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2018 DIGILAW 2562 (JHR)

Dhaneshwar Singh v. Central Coalfield Limited

2018-11-27

PRAMATH PATNAIK

body2018
ORDER : Heard Mrs. M. M. Pal, learned senior counsel for the petitioner as well as Mr. Hardeo Prasad Singh, learned counsel for the Respondents-CCL. 2. In the accompanied writ application, the petitioner has, inter alia, prayed for direction upon the respondents to pass final order with regard to the appointment of his son on compassionate ground under Clause 9.4.0 of the N.C.W.A. at par with other same and similarly situated persons considering the fact that the injury sustained by the petitioner on the date of incident, which resulted in the loss of employment. 3. The brief facts of the case is that initially, the petitioner was appointed as a Security Guard and thereafter, he was promoted to the post of the Armed Guard and was posted at Adarsh Khetriya Chikitsalaya, Gidi ‘A’, Hazaribagh and while working, as such, the petitioner, while on duty, on 17.06.2009, unfortunately, met with an accident, for which, he was hospitalized and thereafter, considering his condition, he was referred to Nayasarai, CCL Hospital and on the next day, due to his serious condition, his case was referred to the CCL, Main Hospital, Gandhi Nagar. After undergoing treatment, he was discharged from the Main Hospital on 30.09.2009 with several complications. It has been averred in the writ application that due to serious injuries, the petitioner was kept in I.O.D. (Injury on duty) from 17.06.2009 i.e. date of accident till 27.01.2011. Since the petitioner due to health condition could not resume his duties, he submitted representation on 15.03.2010 before the Medical Superintendent, Gidi ‘A’ to consider his case under paragraph 9.4.0 of the National Coal Wage Agreement (hereinafter in short to be referred as NCWA) and the application of the petitioner was duly forwarded and the case of the petitioner was recommended under paragraph 9.4.0 (ii) vide order dated 27.07.2010. It is also averred that though the case of the petitioner falls under Clause 9.4.0 (i), but his case has been under consideration under Clause 9.4.0 (ii). The copy of the Clause 9.4.0 of the NCWA has been annexed as Annexure-3 to the writ application. It has further been averred that on 29.12.2009, the petitioner was directed to appear before the Medical Board on 30.12.2009 alongwith all medical papers, injury Report and I.Card for finalization of the IOD wages, but, no final order was passed. The petitioner was issued notice for superannuation. It has further been averred that on 29.12.2009, the petitioner was directed to appear before the Medical Board on 30.12.2009 alongwith all medical papers, injury Report and I.Card for finalization of the IOD wages, but, no final order was passed. The petitioner was issued notice for superannuation. It has further been averred that in similar circumstance, one Pramod Kumar filed W.P. (S) No. 5366 of 2001 and the said writ petition was disposed of with a direction to the respondents to issue appointment order in favour of the dependent of the petitioner therein, and the case of the petitioner is squarely covered by the said order. Due to deliberate inaction on the part of the respondents, to consider the case of the petitioner under Clause 9.4.0 (i) of the NCWA, the petitioner left with no alternative has been constrained to approach this Court under Article 226 of the Constitution of India for redressal of his grievances. 4. Learned senior counsel for the petitioner has strenuously urged that the respondents ought to have passed orders finally under paragraph 9.4.0 of the N.C.W.A. within a reasonable period, but for the reasons best known to the authorities, the respondents sat over the matter, thereby depriving the petitioner the benefit of employment to his son under the guidelines of the N.C.W.A., therefore, the action of the respondents being in breach of Articles 14 and 16 of the Constitution of India, smacks of arbitrary and colourable exercise of power. Learned senior counsel further submits that since the petitioner was in I.O.D. for a pretty long time and the payment under the IOD is lesser than his regular salary, therefore, the petitioner has suffered from the monetary loss. During course of hearing, learned senior counsel for the petitioner has referred to the reply to the sub-rejoinder, dated 25.11.2016, wherein, it has been submitted that the petitioner was in I.O.D. since 17.06.2009, till the date of his superannuation. Though on 20.12.2010, he was referred Clause 9.4.0 (ii), however, no notice was served on him to appear before the Board. In the said rejoinder, order passed in W.P. (S) No. 5366 of 2007, Pramod Kumar vs. Central Coalfields Limited, vide Annexure-9 has been annexed wherein, in similar circumstances, direction for compassionate appointment has been passed in favour of the petitioner, therein and the case of the petitioner is squarely covered by the aforesaid decision. 5. In the said rejoinder, order passed in W.P. (S) No. 5366 of 2007, Pramod Kumar vs. Central Coalfields Limited, vide Annexure-9 has been annexed wherein, in similar circumstances, direction for compassionate appointment has been passed in favour of the petitioner, therein and the case of the petitioner is squarely covered by the aforesaid decision. 