Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 750 (JHR)

Deep Narayan Singh v. Central Coalfields Ltd.

2017-04-21

S.N.PATHAK

body2017
JUDGMENT S.N. Pathak, J. – Heard learned counsel for the parties. 2. In the instant writ application, the petitioner has prayed for quashing the order dated 11.02.2015 [Annexure-6 to the writ petition], whereby the application of the petitioner''s mother recommending name of the petitioner for appointment on compassionate ground has been rejected and further for a direction to the respondents to issue letter of appointment in favour of the petitioner in pursuance of para-9.3.0, 9.4.0 and 9.5.0 of the NCWA-VIII. 3. The factual exposition as has been delineated in the writ petition is that petitioner''s father who was an employee of the respondent - Company posted as Tripman at Kargali, OCP, B & K Area, was declared unfit by the respondent - Company on 05.01.2013 and his name was struck off from the rolls of Kargali OCP. Thereafter, under the provisions of NCWA, the elder son of the concerned employee applied for employment on the ground of employee being declared unfit. However, in the mean time the petitioner''s father died in harness on 31.10.2014. Thereafter, the petitioner''s mother was communicated by the officials of the respondent - Company that claim of elder brother of the petitioner has been rejected on the ground of medical unfitness. Since the petitioner''s name find place as a dependent in the Service Sheet of the deceased employee, her mother filed a representation dated 20.01.2015 for recommending his name for appointment on compassionate ground. However, vide order dated 11.02.2015, the representation filed by the petitioner''s mother has been rejected on the ground that "as per service sheet records/pension records (PS-III), the age of the petitioner namely Deep Narayan Singh is above 35 years as such we are not able to process the case for employment of Sri Deep Narayan Singh" and hence this writ petition. 4. Mr. Kumar Harsh, learned counsel for the petitioner submitted that the petitioner is well within the prescribed age limit which is also evident from the Matriculation Certificate. Learned counsel further submitted that the impugned order suffers from application of mind and has been rejected illegally and arbitrarily and as such the same is fit to be set aside. 4. Mr. Kumar Harsh, learned counsel for the petitioner submitted that the petitioner is well within the prescribed age limit which is also evident from the Matriculation Certificate. Learned counsel further submitted that the impugned order suffers from application of mind and has been rejected illegally and arbitrarily and as such the same is fit to be set aside. Learned counsel further submitted that the application of the petitioner''s elder brother has been rejected on the ground that the deceased employee had misrepresented for obtaining appointment in the Company and therefore the appointment of the deceased employee was illegal and on the other hand the application of the petitioner has been rejected on the frivolous ground of over age. Learned counsel further submitted that since petitioner''s father was declared medically unfit and as such under the provisions of NCWA, the dependents of the employee are entitled for appointment on compassionate ground. Learned counsel further submitted that the family of the deceased employees were totally dependent on his income and have legitimate expectation under the provisions of NCWA to get appointment on compassionate grounds. Learned counsel for the petitioner, by referring Annexure-9 Series and Annexure-10 to the supplementary affidavit pointed out that due to illiteracy of the parent and tender age of the petitioner, mistake regarding surname has cropped up and Deep Narayan Chauhan and Deep Narayan Singh are same person. He further pointed out that petitioner''s family used to write down "Chauhan" and "Singh" as their surname and the photographs pasted in the Certificate tallies with the petitioner. On the ground of such inadvertent mistake, candidature of a candidate could not have been rejected. Learned counsel further relies upon the Full Bench decision of this Court in the case of Kamta Pandey v. M/s. BCCL through its Chairman-cum-Managing Director reported in 2007(3) JLJR 726 and further refers Para-29 thereof, which reads as under: "29. In view of the above discussion, our answer to the question raised in this case is as follows: "The date of birth recorded in the Matriculation Certificate duly authenticated by the Education Board is a conclusive proof of age and no other records, including service records as both the parties are governed by Implementation Instruction NO. In view of the above discussion, our answer to the question raised in this case is as follows: "The date of birth recorded in the Matriculation Certificate duly authenticated by the Education Board is a conclusive proof of age and no other records, including service records as both the parties are governed by Implementation Instruction NO. 76 of National Coal Wage Agreement" To rebut the allegations of fraudulent committed by petitioner''s father, learned counsel submitted that petitioner''s father was appointed on 22.03.1979 and there was no departmental enquiry or proceeding against him and as such, after his death, the respondents cannot raise question regarding legality and propriety of appointment of deceased-father of the petitioner. 