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2021 DIGILAW 614 (JHR)

Narayan Ganjhu v. Central Coalfields Limited

2021-08-10

S.N.PATHAK

body2021
ORDER : 1. In view of outbreak of COVID-19 pandemic, case has been taken up through Video Conferencing and heard at length. Concerned lawyers have no objection with regard to the proceeding which has been held through Video Conferencing and there is no complaint in respect to audio and video clarity and quality and after hearing at length, the matter is being disposed of finally. 2. Heard the parties. 3. Petitioner has approached this Court with a prayer for quashing the Letter No. 2545, dated 20/21.09.2017, whereby prayer of the petitioner for his appointment on compassionate ground has been rejected by the respondent no. 3. Petitioner has further prayed for a direction upon the respondents to consider his case for appointment on compassionate ground against death of his father. 4. Case of the petitioner, as has been delineated in the writ petition, is that his father was appointed as CWL on 05.05.1974 at Hedger Colliery. While petitioner's father was working to the post of Driller, he was admitted to the Central Hospital, N.K. Dakra on 04.01.2010 and thereafter he was referred to Gandhi Nagar Hospital, Ranchi for better treatment. However, instead of going to Gandhi Nagar Hospital, Ranchi, petitioner's father got himself treated under the supervision of private doctor. However, his conditions deteriorated day-by-day and he could not join his duties since thereafter nor could he report at Gandhi Nagar Hospital. After his long sickness, petitioner's father died in harness on 08.05.2015. Thereafter, family membership certificate was issued by the office of Circle Officer, Keredari vide Memo No. 44, dated 12.09.2015 wherein name of family members dependent on the employee, have been mentioned and petitioner's name found place at Serial No. 1. Thereafter, petitioner made a representation on 28.03.2016 before the respondent no. 4 giving information about death of his father and further prayed for his appointment on compassionate ground. However, vide office order no. 2106, dated 23/24.09.2016, issued under the signature of respondent no. 5, it has been informed to the petitioner that his father's name was already struck off from the roll of Churi Colliery with effect from 08.05.2015. However, case of the petitioner was further processed and forwarded to the Head Office and vide letter no. 2545, dated 20/21.09.2017, respondent no. 3 rejected claim of the petitioner for appointment on compassionate ground. 5, it has been informed to the petitioner that his father's name was already struck off from the roll of Churi Colliery with effect from 08.05.2015. However, case of the petitioner was further processed and forwarded to the Head Office and vide letter no. 2545, dated 20/21.09.2017, respondent no. 3 rejected claim of the petitioner for appointment on compassionate ground. Being aggrieved, petitioner has knocked door of this Court on the ground that rejection of claim of the petitioner is wholly unlawful, improper, unjust and without authority of law. 5. Mr. Ajit Kumar, learned counsel appearing for the petitioner, very fairly submits that petitioner and his other family members were under impression that as his father was admitted at Central Hospital, N.K. Dakra and was referred to Gandhi Nagar Hospital, Ranchi for further treatment, the Management was having knowledge of his illness. During the intervening period i.e. from the date he fell ill and got admitted i.e. 04.01.2010 to date of death i.e. 08.05.2015, no letter or any communication regarding unauthorized absence or any other communication was ever received from the management, which gave an understanding to the petitioner's father and family members that his illness has been duly acknowledged by the Management and he was under sick leave. Learned counsel further submits that the Management did not ever bother to take pain to find whereabouts of an employee who was very sick. Petitioner was totally dependent upon earnings of his father and after his death he cannot and should not be denied compassionate appointment on technical grounds of long absenteeism. The respondents cannot be allowed to take advantage of their own mistakes. Learned counsel further argues that in the NCWA, there is no stipulation for rejection of claim for compassionate appointment on such frivolous grounds. Respondents cannot deny legal claim of the petitioner for appointment on compassionate grounds as per the NCWA Scheme which provides that one of the dependent of the deceased employee will be given compassionate appointment. The only thing which has to be considered as to whether the petitioner's father was on roll of the Company on the date of his death or not. In view of specific provisions of NCWA, the respondents cannot deny claim of the petitioner on the garb of technicalities. The only thing which has to be considered as to whether the petitioner's father was on roll of the Company on the date of his death or not. In view of specific provisions of NCWA, the respondents cannot deny claim of the petitioner on the garb of technicalities. The petitioner's father was suffering from prolonged illness and succumbed to death and petitioner's family is in great hardship and needs assistance from the management in the form of compassionate appointment. Absence of a sick employee cannot be ground for his termination, that too without any information. Petitioner's father was an employee of the respondents and at no point of time he was terminated from the service till his death and as such, as per the settled principles of law, he was deemed to be in service of the management till his death. The claim of the petitioner is to mitigate hardship and the same could not have been rejected purely on hypothetical grounds. 6. Learned counsel further relies upon the decision rendered in the case of Ajay Ram Vs. M/s. Central Coalfields Limited [W.P.(S) No. 3243 of 2014] and further submits that under Rule 9.3.0 of the National coal Wage Agreement, son of the petitioner is entitled for appointment on compassionate ground. Merely because petitioner's family survived for long years during absence from duties of deceased employee, cannot be ground for rejection of claim of the petitioner. The grounds for rejection of claim of the petitioner's son for appointment on compassionate ground is irrational and unfair and as such, impugned order is fit to be quashed. 7. Per contra counter affidavit has been filed. 