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2022 DIGILAW 1322 (JHR)

Bini Lal Manjhi v. Central Coalfields Ltd.

2022-11-22

ANANDA SEN

body2022
JUDGMENT : Heard the parties. 2. By filing this application, petitioner has prayed for quashing the letter No. P.O/IKD/PD/930/15/2560 dated 28.11.2015 (Annexure-10) issued by the respondents whereby and whereunder the son of the deceased was not kept in a live roaster for considering his case for appointment on compassionate ground on the ground that he was less than 12 years of age at the time of death of his father. Further prayer has been made to grant compassionate appointment to this petitioner who happens to be the brother of the deceased Chetlal Manjhi. 3. Counsel for the petitioner submits that brother of this petitioner namely Chetlal Manjhi admittedly died in harness on 02.12.2008. The wife of the said deceased predeceased him. The deceased left behind two minor children. As per him, there is provision of keeping minor children in a live roster subject to the condition that the minor should not be less than 12 years of age. Son of the deceased, prayed to keep his name in a live roster but the same was rejected by the impugned order as he was below the age of twelve years. He contended that since son of the deceased was not kept in a live roster, to tie over the financial crisis due to death of Chetlal Manjhi, the sole bread winner, the petitioner being an indirect independent should have been offered appointment, as per the provision of National Coal Wage Agreement. It is his contention that he was also dependent upon the deceased, thus his case should be considered. The petitioner contends that if he is appointed, he is ready to part away with 50% of the monthly salary in favour of the minor children of the deceased for which he has also filed an affidavit. 4. Counsel appearing on behalf of CCL submits that admittedly the deceased Chetlal Manjhi had two children but they could not be kept in the live roster as they did not qualify the conditions since they were less than twelve years at the time of death of their father. Further he submits that his two children are direct dependents and since the direct dependents are available, the brother (petitioner) who is an indirect dependent cannot be considered for employment. Thus as per the respondents neither the children can be kept in live roster to grant compassionate appointment, nor this petitioner can be granted any appointment. Further he submits that his two children are direct dependents and since the direct dependents are available, the brother (petitioner) who is an indirect dependent cannot be considered for employment. Thus as per the respondents neither the children can be kept in live roster to grant compassionate appointment, nor this petitioner can be granted any appointment. 5. From the submission of the parties, the fact which is admitted is that the deceased Chetlal Manjhi was an employee of CCL who died in harness on 2.12.2008. His wife predeceased him. He has left behind his two children, who are admittedly minor and were less than 12 years of age at the time of death of their father. He also left behind this petitioner as a brother, who was also dependent upon him. 6. Compassionate appointment is granted so that the family of the deceased can tie over the sudden financial crisis which engulfs the family due to the sudden death of the bread winner. This entire concept of compassionate appointment in public service is against the Constitutional mandate of Article 14 & 16. The Hon’ble Supreme Court in catena of judgments has held that if compassionate appointment is governed by a scheme, then there can be no deviation from the said scheme. In the case in hand, it is admitted that there is a scheme governing compassionate appointment. Scheme is an agreement between the employer and the employees and is called as National Coal Wage Agreement (herein after called as NCWA). Said scheme provides for grant of compassionate appointment as social security. Admittedly the dependents are considered for grant of compassionate appointment. As per Clause 9.3.2. of NCWA, a dependent of the worker who died in harness is entitled for compassionate appointment. Clause 9.3.3 defines the dependents. It is necessary to quote Clause 9.3.3. & 9.3.2 NCWA which is as under:- “9.3.2. Employment to one dependent of the worker who dies while in service. 9.3.3. 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 appointment, 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 dependent of the deceased.” 7. 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 appointment, 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 dependent of the deceased.” 