w w w . L a w y e r S e r v i c e s . i n



Employers in relation to the management of Katras Area of M/s. Bharat Coking Coal Limited, through General Manager (P)/Legal Sri Santosh Kumar Singh, District & Others v/s Shanti Kumari


Company & Directors' Information:- COAL INDIA LTD GOVT OF INDIA UNDERTAKING [Active] CIN = L23109WB1973GOI028844

Company & Directors' Information:- BHARAT COKING COAL LIMITED [Active] CIN = U10101JH1972GOI000918

Company & Directors' Information:- S. M. MANAGEMENT PRIVATE LIMITED [Active] CIN = U74140AS2005PTC007642

Company & Directors' Information:- SANTOSH LIMITED [Active] CIN = U74999GJ1990PLC014671

Company & Directors' Information:- SHANTI CORPORATION LIMITED [Active] CIN = U45400DL2007PLC166685

Company & Directors' Information:- U C M COAL COMPANY LIMITED [Active] CIN = U10100UP2008PLC036169

Company & Directors' Information:- C & K MANAGEMENT LIMITED [Active] CIN = U91990TG2000PLC033293

Company & Directors' Information:- S M MANAGEMENT PVT LTD [Not available for efiling] CIN = U74140WB1992PTC002848

Company & Directors' Information:- S M MANAGEMENT PVT LTD [Not available for efiling] CIN = U74140WB1992PTC057260

Company & Directors' Information:- BHARAT KUMAR & COMPANY PRIVATE LIMITED [Active] CIN = U51909WB2010PTC144689

Company & Directors' Information:- N S COAL PRIVATE LIMITED [Active] CIN = U10100MH2003PTC140221

Company & Directors' Information:- SHANTI COAL PVT LTD [Strike Off] CIN = U20229MP1991PTC006691

Company & Directors' Information:- A J COAL PRIVATE LIMITED [Active] CIN = U23100MH1994PTC076762

Company & Directors' Information:- SANTOSH KUMAR SINGH PRIVATE LIMITED [Active] CIN = U45309BR2020PTC048668

Company & Directors' Information:- SRI B L C PVT LTD [Active] CIN = U92111WB1981PTC033844

Company & Directors' Information:- B L A COAL PRIVATE LIMITED [Active] CIN = U10200MH2009PTC191479

Company & Directors' Information:- W P MANAGEMENT INDIA PRIVATE LIMITED [Active] CIN = U40100TG2016PTC112006

Company & Directors' Information:- G R COAL PRIVATE LIMITED [Strike Off] CIN = U10200GJ2007PTC050341

Company & Directors' Information:- SHANTI PVT LTD [Strike Off] CIN = U55101OR1983PTC001169

Company & Directors' Information:- S R MANAGEMENT PRIVATE LIMITED [Active] CIN = U74140MH2000PTC129839

Company & Directors' Information:- R N SINGH & COMPANY PRIVATE LIMITED [Active] CIN = U27310JH1975PTC001224

Company & Directors' Information:- Y H MANAGEMENT INDIA PRIVATE LIMITED [Strike Off] CIN = U93030MH2012PTC238901

Company & Directors' Information:- V M G MANAGEMENT PRIVATE LIMITED [Strike Off] CIN = U74140WB2011PTC160061

Company & Directors' Information:- M B MANAGEMENT PVT LTD [Strike Off] CIN = U99999MH1981PTC025914

Company & Directors' Information:- SHANTI INDIA PVT LTD [Active] CIN = U74899DL1980PTC010679

Company & Directors' Information:- COAL CORPORATION OF INDIA LTD [Strike Off] CIN = U10100WB1946PLC013091

Company & Directors' Information:- W P MANAGEMENT INDIA PRIVATE LIMITED [Active] CIN = U45201TG2016PTC112006

Company & Directors' Information:- I & J MANAGEMENT PRIVATE LIMITED [Active] CIN = U93000DL2016PTC292375

Company & Directors' Information:- S. SINGH AND COMPANY PRIVATE LIMITED [Active] CIN = U51100MP2010PTC025020

Company & Directors' Information:- S. SINGH AND COMPANY PRIVATE LIMITED [Active] CIN = U70100MP2010PTC025020

Company & Directors' Information:- H AND S MANAGEMENT PRIVATE LIMITED [Active] CIN = U74140KL2005PTC018253

Company & Directors' Information:- SINGH AND CO PVT LTD [Strike Off] CIN = U36101PB1982PTC005152

