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2017 DIGILAW 746 (JHR)

Bhim Paswan v. Bharat Coking Coal Limited

2017-04-21

S.N.PATHAK

body2017
JUDGMENT S.N. Pathak, J. (C.A.V.) - Heard learned counsel for the petitioner and learned counsel for the respondents. 2. The petitioner has approached this Court for quashing letter dated 27/29.03.2014 (Annexure-7), whereby the claim of the petitioner for compassionate appointment has been rejected by the respondents on account of same being time barred. Further prayer has also been made for issuance of direction upon the respondent No. 1 to appoint the petitioner on compassionate ground on account of death of his father. FACTUAL MATRIX 3. The father of the petitioner namely, Ganesh Paswan was appointed as Loader under the respondents and was issued I.D. Card No. 145004, CMPF No. DHN/25/139. From the certificates it is apparent that the petitioner was born on 11.07.1993 and his name is duly mentioned in the Service Excerpt of Ganesh Paswan, wherein the petitioner has been shown to be a minor and hence, the same was within the knowledge of the respondents. The mother of petitioner died on 31.12.1998. Thereafter, on 18.11.2005 the father of the petitioner, while working under the respondents, died leaving behind Binod Paswan, Bhim Paswan (petitioner) and Sunita Kumari. At the time of death of his father, the petitioner was aged only about 12 years. In the meantime, the elder brother of the petitioner applied for compassionate appointment. On 11.07.2011 when the petitioner attained the majority, he came to know about the aspect of compassionate appointment from various persons. Thereafter, vide his application dated 21.02.2012, the petitioner requested the respondent-authorities to provide him compassionate appointment, upon which the petitioner was directed to submit affidavits, family certificates, etc., which he promptly submitted before the respondents-authorities. Thereafter, the petitioner was directed to submit Form in 4 sets and the petitioner, vide his application dated 12.02.2013, submitted same. The petitioner pursued his case before the respondents through his representations dated 20.08.2012, 25.11.2013, etc. but respondents have not given any heed to the petitioner''s request and vide their letter dated 27/29.03.2014, rejected the claim of the petitioner for compassionate appointment on the ground of same being time barred. Hence, this writ petition has been filed by the petitioner for redressal of his grievance. 4. Learned counsel for the petitioner, Mr. Ashutosh Anand, submits that the order of rejection dated 27/29.03.2014 has been passed illegally and arbitrarily by the respondents-authorities. Hence, this writ petition has been filed by the petitioner for redressal of his grievance. 4. Learned counsel for the petitioner, Mr. Ashutosh Anand, submits that the order of rejection dated 27/29.03.2014 has been passed illegally and arbitrarily by the respondents-authorities. It is further submitted that under the NCWA, there is no stipulation for applying for compassionate appointment, within a specified time and any condition beyond the NCWA is bad and illegal. The respondents had not considered the fact that the petitioner was a minor at the time of death of his father and hence, he cannot have applied for compassionate appointment during his minority. Under the provisions of NCWA, a minor dependent is entitled to be kept in live roster which has not been done by the respondents in this case. The petitioner immediately upon attaining majority has submitted his claim for compassionate appointment. Learned counsel further submits that the petitioner and his family members being completely dependent upon the deceased employee, are facing great financial hardship after his death and as such, the petitioner''s case for compassionate appointment may be considered sympathetically. 5. Counter-affidavit has been filed by the respondents. Learned counsel appearing for the respondents, Mr. Anoop Kumar Mehta, vehemently opposes the prayer of the petitioner and submits that the instant writ application is not maintainable in the eyes of law and liable to the rejected. He further submits that under the provisions of NCWA, no application for compassionate appointment will be considered after 18 months from the date of death or disablement of the employee and as the petitioner has submitted his application for compassionate appointment after 6 to 7 years of death of his father, the respondents have rightly rejected the same on account of the same being time barred. From a bare perusal of the certificates enclosed by the petitioner, it is crystal clear that the petitioner was aged about 12 years at the time of death of his father on 18.11.2015 and hence, the petitioner being minor, his claim for compassionate appointment was not considered by the respondents-authorities. 6. Be that as it may, from the rival submissions of the parties, this Court is of the considered view that the case of the petitioner deserves to be considered for appointment on compassionate ground. 6. Be that as it may, from the rival submissions of the parties, this Court is of the considered view that the case of the petitioner deserves to be considered for appointment on compassionate ground. At the time of death of the deceased father, admittedly the petitioner was 12 years of age and in terms of Clause 9.5.0 of NCWA-VI, brought in effect from 01.01.2000, if the male dependant of the concerned worker is 12 years of age or above, his case would be kept on live roster. In para-6 of the counter affidavit filed by the respondents on 16.01.2017, it has been stated that the petitioner was aged about 12 years at the time of death of his father on 18.11.2005. The second plea of the respondents that it is a belated claim as the petitioner applied 6-7 years after the death of his father, cannot be accepted by this Court. It is crystal clear from provisions of Clause 9.5.0 of NCWA-VI that if no employment has been offered and the male dependant of the concerned worker is 12 years and above in age, he will be kept on live roster and would be provided employment commensurate with his skill and qualifications and when he attains the age of 18 years. It was incumbent upon the respondents to keep the post on live roster as the respondents have also admitted that the petitioner was 12 years of age. Admittedly, the petitioner applied after attaining the age of majority, as at the time of death of his father, he was minor. So, it cannot be termed to be a belated claim as it is in accordance with law and as per the scheme framed by the respondents themselves. 7. Taking into consideration the facts as mentioned in para-5 of the writ petition that the petitioner was born on 11.07.1993 and also the facts from Annexure-3 that on 21.02.2012, the petitioner was about 19 years, it cannot be disputed that at the time of death of his father, the petitioner was 12 years and above. Hence, as per the provisions of sub-clause (iii) of Clause 9.5.0 of NCWA-VI, his name ought to have been kept on live roster. The respondents-authorities have completely given a go-bye to the factual aspect that the petitioner was 12 years of age at the time of death of his father. Hence, as per the provisions of sub-clause (iii) of Clause 9.5.0 of NCWA-VI, his name ought to have been kept on live roster. The respondents-authorities have completely given a go-bye to the factual aspect that the petitioner was 12 years of age at the time of death of his father. Imaginary date of birth and age cannot be fixed by the respondents-authorities, which suits to them. The date of birth has to be calculated on the basis of service excerpts or in case of any doubt, it has to be assessed by the Apex Medical Board but in the instant case nothing has been done and merely on their own, an imaginary date of birth has been fixed by the respondents and as such, the same cannot be accepted by this Court. 8. As a cumulative effect of aforesaid facts, observations, rules, and the guidelines, the impugned order dated 27/29.03.2004 passed by the respondents-CCL, is hereby quashed and set aside. Respondent No. 2 is hereby directed to reconsider the claim of the petitioner for compassionate appointment, taking into account the fact that at the time of death of his father, the petitioner was 12 years and above of age, within a period of six weeks from the date of receipt of a copy of this order. 9. With the aforesaid observation, the writ petition is allowed.