Research › Search › Judgment

Calcutta High Court · body

2018 DIGILAW 858 (CAL)

Tiken Bhuia v. Eastern Coalfields Limited

2018-11-28

BIBEK CHAUDHURI, DIPANKAR DATTA

body2018
JUDGMENT : BIBEK CHAUDHURI, J. 1. The petitioner in W.P. No. 2269 (W) of 2017 is the appellant before us. The aforesaid writ petition was dismissed by a Learned Single Judge by his judgment and order dated 18th April, 2017, thereby rejecting the prayer of the appellant/petitioner for a writ of mandamus directing the respondents to appoint him on compassionate grounds on the death of his elder brother who was an employee of the respondent no. 1. 2. The elder brother of the appellant died in-harness in January, 2002. At the time of his death he was an employee of Moira Colliery under Eastern Coalfields Limited. According to the appellant, soon after the death of his elder brother he applied for compassionate appointment. Sometimes in the month of April, 2008, the proposal of the said compassionate appointment was forwarded by the Area Manager to the headquarters of Eastern Coalfields Limited, respondent no. 1 herein. Since the authority failed and neglected to take any step on the issue, the appellant sought for assistance of one Ukhra Colliery Mazdoor Union. The said union by letters dated 17th March, 2016 and 16th May, 2016 wanted to know the fate of the application for compassionate employment of the appellant. But the respondent no. 1 did not send any reply to the aforesaid letters. Subsequently, series of communications were made by the appellant through the said union which yielded no result. Finally on 14th September, 2016 the petitioner sent lawyer’s notice to the respondents. The respondent no. 1 finally informed the learned advocate for the appellant by a letter dated 20th October, 2016 that the prayer of the appellant for compassionate appointment on the death of his elder brother was refused. Such communication of the order of refusal was the subject matter of challenge in the aforesaid writ petition. 3. The Learned Single Judge dismissed the said writ petition having regard to the efflux of time since the death of the appellant’s elder brother in the month of January, 2002. 4. On 13th November, 2018 an application for stay of operation of the impugned order dated 18th April, 2017 passed in the aforesaid writ petition (CAN No. 5441 of 2017) was fixed for hearing on which date, we proposed to hear both the appeal and application. 5. Accordingly we have heard Mr. Ganguly, learned advocate for the appellant and Mr. 4. On 13th November, 2018 an application for stay of operation of the impugned order dated 18th April, 2017 passed in the aforesaid writ petition (CAN No. 5441 of 2017) was fixed for hearing on which date, we proposed to hear both the appeal and application. 5. Accordingly we have heard Mr. Ganguly, learned advocate for the appellant and Mr. Kumar learned advocate for the respondent. 6. Mr. Ganguly, learned advocate representing the appellant submitted that the Learned Single Judge failed to appreciate the fact that immediately after the death of his elder brother, the appellant submitted his application for compassionate appointment. The respondent authority was in laches in keeping the said application pending for long 16 years. The appellant cannot be held responsible for alleged intentional laches in persuading his prayer for compassionate appointment, because he was suffering from acute financial crisis due to the death of his elder brother who happened to be the sole breadearner of their family. In support of his contention, he invited our attention to an unreported decision of a coordinate Bench of this Court passed in Monosakha Manna and Another vs. Union of India and Others, W.P.C.T. No. 275 of 2012. 7. Mr. Kumar, learned advocate for the respondents, on the other hand contended that having regard to the efflux of time since the death of the appellant’s elder brother, it cannot be claimed by him that the need of employment on compassionate ground still exists even after the lapse of 16 years. Had there really been immediate need for appointment to tide over financial crisis due to the death of his elder brother, the appellant ought to have approached the respondent no. 1 with utmost expedition. Failure to take such expeditious action by the appellant goes to suggest that he was not in acute financial crisis where his survival could have been at stake, but for compassionate appointment. In support of his argument, Mr. Kumar relied on a decision of the Supreme Court in Eastern Coalfields Limited vs. Anil Badyakar and Others, (2009) 13 SCC 112 wherein it has been held that compassionate appointment is not vested right which can be exercised at any time in future. It cannot be claimed or offered after the lapse of time when the crisis is over. Kumar relied on a decision of the Supreme Court in Eastern Coalfields Limited vs. Anil Badyakar and Others, (2009) 13 SCC 112 wherein it has been held that compassionate appointment is not vested right which can be exercised at any time in future. It cannot be claimed or offered after the lapse of time when the crisis is over. Therefore, the decision of the competent authority refusing the prayer for compassionate appointment cannot be interfered by way of judicial review in exercise of the power under article 226 of the Constitution. 