Company & Directors' Information:- SHANTI MANAGEMENT PVT LTD [Strike Off] CIN = U74140WB1996PTC077165

Company & Directors' Information:- M A S MANAGEMENT PRIVATE LIMITED [Strike Off] CIN = U74999DL1987PTC029434

Company & Directors' Information:- BHARAT CORPORATION PVT LTD [Strike Off] CIN = U74999CH1946PTC001103

Company & Directors' Information:- L AND T (MANAGEMENT) LIMITED [Dissolved] CIN = U99999MH1946PTC004765

Company & Directors' Information:- J N SINGH AND CO PRIVATE LIMITED [Under Liquidation] CIN = U74999DL1908PTC000014

    L.P.A No. 100 of 2020 with I.A. No. 1984 of 2020

    Decided On, 18 January 2021

    At, High Court of Jharkhand

    By, THE HONOURABLE CHIEF JUSTICE DR. RAVI RANJAN & HONOURABLE MR. JUSTICE SUJIT NARAYAN PRASAD

    For the Appellants: Amit Kumar Das, Advocate. For the Respondent: Manoj Kumar Sinha, Advocate.



Judgment Text

Oral Judgment:1. With consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.2. This interlocutory application has been preferred under Section 5 of the Limitation Act for condoning the delay of 109 days in preferring this Letters Patent Appeal.3. Heard.4. In view of the submissions made on behalf of the parties and the averments made in the interlocutory application, we are of the view that the appellants were prevented by sufficient cause in preferring the appeal within the period of limitation.5. Accordingly, I.A. No.1984 of 2020 is allowed and delay of 109 days in preferring the appeal is condoned.6. The instant appeal under Clause 10 of the letters patent, is directed against the order/judgment dated 20.09.2019 passed by the learned Single Judge of this Court in W.P.(S) No.3993 of 2018, whereby and whereunder the writ petition has been allowed by quashing the order contained in letter No.153/2018 dated 13/30.06.2018 issued by the respondent no.3/appellant no.3 herein, by which the claim of the writ petitioner to provide her compassionate appointment has been rejected with a further direction upon the respondents-BCCL to consider the case of the writ petitioner for appointment on compassionate ground within a period of 10 weeks from the date of receipt/production of a copy of the order.7. The brief fact of the case, which requires to be enumerated, reads as hereunder:The father of the writ petitioner, who was permanent employee and was posted as Pump Operator at Ramkanali Colliery under the respondents-BCCL (hereinafter referred to as ‘the BCCL’) died in harness on 11.01.2015. At the time of death, the writ petitioner and her sister were minor and as such, mother of the petitioner, wife of the deceased employee had submitted her representation before the respondent for appointment of her daughter on compassionate ground.The case of the writ petitioner was considered but rejected on the ground that the age of the writ petitioner at the time of death of her father was 15 years 8 months and 24 days but there is no provision to keep female dependant on live roster. It is further case of the writ petitioner that on 27.12.2017, the writ petitioner had submitted a representation requesting therein that the ground of rejection of her claim for compassionate appointment, is illegal and arbitrary in view of the fact that she had applied for compassionate appointment on 01.06.2015 and had attained majority on 02.05.2017 and as such, a request was made to consider her case for appointment on compassionate ground. But, the said claim was rejected vide order dated 13/30.06.2018.The aforesaid order was assailed before this Court by invoking jurisdiction conferred under Article 226 of the Constitution of India, wherein the ground has been agitated that the compassionate appointment is to be provided to unmarried daughter as per the provision contained in Para-9.4.0 of N.C.W.A and as such, the action of the respondent-BCCL, rejecting the claim of the petitioner is illegal and arbitrary in the eyes of law. Further submission has been made that her claim on the ground of gender is against the provision of Constitution of India. It has further been submitted that in terms of N.C.W.A, a male dependant, who is below the age of 18 years can be kept in live roster till he attains majority but there has been apparent discrimination in the case of female dependant as would appear from the case in hand.Per contra, a counter affidavit was filed by the respondents-BCCL. Learned counsel for the respondents-BCCL opposed the contention of the petitioner by making submission that as per the service excerpts of the deceased employee, the name of the writ petitioner did not find place in the list of dependants and after the death of the deceased employee, the family certificate was submitted by the writ petitioner in which she is shown as dependant along with her sister and mother. It has further been submitted that the mother of the writ petitioner earlier requested for compassionate appointment to be given in favour of the writ petitioner but was rejected vide letter dated 06.01.2016 on the ground that the petitioner’s age is 15 years 8 months and 24 days and she is minor and there is no provision to keep the name of female dependant in the live roster, which was never been challenged. Further argument has been made that in absence of enabling provision that if the dependant of deceased is minor and not eligible for employment on compassionate ground, then he/she can claim such employment after becoming major subsequently? The respondent cannot pass order in such cases, as the eligibility for employment is to be seen at the time of death, not subsequently.Learned Single Judge deliberating upon the issues, has allowed the writ petition on the ground that the father of the writ petitioner died in harness on 11.01.2015 and the writ petitioner and her sister were minor, as such, the mother of the writ petitioner i.e. wife of the deceased employee submitted an application for employment in favour of the daughter on compassionate ground. The age of the writ petitioner was 15 years 8 months and 24 days and as such, her case was rejected as there was no provision for keeping a female dependant on live roster. Further on attaining the age of majority, the writ petitioner made an application on compassionate ground which was rejected on 13/30.06.2018 on the aforesaid ground. Admittedly, the writ petitioner was aged about 12 years at the time of death of her father which has not been controverted by the respondents.Learned Single Judge, has further taken into consideration the case of the writ petitioner, which was rejected merely on the ground that