In the matter of an application under Articles 226 and 227 of the Constitution v. State of Odisha and Others
Case Details
HIGH COURT OF ORISSA: CUTTACK W.P.(C) No.14456 of 2021 In the matter of an application under Articles 226 and 227 of the Constitution of India. ----------- Anil Das … Petitioner - Versus - State of Odisha and Others … Opposite parties Advocate(s) appeared in this case:- ------------------------------------------------------------------------------- For Petitioner … Mr. Nirmal Chandra Das For Opposite Parties … Mr. Saswat Das, Addl. Government Advocate. (For O.P. Nos.1, 4, & 5) Mr. Rakesh Sharma, Advocate. (For O.P. Nos.2, 3 & 7) ------------------------------------------------------------------------------- PRESENT: THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA Date of hearing & judgment : 03.04.2023 A.K. Mohapatra, J. Heard learned counsel appearing for the Petitioner as well as learned counsel appearing for the // 2 // Opposite Parties No.2, 3 & 7. Perused the pleadings of the respective parties as well as documents annexed thereto. 2. The present writ petition has been filed by the Petitioner with a prayer to direct the Opposite Parties, more particularly to the Opposite Parties No.2 and 3 to issue appointment order in his favour in the office of the Opposite Party No.3 pursuant to the proceeding under Annexure-5 to the writ petition within a stipulated period of time and further the Petitioner has prayed for quashing of the order dated 12.03.2021 under Annexure-8 to the writ petition. The Petitioner has also prayed for a direction to the Opposite Party Nos.2 and 3 to pay the balance compensation amount of Rs.10,00,000/- to the Petitioner’s family forthwith. 3. At the outset, learned counsel for the Petitioner submitted that the father of the Petitioner, namely, Ramesh Chandra Das, who was working in the Bharatpur Coal Mines on being engaged by an outsourcing agency in the Mines // 3 // controlled and managed by the Opposite Parties. While working as such, the father of the Petitioner Late Ramesh Chandra Das met with an accident in course of his employment and died due to landslide in Bharatpur Coal Mines area on 23.07.2019. It is further contended by the
Legal Reasoning
learned counsel for the Petitioner that four persons including the father of the Petitioner, who were working as a labourer in the Bharatpur Coal Mines, died due to landslide, as a result of which, there was a discontentment among the local people. Further, due to agitation/strike call by the local residents, the mining activities of the Opposite Parties in the Bharatpur Coal Mines area came to a halt. 4. To resolve the dispute, the Opposite Parties indulged in negotiations by meeting the local people as well as the family members of the persons who met with an accident in course of such employment. On 31.07.2019, a meeting took place in the Chamber of the Collector, Angul (Opposite Party No.4) for negotiation. The minutes of the said meeting reveals that // 4 // it was agreed among the parties that the Opposite Party- Company shall give employment to one member of each of the families of the deceased labourers, who were working in the aforesaid coal mines and met with an accident. Further, in addition to the employment, the payment of compensation to the affected families was also assured in the said meeting. 5. Again another meeting took place on 06.08.2019 in the Conference Hall of the Collector, Angul under the Chairmanship of the A.D.M., Angul and in presence of the M.C.L. authorities regarding rehabilitation of the families of the persons who have died due to aforesaid landslides on 23.07.2019 at Bharatpur Coal Mines. 6. In the meeting held on 06.08.2019, in presence of the Opposite Parties as well as the A.D.M., Angul and the members of the affected families, it was decided that one member each of the family of the persons who have died in the accident of land slide will be given appointment according to their respective qualification. Pursuant to the // 5 // said decision, the Petitioner along with others from the bereaved families were given temporary appointment and it was decided that salary will be paid as per the salary fixed by the HPC which is more than Rs.20,000/- per month. Further, a decision was taken to the effect that the MCL Board shall make a recommendation to the Coal India Limited (CIL) within a month for permanent appointment of the Petitioner and other similarly situated persons in MCL. 7. Learned counsel for the Petitioner further contended that as a result of the aforesaid negotiation in presence of the MCL and the ADM, Angul in the meeting dated 06.08.2019, it was agreed that as a special consideration, a sum of Rs.30,00,000/- is to be paid to each of the bereaved families as financial compensation. He further contended that the officers of the MCL, who were present in the meeting, agreed to the said proposal and immediately paid a sum of Rs.20,00,000/- as part of the compensation in the shape of cheque to each of the affected families with a promise to pay // 6 // the rest of the assured and agreed amount of compensation by deducting the amount of compensation which has already been paid to them from the total settled amount of Rs.30,00,000/- by 10.08.2019. 