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2017 DIGILAW 1860 (JHR)

Sahud Mian v. Central Coalfields Limited

2017-11-03

AMITAV K.GUPTA, DHIRUBHAI NARANBHAI PATEL

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JUDGMENT : DHIRUBHAI NARANBHAI PATEL, J. 1. This Letters Patent Appeal has been preferred by original petitioner against order dated 22nd February, 2016 passed by the learned Single Judge in W.P.(S) No. 1903 of 2015, vide which, the said petition has been dismissed and the prayer of the present appellant for compassionate appointment on the ground of medical illness was rejected. Having heard counsels appearing for both sides and looking to the facts and circumstances of the case, it appears that father of this appellant was appointed on 5th May, 1973 as a Clerk in Grade-III post in the service of the respondents. 2. It further appears that father of the appellant started developing weakness in his limbs in the year 2006 and later on, in the year 2007, he was referred to Hospital at C.M.C., Vellore, Tamil Nadu. An operation was carried out in the year 2008 and he was discharged from the said hospital on 12th February, 2008. 3. It further appears from the facts of the case that on and from February, 2008 the father of this appellant who was an employee of the respondents was continuously absent without the permission of the management till he reached the age of superannuation on 30th November, 2010. 4. It further appears from the facts of the case that the father of the appellant applied for compassionate appointment for his son as per the provisions of clause 9.4.0. of the National Coal Wage Agreement-VI (As submitted by the counsel for the appellant) on 9th May, 2008. 5. It appears that benefit of Clause 9.4.0 of the National Coal Wage Agreement-VI was not given by the management mainly for the reason that on 27th November, 2010, on examination by a Medical Board, father of the appellant was declared medically fit. 6. Thus, as the benefit of Clause 9.4.0 of National Coal Wage Agreement-VI was not extended, Order dated 25th April, 2014 passed by the respondents was challenged by the appellant, by way of a writ petition, being W.P.(S) No. 1903 of 2015, along with the prayer for getting salary for the period from January, 2008 till 30th November, 2010, i.e. the date of superannuation of the father of this appellant. 7. It appears that Clause 9.4.0 of National Coal Wage Agreement-VI gives the benefit of compassionate appointment to legal heirs of the employees on medical ground. 7. It appears that Clause 9.4.0 of National Coal Wage Agreement-VI gives the benefit of compassionate appointment to legal heirs of the employees on medical ground. For ready reference, Clause No. 9.4.0. reads as under: "9.4.0. Employment to one dependant of a worker who is permanently disabled in his place-- (i) The disablement of the worker concerned should arise from injury or disease, be of a permanent nature resulting into loss of employment and it should be so certified by the Coal Company concerned. (ii) In case of disablement arising out of general physical debility so certified by the Coal Company, the employee concerned will be eligible for the benefit under this clause if he/she is up to the age of 58 years. (iii) The dependant for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment, brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the employee and almost wholly dependent on the earning of the employee may be considered. In so far as female dependants are concerned, their employment would be governed by the provisions of clause 9.5.0. (iv) The dependants to be considered for employment should be physically fit and suitable for employment and aged not more than 35 years provided that the age limit in case of employment of female spouse would be 45 years as given in Clause 9.5.0. In so far as male spouse is concerned, there would be no age limit regarding provision of employment." (Emphasis supplied) 8. It appears that ingredients of Clause 9.4.0 is not present in the facts of the present case for grant of benefit of compassionate appointment to this appellant. This aspect of the matter was properly appreciated by the learned Single Judge while dismissing the application for compassionate appointment of this appellant. 9. It further appears that this appellant was operated upon at the Hospital at C.M.C., Vellore. Tamil Nadu and he was also discharged from the hospital. Thereafter, he remained constantly absent from work till he reached the age of superannuation. Thus, he was avoiding medical examination by the Medical Board. 10. 9. It further appears that this appellant was operated upon at the Hospital at C.M.C., Vellore. Tamil Nadu and he was also discharged from the hospital. Thereafter, he remained constantly absent from work till he reached the age of superannuation. Thus, he was avoiding medical examination by the Medical Board. 10. Secondly, claim of compassionate appointment cannot be allowed by this court because when father of the appellant applied for compassionate appointment for his son on 9th May, 2008, as per the provisions of 9.4.0 of the National Coal Wage Agreement-VI, a certificate was required to be given by the Management. This certificate could not be given by the respondents because the appellant was avoiding medical examination by his constant absenteeism without permission of the Management. 11. Thirdly, compassionate appointment cannot be allowed as father of this appellant failed to go before the medical board and when, ultimately, examined on 27th November, 2010, he was found medically fit, by the panel of doctors. Thus, it appears that though he was found medically fit, he was not attending the services. Thus, conditions attached with Clause 9.4.0 of the National Coal Wage Agreement are not fulfilled. These aspects of the matter have been properly appreciated by the learned Single Judge while rejecting the prayer of this appellant for compassionate appointment and we see no reason to take any other view than what has been taken by the learned Single Judge. 12. Compassionate appointment is not an alternative methodology for getting appointment. Compassionate appointment is an exception to Article 14 to be read with Article 16 of the Constitution of India. Unless the conditions for getting compassionate appointment are fulfilled, no such appointment can be given to the legal heirs of the employees of the respondents. 13. Even otherwise also, father of this appellant has reached the age of superannuation on 30th November, 2010 and the writ petition was preferred in the year 2015. Thus, the very purpose of the compassionate appointment has been frustrated. It ought to be kept in mind that compassionate appointment cannot be given after a long lapse of time. Compassionate appointment is to be given to provide immediate financial support to the employees. In the facts of the present case, five years after retirement of the father of the appellant writ petition in question was preferred. 14. It ought to be kept in mind that compassionate appointment cannot be given after a long lapse of time. Compassionate appointment is to be given to provide immediate financial support to the employees. In the facts of the present case, five years after retirement of the father of the appellant writ petition in question was preferred. 14. It further appears from the facts of the case that from January, 2008 till 30th November, 2010, salary was claimed for which the matter was remanded by the learned Single Judge for reconsideration by the Management and looking to the affidavit filed in this Letters Patent Appeal it appears that claim of salary was rejected vide order dated 13th/4th September, 2016 because of the absenteeism of the father of the appellant without permission of the Management. Therefore, on the principle of 'No work no salary', claim for getting salary for the aforesaid period has been rejected, against which, as on today, no writ petition has been preferred by this appellant. Thus, order dated 13th/14th September, 2016, has attained finality. 15. In view of these facts, we see no reason to entertain this Letters Patent Appeal as no error has been committed by the learned Single Judge while deciding W.P.(S) No. 1903 of 2015 vide order dated 22nd February, 2016. 16. There is no substance in this Letters Patent Appeal, hence, the same is, accordingly, dismissed. I.A. No. 6406 of 2016 Counsel appearing for the appellant is not pressing this Interlocutory Application, hence, this Interlocutory Application is dismissed as not pressed.