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2021 DIGILAW 178 (JHR)

Ganesh Mahto v. Central Coalfields Ltd.

2021-02-09

RAVI RANJAN, SUJIT NARAYAN PRASAD

body2021
JUDGMENT : I.A. No.596 of 2021: 1. The matter has been heard through video conferencing with the consent of the learned counsel for the parties. They have no complaint about any audio and visual connectivity. 2. The instant interlocutory application is under Section 5 of the Limitation Act for condoning the delay of 43 days in preferring the instant appeal. 3. This Court, after taking into consideration the reason assigned in the instant application as also considering the fact that instead of dismissing the appeal on the ground of limitation it would be appropriate in the ends of justice to decide the appeal on its merit, accordingly, the delay of 43 days in filing the appeal, is condoned. 4. In the result, the instant interlocutory application is disposed of. L.P.A. No.377 of 2019: 5. This is an appeal under Clause 10 of the Letters Patent directed against the order/judgment dated 07.02.2019 passed by the learned Single Judge of this Court in W.P.(S) No.7686 of 2017 whereby and whereunder the writ Court has declined to interfere with the Letter dated 10.11.2016 whereby the respondents have communicated that the claim of the writ-petitioner/appellant for compassionate appointment under clause 9.3.0 of the National Coal Wage Agreement, in short NCWA, in place of his elder brother, who is not the original applicant, is not maintainable. 6. The brief facts of the case which requires to be enumerated reads as under: The father of the writ-petitioner/appellant, late Kitak Mahto, who was in employment of Central Coalfields Limited, hereinafter referred to as C.C.L., died in harness on 25.12.1992. The writ-petitioner/appellant was one and a half years old at the time of death of his father and the elder brother of the writ-petitioner/appellant namely, Dinesh Mahto, applied for compassionate appointment but his claim was rejected because he was found to be 13 years of age. At the relevant time, no person could have been kept in live roster who was below the age of 15 years, thus, his claim was rejected. In the meantime, the elder brother died on 26.03.2014, thereafter, mother of the writ-petitioner/appellant made an application for grant of compassionate appointment to writ-petitioner/appellant in place of Dinesh Mahto but was rejected on the following grounds: (i) The name of the writ-petitioner/appellant does not find place in service record; (ii) The application for compassionate appointment is not transferable. In the meantime, the elder brother died on 26.03.2014, thereafter, mother of the writ-petitioner/appellant made an application for grant of compassionate appointment to writ-petitioner/appellant in place of Dinesh Mahto but was rejected on the following grounds: (i) The name of the writ-petitioner/appellant does not find place in service record; (ii) The application for compassionate appointment is not transferable. The writ-petitioner/appellant has challenged the said order by filing a writ petition before this Court invoking the jurisdiction conferred under Article 226 of the Constitution of India on the ground that since his elder brother had died, he could only have made fresh application on attaining majority, thus, the writ-petitioner/appellant’s case would have been considered. He submits that the respondents would conduct an enquiry about the genuineness of the writ-petitioner/appellant and thereafter would have considered his case rather than dismissing the same holding that the name of the writ-petitioner/appellant does not appear in the service records. The respondents had appeared before the writ Court and contested the case inter alia on the ground that the mother of the writ-petitioner/appellant at the time of death of the father of the writ-petitioner/appellant was also in service. The Writ-petitioner/appellant is claiming compassionate appointment on the ground of death of his father which took place in the year 1992, hence, after more than 23 years, compassionate appointment cannot be granted. The application of the brother of the writ-petitioner/appellant stood dismissed, thus, with the said dismissal the entire issue of grant of compassionate appointment to the legal heirs of Kitak Mahto comes to an end and the same cannot be reopened. The writ Court, after hearing the learned counsel for the parties, passed an order by dismissing the writ petition on the ground of death of the father of the writ-petitioner/appellant which was on 25.12.1992 and after lapse of 23 years, the writ-petitioner/appellant has made an application for consideration of his case for appointment on compassionate ground and further on the ground that at the time of death of his father, he was one and a half years old. The case of the elder brother of the writ-petitioner/appellant has also been considered but since he was only 13 years old, therefore, could not have been kept in live roster but subsequently, he died. The case of the elder brother of the writ-petitioner/appellant has also been considered but since he was only 13 years old, therefore, could not have been kept in live roster but subsequently, he died. In view of the aforesaid reason, decision taken by the authority declining to grant appointment on compassionate ground has been declined to be interfered with, which is the subject matter of the instant intra-court appeal. 7. Mr. Surya Prakash, learned counsel for the writ-petitioner/appellant has submitted that the learned Single Judge has not appreciated the fact that the writ-petitioner/appellant who was not 18 years of age at the time of death of his father, as such, could not have made an application for consideration of his candidature for appointment on compassionate ground. He further submits that the elder brother who was 13 years of age at the time of death of his father, although, had made an application but his case could not have been considered under the provision of clause 9.3.0 and further even under clause 9.5.0 of the said agreement, the case could not have been considered since under the aforesaid agreement, the condition is to keep a dependant in live roster if he is found to be more than 15 years of age and below 18 years of age but elder son being 13 years old could not have been kept in live roster. However, when the elder brother of the writ-petitioner/appellant died, an application has been filed by the writ-petitioner/appellant to provide him appointment on compassionate ground but the authority without considering the case in right perspective has rejected the case of the writ-petitioner/appellant on the ground that the claim of appointment on compassionate ground is not transferable one and further once the case has been closed by rejecting the claim of his elder brother, there is no reason to reopen the same. According to the learned counsel since the writ-petitioner/appellant’s claim is of appointment on compassionate ground under the aforesaid agreement, therefore, the authorities ought to have proceeded by taking lenient view but this aspect of the matter has also not been appreciated by the learned Single Judge, hence, the impugned order is not sustainable and the same is fit to be quashed and set aside. 