she is female and her name cannot be kept in live roster as she has not attained majority. Para-9.5.0 of the N.C.W.A provides condition for employment on compassionate ground to a female dependant and considering the fact that there cannot be any gender discrimination on the ground of sex, the writ petition was allowed by quashing and setting aside the impugned order, which is the subject matter of the present intra-court appeal.8. Mr. Amit Kumar Das, learned counsel for the appellants-BCCL has assailed the order passed by the learned Single Judge, inter alia, on the ground that the question of applicability of condition stipulated under Clause 9.5.0 will only arise, if there is no major dependant available in the family for getting the appointment on compassionate ground. According to the learned counsel, the scheme as contained in Clause 9.3.2 stipulates that the female dependant/widow can be provided appointment on compassionate ground, if she is below the age of 45 years.Herein, the age of the wife of the deceased employee was 43 years at the time of death of her husband and as such, she was eligible for consideration of her candidature for appointment on compassionate ground and in that view of the matter, the condition stipulated in Clause 9.5.0 will not be applicable but this aspect of the matter has not been considered by the learned Single Judge and hence the impugned order is not sustainable in the eyes of law.9. Learned counsel for the respondent-writ petitioner has submitted that the learned Single Judge has considered the very intent and object of the National Coal Wage Agreement and taking into consideration the fact that the condition stipulated under Clause 9.5.0 is discriminatory on the ground of sex as because the provision has been made to keep the male dependant on live roster but indulgence has not been given so far as female dependant is concerned. Considering the said aspect of the matter, the writ Court has proceeded with the matter and decided in favour of the writ petitioner which is having no infirmity.10. We have heard learned counsel for the parties, perused the documents available on record as also gone across the finding recorded by the learned Single Judge.It requires to refer herein that the National Coal Wage Agreement has been entered in between the Coal India Limited and the union of the workers to deal with the wage structure and other conditions of service including benefits of the employees of the Coal Industry under the recommendations of the Central Wage Board for Coal Mining Industry as accepted by the Government of India and made applicable with effect from 15.08.1967.The aforesaid agreement is outside the conciliation proceeding and as such, it requires to be treated within the meaning of Section 18(1) of the Industrial Disputes Act, 1947 and hence, the aforesaid agreement has got binding effect.The issue about applicability of National Coal Wage Agreement, as to whether the said agreement is having statutory fervour or not, has been decided by the Hon’ble Apex Court in the case of Mohan Mahto vs. Central Coalfield Ltd. reported in (2007) 4 JLJR 144 (SC).It further requires to refer herein that once bipartite agreement, by way of National Coal Wage Agreement, has been said to have got its statutory fervour within the meaning of Section 18(1) of the Industrial Disputes Act, 1947, the terms and conditions contained therein bind the parties. It further requires to refer herein that the Industrial Disputes Act is by way of a beneficial legislation and once the bipartite agreement in terms of National Coal Wage Agreement has been entered pursuant to the provisions of Section 18(1) of the Industrial Disputes Act, the same having got the statutory fervour, therefore, the terms and conditions of the agreement will also be said to have its beneficial effect upon the workmen.11. The instant case pertains to the bipartite agreement by way of National Coal Wage Agreement-XI. Taking into consideration the date of death of the father of the writ petitioner which is 11.01.2015, the concerned provisions of the N.C.W.A which is relevant for the present case as contained in Clause 9.3.0 and Clause 9.5.0 are reproduced herein below:“9.3.0 Provision of Employment to Dependants9.3.1 Employment would be provided to one dependant of workers who are disabled permanently and also those who die while in service. The provision will be implemented as follows.9.3.2. Employment to one dependant of the worker who dies while in service.In so far as female dependants are concerned, their employment/payment of monetary compensation would be governed by para 9.5.0.9.3.3 The dependant for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment, 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 dependants of the deceased.9.3.4 The dependants 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.9.5.0. Employment/Monetary compensation to female dependantProvision of employment/monetary compensation to female dependants of workmen who die while in service and who are declared medically unfit as per Clause 9.4.0 above would be regulated as under :i) In case of death due to mine accident, the female dependant would have the option to either accept the monetary compensation of Rs.4000/- per month or employment irrespective of her age.ii) In case of death/total permanent disablement due to causes other than mine accident and medical unfitness under Clause 9.4.0, if the female dependant is below the age of 45 years she will have the option either to accept the monetary compensation of Rs.3000/- per month or employment.In case the female dependant is above 45 years of age she will be entitled only to monetary compensation and not to employment.iii) In case of death either in mine accident or for other reasons or medical unfitness under Clause 9.4.0, if no employment has been offered and the male dependant of the concerned worker is 12 years and above in age, he will be kept on a live roster and would be provided employment commensurate with his skill and qualifications when he attains the age of 18 years. During the period the male dependant is on live roster, the female dependant will be paid monetary compensation as per rates (i) & (ii) at paras above. This will be effective from 1.1.2000.iv) xxxx xxxxx xxxxv) xxxx xxxxx xxxx”It is evident from the provision of Clause 9.3.2 of the N.C.W.A-VI which stipulates that one dependant of the worker who dies while in service shall be given employment. Under the aforesaid condition, the definition of dependant has been stipulated