7. If the definition of dependent is perused it is clear that there are two categories of dependents: Direct dependent & Indirect dependent. The Direct dependents are wife/husband, unmarried daughter, son & legally adopted son. The indirect dependents are brother, widowed daughter/widowed daughter-in-law or son-in-law. Further the provision clearly stipulates that if no direct dependent is available for appointment then brother, who is an indirect dependent will be considered for employment. In the instant case from the own assertion of the respondents, there are direct dependents. Though there are direct dependents, but direct dependents is not qualified to be appointed. Mere existence of a direct dependent will not entitle the direct dependent for getting employment. Employment can be granted to the indirect dependent if there exist a direct dependent but they are not available for employment. In the instant case there are dependents i.e both the children of the deceased but they are not available for appointment as they were less than 12 years of age on the date of death of their father, also they cannot be kept in the live roster for giving employment. Thus in this case there is no direct dependent available for appointment. In absence of any direct dependent available for appointment, the indirect dependent i.e brother comes within the sphere of consideration for grant of compassionate appointment. The petitioner is the brother and claims to be wholly dependent upon the deceased employee. Thus his case should have been considered by CCL for grant of compassionate appointment. CCL cannot deny his claim on the ground that there are children of the deceased who are direct dependent, as the children of the deceased are not available for appointment as they did not qualify the age criteria. 8. Further an affidavit has been filed by the petitioner that he is willing to give 50% of his salary to the minor children of the deceased. This affidavit has been filed on 14.11.2022 before this Court by way of filing supplementary affidavit. 8. Further an affidavit has been filed by the petitioner that he is willing to give 50% of his salary to the minor children of the deceased. This affidavit has been filed on 14.11.2022 before this Court by way of filing supplementary affidavit. Similar affidavit has been annexed with the said affidavit, which was sworn before the Executive Magistrate. In paragraph no.8 & 9 of the said affidavit sworn before the Magistrate, the petitioner has made following statement. It is necessary to quote paragraph nos.8 & 9 of the said affidavit which reads as follows:- “8. That I undertake to give half of the salary to the aforesaid son and daughter of my deceased brother namely Sachin Kumar Murmu and Sapna Kumari after getting the employment in CCL on compassionate ground in place of my aforesaid deceased brother late Chetlal Manjhi. 9. That I also undertake to look after and maintain the aforesaid son & daughter of my deceased brother.” 9. Compassionate appointment is granted to the family so that immediate financial crisis can be minimised. In this case, both son and daughter of the deceased are minor and they need to be looked after. Brother (petitioner) is seeking employment but sufficient safe guard has to be ensured so that the poor minor children do not become destitute, once the brother gets employment. In this case the brother has sworn an affidavit to give half of the monthly salary to these two children i.e son and daughter of the deceased. Thus the interest of the children has also been taken care of. 10. Considering all the aforesaid facts, I find no illegality in not keeping the name of children of the deceased in the live roster but the petitioner’s case needs to be considered for appointment on compassionate ground by the respondents, as being brother of the deceased he is covered by the definition of dependent. 11. Thus, the respondents are directed to consider the case of the petitioner and offer appointment letter to the petitioner on the basis of affidavit sworn by the petitioner to the effect that he will pay half of the monthly salary to the children of the deceased and the said undertaking be incorporated in the offer of appointment. 11. Thus, the respondents are directed to consider the case of the petitioner and offer appointment letter to the petitioner on the basis of affidavit sworn by the petitioner to the effect that he will pay half of the monthly salary to the children of the deceased and the said undertaking be incorporated in the offer of appointment. Further if the petitioner is appointed, the respondents will ensure that the half of the monthly salary be deducted at source in terms of the affidavit sworn by the petitioner and be directly transmitted by the Respondent-Company in a joint account of the son and daughter of the deceased employee. It is also made clear that in the event the petitioner fails to comply the condition, the respondents will be free to terminate the petitioner from service. The respondent will take a decision in respect of the employment of the petitioner on the aforesaid condition within a period of twelve weeks from the date of receipt/production of the copy of this application. 11. With the aforesaid observation, this application stands disposed of.