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2016 DIGILAW 637 (ORI)

MAHANADI COALFIELDS LTD. v. DHIRA KUMAR PARIDA

2016-08-10

K.R.MOHAPATRA, S.PANDA

body2016
JUDGMENT : S. Panda, J. - This Writ Appeal has been filed by the appellants challenging the judgment dated 11.4.2014 passed by the Hon'ble Single Judge in W.P.(C) No. 1608 of 2005. 2. Learned counsel for the appellants submitted that the plea of the appellants that the respondent had resorted to the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India at a very belated stage i.e. after long lapse of 13 years was not considered by the Hon'ble Single Judge. The delay and laches can be a ground to decline to exercise the discretion however, the Hon'ble Single Judge completely overlooked the same. The Hon'ble Single Judge failed to appreciate that the appellants being the employer had issued National Coal Wage Agreement-VI (NCWA-VI), which is a settlement and the policy decision with regard to implementation of the said settlement remains within the domain of the appellants, who are the employer. Hence the impugned judgment needs to be interfered with. In support of his contention he has relied on the decision of the Apex Court reported in AIR 2014 SC 2307 , 2008 (Supp.-II) OLR 814, AIR 2009 SC 2534 , (2006) 5 SCC 766 , (2012) 9 SCC 545 , AIR 2011 SC 1880 and (1994) 4 SCC 138 . 3. Learned counsel for the respondent however, supported the decision of the Hon'ble Single Judge passed in W.P.(C) No.1608 of 2005 and submitted that taking into consideration the fact that the workman died after rendering a long span of service period in the Colliery, the case of his successor should have been considered for compassionate appointment, however, the authorities rejected the same illegally. He further submitted that there was a delay of 150 days in filing the Writ Appeal, as such the same is liable to be dismissed on the ground of limitation. 4. Law is well settled by the Apex Court in the case of State of Assam and others v. Susrita Holdings Pvt. Ltd. reported in AIR 2014 SC 2307 that delay by Government in filing Writ Appeal and matter involving public money is liable to be condoned in the larger interest of public. In view of the aforesaid settled position of law, the delay in filing the Writ Appeal is condoned. 5. In view of the aforesaid settled position of law, the delay in filing the Writ Appeal is condoned. 5. From the records, it appears that the respondent had filed W.P.(C) No. 1608 of 2005 challenging the order dated 17.8.2002 passed by the Project Officer, Deulbera Colliery, Angul-appellant no. 3 refusing to grant compassionate appointment as per Clause-9.3.2 of National Coal Wage Agreement-VI on the ground that the deceased Dama Parida, father of the respondent, was a 'Badli Loader', and the dependant of Casual/temporary/badli workers are not entitled to avail the benefit under the said Clause. The respondent's father late Dama Parida was initially appointed as a 'Loader' in the establishment of Deulbera Colliery Organization on 10.1.1965 and continued thereon for a period of eleven years. He was issued with an Identity Card by the Central Coalfields Ltd, Ranchi indicating the Employee's Code No., Unit in which he was working, designation and date of issue. The father of the respondent discontinued his service for a temporary period as he was seriously ill and unable to discharge his duties. Subsequently he was taken back into service in November, 1985. Being an employee, he was contributing to the Coal Men's Provident Fund (CMPF) having CMPF Account No.A/330430. He died in harness on 30.1.1992 leaving behind his legal heirs including the present respondent. Prior to the death of the father of the respondent, the mother of the respondent Ujala Parida, who was the nominee under the CMPF/Gratuity of the South Eastern Coalfields Ltd., Deulbera Colliery had also died. The wage structure, conditions of service and other fringe benefits of the employees of the Coal Industries are being governed by National Coal Wage Agreement. Clause 9.3.2 of NCWA-VI provides for grant of employment to one of the dependents of the worker who dies while in service. In view of such provision, the respondent who was well within the qualifying age of getting service in place of his deceased father, represented on 16.6.2002 for the said benefit. On consideration of his representation, the Project Officer-appellant no. 3 without referring the matter to the General Manager passed an order on 17.8.2002 declining to entertain the said representation on the ground that his father was a Badli Worker and is not entitled to the benefit under Clause 9.3.2 of NCWA-VI. 6. On consideration of his representation, the Project Officer-appellant no. 3 without referring the matter to the General Manager passed an order on 17.8.2002 declining to entertain the said representation on the ground that his father was a Badli Worker and is not entitled to the benefit under Clause 9.3.2 of NCWA-VI. 6. In the Writ Petition the appellants had filed a counter affidavit contending inter alia that deceased father of the respondent being a Badli Worker, the benefit claimed by the respondent is not available and therefore, the respondent is not entitled to get an employment under the said provision. 