COMPASSIONATE APPOINTMENT, DELAY AND LACHES
THE SOCIAL,ECONOMIC AND LEGAL DOCTRINE OF WORKING CLASS JURISPRUDENCE : CLAIM FOR COMPASSIONATE APPOINTMENT, DELAY AND LACHES, JUDICIAL REVIEW AND LEGAL PERSPECTIVE : A JUDICIAL DICTUM : PART-II
ARUNDHATI SAMANTARAY
PADMASHREE DR DY PATIL COLLEGE OF LAW
(MUMBAI UNIVERSITY)
PRELUDE : This is a claim for compassionate appointment by the son of a deceased employee of Bharat Coking Coal Ltd. There was a delay in claiming compassionate appointment for which the claim was rejected. The son of deceased approached the Hon'ble High Court by filing awrit petition. By the impugned judgment dated 21st April 2017 passed in WPC No. 6364/2016, the learned Single Judge quashed the order dated 27/29th March 2014 passed by the respondent BCCL and directed it to consider the claim of the petitioner for compassionate appointment. Aggrieved by the judgment and order of the learned Single Judge, the employer filed an LPA before a learned Division Bench of the Hon'ble High Court of Jharkhand. Let us see as to how the case was dealt with.
THE CASE-LAW :
BHARAT COKING COAL LIMITED
vrs
BHIM PASWAN
[https://indiankanoon.org/doc/150510134]
DoJ : 4 October, 2018
FACTS OF THE CASE :
In this case, Shri Bhim Paswan was the Respondent. His father Ganesh Paswan, was a Loader in one of the collieries of Bharat Coking Coal Ltd .He expired on 18th November 2005 in harness leaving behind his two sons including the petitioner and a daughter Sunita Kumari. His mother pre-deceased him on 31st December 1998. As per the writ petitioner's case, he was minor, aged about 12 years at the time of death of his father. On attaining majority on 11th July 2011, he made an application on 21st February 2012 for compassionate appointment. The Officers of asked him to submit affidavit, family certificates, etc. which he did on 12th February 2013. However, his claim was rejected on the ground that it was time barred.
WRIT PETITION TO THE HIGH COURT :
Having felt aggrieved by the order of rejection, Shri Bhim Paswan filed a Writ Petition bearing No.6364 of 2016 in the Hon'ble High Court of Jharkhand which allowed the writ petition. It would be quite pertinent to reproduce the relevant portion of the judgment of the Hon'ble High Court which reads as follows:
7. Taking into consideration the facts as mentioned in para-5 of the writ petition that the petitioner was born on 11.07.1993 and also the facts from Annexure-3 that on 21.02.2012, the petitioner was about 19 years, it cannot be disputed that at the time of death of his father, the petitioner was 12 years and above. Hence, as per the provisions of sub-clause (iii) of Cl. 9.5.0 of NCWA-VI, his name ought to have been kept on live roster. The respondents-authorities have completely given a go-bye to the factual aspect that the petitioner was 12 years of age at the time of death of his father. Imaginary date of birth and age cannot be fixed by the respondents-authorities, which suits to them. The date of birth has to be calculated on the basis of service excerpts or in case of any doubt, it has to be assessed by the Apex Medical Board but in the instant case nothing has been done and merely on their own, an imaginary date of birth has been fixed by the respondents and as such, the same cannot be accepted by this Court.
8. As a cumulative effect of aforesaid facts, observations, rules, and the guidelines, the impugned order dated 27/29.03.2004 passed by the respondents-CCL, is hereby quashed and set aside. Respondent No. 2 is hereby directed to reconsider the claim of the petitioner for compassionate appointment, taking into account the fact that at the time of death of his father, the petitioner was 12 years and above of age, within a period of six weeks from the date of receipt of a copy of this order.
9. With the aforesaid observation, the writ petition is allowed.
L P A TO THE DIVISION BENCH :
Having felt aggrieved by the judgment and order of the learned Single Judge, the employer, BCCL moved the Division Bench of the High Court by filing an L.P.A. bearing No. 424 of 2017.
The Counsel, appearing for the appellant -BCCL, contended as follows:
(i) that the writ petitioner had applied after 6-7 years of death of his father.
(ii) that the time limit for making such an application is 18 months from the date of death, as per Circular dated 24.01.2004.