8. The aforesaid decision taken in the meeting held on 06.08.2019 under Annexure-5 was communicated to the Petitioner’s family on 08.08.2019 by the A.D.M., Angul. Thereafter, on the very same day, the Petitioner submitted a representation before the Opposite Party No.3 for employment and payment of balance compensation amount of Rs.10,00,000/-. 9. Since no action was taken on the representation submitted by the Petitioner, by the Opposite Parties, the Petitioner earlier approached this Court by filing W.P.(C) No.8678 of 2020 for redressal of his grievance. This Court on 06.03.2020 disposed of the writ petition by directing the Opposite Party No.3 to consider the representation of the Petitioner and to take a lawful decision by giving reasonable // 7 // opportunity of hearing to the Petitioner within a period of one and half month from the date of communication of such order. 10. While the matter stood thus, the Petitioner submitted a copy of the order dated 06.03.2020 passed by this Court along with a copy of the writ petition before the Opposite Party No.3 on 18.03.2020. However, the Opposite Party No.3 did not take any action on such representation submitted by the Petitioner. Accordingly, the Petitioner approached this Court by filing CONTC No.1026 of 2021 alleging non- compliance of order passed by this Court. On 17.02.2021,
Decision
this Court disposed of the said contempt petition by directing the Opposite Party No.3 to work out the direction given by this Court in W.P.(C) No.8678 of 2020 within a period of fifteen days, if the same has not been worked out in the meantime. 11. Finally, on 12.03.2021, the Opposite Party No.3 rejected the claim of the Petitioner which has been annexed // 8 // to the writ petition as Annexure-8. It is alleged by the learned counsel for the Petitioner that while rejecting the claim of the Petitioner vide order dated 12.03.2021 under Annexure-8, the Opposite Party No.3 has not taken into consideration the minutes of the meeting which was held under the chairmanship of A.D.M., Angul on 06.08.2019. Accordingly, the Petitioner approached this Court by filing the present writ petition assailing the order dated 12.03.2021 passed by the Opposite Party No.3. 12. Per contra, learned counsel appearing for the Opposite Parties Nos.2, 3 and 7 has filed a counter affidavit. In the counter affidavit, it has been stated that the Board of Directors of Opposite Party No.7 in their 372nd meeting held on 25.09.2018 decided to make a payment of ex-gratia amount to the tune of Rs.5 lakhs to the dependent of the deceased contractual workers, who have lost their lives in the mines accident as certified by the Director General Mines & Safety from 21.12.2016 onwards. Learned counsel appearing // 9 // for the Opposite Parties Nos.2, 3 and 7 further contended that said ex-gratia amount of Rs.5 lakhs was enhanced to Rs.15/- lakhs by the Board of Directors of Opposite Party No.7 in their 394th meeting held on 11.11.2019 which was to be given effect to from 07.11.2019. 13. With regard to the accident that took place in Bharatpur Mines area on 23.07.2019, the Opposite Parties have admitted about such accident having taken place in the mines area and consequential death of four persons including the father of the present Petitioner. It has also been admitted in the counter affidavit that after such unfortunate incident, several meetings were held between the Government officials including Collector, Angul; Sub-Collector, Talcher; Superintendent of Police, Angul and the MCL Authorities as well the local representatives like MLA, Talcher; MLA, Pallahara and in presence of several political parties and their representatives on 31.07.2019. Such meeting took place under the chairmanship of Collector, Angul. He further // 10 // contended that in all such meetings, the representatives of the MCL stated that the compensation amount will be paid as per the existing policy of the company. 14. Learned counsel appearing for the Opposite Parties Nos.2, 3 and 7 further contended that earlier the ex-gratia amount which was payable as per the policy prevalent then was Rs.5 lakh. However, the Opposite Parties have calculated the compensation amount to be paid to the kin of the deceased in the aforesaid mines accident taking into consideration the compensation as per the E.C. Act, 1923 + Funeral Expenses + Special Relief in case of fatal mines accident. Thus, the total compensation amount which was calculated to be paid in case of Petitioner’s father is Rs.5,56,520/-. However a total Rs.10,61,520/- was paid to the mother of the Petitioner which includes a special relief of Rs.5,00,000/-. 15. It is further contended on the basis of statement made by the Hon’ble Minister of Coal, Mines and Parliamentary // 11 // Affairs regarding enhancement of ex-gratia from Rs.5 lakhs to Rs.15 lakhs during his visit to MCL on 07.11.2019, the Opposite Parties again made a payment of enhanced ex-gratia of Rs.10 lakhs to the mother of the Petitioner on 07.11.2019. He further contended that the compensation amount has been paid to the mother of the present Petitioner as per the existing policy of the Opposite Party No.7-Company and the Employees Compensation Act, 1923. Thus, in the absence of any scheme, policy, rules, the Opposite Parties are not in a position to pay more than what has been paid as per existing policy of the Opposite Party No.7-Company. 