as under Clause 9.3.3, which means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment, 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 dependants of the deceased.The condition stipulated under Clause 9.3.4 provides that the dependants 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.Clause 9.5.0 (iii) stipulates that in case of death either in mine accident or for other reasons or medical unfitness under Clause 9.4.0, if no employment has been offered and the male dependant of the concerned worker is 12 years and above in age, he will be kept on live roster and would be provided employment commensurate with his skill and qualifications when he attains the age of 18 years. During the period the male dependant is on live roster, the female dependant will be paid monetary compensation as per rates at paras (i) & (ii) above. This will be effective from 1.1.2000.It is not in dispute that the appellant-B.C.C.L has issued circular time to time fixing the period of making application for consideration of the case for appointment on compassionate ground under Clause 9.3.2. The circular dated 12.12.1995 provides a period of six months. Subsequently, the circular dated 12.12.1995 was cancelled by introducing another circular dated 01.01.2002 making six months to one year. It is applicable from the year 2000, meaning thereby that in the given situation if the case of the writ petitioner was to be considered under Clause 9.3.2, the application ought to have been made within one year from the date of death. Herein, the date of death of the father of the writ petitioner is 11.01.2015 and as such the application for appointment on compassionate ground if conveyed, it ought to have been made within one year i.e. up to 11.01.2016, if at all the provision under Clause 9.3.2 will be said to be applicable.It further appears from the provision of Clause 9.5.0 that in case when there is no adult male or female dependant for consideration under Clause 9.3.2, rather the male dependant is 12 years and above, such minor male dependant will have to be kept on live roster for his appointment.It is evident from Clause 9.3.2 wherein the condition is stipulated for offering appointment to the dependant, which includes the widow also. The age criteria for the male dependant is 12-18 years and for widow is up to 45 years under Clause 9.5.0 of the aforesaid agreement. The condition has been stipulated to keep male dependant on live roster, if at the time of death of the deceased employee the age of the male dependant is in between 12-18 years.12. This Court has gathered from the argument advanced on behalf of the parties as also from the finding recorded by the learned Single Judge about the question of applicability of the Clause 9.3.2 or 9.5.0 of the N.C.W.A.The admitted position so far as legal issues are concerned, the applicability of Clause 9.5.0 of the aforesaid agreement will only be applicable, if there is no major dependant in the family after the death of the employee and in that circumstances, the minor having age in between 12-18 years will be kept on live roster.The question of discrimination is one of the points agitated by the learned counsel appearing for the writ petitioner to the effect that there cannot be any discrimination on the ground of sex since Clause 9.5.0 only stipulates to keep male dependant on live roster, who is having the age of 12-18 years leaving the female dependant.This Court, before answering the issue deem it fit and proper to deal, as to whether it is a fit case where this issue is to be decided on the facts of the case, taking into consideration the fact that the condition stipulated under Clause 9.5.0 is applicable or Clause 9.3.2?The admitted position, as would appear from the materials brought on record that the age of the widow at the time of death of her husband was 43 years. As stated under Clause 9.3.2 of the agreement that the maximum age for the widow for consideration of appointment on compassionate ground is 45 years, meaning thereby, the widow of the deceased employee was eligible in all respects for consideration for appointment on compassionate ground but she has not chosen to offer herself for appointment on compassionate ground rather had chosen to offer the candidature of her daughter, the writ petitioner, for appointment on compassionate ground. But, at the time of death of the deceased employee, the writ petitioner was having the age of 15 years 8 months and 24 days and as such, it is not a fit case where the ingredient stipulated under Clause 9.5.0 is applicable, rather it is a case where the condition stipulated under 9.3.2 is applicable since at the time of death of the deceased employee, the widow in the capacity of dependant was eligible to be appointed on compassionate ground having the age less than 45 years and therefore, we are of the view that in the facts of the case it is not a case of gender discrimination as has been discussed by the learned Single Judge.It is further apparent from the factual aspect that the claim of the writ petitioner was rejected on the ground that she is having age of only 15 years 8 months and 24 days at the time of death of her father. She has again filed a fresh application after attaining the majority on 02.05.2017, but the same was also rejected on the ground that there is no provision in N.C.W.A to keep the female dependant on live roster and in the meanwhile, wife of the deceased employee was having 46 years of age.It is correct on the part of the writ petitioner that the ground about availability of the candidate to be considered for appointment under Clause 9.3.2 was available before the respondent but the same has not been considered while passing the impugned order and hence the same, at the moment cannot be allowed to be agitated.But, we are not in agreement with such submission, as because even if, the reason as has been provided under the agreement which has got statutory fervour, has not been mentioned in the impugned order, the same is required to be considered by the court of law and considering the aforesaid legal position, this Court has also gone into that factual aspect in order to consider the same on the basis of legal position as provided under Para 9.3.2 of the N.C.W.A to find out as to whether it is a fit case for consideration under condition stipulated under Clause 9.5.0 or 9.3.2.Upon which, we have found that it is not a case where consideration ought to have been given under Clause 9.5.0 rather it is a case of Clause 9.3.2 of the aforesaid agreement as discussed ab