8. Mr. Vikash Kumar, learned counsel representing respondents -Central Coalfields Limited argues that on the alleged date of death of petitioner's father, he was not employee under roll of the respondents as his name was already struck off from the Churi Colliery with effect from 08.04.2015 itself. Learned counsel further submits that petitioner's father was out of service for about five years i.e. from 06.01.2010 till his death on 08.05.2015. The family members survived for long five years and as such, the very object of compassionate appointment has been frustrated and in such condition, the family members of the deceased employee do not come under the purview of "dependents". The family members survived for long five years and as such, the very object of compassionate appointment has been frustrated and in such condition, the family members of the deceased employee do not come under the purview of "dependents". Learned counsel further argues that the very object of compassionate appointment is to provide immediate financial relief to the dependent family members of the deceased employee but in the instant case, after passing of such a considerable period of time, the purpose and objectives of compassionate appointment has been frustrated. There is no laches on part of the management as the management had duly sent letter to the Gandhi Nagar Hospital to ascertain fitness report of the deceased employee, which was replied vide letter dated 29.01.2015 informing that the deceased employee had never reported to the hospital. There was no information from any quarter regarding unauthorized leave of the deceased employee for the periods from 06.01.2010 till his death on 08.05.2015. There is no case of sudden crisis of breadwinner in the family as the concerned employee (petitioner's father) was not getting payment from the respondents for all these periods of absence from duty unauthorized and as such, the necessity for providing employment on the basis of compassion is diluted due to the long lapse of time. When the family members of the deceased employee survived for such a long period without earnings of the deceased employee, the purpose and object of compassionate appointment has already frustrated which stipulates to provide immediate financial relief to the bereaved family. Learned counsel further submits that compassionate appointment is not a mode of filling up vacancies rather it is an exception to the rule of recruitment and is provided in order to help the family of the deceased employee to overcome the sudden financial crisis which the family members have been subjected due to sudden death of the deceased employee. Learned counsel further submits that the impugned order has been passed in the year 2017 whereas the writ petition has been filed in the year 2019 and on the said ground also writ petition is liable to be dismissed. 9. Be that as it may, having heard counsel for the parties and after perusing the documents, this Court is of the considered opinion that case of the petitioner needs consideration. 9. Be that as it may, having heard counsel for the parties and after perusing the documents, this Court is of the considered opinion that case of the petitioner needs consideration. Similar issue was raised in the case of Nuri Ekka @Nuhri Ekka in W.P.(S) No. 1400 of 2014 and this Court, vide Judgment dated 02.12.2016, held that stand of the respondents in not providing appointment to son of the deceased-employee was not justified and it has further been held that the impugned order suffers from infirmity as till date of death, deceased-employee was on roll of the Company and merely on the ground of absenteeism, it cannot be presumed that he was terminated. The said Judgment has also been affirmed by the Hon'ble Division Bench of this Court in L.P.A. No. 267 of 2011. In this regard, it is relevant to quote para-9 of the Judgment passed in the case of Sushma Gosain Vs. Union of India reported in (1989) 4 SCC 468 which reads as under: "9. We consider that it must be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant." 10. The plea of counsel for the respondent that long absence from service constituted abandonment of service is not accepted to this Court in the instant case as the issue of compassionate appointment in the case at hand is guided by an Industrial Agreement by and between different Coal Companies and their Employee Unions. The operating Agreement so far as the present proceeding is concerned, is known as National coal Wages Agreement. There is specific provision for giving compassionate appointment to the dependant employees of a deceased workman. In view of the provisions of Section 18(3) of the Industrial Disputes Act, 1947, the said Agreement has binding effect on the parties thereto. The operating Agreement so far as the present proceeding is concerned, is known as National coal Wages Agreement. There is specific provision for giving compassionate appointment to the dependant employees of a deceased workman. In view of the provisions of Section 18(3) of the Industrial Disputes Act, 1947, the said Agreement has binding effect on the parties thereto. Barring long absence of petitioner's father, no other disability of the petitioner could be pointed out by counsel for the respondents, so far as applicable provisions of the said Agreement is concerned. Case of the petitioner is that it was not a case of voluntary absenteeism on part of his father rather during all the periods of absence, he was under treatment which lastly resulted into his death. In absence of any show-cause or letter of termination, the relation of master servant was subsisting at the time of death of the petitioner's father. There is no denial to the fact that for the alleged absence from duty for long years, petitioner's father was never subjected to any departmental proceeding or ever punished therein. In fact, it is case of the petitioner that the deceased employee died in harness. Similar view has been taken by the Hon'ble Division of this Court in its Judgment dated 20.02.2020 passed in the case of Central Coalfields Limited, Ranchi Vs. Ajay Ram and others in L.P.A. No. 337 of 2016. 11. In view of discussions made hereinabove, this Court is of the considered view that the impugned Letter No. 2545, dated 20/21.09.2017, issued by the respondent no. 3 rejecting prayer of the petitioner for his appointment on compassionate ground, is not sustainable and as such the same is hereby quashed. Respondents are directed to consider case of the petitioner afresh and pass appropriate order within a period of eight weeks from the date of receipt/ production of a copy of this order. Needless to say, if petitioner is otherwise fit for appointment, the letter of appointment be issued in his favour within a period of four weeks thereafter. 12. With the aforementioned observations and directions, the writ petition stands allowed.