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2016 DIGILAW 366 (JHR)

Md. Sahud Mian v. Central Coalfields Limited

2016-02-22

RONGON MUKHOPADHYAY

body2016
ORDER : 1. The petitioner in this writ application has challenged the order dated 25.04.2014 passed by the respondent No. 3 by which the claim of the petitioner for his appointment under Clause 9.4.0 of the N.C.W.A. on the ground that his father has suffered from permanent disablement has been rejected. A further prayer has been made to quash the order dated 3/4.02.2015 by which the claim of payment of the salary of the petitioner's father till the date of his superannuation from service, has also been rejected on the ground that the father of the petitioner had continued to remain absent from duties till the date of his superannuation (30.11.2010). 2. Pertinent facts mentioned in the writ application are that the father of the petitioner, namely, late Moiuddin Mian was in the service of Central Coalfields Limited where he was working as clerk in Grade III pursuant to his appointment dated 05.05.1973. It is stated by the petitioner that his father has started developing weakness in his limbs and after consultation with the Doctor he was referred to Central Hospital Nai Sarai where he was examined on 26.06.2006 and there being no improvement and considering his health he was referred to C.M.C. Vellore on 22.11.2007, for which necessary sanction was accorded by the authorities. Since the father of the petitioner was getting treatment at C.M.C. Vellore and was not able to discharge his duty an application was made by him on 09.05.2008 under Para 9.4.0 of N.C.W.A. for providing employment to his son i.e. the petitioner. However, the father of the petitioner superannuated from service on 30.11.2010. When the authorities were not considering the medical disability being suffered by him and being aggrieved by the same the petitioner had preferred writ application being W.P. (S) No. 270 of 2013 with a claim for payment of salary during the period for which the petitioner's father was not being able to discharge his duties. The writ petition was disposed of vide order dated 09.12.2013 directing the petitioner to submit a detailed representation, which was to be disposed of by the respondent No. 3 within a period of 12 weeks. The impugned order dated 25.04.2014 was passed pursuant to the decision in the writ application indicated earlier, in which the claim of the petitioner for his appointment was rejected. The impugned order dated 25.04.2014 was passed pursuant to the decision in the writ application indicated earlier, in which the claim of the petitioner for his appointment was rejected. However, since no order was passed on the claim for payment of salary during the period, the father of the petitioner was absent from duties, Contempt Case (Civil) No. 248 of 2014 was filed by the father of the petitioner. A direction was given in the contempt by this Court vide order dated 16.01.2015 pursuant to which a reasoned order was passed on 3/4.02.2015 disposing of the representation by stating that since the father of the petitioner did not attend his duty till superannuation (30.11.2010) no salary is payable for the period of his absence from duty. Aggrieved by the aforesaid order rejecting the claim for compassionate appointment as well as the claim of salary, the petitioner has preferred the present writ application. 3. Learned counsel appearing for the petitioner at the outset referred to para 9.4.0 of the N.C.W.A. and has submitted that since the father of the petitioner was not in a position to resume his duty and was medically unfit as would be evident from various treatment he had undergone under Clause 9.4.0 the petitioner should have been given appointment in place of his father. 4. Learned counsel submits that this fact has not been properly considered by the authorities while rejecting such claim. So far as payment of salary is concerned, the learned counsel for the petitioner has assailed the order dated 3/4.02.2015 by submitting that the question of salary has not been properly considered by the authorities as at the instance of the Management the petitioner was referred to C.M.C. Vellore for treatment. 5. Learned counsel submits that both the reasoned order does not contain necessary reasons for their rejection and having not considered the plea of the petitioner, the said order deserves to be quashed. 6. At this Mr. Ananda Sen, learned counsel appearing for the respondents has submitted that the claim for compassionate appointment follows as a natural corollary, once an employee is declared unfit in terms of Clause 9.4.0 of the N.C.W.A. It has been submitted that in terms of sub-para-1 of para 9.4.0 the disablement of the worker concerned should be of permanent nature resulting into loss of employment and should be so satisfied by the concerned Coal Company. The medical situation of the father of the petitioner was considered by the Central Medical Board on 27.11.2010 and he was declared fit for job and in ` -3-such circumstance taking resort to para 9.4.0 does not arise. As regards the question of payment of salary during the period in which the father of the petitioner had undergone treatment is concerned, it has been submitted that the competent authority in his reasoned order dated 3/4.02.2015 has considered the said aspect and has rejected the claim. 7. It is not in dispute that the claim of the petitioner rests under the provisions of para 9.4.0 of the N.C.W.A. and if an employee is certified to have suffered from permanent disablement his dependent is entitled for appointment. In the present case the Central Medical Board had examined the father of the petitioner and had found him fit to resume duties and the Central Medical Board being the apex Medical authority of testing the fitness of an employee the decision of the Central Medical Board cannot be questioned at this stage as neither the father of the petitioner nor the petitioner had approached this Court immediately challenging the decision of the Central Medical Board. In such circumstance, therefore, the impugned order dated 25.4.2014 is in terms of the provisions of N.C.W.A. and is also in terms of the factual aspect of the present case. The impugned order dated 25.4.2014, therefore, does not suffer from any illegality and subsequently challenge made by the petitioner to the said order is negated. 8. The reasons mentioned in the order dated 3/4.02.2015 reveals that in the year 2007 the total physical attendance of the father of the petitioner was 279 days as per the 'G' Register and he was accordingly being paid his salary considering his attendance. However, from the year 2008 till the date of his superannuation (30.11.2010) salary has not been paid to him as the father of the petitioner was said to have not attended his duties. There is no whisper in the counter affidavit or in the reasoned order dated 3/4.02.2015 that for this period of his absence i.e. for almost 3 years the petitioner was proceeded departmentally for unauthorized absence or any show cause notice was ever issued to him. There is no whisper in the counter affidavit or in the reasoned order dated 3/4.02.2015 that for this period of his absence i.e. for almost 3 years the petitioner was proceeded departmentally for unauthorized absence or any show cause notice was ever issued to him. The father of the petitioner was treated at C.M.C. Vellore for these intervening period which is evident from the various prescription appended to the writ petition and it was at the instance of the Management that he was referred to C.M.C. Vellore for his treatment. The impugned order does not reflect that these aspects were taken into consideration while coming to such conclusion. It appears that the concerned authority in a single stroke of pen rejected the claim of the petitioner with respect to payment of salary from 2008 till the date of his superannuation i.e. 30.11.2010 without there being any reason in support of such rejection. In such circumstance, it, therefore, necessitate interference by this Court. Accordingly, the impugned reasoned order dated 3/4.02.2015 is, hereby, quashed and set aside and the matter is remanded back to the respondent No. 3 to take a fresh decision on the claim with respect to payment of salary to the father of the petitioner for the intervening period i.e. from the year 2008 till the date of his superannuation 30.11.2010 after giving an opportunity of hearing to the petitioner within a period of 8 weeks from the date of receipt/production of a copy of this order. 9. This application is disposed of.