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ove. But at the risk of repetition, the same is reiterated herein that at the time of death of the deceased employee the age of widow of the deceased employee was 43 years and as she was eligible to be considered for appointment as under Para 9.3.2 of the agreement but she has not offered herself for the same rather offered the candidature of unmarried daughter for the same who was less than the age of 18 years.As such, since there was adult dependant in the family it was a case under Para 9.3.2 of the agreement and once it is a case of Para 9.3.2 of the agreement, there cannot be applicability of condition stipulated under Para 9.5.0 of the agreement.In that view of the matter, it is not a case of gender discrimination, hence we are not going to this aspect.The learned Single Judge, without appreciating this aspect of the matter and without traveling to that aspect, has considered the case of the writ petitioner on the basis of applicability of Clause 9.5.0 of the aforesaid agreement which cannot be said to be proper and justified.13. This Court, therefore, is of the view that the order passed by the learned Single Judge, cannot stand in the eyes of law. Accordingly, the same is quashed and set aside.14. In the result, the appeal stands allowed and the writ petition stands dismissed.15. At this juncture, learned counsel for the writ petitioner has submitted that at least direction may be passed for monetary compensation.Learned counsel appearing for the appellants-BCCL has raised no objection to such submission.16. In view thereof, the writ petitioner is given liberty to approach before the authority for filing representation within a period of four weeks from the date of receipt/production of a copy of the order for consideration of her case for payment of monetary compensation. If such application would be filed, the appellants-BCCL will consider the same in accordance with law and take decision within a further period of eight weeks thereafter.17. Needless to say that if the claim of the writ petitioner is admissible as per the condition stipulated in Clause 9.5.0 of the aforesaid agreement, the monetary compensation shall be paid to the writ petitioner within the period aforesaid.
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