16. Learned counsel appearing for the Opposite Parties Nos.2, 3 and 7 has further taken a ground that since there was a complete chaos due to unfortunate accident that took place in Bharatpur Coal Mines area, the villagers of the locality have given a call for strike/Bandh, as a result of which the mining operation remained suspended in the entire Talcher area. In order to normalize the situation and to restart the // 12 // mining in operation in the locality, the officers of the Opposite Party-Company were pressurized by the political dispensation and were also threatened by the agitating crowd of continuation of the closure of mining operation. In such background, the officers of the Opposite Party-Company had no other option than to accede to the demands of the villagers in the meeting held on 06.08.2019 as per Annexure-5. 17. Learned counsel appearing for the Opposite Parties Nos.2, 3 and 7 has further categorically submitted that in the absence of any provision in the policy, the Opposite Parties are not in a position to make the additional payment towards compensation of Rs.10 lakhs as claimed by the Petitioner and, accordingly, the conduct of the Opposite Parties in rejecting the representation of the Petitioner under Annexure- 8 has been justified by the learned counsel appearing on behalf of the Opposite Parties No.2, 3 & 7. 18. With regard to providing of employment as promised by the Opposite Party-Company, it is submitted that the // 13 // Petitioner has already given temporary employment under the security agency which is providing man power to the Opposite Party-Company. He further contended that under the very same agency, the father of the Petitioner was also working. Since the earlier outsourcing security agency has been changed, the Petitioner has been working under the newly engaged Security and Intelligence Service Ltd. 19. Furthermore, with regard to the permanent employment in MCL, it is submitted by the learned counsel appearing for the MCL that a positive recommendation has been made in favour of the Petitioner along with three other kin of the contractual workers, who had lost their life in the accident on 23.07.2019, by the MCL Board to Opposite Party No.7. He further submitted that the proposal for permanent employment in MCL to the next kin of the 4 deceased employees and payment of a total compensation of Rs.30 lakhs for each affected family was forwarded to the Functional Director of MCL in the meeting held on // 14 // 14.08.2019 and on the direction of Functional Director of MCL, the proposal was placed before the MCL Board for consideration. 20. The MCL Board in its 218th meeting held on 04.09.2019 deliberated on the issues and finally was of the view that the proposal requires approval of CIL Board and, accordingly, recommendation was made by the MCL Board. In the said Board meeting, it was also brought to the notice of the Directors that in a similar fatal accident that took place in the year 2019 in NALCO at Angul, a CPSU, NALCO Management had agreed to the demand and raised the ex- gratia amount from Rs.8 lakhs to Rs.15 lakhs. 21. So far employment to the next kin of the deceased is concerned, it was agreed by all concerned that it should be in the contractual establishment where the deceased was engaged. Keeping in view the aforesaid fact, the MCL Board made a recommendation to CIL Board for approval on 11.9.2019 under Annexure-E/3. // 15 // 22. Learned counsel appearing for the Opposite Party-MCL further contended that inadvertently it has been mentioned in the order dated 12.03.2021 under Annexuer-8 that the proposal was sent by MCL Board to CIL for consideration of the case of the Petitioner for employment in MCL on compassionate ground on account of the death of his father who was working as a Security Guard under the private Security Agency engaged by the MCL. However, no reply has been received from the CIL as of now. 23. Finally, learned counsel for the MCL submitted that the MCL Board in its meeting held on 04.09.2019 deliberated the issue for providing employment to the next kin of the contractual workers, who died in accident, and for payment of enhanced compensation. However, it was decided in the said Board meeting that the proposal for enhancement for compensation was decided to be sent to CIL Board and the issue with regard to providing employment was deliberated in detail and it was finally decided to go ahead with the existing // 16 // provisions of CIL and the provisions followed by other CPSU’s in the vicinity. In such view of the matter, learned counsel appearing for the MCL submitted that the writ petition filed by the Petitioner is devoid of merit and the same should be dismissed. 24. Having heard the learned counsels for the respective parties and upon a careful consideration of the pleadings of the respective parties and after consideration of their contentions, this Court is of the prima facie view that the issue involved in the present writ application and which is required to be adjudicated by this Court is as to whether the promise made/assurance given by the officers of the MCL in presence of the ADM, Angul as well as other stakeholders in the meeting dated 06.08.2019 is valid and binding on the Opposite Parties? Further, this Court is also required to examine whether there is any policy/rules/regulation governing the field while dealing with such type of cases by the Opposite Parties? The answer to the aforesaid two // 17 // questions would essentially determine the fate of the present case. Therefore, this Court is required to analyze the factual aspects revolving around the aforesaid two questions. 