7. The Hon'ble Single Judge after hearing the parties, going through the materials available on record and relying on the decision of the Apex Court in the case of Balbir Kaur and another v. Steel Authority of India Ltd., and others reported in AIR 2000 SC 1596 held that the respondent could not have been denied the benefit of compassionate appointment to mitigate the sudden jerk in the family by reason of the death of bread earner by taking some plea or other to deprive the legitimate claim for providing compassionate appointment. The authorities could not have taken a plea that the respondent's father being working as a 'Badli Loader' is not coming within the purview of compassionate appointment in terms of Clause 9.3.2 of NCWA-VI. Being a model employer, it should have taken into consideration the sufferings of the family because of the death of the bread earner. The father of the respondent was a 'workman' within the meaning of Section 2 (s) of the Industrial Disputes Act irrespective of whether he was discharging his duties as a 'Loader' or 'Badli Loader'. 8. The Apex Court in the case of Umesh Kumar Nagpal v. State of Haryana and others reported in (1994) 4 SCC 138 held that the object of compassionate employment is to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner. It cannot be claimed and offered whatever the lapse of time and after the crisis is over. It cannot be claimed and offered whatever the lapse of time and after the crisis is over. This Court in the case of Safi Akhtar Khan v. Union of India and others reported in 2008 (Supp.-II) OLR 814 held that the purpose of providing compassionate appointment is to enable the family of the deceased employee to tide over the sudden crisis resulting due to death of the bread earner. We do not think that at this stage, that is after a lapse of ten years from the death of the father of the petitioner the object underlying the rules for providing compassionate appointment is still subsisting. 9. In the case of State of J & K and others v. Sajad Ahmed Mir reported in (2006) 5 SCC 766 the Apex Court held that compassionate appointment is an exception to general rule and that appointment to public office should be made on the basis of competitive merits. Once it is proved that in spite of the death of the breadwinner, the family survived and substantial period is over, there is no need to make appointment on compassionate ground at the cost of the interests of several others ignoring the mandate of Article 14 of the Constitution. The above principle has been reiterated by the Apex Court in the case of M/s Eastern Coalfields Ltd., v. Anil Badyakar and others reported in AIR 2009 SC 2534 wherein it was held that the compassionate appointment is not a vested right which can be exercised at any time in future. The compassionate employment cannot be claimed and offered long after death of employee in harness. 10. In the case of Local Administration Department and another v. M.Selvanayagam @ Kumaravelu reported in AIR 2011 SC 1880 the Apex Court held that object of compassionate appointment is to grant immediate succor to family of deceased employee and allowing appointment to the son of deceased employee, who had applied after 7? years after death of his father cannot be said to sub-serve the basis object and purpose of scheme. The Apex Court in the case of State of Gujarat and others v. Arvindkumar T. Tiwari and another reported in (2012) 9 SCC 545 also held that Compassionate appointment cannot be claimed as a matter of right and is not another method of recruitment. The Apex Court in the case of State of Gujarat and others v. Arvindkumar T. Tiwari and another reported in (2012) 9 SCC 545 also held that Compassionate appointment cannot be claimed as a matter of right and is not another method of recruitment. Compassionate appointment should be made strictly in accordance with the rules, regulations or administrative instructions governing the subject, taking into consideration the financial condition of the family of deceased. 11. In view of rival submission made by learned counsel for the parties and after perusal of the materials available on record, it reveals from the counter affidavit filed by the appellants to the Writ Petition under Annexure-C series that the deceased Dama Parida, father of the respondent engaged as Badli Loader on 14.11.1985 at Grade-B Pit of Deulbera Colliery. He worked only 99 days in the year 1986, 72 days in the year 1987, 54 days in the year 1988, 87 days in the year 1989, 80 days in the year 1990, 45 days in the year 1991 and died on 30.1.1992 as reveals from Annexure-A. The respondent after long lapse of ten years, attaining the age of majority and obtaining no objection from his other brothers made a representation to the Project Officer, Deulbera Colliery on 10.6.2002 for compassionate appointment, which was rejected vide letter dated 17.8.2002 with a finding that the father of the respondent being a Badli leader, the dependant of Casual/temporary/badli workers are not entitled to avail the benefit under Clause 9.3.2 of NCWA-VI. The Writ Petition was filed on 02.2.2005 i.e. after lapse of three years from the date of rejection of the representation. At that time, the respondent was aged about 27 years. These are admitted and undisputed facts. 