writ application and also sought a direction to allow her to fill up forms for compassionate appointment for consideration of the competent authority. 4. The respondents have appeared and in their counter affidavit have justified the reasons indicated in the impugned order on the same ground that the circular in vogue for making a claim of compassionate appointment permits upper time limit of 1 year and 6 months only which had elapsed before applicant-petitioner made her application on 11th October, 2011 reckoning it from the date of death of her husband on 13th December, 2009. It is also indicated that a decision taken by Joint Consultative Committee on 24th October, 2011 which allows reconsideration of cases for compassionate appointment which were rejected on the ground of delay beyond 6 months were inapplicable to present case as it is permissible only if the application was made up to 1 and half years from the date of death of employee. Therefore, according to the learned counsel for the respondent, no interference can be made in the impugned order as it does not suffer from any errors or infirmity. 5. I have heard learned counsel for the parties and considered the relevant material on record. Therefore, according to the learned counsel for the respondent, no interference can be made in the impugned order as it does not suffer from any errors or infirmity. 5. I have heard learned counsel for the parties and considered the relevant material on record. In the factual matrix of the instant case, the peculiar issue which requires to be addressed is as to whether in a case where the dependent of the deceased employee had all along been in jail from 14th December, 2009 till she was acquitted on 23rd August, 2011, the rigors of the circular fixing the time limit should apply in its letter or it can be relaxed in special circumstances giving purposive interpretation to the spirit of the Social Security Scheme conceived under the National Coal Wage Agreement under Clause 9.3.0 and the circular which lays down a time limit for making an application. 6. One is tempted to reiterate the well settled maxim Lex Non Cogit Ad Impossibilia; the law does not compel a man to do that which he cannot possibly perform. On the point of delay in placing the representation before the Advisory Board because of sufficient excuse for its non compliance, applying the doctrine of impossibility of performance, the Supreme Court in the case of State of Rajasthan and another vrs. Shamsher Singh reported in 1985 (Supp) SCC 416, held as follows. Para10 is quoted hereunder: “10. Mr Jethmalani placed before us a passage from Broom’s Legal Maxims (p. 162), 10th Edn., where the doctrine of impossibility of performance (lex non cogit ad impossibilia) has been discussed. It has been indicated therein that however mandatory the provision may be, where it is impossible of compliance that would be a sufficient excuse for noncompliance, particularly when it is a question of the time factor. Keeping the attendant circumstances of this case in view, we find it difficult to hold that the time taken by the State Government can amount to withholding of the representation which resulted in noncompliance of Section 10 of the Act so as to vitiate the detention ............................” 7. In RE PRESIDENTIAL POLL Special Reference No. 1 of 1974 reported in [ 1974 (2) SCC 33 ], the Hon'ble Supreme Court in its advisory jurisdiction, considering the doctrine of impotentia excusat legam. held as follows: Para15 is quoted hereunder: “15. In RE PRESIDENTIAL POLL Special Reference No. 1 of 1974 reported in [ 1974 (2) SCC 33 ], the Hon'ble Supreme Court in its advisory jurisdiction, considering the doctrine of impotentia excusat legam. held as follows: Para15 is quoted hereunder: “15. The impossibility of the completion of the election to fill the vacancy in the office of the President before the expiration of the term of office in the case of death of a candidate as may appear from Section 7 of the 1952 Act does not rob Article 62(1) of its mandatory character. The maxim of law impotentia excusat legam is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legam is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. “Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.” Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God. (See Broom’s Legal Maxims 10th Edn. at pp. 162-163 and Craies on Statute Law 6th Edn. at p. 268).” 8. The facts of the instant case disclose that during the entire period of one and half years from the date of death of employee on 13th December, 2009, the petitioner suffered incarceration for a serious charge of murder of her own husband and she finally was acquitted by trial court on 23rd August, 2011 in the circumstances when the informant himself turned hostile apart from other prosecution witnesses. It is also the case of the petitioner that there were no adult members in the family, who could have brought the factum of death to the knowledge of respondent employer or any one else who could have claimed compassionate appointment. 9. It is also the case of the petitioner that there were no adult members in the family, who could have brought the factum of death to the knowledge of respondent employer or any one else who could have claimed compassionate appointment. 9. The petitioner herself was labouring under incarceration for serious charge of murder in which she could have been made to suffer imprisonment for life. In such circumstances if she has made an application within almost one and half months on 11th October, 2011, after being released from custody, in the opinion of the Court the spirit of law should prevail over the letter of law. This appears to be a case where the respondents should have allowed her permission at least to make an application of compassionate appointment on the death of her husband keeping into account that for the entire period of 1 and half years she was behind bars for a serious charge of murder when she could not have conceived of to even make an attempt to apply from jail. Otherwise also any application made from the jail for compassionate appointment within the said time would have be in a meaningless exercise as there were several formalities to be completed while making such an application. The petitioner could not have anticipated that after conclusion of the trial she will be acquitted or face further incarceration on her conviction. Therefore, in view of the socio economic welfare measure conceived under the social security chapter of National Coal Wages Agreement to provide succor to the dependant of the deceased who have rendered destitute and reduced to state of penury, interest of justice would be served if the rigors of the letter of law are relaxed. 10. In such circumstances, petitioner should at least be allowed to make an application for consideration of her case for compassionate appointment by the respondent. Whether her claim for compassionate appointment is finally accepted or not on consideration of relevant factors which may be germane to the issue is a question which is for the authorities to arrive at, however, only after the petitioner is allowed to make an application for compassionate appointment. 11. Whether her claim for compassionate appointment is finally accepted or not on consideration of relevant factors which may be germane to the issue is a question which is for the authorities to arrive at, however, only after the petitioner is allowed to make an application for compassionate appointment. 11. In such circumstances, this Court is inclined to interfere in the impugned order which has rejected her request for grant of permission to apply for compassionate appointment simply on the ground that such a request was made after 1 and half years from the death of her husband. The impugned order dated 17/18th November, 2013, Annexure-5 is accordingly quashed. The matter is remitted to the respondent to act in accordance with law. The petitioner shall move an application for compassionate appointment which should be considered in accordance with law by the competent authority under the respondents within a reasonable time. 12. Accordingly, the writ petition is allowed in the manner as indicated hereinabove.