8. Per contra, Mr. 8. Per contra, Mr. D.K. Chakraberty, learned counsel for the respondent-C.C.L. has submitted that there is no error in the impugned order or the order passed by the learned Single Judge since the claim of the writ-petitioner/appellant has been rejected taking into consideration the inordinate delay in making application, i.e, after lapse of 23 years, and further on the ground that the case of the elder brother of the writ-petitioner/appellant has been considered but was rejected, hence, the issue having been closed, it cannot be allowed to be reopened after lapse of the period of 23 years. The learned Single Judge after taking into consideration these aspects of the matter has correctly not interfered with the impugned order, accordingly, the instant appeal may be dismissed. 9. We have heard the learned counsel for the parties, perused the documents available on record and the finding recorded by the learned Single Judge. 10. The admitted fact herein is that the father of the writ-petitioner/appellant had died in harness on 25.12.1992 and at the time of death of his father he was one and a half years old, as such, his elder brother namely, Dinesh Mahto, applied for compassionate appointment but his claim was rejected because he was 13 years of age. At that time, no person could have been kept in live roster since as per the condition stipulated under clause 9.5.0 of the NCWA, the dependant can be kept in live roster if he is more than 15 years of age and less than 18 years of age, as such, the case of the elder brother was rejected. Subsequent thereto, the elder brother died on 26.03.2014 and then the mother of writ-petitioner/appellant made an application for grant of compassionate appointment in place of Dinesh Mahto but the claim was rejected, therefore, the fact is not in dispute that after the death of the father of the writ-petitioner/appellant the claim of the dependant being the elder son namely, Dinesh Mahto, had been considered but was rejected. 11. The question is that once the claim of the elder brother of the writ-petitioner/appellant has been considered and rejected, can the case of the writ-petitioner/appellant be considered, that too after lapse of 23 years from the date of death of his father. 11. The question is that once the claim of the elder brother of the writ-petitioner/appellant has been considered and rejected, can the case of the writ-petitioner/appellant be considered, that too after lapse of 23 years from the date of death of his father. The answer of this Court would be in negative because as per the condition stipulated under clause 9.3.0, the dependant is to be provided appointment if he is in between the age of 18 to 35 years. However, as per the condition stipulated under clause 9.5.0 if the dependant is in between the age of 15 to 18 years, he can be kept in live roster. The elder brother of the writ-petitioner/appellant had applied for consideration of his candidature but he was 13 years old at the time of consideration of his claim, therefore, he could not have been kept in live roster as per the condition stipulated under clause 9.5.0 of NCWA. However, his case was considered but he having found to be 13 years of age, being minor, his case was rejected, as such, consideration of the case of the dependant on account of death of employee was closed. The writ-petitioner/appellant was one and a half years old at the time of death of his father but on attaining majority, he made an application after 23 years from the date of death of his father. 12. There is no provision under the NCWA that once the case of a dependant of the deceased employee has been considered and rejected, the case of other dependant would be considered and in view thereof, the claim has not been made to be a transferable claim for consideration of appointment on compassionate ground. 13. The authorities have rejected the claim of the writ-petitioner/appellant while passing the impugned order on the ground of the claim having not been transferable one and the issue of appointment on compassionate ground has already been closed the day when the claim of his elder brother was rejected and further, the claim of the writ-petitioner/appellant for appointment on compassionate ground having been made after lapse of 23 years. The learned Single Judge, after taking into consideration all these aspects of the matter, has declined to interfere with the same. 14. The learned Single Judge, after taking into consideration all these aspects of the matter, has declined to interfere with the same. 14. There is no dispute about the fact that the National Coal Wage Agreement is having statutory fervor and any consideration is to be made on the basis of the condition contained therein and further, there cannot be any deviation therefrom since the claim having not been transferable one and as per the condition stipulated under clause 9.5.0 the minimum age to keep a minor dependant in live roster was 15 years during the relevant time, therefore, the elder brother of the writ-petitioner/appellant was not kept in live roster because he was only 13 years of age at the time of consideration of his case and the writ-petitioner/appellant made an application after lapse of 23 years. 15. Taking into consideration the aforesaid aspect of the matter and also that the application having been filed by the writ-petitioner/appellant after lapse of 23 years and that too, after rejection of the claim of his elder brother, this Court finds no reason to interfere with the decision of the authority which was impugned before the writ Court as also the order passed by the learned Single Judge. 16. Accordingly, the instant appeal fails and is dismissed.