5. Controverting the averments made in the writ application, a counter affidavit has been filed by the respondents, wherein, the relevant provisions of the National Coal Wage Agreement i.e. 9.4.0 has been mentioned. Further, it has been submitted that the petitioner submitted his application dated 15.03.2010 in the prescribed proforma with the respondent no. 1-Company at the unit level for consideration of his case of medical unfitness under 9.4.0 of National Coal Wage Agreement and employment thereof to his son, Shri Rajesh Kumar Singh vide Annexure-C to the affidavit and the case of the petitioner was screened at the unit level by a Committee, which in turn by its report dated 27.07.2010, as may be seen in the aforesaid application form, recommended the case of the petitioner under provision 9.4.0 (ii) of the National Coal Wage Agreement and thereafter, the case of the petitioner was examined by the Area Medical Board at Argada Area and which, in turn by its report dated 20.12.2010 recommended the petitioner’s case for consideration under 9.4.0 (ii) of the National Coal Wage Agreement to the Central Medical Board headquarter, Ranchi. It has further been submitted that the provision 9.4.0 (ii) interalia provides the benefit of the provision only upto the age of 58 years of the concerned employee, on the date of making application for the relief under provision 9.4.0 of the National Coal Wage Agreement. It has further been submitted that the petitioner’s date of birth being recorded as 19.01.1951, he was above to 58 years of age on the date of his application dated 15.03.2010 and, as a matter of fact, he completed his 58 years of age only on 19.01.2009, whereas, he submitted an application, later to the said date. It has further been submitted that bare perusal of Para 9.4.0 of the National Coal Wage Agreement, would interalia reveal that for the relief under the provision 9.4.0 “the disablement should result into loss of employment”. It has further been submitted that bare perusal of Para 9.4.0 of the National Coal Wage Agreement, would interalia reveal that for the relief under the provision 9.4.0 “the disablement should result into loss of employment”. Since the petitioner remained in the roll of the Company till the date of superannuation, as such, in respect of him, there was no loss of employment and in the identical facts and circumstances, in the case of CCL vs. Sugia Oraon in L.P.A. No. 161 of 2002 vide order dated 12.09.2002, it has been held, inter alia, that since there being no loss of employment, the respondents was not entitled to claim employment for his son, as per Annexure-E to the counter affidavit. It has further been contended in the counter affidavit that in the facts of the present case, the judgment dated 29.11.2002 passed in case of Pramod Kumar vs. CCL and others in W.P. (S) No. 5366 of 2001 is not applicable to the petitioner’s case. 6. Learned counsel for the Respondents-CCL apart from reiterating the submissions made in the counter affidavit, has submitted that the date of incident was 17.06.2009 and the petitioner has filed application on 15.03.2010, after crossing the age of 58 years and he retired on 31.01.2011 and the present writ petition has been filed after attaining the age of superannuation and on that score, the writ petition is liable to be dismissed in limine. 7. After bestowing my anxious consideration to the rivalized submissions and on perusal of the records, the question, which falls for determination, is as to whether the case of the petitioner was to be considered under Clause (i) or Clause (ii) of 9.4.0 of the National Coal Wage Agreement. 8. In order to appreciate the rival contentions, it would be pertinent to refer to the relevant provisions of the N.C.W.A. Guidelines i.e. 9.4.0. “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 upto the age of 58 years. (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 upto the age of 58 years. The term ‘general physical debility’ would mean deficiency of a workman due to any disease or other health reason leading to his/her disablement to perform his/her duties regularly and/or efficiently.” 9. The relevant provision deals with two different situations/eventualities. One deals with a situation, where the disablement arises out of injury or disease, the second clause deals with the situation, where there is congenital physical disability. These two clauses appearing in the aforesaid provisions are quite distinct and independent to each other. In the first clause, the disablement caused by injury and disease must be of permanent nature, resulting into loss of employment and under second clause, the employee, who is having general physical debility arising out of the concerned, shall be eligible to get the benefit under this clause, if he is within 58 years of age. 10. Admittedly, the petitioner was under IOD, since the date of accident till the date of his superannuation and the matter was pending before the authority since 15.03.2010 and no order was passed to consider the case of the petitioner under Clause (i) of 9.4.0 of the N.C.W.A. 11. In similar circumstances, one Pramod Kumar filed W.P. (S) No. 5366 of 2001 and in pursuance to the direction in the aforesaid writ petition, the son of Pramod Kumar, petitioner therein, has been given appointment on compassionate ground under Clause (i) of 9.4.0 of the N.C.W.A., since the petitioner met an accident, during his employment, which amounts to loss of employment, his case ought to have been considered under Clause 9.4.0 (i) of the NC.W.A. 12. In view of the aforesaid reasons coupled with the decision cited in the case of Pramod Kumar (Supra), the writ petition is disposed of with a direction to the respondents to consider the case of the petitioner afresh in accordance with the provisions of Clause 9.4.0 (i) and pass a reasoned and speaking order in accordance with law as well as taking into consideration the order dated 29.11.2002, passed in W.P. (S) No.5366 of 2001 within a period of 12 weeks from the date of receipt/communication of a copy of the order. 13. 13. With the aforesaid observation and direction, the writ petition stands disposed of.