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2019 DIGILAW 1425 (JHR)

Employers In Relation To Management Of Ena Colliery Under Kustore Area Of Bharat Coking Coal Ltd , Kenduadih, Dhanbad v. Their Workmen Being

2019-08-14

RAJESH KUMAR

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JUDGMENT Rajesh Kumar, J. -By Court The present writ petition has been filed by the employer-Management for quashing the award dated 07.04.2005 passed by CGIT (No. 2), Dhanbad in Reference Case No. 228 of 1998 whereby the reference has been answered in favour of claimant directing the petitioner-Management to give employment to dependent''s son namely Sagar Bauri as per clause 9.4.2 of NCWA-IV. 2. From the pleadings of the parties, it appears that the deceased workman namely Late Kisto Bauri has been appointed under the respondents on 06.12.1971 on the post of Fitter Helper. He has died on 03.08.1994 while in service. These facts are not in dispute. 3. On the death of the workman, his son namely Sagar Bauri has made an application for compassionate appointment on 28.06.1995 under clause 9.4.2 of NCWA-IV. The said application has been rejected on the ground that ex-employee was Badli worker. Against such order of rejection, an Industrial Dispute has been raised, which has referred as Reference No. 228 of 1998. Terms of reference is in following terms: "Whether the action of the management in denying the employment of the dependent son of Late Kisto Bauri Ex-fitter helper of Ena Colliery under para 9.4.2 of NCWA-IV is justified? If not, to what relief the dependant son of the deceased employee is entitled to?" 4. After considering the pleadings of the parties and evidence produced on record, the reference has been answered in favour of the claimant in following terms: "That the action of the management in denying employment of the dependant son of Late Kisto Bauri, Ex-fitter helper of Ena Colliery under clause 9.4.2 of N.C.W.A.-IV was not justified. Management is directed to provide employment to the deceased son of Kisto Bauri i.e. Sagar Bauri on compassionate ground under clause 9.4.2 of N.C.W.A.-IV within three months from the date of publication of this award in the Gazettee of India if he is not declared unfit as per employment rules of the company." 5. For denying the claim of the claimant, the Management has taken plea that the concerned workman has been proceeded departmentally for unauthorised absence and he has been found guilty of the charge and accordingly, by way of punishment, his status has been converted from permanent worker to Badli worker vide order dated 06.09.1993. For denying the claim of the claimant, the Management has taken plea that the concerned workman has been proceeded departmentally for unauthorised absence and he has been found guilty of the charge and accordingly, by way of punishment, his status has been converted from permanent worker to Badli worker vide order dated 06.09.1993. Till death of employee i.e. 03.08.1994, the ex-employee has not completed 240 days of work and as such, his status has remained as Badli worker and being a badli worker, his dependent son was not entitled for compassionate appointment under clause 9.4.2 of NCWA-IV. 6. Order Nos. 7.1, 7.5 and 29.1 of the certified Standing Orders for Workmen of Establishments under BCCL is quoted hereinbelow: "7.1 For the purpose of the Standing Orders, workmen/employees shall be classified as follows: (a) Permanent (b) Probationer (c) Temporary (d) Badli or substitute (e) Casual (f) Apprentices" 7.5 ''A badli or substitute" is one who is employed is the post of a permanent workman or a probationer who is temporarily absent from duties, but he would cease to be a badli on completion of a continuous period of service of one year, (190 days attendances in the case of an underground workman and 240 days attendances in the case of any other workmen) in the same posts or other post or posts in the same category." "29.1 The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a workman for misconduct, viz- (i) Minor penaltiesa) Censure b) Fine in accordance with the P.W. Act, 1936. c) Suspension without wages as substantive punishment for not more than ten days at a time. (ii) Major Penalties: (a) Stoppage of increment (b) Reduction to a lower grade or post or a stage in a time scale. (c) Dismissal or discharge from service." 7. Clause 9.4.0 of the NCWA-IV is quoted hereinbelow: "9.4.0 Provisions of Employment to Dependents 9.4.1 Employment would be provided to one dependent of workers who are disabled permanently and also those who die while in service. The provision will be implemented as follows: 9.4.2 Employment to one dependant of the worker who dies while in service In so far as female dependents are concerned, their employment/payment of monetary compensation would be governed by para-9.5.0. 9.4.3 The dependent for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. The provision will be implemented as follows: 9.4.2 Employment to one dependant of the worker who dies while in service In so far as female dependents are concerned, their employment/payment of monetary compensation would be governed by para-9.5.0. 9.4.3 The dependent for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependent is available for employment, brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the deceased and almost wholly dependent on the earnings of the deceased may be considered to be the dependents of the deceased. 9.4.4. the dependents to be considered for employment should be physically fit and suitable for employment and aged 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." 8. Thus, even the contention of the petitioner is accepted, the status of the respondent-workman as Badli Worker, will not make any difference as the definition of worker provided under clause 7.1 of the Standing Order containing the Badli Worker also. Thus, Badli Worker is a worker under the petitioner-company and dependent of worker is entitled for compassionate appointment, if he/she died in harness as per clause 9.4.2 of NCWA-IV. The contention raised by the petitioner is not tenable under the law. 9. The Tribunal has proceeded from different angle. Tribunal has taken into consideration that the alleged order of punishment is nonexistent as the same has not been provided under Order 29.1 of the Certified Standing Order. Above clauses contain list of punishment and the punishment given by the petitioner-Management did not find any place therein. Otherwise also punishment can be with regard to reduction in rank or change in service condition, but by way of punishment, the status of a person cannot be changed. A permanent employee cannot be made a temporary employee by way of punishment. Further the concept of Badli Workman is clear. As per clause 7.5 of the Certified Standing Order, Badli Worker is a person, who has been appointed on temporary basis in place of absentee regular worker. A regular worker cannot be converted into a Badli Worker that too by way of punishment. 10. Further the concept of Badli Workman is clear. As per clause 7.5 of the Certified Standing Order, Badli Worker is a person, who has been appointed on temporary basis in place of absentee regular worker. A regular worker cannot be converted into a Badli Worker that too by way of punishment. 10. It is settled law that unauthorised punishment passed by an authority, which is not authorised under law, is a nullity and requires no such declaration. Authorization/jurisdiction is sine-qua-non for legal and valid order. 11. In the present case, even if it is assumed that the status of the exemployee was Badli Worker, he is covered under the definition of Workman and as such, the dependent son is entitled for compassionate appointment under Clause 9.4.2 of NCWA-IV. 12. In view of the above discussion, this Court finds no infirmity in the impugned award dated 07.04.2005 passed by CGIT (No. 2), Dhanbad in Reference Case No. 228 of 1998. 13. Accordingly, the present writ petition stands dismissed.