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2020 DIGILAW 857 (JHR)

Sanicharwa Manjhi v. Central Coalfields Limited

2020-09-07

SANJAY KUMAR DWIVEDI

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JUDGMENT : 1. Heard Mr. Ajit Kumar, the learned counsel appearing on behalf of the petitioner and Mrs. Rashmi Kumar, the learned counsel appearing on behalf of the respondent-CCL. 2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard on merit. 3. The petitioner has preferred this writ petition for quashing the letter dated 07.09.2017 contained in Annexure-6 whereby the claim of the petitioner for appointment on compassionate ground has been rejected. 4. Mr. Ajit Kumar, the learned counsel for the petitioner submits that the father of the petitioner was working on the post of Loader and his date of appointment was 18.09.1980, having Employee Code No.11050770, CMPF No.R/30-546. The father of the petitioner was charge sheeted for the reason of continuous absence from duty. The petitioner’s father replied the aforesaid charge sheet as he was being treated in the hospital. A departmental proceeding was initiated against the father of the petitioner. The father of the petitioner died on harness on 11.08.2013. 5. Mr. Ajit Kumar, the learned counsel for the petitioner submits that the father of the petitioner let-off in the departmental proceeding by warning which is apparent from the impugned order of rejection. He submits that the petitioner has filed the representation. Mr. Ajit Kumar, the learned counsel for the petitioner assailed the impugned order on the ground that the father of the petitioner was working with the respondent –CCL and in the departmental enquiry, he was let-off by issuing warning and in that view of the matter he was still with the respondent-CCL and even after when he has died the case of the petitioner was required to be considered. He refers to the judgment dated 17.10.2016 of the co-ordinate Bench of this Court in “Nuri Ekka @ Nuhri Ekka v. M/s Central Coalfields Limited & Ors.” [W.P.(S) No.1400 of 2014], order dated 31.03.2016 in “Ajay Ram v. M/s Central Coalfields Limited and Ors. [W.P.(S) No.3243 of 2014] and the Division Bench judgment dated 20.02.2020 in L.P.A. No.337 of 2016 in case of “Central Coalfields Limited, Ranchi v. Ajay Ram”. [W.P.(S) No.3243 of 2014] and the Division Bench judgment dated 20.02.2020 in L.P.A. No.337 of 2016 in case of “Central Coalfields Limited, Ranchi v. Ajay Ram”. He submits that the case of the petitioner is fully covered in view of the judgments of the High Court. 6. Per contra, Mrs. Rashmi Kumar, the learned counsel appearing on behalf of the respondent-CCL submits that the date of birth of the petitioner is 23.02.1977 and he made the application on 21.01.2014 and on that date, he was 36 years 10 months and 28 days old and in view of N.C.W.A. Para-9.4.0, which is quoted hereinbelow: 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 the 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. 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. (iii) 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, widowed daughter/widowed daughter-in-law or son-in-law residing with the employee and almost wholly dependent on the earning of the employee may be considered. In so far as female dependants are concerned, their employment would be governed by the provisions of 9.5.0. (iv) The dependants 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. In so far as male spouse is concerned, there would be no age limit regarding provision of employment. 7. The maximum age limit is 35 years for consideration and for female the age is 45 years. In so far as male spouse is concerned, there would be no age limit regarding provision of employment. 7. The maximum age limit is 35 years for consideration and for female the age is 45 years. As the petitioner has already crossed the age and in that view of the matter, the case of the petitioner is not maintainable, however, on the point of co-ordinate Bench judgment relied by the petitioner she conceded that the judgments are there. 8. In view of the above facts and considering the submissions of the parties, the Court finds that the impugned order has been passed on the basis of un-authorized absence and the fact that the petitioner’s father was not working and certain legal issue has been dealt with in the impugned order, whereas the argument which has been advanced by Mrs. Rashmi Kumar, the learned counsel appearing for the respondent-CCL with regard to date of birth and Clause –IV of Para-9.4.0 of the NCWA is not reflected in the impugned order. It is well settled provision of law that any ground cannot be supplemented by way of filing the counter affidavit which has not been the ground for rejecting the claim of the petitioner. A reference may be made in the case of “Mohinder Singh Gill & Ors. v. Chief Election Commissioner” reported in (1978) 1 SCC 405 and in that view of the matter, the writ petition succeeds as the ground of age is not the ground of rejection of the claim of the petitioner. 9. Accordingly, the impugned order dated 07.09.2017 is quashed. 10. The matter is remitted back to the respondent-CCL to consider afresh in the light of the observation made hereinabove and pass appropriate order in accordance with rules, regulations and guidelines including considering the case laws relied by the learned counsel for the petitioner within a period of 8 weeks from the date of receipt/production of a copy of this order. 11. The writ petition [W.P. (S) No. 2135 of 2018] stands allowed and disposed of with the aforesaid observation and direction.