25. With regard to the first question, i.e., whether the promise made by the officers of Opposite Party-Company which was reduced to writing in the minutes of the meeting that was held on 06.08.2019 is binding or not, this Court perused the documents filed along with the writ petition as Annexure-5 and on perusal of said Annexure-5, it appears that the same is a letter issued by the Additional Collector, Angul to all stakeholders in the matter. Annexure-5 further reveals that a meeting took place in the office of the Collector, Angul on 06.08.2019 and the subject matter of such meeting was rehabilitation of the family members of the persons who have died in an accident that took place on 23.07.2019 in the Bharatpur Coal Mines area of MCL. 26. Further, the text and context of the documents under Annexure-5 reveals that the same is the minutes of the // 18 // meeting that took place on 06.08.2019 and apart from the Additional District Magistrate, Angul, authorize representative of MCL as well as the other stakeholders including the family members of the deceased employees also attended the said meeting. The minutes of the aforesaid meeting, which has been issued under the signature of ADM, Angul, further reveals that the meeting started with condemning the absence of the CMD, M.C.L., Burla by the M.L.A., Talcher. Thereafter, various stakeholders ventilated their grievance, which has been noted in the minutes of the meeting. Finally, with the consent of all the stakeholders including the representative of the Opposite Parties and the Petitioner, it was agreed as follows;- (i) That one member of the family of persons who have lost their life in the accident to be provided employment. For the time being, they will be engaged on temporary basis and as per HPC decision, they are to // 19 // be paid a monthly salary of not less than Rs.20,000/-. That the MCL Board shall recommend permanent employment of the Petitioner in MCL to the CIL authorities. (ii) It was agreed by all present that an ex- gratia amount of Rs.30,00,000/- that has been paid to the families of the four persons including the Petitioner where family members lost his life in the accident that took place in the Bharatpur Coal Mines area. Further, it has specifically been mentioned that the MCL authorities present in the meeting specifically agreed to such a proposal and they also agreed to pay partial compensation amount in the shape of a chaque and pay the balance amount that is to be arrived at by deducting the amount paid from the total // 20 // amount of Rs.30,00,000/- as promised by 10.08.2019. A strong assurance to that effect was given by the MCL authorities. (iii) In some earlier accidents, families of some victims have not been paid the total compensation amount and in some cases cheques have been bounced. An assurance was given that the amount payable to the persons shall be paid by 31.08.2019. iv) Steps shall be taken to implement the survey report submitted by DGMS in connection with the safety and security in the mines area. (v) Keeping in view the national interest, the agitating villagers and other representative of various other organizations agreed to withdraw from strike-cum-Bond, agitation. // 21 // Accordingly, the strike which was going was called up on the very same day in presence of the villagers. 27. The entire claim of the Petitioner in the present writ petition is based on the minutes of the meeting dated 06.08.2019 under Annexure-5, which has been discussed by this Court in great details hereinabove. Moreover, learned counsel for the Opposite Party-MCL has not disputed the said minutes of the meeting under Annexure-5. However, in reply to the Annexure-5, the MCL in its counter affidavit has stated that the representatives of the MCL, who were attending the meeting, were under pressure to ensure that the strike is called off and the mining operation starts forthwith. Therefore, all possible efforts and attempts were made to justify that the officers, who attended the meeting, acted under pressure from various persons and, accordingly, they have agreed to the final outcome of the meeting held on 06.08.2019. // 22 // 28. This Court also examined the records with regard to payment of compensation amount. On such examination, it was observed that the MCL has a policy with regard to payment of ex-gratia compensation. The policy which is governing the field has been approved by the MCL Board and the ex-gratia compensation amount which was earlier Rs.5 lakhs has been enhanced to Rs.15 lakhs in the meantime. Relying upon such policy decision of MCL Board, Mr. Sharma, learned counsel appearing for the MCL argued that the Opposite Party-MCL has already paid the compensation amount to the Petitioner and he has been given employment as has been assured in the meeting dated 06.08.2019. 