Nidhi Thakkar v. 1. M/s. Bharat Coking Coal Ltd, Koyla Bhawan, Dhanbad 2. Chairman Cum Managing Director
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI WP(S) No. 1333 of 2018 Nidhi Thakkar .... Petitioner Versus 1. M/s. Bharat Coking Coal Ltd, Koyla Bhawan, Dhanbad 2. Chairman Cum Managing Director, BCCL, Koyla Bhawan, Dhanbad 3. Director Personal, BCCL, Koyla Bhawan, Dhanbad 4. Central Public Information Officer under RTI, Nodal Officer, BCCL, Dhanbad 5. Chief of Medical Services, BCCL, Koyla Bhawan, Dhanbad 6. General Manager (Personal), Sijua Area, BCCL, Dhanbad 7. Public Information Officer under RTI, Senior Manager, Sijua Area, BCCL, Jharkhand 8. Colliery Medical Officer, Sijua Area, BCCL, Jharkhand 9. Project Officer, Tetulmari Colliery, Sijua Area, Dhanbad 10. Central Information Commission, CIC Bhawan, Baba Gangnath Marg, Munirka, New Delhi ..... Respondents -----
Legal Reasoning
The aforesaid clause of NCWA was considered by a Bench of this Court in WPS No. 3341 of 2001 (Chintaman Mahto Vs. Bharat Coking Coal Limited and Ors.), wherein, in para- 5 and 6, it has been head as under; “5. From perusal of the aforesaid provisions, it appears that one of the conditions for getting benefit of the aforesaid clause is that the employee must be below 58 years of age and the accident must be resulted into the loss of employment. In other words if an employee before attaining 58 years of age met with an accident and the injuries are such that he become totally unfit to continue his employment then one of the dependent should be given employment so that loss of employment to the injured could be compensated. The object and purpose of this clause is that the employee after losing employment, because of disablement, should not come in the street and his life should be made liveable by giving employment to his defendant. 6. Applying the said provision here in the instant case, I find that although petitioner met with an accident on 26.10.1996 but he did not loss employment for the reason that he was continuously paid full wages and other benefits till the age of retirement, besides payment of compensation. Moreover, the petitioner for the first time made representation on 7.7.2001 after a notice dated 24.5.2000 was served upon him informing him that he will attain 60 years on 15.10.2001 i.e. the age of superannuation. -4- In spite of his disablement he received all the benefits of employment till superannuation as if he did not suffer any injury. In my opinion, therefore, the provision of clause 9.4.0 cannot be made available to those employees who in spite of injury, continuously received wages and other benefits of employment till the date of his superannuation. The case of the petitioner is therefore not covered by the provisions of the National Coal Wage Agreement quoted hereinabove.” 8. Further a Division Bench of this Court has also taken similar view in LPA No. 161 of 2002 (Employers in relation to the Management of Central Coalfields Limited. Vs. the Presiding Officer and Anr.) , which reads as under; “The only claim of the appellant for the employment of his son was based on Clause 9.4.0 of NCWA. This clause reads thus. “Employment to one dependent of a worker who is permanently disabled in his place. (1) The disablement of the worker concerned should arise from injury or disease be of a permanent nature resulting into loss of employment and it should be so certified by the Coal Company concerned …...”
