Sanju Sain v. Central Coalfields Ltd

Heard Mr. Uday Prakash, learned counsel for the petitioners and Mr. Namit Kumar, learned counsel appearing for the respondents.

2. In this writ application, the petitioner has prayed for quashing of the order dated 2/05.12.2017, whereby and whereunder the claim for compassionate appointment of the petitioner no. 2 has been rejected on the ground that there is no provision for compassionate appointment under the National Coal Wage Agreement. A further direction has been sought for upon the concerned respondents to consider the claim of compassionate appointment of the petitioner no. 2 under Para 9.3.0 of the National Coal Wage Agreement.

3. The factual aspects of the case reveal that the husband of the petitioner no. 1 and father of the petitioner no. 2 namely, Dibakar Sain was employed in Jarangdih Colliery at Railway Siding under Kathara Area of M/s. -2- Central Coalfields Ltd. who went missing on 08.06.2009 and since he could not be traced out a station diary entry was made by the petitioner no. 2 with the Bokaro Thermal Police Station. Since the father of the petitioner no. 2 was not heard for seven years and above he had filed a declaratory suit being Civil Suit No. 06/2017 which was decreed on contest with the declaration vide judgment dated 01.11.2017 that the father of the petitioner no. 2 has died a civil death. Consequent to such declaration death certificate was also obtained. The petitioner no. 1 thereafter had applied for compassionate appointment of her son, petitioner no. 2 under para 9.3.0 of National Coal Wage Agreement on 24.11.2017 which was however rejected vide impugned order dated 2/05.12.2017 on the ground that there is no provision of employment under National Coal Wage Agreement in the event of civil death.

4. It has been submitted by Mr. Uday Prakash, learned counsel for the petitioners that the question of absence of any provision in National Coal Wage Agreement for grant of compassionate appointment to a dependent in case of a civil death is now no longer res integra. It has been submitted the claim for compassionate appointment of the petitioner no. 2 could not have been rejected solely on the ground that there is no provision under Para 9.3.0 of National Coal Wage Agreement for providing compassionate appointment in case of a civil death of an employee. Learned counsel in support of his contention has referred to an order passed by this Court in W.P.(S) No. 1632 of 2013.

5. Mr. Namit Kumar, learned counsel appearing for the respondents has submitted that the claim made by the petitioner no. 1 for providing compassionate appointment to the petitioner no. 2 is a belated claim as though the husband of the petitioner no. 1 went missing on

08.06.2009 but the application for compassionate -3- appointment was made on 24.11.2017. It has further been submitted that the purpose of compassionate appointment is to provide immediate succor to the family of the employee and since the petitioners have been able to survive for eight years such belated claim was rightly rejected vide the impugned order. It has also been submitted that Para 9.3.0 of National Coal Wage Agreement does not provide compassionate appointment to a dependent of an employee who has died a civil death. Mr. Namit Kumar, has referred to an order passed by the Hon’ble Supreme Court in the case of “Central Coalfields Limited Through its Chairman and Managing Director & Ors. versus Smt. Parden Oraon” in Civil Appeal No. 897 of 2021.

6. The chronological events as spelt out in the writ petition and which has not been denied by the respondents is that the father of the petitioner no. 2 went missing on

08.06.2009 and since he was not heard for seven years a declaratory suit was instituted by the petitioner no. 2 which was decreed in his favour vide judgment dated

01.11.2017 holding that his father has attained a civil death. Once a declaration was obtained from the competent civil court an application was made by the petitioner no. 2 for grant of compassionate appointment to the petitioner no. 1 which however was rejected vide impugned order dated 2/05.12.2017 on the ground that there is no provision for employment under National Coal Wage Agreement in the event of a civil death.