8. Mr. Kumar, learned advocate for the respondents also placed reliance on an unreported decision of this court delivered by one of us (The Hon’ble Dipankar Datta, J.) in W.P. No. 5122 (W) of 2017, Maisur Khan vs. Eastern Coalfields Limited and Others on 17th April, 2009. 9. Having heard the learned advocates and on careful consideration of the decisions cited by them, we find no reason to interfere. 10. Undoubtedly, the elder brother of the appellant/petitioner was a workman of Moira Colliery belonging to the respondent No. 1 and he died in harness in January, 2001. The terms and conditions of the service of the workmen working in coalmines are governed by a “settlement” known as “National Coal Wage Agreement-VI” (NCWA for short). The said settlement which was arrived at in the course of conciliation proceedings, being a product of collective bargaining, is binding on the parties under the provisions of Section 18(3) of the Industrial Disputes Act. 11. Thus, NCWA being binding on the parties in relation to compassionate appointment, the employer/respondents was/were required to consider the case of the appellant/writ petitioner only in accordance with the terms of NCWA and no discretion, as such, is left with any of the respondents to make compassionate appointment dehors the NCWA. In other words, strict adherence to the terms and conditions of the said scheme/agreement is necessary while considering a prayer for compassionate appointment. 12. In the instant case, the elder brother of the appellant died sometimes in January, 2001. It is not discernible from the writ petition or the application for stay how old the petitioner was at the time of death of his elder brother. 12. In the instant case, the elder brother of the appellant died sometimes in January, 2001. It is not discernible from the writ petition or the application for stay how old the petitioner was at the time of death of his elder brother. From the ‘List of Dates’ appended to the application for stay, it is ascertained that the petitioner could also not be able to state the date of filing the application for compassionate appointment before the respondents. However, from the affidavit of the application of said (CAN No. 5441/17) it is ascertained that the petitioner stated that he was 76 years old on the date of affirmation of the affidavit, i.e. on 19th May 2017. Therefore, in the year 2001 when the elder brother of the petitioner, died he was aged about 30 years. 13. The scheme of NCWA will be implemented in the following manner:- 9.3.2 employment to one dependant of the worker who dies while in service. 9.3.3 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 of the deceased employee may claim compassionate appointment, provided he should be physically fit and suitable for employment and aged not more than 35 years. 14. Perusal of various clauses of NCWA reveals that on the death of the workman, the wife/husband as the case may be, unmarried daughter, son and legally adopted son being direct dependant of the deceased employee will get preference in matter of compassionate appointment. In the absence of any of the direct dependants, the compassionate appointment may be available to the brother of the deceased employee. The appellant/writ petitioner is conspicuously salient if the deceased employee had left behind any direct dependant on the date of his death. 15. It is also to be noted that the scheme of compassionate appointment under NCWA is a social security scheme which was arrived at in the course of conciliation proceeding between the employer and the workmen and a “settlement” within the meaning of Section 2(p) of the Industrial Dispute Act, 1947. 16. When it is alleged that the petitioner was denied employment on compassionate ground in terms of the settlement, viz. such dispute obviously comes within the meaning of “Industrial Dispute” as defined in Section 2(k) of the said Act. 16. When it is alleged that the petitioner was denied employment on compassionate ground in terms of the settlement, viz. such dispute obviously comes within the meaning of “Industrial Dispute” as defined in Section 2(k) of the said Act. When the petitioner’s prayer for compassionate appointment in terms of NCWA was denied he could have referred the dispute to the appropriate authority for promoting a settlement thereto. In other words, the petitioner could have taken recourse under the Industrial Dispute Act for redressal. 