The Counsels for both the parties relied upon the provisions of Clause 9.5.0(iii) of N.C.W.A-VI under Chapter-IX 'Social Security' of the National Coal Wage Agreement in support of their respective submissions. The Counsel for the appellant relied upon the judgment of the learned Division Bench of the same High Court in the case of Central Coalfields Limited and Others vrs Binod Ram Tirkey [2018 (2) J C R 311 (Jhr)]. No application was made on behalf of the petitioner for keeping him on live roster in terms of Clause 9.5.0 of N.C.W.A-VI. He further referred to the family certificates enclosed by the petitioner (Annexure-3/1) issued by the same authority i.e. Block Development Officer, Dhanbad on two occasions. Certificate bearing no. 83 dated 3rd April 2008 shows the petitioner's age as 24 years, while certificate bearing no. 27 dated 19th January 2013 shows his age as 19 years. In his affidavit (Annexure-3) submitted with the application, he had stated his age as 19 years as on 18th May 2012. The Learned Single Judge had however opined that since the age of the writ petitioner was 12 years at the time of death of his father, the respondent employer ought to have kept him on live roster in terms of Clause 9.5.0 (iii) of N.C.W.A-VI and offered him compassionate appointment on attaining the age of majority. The date of birth should have been calculated on the basis of service excerpts or in case of any doubt, as assessed by the Apex Medical Board. In respect of the contention of the petitioner made at para-9 of the writ petition that his elder brother had applied for compassionate appointment, the respondent BCCL in their counter affidavit at para-10, have stated that it is subject to strict proof as respondents are unable to confirm or admit the same.
COUNTER-SUBMISSIONS :
The Counsel for the respondents defended the impugned judgment delivered by the learned Single Judge. Relying upon the judgment of the Apex Court in the case of Mohan Mahto vrs Central Coal Field Ltd. and others [(2007) 8 SCC 549, para- 17], it was contended that the appellant employer was obliged to keep the writ petitioner on live roster in terms of Clause 9.5.0 sub-clause (iii) of N.C.W.A-VI as he was minor aged about 12 years on the date of death.
THE RATIO OF MOHAN MAHATO'S CASE :
The Counsel for the appellant submitted that in the case of Mohan Mahto (Supra), the appellant had filed an application for appointment on compassionate ground on 25th October 1997 after the death of his father in harness on 23rd February 1997 while working as a Fitter Category-IV under the Central Coalfields Limited. His claim was denied on the premise that he was a minor at the relevant point of time. Thereafter, on attaining majority, he filed an application in the prescribed form on 26th September 1999 which was rejected by order dated 3rd August 2000, stating that he was ineligible for employment as he was under-age and also his name was not kept in live roster. Apart from that, there was considerable delay in applying for employment by the dependant. Respondent had relied upon the Circular dated 12th December 1995 which provided for six months limitation for filing such an application for appointment on compassionate ground from the date of death of the employee. This circular was replaced by another letter in the year 2000 which provided limitation of one year for making such an application under clause 9.5.0 for appointment on compassionate ground after demise of an employee. Learned Single Judge allowed the writ petition preferred by the appellant Mohan Mahto (supra). However, respondent CCL succeeded in intra-court appeal. In this light, the Apex Court dealt with the contention of the parties and at paragraph-17 of the Report held that the name of the appellant was to be kept on a live roster till he attained the age of 18 years, in terms of Clause 9.5.0 (iii) of N.C.W.A-V. Respondent did not perform their duties cast on them thereunder. The Apex Court thereafter at para-18 further held that it would assume that the respondent had a power to fix a time limit, but it must provide for a period of limitation which is reasonable. The Apex Court in the facts of the case found that expiry of the period of limitation was not taken as a ground for rejecting his application, but underage and non-placement of his name in live roster were stated to be the reasons. This was held to be unfair on the part of the respondent to raise such a plea for the first time in their counter affidavit to the writ petition. In such circumstances, the respondent CCL were directed to offer appointment to the appellant on a suitable post after setting aside the judgment of the High Court.
According to the learned counsel for the appellant, in the present case, no such application was made on behalf of the writ petitioner for keeping him on live roster. Therefore, the appellant / Employer had no occasion to keep him on live roster and thereafter offer him employment on attaining the age of majority. The writ petitioner has admittedly applied for compassionate appointment after 6 -7 years of death of his father stating that he had attained majority. Application for compassionate appointment was not made within the stipulated period of 18 months, as per Circular dated 21st January 2004. The company, had therefore, rightly rejected his claim as time barred. The Learned Single Judge, therefore, committed an error of law in setting aside the order of rejection and directing the appellants to consider his case for appointment on compassionate grounds.
APPRECIATION OF RIVAL CONTENTIONS :
Upon hearing the rival contentions, the learned Division Bench stated that learned the following facts emerge from the pleadings on record :
On the date of death of the father of the writ petitioner i.e. 18th November 2005, as per the service excerpts of the employee, petitioner was about 12 years and 4 months old. However, as per the family certificate dated 3rd April 2008 submitted by the writ petitioner along with the application, writ petitioner was 24 years old as on 3rd April 2008 which would mean that he was major at the time of death of his father. Another family certificate issued by the Block Development Officer, Dhanbad on 19th January 2013, also furnished by the writ petitioner, showed him aged 19 years as on that date. Though, entries made in the service excerpts of the employees are to be given primacy, but two family certificates submitted by the petitioner created an element of doubt about his real age. The first family certificate of 3rd April 2008 showed his elder brother as 26 years of age while second certificate dated 19th February 2013 showed him as 22 years of age. It is also evident from the records that no application was made on behalf of the writ petitioner for keeping him on live roster, as per Clause 9.5.0 (iii) of N.C.W.A- VI, after the death of his father on 18th November 2005. Clause 9.5.0 reads as under:
9.5.0 Employment / Monetary compensation to female dependent Provision of employment / monetary compensation to female dependents 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. 4,000/- per month or employment irrespective of her age.
ii. In case of death / total permanent disablement due to cause 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. 3,000/- 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 at paras (i) 7 (ii) above. This will be effective from 1.1.2000.
iv. Monetary compensation wherever applicable, would be paid till the female dependant attains the age of 60 years.
v. the existing rate of monetary compensation will continue. The matter will be further discussed in the Standardisation Committee and finalised."