29. Furthermore, learned counsel appearing for the Opposite Parties No.2, 3 & 7 rebutted the contentions and claims raised by learned counsel for the Petitioner by saying that out of the promised amount of Rs.30,00,000/-, which was made in the presence of ADM, Angul as well as the villagers and the other stakeholders by the authorities representing the // 23 // Opposite Parties, a sum of Rs.20 lakhs and odd has already been paid out of promised amount of Rs.30 lakhs towards ex- gratia compensation to each of the families of the persons who have lost their lives in the aforesaid unfortunate accident. Apart from the aforesaid submission made by learned counsel for the Opposite Parties No.2, 3 & 7, there is no other document available to rebut the contention raised on behalf of the Petitioner in the present writ petition. 30. Upon a careful examination of the record, particularly the documents, i.e., the minutes of the meeting held on 06.08.2019 under Anenxure-5 and the contentions raised by the learned counsel appearing for both sides, this Court is of the considered view that once the officers representing the MCL made an assurance and such assurance having been reduced to writing in presence of all the stakeholders and consequently a part of such assurance has already been acted upon, it is no more open to the Opposite Party-Company to take a different stand than the assurance made by the // 24 // representative of the MCL who had attended the meeting and made a commitment on behalf of the Company. Therefore, the Board of the MCL keeping in view the larger public interest and further considering the lost life of four contractual workers should have considered the matter sympathetically and, accordingly, the Board should have approved the minutes of the meeting and the suggestions made therein which has been agreed upon by all persons in larger public interest. 31. In such view of the matter, this Court is also considered view that the Opposite Parties No.2, 3 and 7 are bound by the minutes of the meetings dated 06.08.2019 under Annexure-5 and, accordingly, the same should have been accepted by the Board of MCL and should have been acted upon and implemented in its letter and spirit. Otherwise also the MCL which is a Central Public Sector Undertaking is least expected to behave like any private company operating with a profit motive only. Being a public sector undertaking and // 25 // dealing with national assets like Coal, the Opposite Party No.7-Company is expected to be more reasonable and generous and while taking a decision in the matter should have kept in mind that four persons have died in Bharatpur Coal Mines while they were engaged by outsourcing agency on contractual basis. 32. Accordingly, this Court directs that the Opposite Parties No.2 and 3 shall do well to place the matter before Board in its next Board meeting and after necessary approval of Board of Directors, the balance amount out of promised amount of Rs.30 lakhs be paid to the Petitioner in accordance with law within a period of three months from today. With regard to employment of the Petitioner is concerned, learned counsel appearing for the Opposite Party-MCL fairly submitted that the Petitioner has already been given employment by the MCL. He further contended that since the father of the Petitioner was engaged by an outsourcing agency, upon death of the father of the Petitioner, the Petitioner was also given // 26 // employment through the contractual agency. Since the agency which had engaged the father of the Petitioner has been changed in the meantime, the Petitioner has been engaged through the substituted outsourcing agency and he has been working at the moment and getting his salaries regularly as has been fixed. 33. With regard to permanent appointment of the Petitioner in the MCL pursuant to the settlement in the meeting dated 06.08.2019 is concerned, learned counsel for the Opposite Parties No.2, 3 & 7 submitted that since the father of the Petitioner was engaged on contractual basis and as per the policy of the Company, the Petitioner has also been given appointment through the outsourcing contractual agency. On perusal of the settlement vide minutes of meeting dated 06.08.2019, this Court observes that the MCL under Clause-1 had assured that they will make a positive recommendation to the Board of CIL for permanent engagement of the Petitioner in the MCL. However, it // 27 // appears that such recommendation has not been forwarded to the CIL by the MCL. 34. In such view of the matter, this Court directs the MCL Board to make a recommendation to the CIL Board for consideration of permanent employment of the Petitioner at MCL as promised in the minutes of meeting dated 06.08.2019. Let the MCL Board make such a recommendation within a period of three months to the CIL Board and the CIL Board shall take a decision on the same within three months thereafter. Awaiting the final decision of the CIL Board, the MCL shall do well to keep the Petitioner engaged through the contractual outsourcing agency on regular basis. 35. In view of the aforesaid observations and directions of this Court, the impugned rejection order dated 12.03.2021 under Annexure-8 is hereby quashed. // 28 // 36. Accordingly, the writ petition preferred by the Petitioner stands allowed. However, there shall be no order as to cost. (A.K. Mohapatra) Judge Orissa High Court, Cuttack The 3rd April, 2023/D. Aech, P.A.