5. On the other hand counter affidavit has been filed. Mr. Amit Kumar Das, learned counsel for the respondents submitted that the petitioner, if so aggrieved, can raise his grievances under the provisions of Industrial Disputes Act, 1947. Learned counsel further submitted that the petitioner has crossed the minimum age required under the provisions of National Coal Wage Agreement and as such, in no case his candidature could be accepted. Learned counsel refers to Clause 9.4.3 of the said NCWA, which reads as under: "Clause 9.4.3 The dependent 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. So far as male spouse is concerned, there would be no age limit regarding provisions of employment." Learned counsel draws attention of this Court towards counter affidavit and further submitted that the origin of employment of deceased employee is a fraudulent entry and as such, claim for employment of the petitioner is a claim to perpetuate the illegality and fraud committed by the deceased-employee and therefore, instant writ petition is fit to be dismissed. 6. I have heard learned counsel for the parties and gone through records of the case. Surprisingly, respondents have raised the issue of fraud or misrepresentation committed by an employee who worked since 22.03.1979 i.e. for quite long duration and died in harness but no departmental enquiry had been initiated nor any punishment had been inflicted during his life time. There is no averment that any departmental enquiry either initiated or concluded against the deceased. Surprisingly, respondents have raised the issue of fraud or misrepresentation committed by an employee who worked since 22.03.1979 i.e. for quite long duration and died in harness but no departmental enquiry had been initiated nor any punishment had been inflicted during his life time. There is no averment that any departmental enquiry either initiated or concluded against the deceased. It has been held by the Division Bench of the Bombay High Court in the case of " Hirabai v. State of Maharashtra" reported in 1986 Lab. I.C. 248 , that if a civil servant under suspension died before conclusion of disciplinary proceeding, then the proceeding would terminate and abate and the period. In the case of Jayanti Devi v. State of Bihar and others reported in (2001) 2 JCR 165 , this Court held that a departmental proceeding cannot continue against a dead employee. It is not open to the respondents to question legality and propriety of appointment of an employee after his death. The contention of the learned counsel for the respondents cannot be accepted because the same has not been proved during the departmental enquiry in his life time. From the impugned order it can safely be derived that no reason has been assigned for coming to a conclusion regarding age of petitioner. From the educational and other certificates enclosed as Annexure-9 Series and Annexure-10, it is crystal clear that the petitioner had not crossed the prescribed age limit of 35 years on the date of consideration of his application for appointment. In absence of valid reason, Matriculation Certificate cannot be discarded for considering age of a candidate merely because the service excerpts kept and maintained by the Company does not tally with the same. I find no reason for coming to a conclusion regarding age of the employee since it is quite clear from the educational certificate that the petitioner had not crossed age of 35 years at the relevant point of time. The Certificates submitted by the petitioner cannot be discarded merely because of difference in Surname or difference in records kept and maintained by the respondents. The Certificates submitted by the petitioner cannot be discarded merely because of difference in Surname or difference in records kept and maintained by the respondents. The Courts have held in catena of decision that when there are conflicting date of births between the entries made in the Matriculation Certificate and the entries made in other records, including the medical records, the age determination is to be done at the time of appointment first on the basis of Matriculation Certificate, if available. The date of birth mentioned in the Matriculation Certificate alone shall be treated as an authentic and correct date of birth and the same cannot be altered under any circumstances. This ratio has been decided by the Division Bench in the case of Awadh Singh v. The Bharat Coking Coal Ltd. & others reported in 2005(3) JLJR 209 . 7. In view of the aforesaid legal position, I have no hesitation in holding that during life time of deceased-employee, no departmental proceeding was initiated and any subsequent action or allegation against him is non-est in the eye of law. I further hold that since on the date of death of petitioner''s father, no enquiry had been initiated, it would be deemed that he died in harness and as such his dependents would be entitled to get all the benefits available under Rule of the Company and Company is liable to give all benefits to the petitioner including his appointment. 8. It is settled law that after death of petitioner''s father, legality and propriety of his appointment could not be tested and further date of birth has to be determined on the basis of matriculation certificate and as such, the impugned order dated 11.02.2015 [Annexure-6 to the writ petition], cannot be sustained. 9. In the result, this writ application is allowed and the impugned order dated 11.02.2015 [Annexure-6 to the writ petition], is hereby quashed. The respondents are directed to consider case of the petitioner afresh for appointment on compassionate ground and further issue letter of appointment in his favour in pursuance of para-9.3.0, 9.4.0 and 9.5.0 of the NCWA-VI within a period of three months from the date of receipt/production of a copy of this order.