12. Clause 9.3.1 and 9.3.2 of Implementation Instruction No. 8 of N.C.W.A (VI) provides that 'Employment would be provided to one dependant of workers, who are disabled permanently and also those who die while in service. The standing order duly certified by the Chief Labour Commissioner on 05.11.1992 defines 'workman' as follows:- (a) Apprentice, (b) Badli or substitute, (c) Casual, (d) Permanent, (e) Probationer and (f) Temporary. 13. The standing order duly certified by the Chief Labour Commissioner on 05.11.1992 defines 'workman' as follows:- (a) Apprentice, (b) Badli or substitute, (c) Casual, (d) Permanent, (e) Probationer and (f) Temporary. 13. Clause 9.3.1 of N.C.W.A (VI) read with standing order clearly shows that a workman is entitled to get benefit under Clause 9.3.1, if he is a permanent workman under Category-d and so far as Badli or substitute worker is concerned he has to complete a continuous period of service (190 days of attendance in underground mining or 240 days of attendance in case of Surface worker in a calendar year). Thus the aforesaid standing order and Clause 9.3.1 and Clause 9.3.2 of N.C.W.A (VI) have been misread and misinterpreted by the Hon'ble Single Judge as such the findings are not sustainable. The brother of the respondent applied for compassionate appointment in December, 1992. Knowing fully well the above facts, the respondent after becoming major has not applied for engagement under compassionate ground. The Hon'ble Single Judge completely ignored such delay and laches on the part of the respondent and a reasonable explanation was not furnished to that effect. The documents furnished by the present appellants in their counter affidavit to the Writ Petition under Annexure-C series, it was reflected that the deceased Dama Parida was a Badli Loader and has not completed the required days of work per year, was also not taken note of in the decision rendered. Thus the deceased cannot be treated as a workman and entitled to get benefit under N.C.W.A (VI). In Annexure-A it was categorically stated the number of days worked by the father of the respondent in different years. The Hon'ble Single Judge having ignored the materials available on record, the conclusions arrived to the effect that the respondent is entitled to get compassionate appointment is not sustainable. Further the findings of the Hon'ble Single Judge that due to inaction of the authorities it cannot be construed that there is delay and laches on the part of the respondent is not tenable. 14. Further the findings of the Hon'ble Single Judge that due to inaction of the authorities it cannot be construed that there is delay and laches on the part of the respondent is not tenable. 14. The Apex Court in the case of State of J & K and others (supra) considering the fact that the Writ Petition was filed after more than 12 years of death, dismissed the Writ Petition on the ground of delay and laches and set aside the Division Bench decision, which decided the matter more than fifteen years from the date of death of the father of the applicant and the family survived in spite of the death of the employee. In the present case, the elder brother of the respondent filed a representation for compassionate appointment in the year 1992. Thereafter the respondent has filed an application in the year 2002 i.e. after ten years from the date of death of his father. The family survived in spite of death of the worker in the year 1992. The Hon'ble Single Judge has not considered the fact that the respondent had approached this Court at a belated stage i.e. after long lapse of 13 years. In the decisions cited by the appellants the Apex Court also held that compassionate employment cannot be granted after lapse of a reasonable period and such appointment is not a vested right which can be exercised at any time. 15. The Dictionary meaning of the word "Compassion" is as follows:- "feeling of sorrow or pity for the suffering of another, with a desire to alleviate it." The sudden suffering of the family is to be alleviated in a reasonable short period. Compassionate employment cannot be granted after a lapse of 24 years from the date of death as such employment is not a vested right which can be exercised at any time in future. In view of the discussions made herein above, this Court sets aside the impugned judgment. The Writ Appeal is accordingly disposed of.