17. We are of the considered view that decisions of the Supreme Court in Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 and Sanjay Kumar vs. State of Bihar, (2000) 7 SCC 192 , followed by a catena of decisions of the Apex Court, are a complete answer to the contentions raised by Mr. Ganguly. 18. In Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 the Supreme Court, in paragraph 6 of its judgment, held as under: “6........For these very reasons, the compassionate employment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.” 19. In Smt. Sushma Gosain vs. Union of India, (1989) 4 SCC 468 , it is observed by the Supreme Court that in all claims of appointments on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate hardship due to the death of the bread-earner in the family. Such appointments should therefore, be provided immediately to redeem the family in distress. Similar view has been reiterated by the Supreme Court in Smt. Phoolwati vs. Bhagwan Singh, 1991 Supp (2) SCC 689, Union of India vs. Bhagwan Singh, (1995) 6 SCC 476 , Director of Education (Secondary) vs. Pushpendra Kumar, (1998) 5 SCC 192 , Sanjay Kumar vs. State of Bihar, (2000) 7 SCC 192 and State of Manipur vs. Md. Rajaodin, (2003) 7 SCC 689 . 20. Mr. Rajaodin, (2003) 7 SCC 689 . 20. Mr. Ganguly tried to impress upon us that we are bound by the Division Bench decision in W.P.C.T. No. 275 of 2012 and hence should follow it. We are, however, not in a position to agree. 21. In W.P.C.T. No. 275 of 2012 which was relied on by the learned advocate for the appellant, a coordinate bench of this court was pleased to hold that the respondent authority cannot ignore an application for compassionate appointment by not furnishing any answer to the same as to whether it has been accepted or rejected. In the aforesaid unreported decision, the petitioners were the wife and son of the deceased employee. The employee died on 5th December, 1996 when his son was minor. The petitioners applied for appointment of petitioner no. 2 on compassionate grounds after he attained the age of majority. He was directed to undergo suitability test in which he appeared on 6th April, 1999. At the time of suitability test, the petitioner no. 2 was directed to produce certain documents including information as to whether any of the sons of the deceased employee were married or not. Again the petitioners were called upon to produce necessary particulars on 7th February, 2000. The said particulars were furnished by the petitioners on 1st March, 2000. Subsequent thereto, the respondent authority did not make any communication with the petitioners. After a lapse of 11 years the petitioners approached the tribunal. Under such facts and circumstances the aforesaid writ petition was disposed of by a coordinate bench of this court directing the respondents to consider the application of the petitioner no. 2 in accordance with law. 22. On careful perusal of the aforesaid decision of the coordinate bench of this court, we find that the said order was passed without considering the decisions of the Supreme Court in Umesh Kumar Nagpal (supra) and Sanjay Kumar (supra) which are having binding effect on us. Since the aforesaid decisions of the Apex Court have not been noticed by the coordinate bench while disposing of W.P.C.T. 275 of 2012, we feel persuaded to be guided by those decisions which lay down the law that compassionate employment cannot be granted after long lapse of time. 23. In the present case, the appellant did not specifically state the date of death of his elder brother. 23. In the present case, the appellant did not specifically state the date of death of his elder brother. He is conspicuously silent about the date of submission of his application for compassionate appointment. Even assuming that the petitioner filed his application for compassionate appointment immediately after the death of his elder brother, subsequent silence on his part for more than 16 years is suggestive of the fact that the petitioner was really not under financial distress for which compassionate appointment might be offered to him. 24. For the reasons aforesaid, there is no merit in the appeal and the same stands dismissed. 25. Consequently, CAN No. 5441 of 2017 is also dismissed. 26. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. I agree - Dipankar Datta, J.