On consideration of the submissions of counsels for the parties and on perusal of relevant material facts borne out from the records, the Hon'ble Court noticed that Clause 9.5.0 has been placed under Chapter-IX 'Social Security' under the National Coal Wage Agreement entered between the Management and Union. The Social Security Chapter provides for various beneficial schemes. Clause 9.1.0 provides for 'Life Cover Scheme'. Clause 9.2.0 provides for Workmen's Compensation Benefits. Clause 9.3.0 provides for Employment to the dependants of workers who are disabled permanently and also those who die while in service. Under Clause 9.3.2, employment would be provided to one dependant of the worker who dies while in harness and in so far as female dependents are concerned, their employment / payment of monetary compensation would be governed by para 9.5.0. Clause 9.4.0 provides for employment to one dependant of a worker who is permanently disabled in his place.
APPLICABILITY OF CERTAIN CLAUSES :
Applicability of Clause 9.5.0 (iii) to the present case is the question raised in this appeal. As per Clause 9.5.0 (i), in case of death due to mine accident, the female dependant would have the option to either accept the monetary compensation of Rs. 4,000/- pm or employment irrespective of her age. Evidently, a conscious exercise of option has to be made by the female dependant to avail of such monetary compensation. Clause 9.5.0 (ii) provides that 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 monetary compensation of Rs. 3,000/- per month or employment. In case she is above 45 years of age, she will be entitled only to monetary compensation and not to employment. Once again, it is evident that a conscious exercise of option has to be made by the female dependant to avail of either monetary compensation or employment. In this background, Clause 9.5.0(iii) envisages 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 dependent 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 skills 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 para (i) & (ii). This will be effective from 1st January 2000.
Reading of the instant provision in conjunction with the preceding provisions, referred to above, makes it clear that the employer has an obligation to keep a male dependant of a concerned worker aged 12 years and above on live roster in circumstances when no employment has been offered to a female dependant on exercise of her option. As per Clause 9.3.4, dependant 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. The Employer may not offer employment to a female dependant for the aforesaid reasons i.e. physical unfitness or lack of suitability for employment. In that case, the male dependant of the concerned worker aged 12 years and above shall be kept on live roster and provided employment on attaining the age of 18 years commensurate with his skills and qualifications. Conscious exercise of option is therefore implicit in the scheme. In a given case, a female dependant may not be interested in availing of employment or keeping a male dependant of such a worker aged 12 years or above on live roster to be employed on attaining 18 years of age for various reasons including the availability of future prospects for better education and more lucrative career in life. Employer in such circumstances, cannot be expected to assume on its own and keep a male dependant of the concerned worker aged 12 years and above on live roster for giving him employment on attaining majority.
BRIEF DETAILS OF MOHAN MAHATO'S CASE :
In the case of Mohan Mahto (Supra), the appellant had applied for compassionate appointment on 25th October 1997 after the death of his father on 23rd February 1997. But instead of keeping the dependant minor on a live roster, his claim for compassionate appointment was rejected on the very ground that he was minor at the relevant point of time. Thereafter, on attaining majority only two years after the death of his father, he again applied in a prescribed form on 26th September 1999 which was rejected by order dated 3rd August 2000 stating that he was ineligible for employment as he was underage and his name was not kept in live roster and there was considerable delay in applying for employment by the dependant. In the aforesaid facts and circumstances, it was held by the Apex Court at para-17 of the Report that the name of the appellant was to be kept on live roster till he attained the age of 18 years which the respondent did not perform.
THE CONCLUSION :
In view of the discussions made hereinabove, the learned Division Bench was of the view that the learned Single Judge fell in error in holding that the writ petitioner's name ought to have been kept on live roster after the death of his father in terms of Clause 9.5.0 (iii) of N.C.W.A-VI, though there was no such application on behalf of the writ petitioner for keeping him on live roster. When he made an application on 21st February 2012 and thereafter in the prescribed form on 12 February 2013, application had become time barred as it was made beyond the stipulated period of 18 months from the date of death of his father. In such circumstances and for the reasons recorded hereinabove, the learned Division Bench found substance in the plea of the appellant.
THE VERDICT :
1.The impugned judgment dated 21st April 2017 passed by the learned Single Judge was set aside.
2.The Appeal filed by BCCL was allowed.
No order as to cost (s).