7. In the case of “Latika Devi versus Central Coal Field Ltd. & Ors.” in W.P.(S) No. 1632 of 2013, it has been held as follows: “12. On compassionate appointment dependant of an employee, who has suffered civil death, stand taken by the respondent-M/s CCL is that there is no clause in NCWA for providing employment in cases of civil death. On this, suffice would be to indicate that if there is no exclusion in an enactment, claim by one who though not specifically included can be allowed if rule of -4- interpret the Court for monetary ejusdem generis is attracted. Object behind providing appointment under NCWA, which has attained statutory force [refer Mohan Mahto Vs. M/s Central Coal Field Ltd. & Ors.” reported in (2007) 8 SCC 549], is to provide social security to the family of the employee. It is a beneficial provision, benefit of which must not be curtailed or restricted unless it runs contrary to the main object under NCWA; provisions compensation and compassionate appointment are under Chapter-IV which provides Social Security Measures. This being a beneficial provision for benefit of the dependant of the deceased employee must not be denied on a bald technical plea that the family has survived long enough. In “Madan Singh Shekhawat Vs. Union of India & Ors.”, reported in (1999) 6 SCC 459, the Supreme Court has held that, “it is the the provision duty of especially the beneficial provision, liberally so far as to give it a wider meaning, rather than restrictive meaning which would negate the very object of the Rule”. In the said case expression 'at public expense’ in Rule 48 of the Defence Services Regulation has been construed by the Hon’ble Supreme Court to mean travel which is undertaken ’authorisedly’, even though cost of the journey was not borne by the public exchequer. There are numerous instances, for example under Workman’s Compensation Act, 1923, Motor Vehicles Act, 1988, Hindu Marriage Act, 1955, Prison Rules etc., where benefits to the claimants have been extended liberally construing the provisions in law. 13. Admittedly, appointment to the dependant of an employee who has suffered civil death is not excluded under Clause 9.3.0 of NCWA. Once a decision on payment of post-retiral benefits and family pension to the petitioner is taken by the employer-M/s CCL and name of the employee- Jagdish Oraon is struck-off from the Company’s Roll, it must be construed in law that the employee has died in harness and resultantly claim for compassionate appointment is maintainable. This concept of “civil death” has been evolved and has statutory recognition under section 108 of the Evidence Act, to meet situations like the present one. It is pertinent to mention here that in W.P.(S) No.4946 of 2011 (Podin Devi Vrs. Central Coalfields Ltd. & Ors.) a learned Single Judge of this Court when ordered compassionate appointment to wife of the employee who was missing for seven years and thus invited a declaration on his civil death, the respondent-M/s CCL went in appeal before the Division Bench. When it suffered dismissal of L.P.A. No.150 of 2014 approached the Supreme Court in -5- Special Leave to Appeal (C) ….. CC Nos.4826/2017, which has also been dismissed. After the Special Leave Petition preferred by M/s CCL was dismissed order passed by the writ Court in W.P.(S) No. 4946 of 2011 has attained finality. The petitioner is also identically situated to the applicant in W.P.(S) No.4946 of 2011 and while so, for the reasons recorded hereinabove, her claim for compassionate appointment could not have been rejected by the respondent-authority.”

8. In view of the above, therefore, the respondents cannot take a stand refusing grant of compassionate appointment to the petitioner no. 2 on the ground of non- existence of any provision in Para 9.3.0 with respect to providing the same to a dependent on the civil death of an employee.

9. Though learned counsel for the respondents has referred to the case of “Central Coalfields Limited Through its Chairman and Managing Director & Ors. versus Smt. Parden Oraon” (supra) wherein, it was held that the respondent’s son was not entitled for compassionate appointment after making the application for such appointment 10 years after the death of the husband of the respondent but the factual aspects in the said case are different from the present case. In the case under reference the claim for compassionate appointment was made after the suit for declaration of civil death was decreed. Apart from the delay the other noticeable feature of the said case is that the respondent was already in service in the company. In the present case admittedly the father of the petitioner no. 2 was the sole bread earner of the family and there appears to be no delay on the part of the petitioner no. 1 to make an application for compassionate appointment. Any application made prior to the declaration of the civil death of her husband by the petitioner no. 1 would have automatically been stonewalled by respondent-company taking the plea of non-declaration of civil death of her husband. There does not appear to be any -6- latches on the part of the petitioners in immediately approaching the respondents for providing the petitioner no. 2 with compassionate appointment. Though the question of delay has been raised by the learned counsel for the respondents but the impugned order dated 2/05.12.2017 confines itself only to absence of any provision under the National Coal Wage Agreement to provide employment on compassionate ground to a dependent of the employee in the event of his civil death. The rejection order does not even whisper about the purported belated claim made by the petitioner no. 1 which in effect would mean that the respondents were aware about the immediate steps taken by the petitioner no. 1 after obtaining the decree from the competent civil court regarding the civil death of her husband. The counter affidavit seeks to supplement the reasons given in the impugned order dated 2/05.12.2017 which would not in any circumstances strengthen the case of the respondents.

10. In view of the aforesaid facts, therefore, the impugned order dated 2/05.12.2017 is hereby quashed and set aside with a direction to the respondent no. 4 to immediate steps for providing compassionate appointment to the petitioner no. 2 which exercise must be completed within a period of four weeks from the date of receipt/production of a copy of this order.

11. This writ application stands allowed. Alok/- (Rongon Mukhopadhyay, J.)