Arguments
CORAM : HON'BLE MR. JUSTICE ANANDA SEN ----- For the petitioner : Ms. Swati Shalini, Advocate. For BCCL : Mr. Anoop Kumar Mehta, Advocate Mr. Amit Kumar Sinha, Advocate ------ 09/12.01.2023 In this writ petition, the petitioner has prayed to give her employment, being the 2nd daughter and dependent of the employee, declaring the original employee medically unfit as per National Coal Wage Agreement (NCWA). Another prayer has been made that in the event the appointment of the petitioner is not given, then also she may be given the monetary benefits which the father of the petitioner is entitled till the date of his actual superannuation. 2. 3. Heard the counsel for the parties. Learned counsel for the petitioner submits that this petitioner, being the 2nd daughter of the deceased, is entitled to be appointed in place of his father as she is unmarried. He further submits that the father of this petitioner namely, Shree Chandrakanta Thakkar was an employee of Bharat Coking Coal Ltd. (BCCL). He was a permanent employee working since 27.07.1973. It is the case of the petitioner that as Shree Chandrakanta Thakkar was suffering from “Malignant Brain Tumor” and was not in a position to work, thus he should have been declared medically unfit. -2- The petitioner applied for employment in place of her father in terms of NCWA as there is a provision to offer employment to one of the family members of the disabled/unfit employee. The application of the petitioner was kept pending and in the meantime, the father of this petitioner, on attaining the age of superannuation, retired on 31.05.2012. As no decision was taken by the respondents, the petitioner has approached this Court by way of filing this writ petition. 4. The respondents have filed counter affidavit stating therein that though there is a provision to give employment to the dependent of a medically unfit employee, there are some pre-conditions, which must be fulfilled before getting such employment. Counsel for the respondents submits that one of such conditions is that there should be a loss of employment or monetary loss, which is not in the instant case, thus the petitioner is not entitled to get any relief. He relies upon the judgment passed by the Division Bench of this Court being LPA No. 614 of 2002 with 615 of 2002. He lastly submits that if there is any dues or any entitlement of the father of the petitioner for any period till his superannuation, the same will be paid. 5. From the facts mentioned above, I find that the father of this petitioner was employed by the respondents. His date of superannuation was 31.05.2012. Because of the fact that the father of the petitioner was suffering from some disease, he expressed his desire to retire and sought appointment for this petitioner. The father of this petitioner was declared medically unfit for the job but inspite of said order, the father of this petitioner continued in employment and on attaining the age of 60 years, had superannuated. 6. The claim of appointment in these type of cases can be made as per provision of Clause 9.4.0 of NCWA( National Coal Wage Agreement), which reads as under; “9.4.0: Employment to one dependent of a worker who is permanently disabled in his place: (i) The disablement of the worker concerned should arise from 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 duties regularly and/or efficiently. -3- (iii) 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 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 dependents are concerned, their employment would be governed by the provisions of clause 9.5.0. (iv) The dependents 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.
Decision
It is the admitted case of the respondent that even though he met with an accident during the course of employment and received permanent injuries, but it not his case that this resulted in any loss of employment. In fact, the admitted case is that he continued serving till the last date of his superannuation. Of course, during the period that he remained in permanent disablement before the date of superannuation, he was bed ridden and, therefore, was on special leave relating to his injuries. The fact remains that there was no loss of employment at all and, therefore the respondent did not have any claim for the employment of his son. The learned Single Judge, therefore, fell in error in allowing the writ application. This appeal is allowed and the judgment of the learned Single Judge is set aside. No order as to costs.” 9. After considering all these judgments, the Division Bench of this Court in LPA Nos. 614 and 615 of 2002 held that since the concerned workmen worked till the date of superannuation and there has not been any loss of employment, Clause 9.4.0 of NCWA cannot be invoked as the same does not confer any right on the facts of this case. The Division Bench also held that the delay on the part of employer in considering the application is of no help to the claim of the petitioner. It is necessary to quote para 9 of the aforesaid judgment :- -5- in service the date of “9. As noticed above, the concerned workmen continued their till superannuation and there has not been any loss of employment. It was only much after retirement, the workmen raised industrial disputes for getting their dependents employed on the basis of Clause 9.4.0. In our considered opinion, Clause 9.4.0 cannot be invoked as if not confer any right in the facts and circumstances of the present case. The learned Single Judge is not correct in law in holding that because of the delay caused in considering their applications, the dependents became entitled to get employment. The impugned judgment passed by the learned single Judge, therefore, cannot be sustained in law.” 10. Thus, the judgment passed by the Division Bench of this Court in LPA Nos. 614 and 615 of 2002 squarely covers the case in hand. In view of the judicial pronouncement and on the facts of the case that the father of this petitioner superannuated on attaining his age of superannuation, I am not inclined to give any direction to the respondents to consider the appointment of the petitioner in terms of Clause 9.4.0 of NCWA. The claim of the petitioner fails. 11. Before parting, it may be noticed that the father of this petitioner has superannuated on attaining the age of superannuation in 31.5.2012. His entire monetary benefits and all other benefits considering him to be in service should be assessed and calculated and paid to his family at the earliest, preferably within eight weeks from the date of receipt of a copy of this order, if not already paid. 12. With the aforesaid observation and direction, this petition stands disposed of. Anjali/-CP2. (ANANDA SEN, J.)