Baban Banerjee vs M/s. Eastern Coalfields Limited & Ors

Amrita Sinha, J

None appears on behalf of the respondent Nos. 8 and 9 in spite of service.

The reasoned order dated 14th February, 2019 passed by the Managing Director, Bankola area, Eastern Coalfields Ltd. (ECL for short) rejecting the prayer of the petitioner for appointment on compassionate ground is under challenge in the instant writ petition.

The brief facts of the case as narrated by the petitioner are that he is the son of Nirmal Banerjee who was an employee of ECL. The employee died in harness on 24th September, 2015. On his death the petitioner applied before the respondent for being appointed on compassionate ground as dependent of the deceased employee in accordance with the provisions of the National Coal Wages Agreement (NCWA for short). The said application was made by the petitioner on 10th November, 2015 followed up by a reminder on 12th December, 2015.

The respondent authorities considered the application for employment made by the petitioner and directed him for appear in the pre-employment medical examination in August, 2016. The petitioner by a communication dated 20th/21st October, 2016 was directed to appear before the screening committee along with his family members, relevant documents, certificates and identity card for screening the relevant original documents of the deceased employee for verification of the genuinity of the relationship.

The petitioner received a summon from the court of the learned Civil Judge (Junior Division) First Court at Durgapur in respect of Title Suit no. 156/16 which was filed by one Sharbani Banerjee claiming herself to be the wife of the deceased employee. The said Sharbani Banerjee filed the Suit against the petitioner, the Manager, Bisweswari Khandra Colliery and the Chairman-cum-Managing Director of ECL praying for a declaration that the plaintiff and the pro forma defendant being the son of the plaintiff, both were the legal heirs of late Nirmal Banerjee according to the Hindu Succession Act, 1956. The plaintiff prayed for a further declaration that the plaintiff and the pro forma defendant were the shareholders of the debts and securities of late Nirmal Banerjee lying in the office of ECL. The petitioner is contesting the Suit and has filed his written statement to defend his stand. The learned court below by an order dated 6th September, 2016 passed an order of ad interim injunction restraining ECL from disbursing the entire debts and securities of the deceased employee in favour of either of the parties.

In view of the aforesaid order of injunction ECL did not take any further steps for consideration of the application for employment made by the petitioner.

Aggrieved by the inaction on the part of ECL to process his application for employment the petitioner approached this court by filing a writ petition being WP 21806 (W) of 2018. The said writ petition was heard and disposed of by this court on 4th December, 2018 wherein the court was of the opinion that the consideration of the petitioner's application for compassionate appointment should not be held up indefinitely. The respondents were directed to consider the petitioner's application and pass a reasoned order in accordance with the applicable rules/regulations/circulars/notifications, within a stipulated time frame, without considering the pendency of the Title Suit. The court directed that the respondent authorities shall be free to decide if the petitioner it otherwise eligible for such appointment.

In compliance of the order passed by the Hon'ble court the petitioner was afforded an opportunity of hearing and by an order dated 14th February, 2019 the prayer of the petitioner was rejected. The General Manager, Bankola area ECL was of the opinion that the petitioner was not the sole heir of the deceased employee and accordingly a no objection certificate (NOC) was required from the other legal heirs/dependents of the deceased employee. In the absence of the NOC the employment cannot be given in favour of the petitioner.

The petitioner is aggrieved by the said reasoned order.

It has been submitted that the High Court by an order dated 4th December, 2018 directed the respondent authority to consider the application for compassionate appointment without considering the pendency of the Title Suit. The respondent authority could not have placed reliance upon the objection of the private respondents. The impugned order revolves entirely upon the issue of an alleged second claim, which the Hon'ble High Court restricted the authority to look into.

The petitioner relies upon the decision delivered by this court in the matter of Sujit Kora vs Coal India Ltd. & Ors. reported in 2002(2) CHN 557 wherein the court held that the Company is compelled to give employment to a dependent who satisfies the conditions of NCWA. The same does not depend upon anybody's compassion. The right flows from NCWA.

The petitioner relies upon the judgment delivered by this court in the matter of Eastern Coalfields Ltd. Vs Dilip Singh & Ors. reported in (2013)2 WBLR (Cal) 603 wherein the court held that the liability to maintain illegitimate children as provided in Section 20 of the Hindu Adoption and Maintenance Act, 1956 is for the purpose of the said Act and cannot have any manner of application in respect of a scheme for compassionate appointment.

The petitioner also relies upon the judgment delivered by this court in the matter of Eastern Coalfields Ltd. Vs Smt. Karani Rani Laha & Ors. reported in 2018(2) CLJ (Cal) 219 on the proposition that the dependent of an employee can claim employment under NCWA as a matter of right on the expiry of the employee.

The petitioner prays for a direction upon the respondent authority to provide employment to him upon setting aside the order impugned herein.

The learned advocate appearing on behalf of ECL submits that the case of the petitioner was taken up for consideration by the respondent in compliance of the direction passed by this court. At the time of personal hearing the petitioner categorically admitted that Biswajit Banerjee (respondent No.9) is the son of his deceased father, late Nirmal Banerjee. The petitioner also admitted the marriage of Nirmal Banerjee with Sharbani Banerjee (respondent No. 8), with reservation, that the relationship was void.

As per the provision of NCWA the legal heirs of the deceased are required to submit a no objection certificate, in favour of the dependent, for the purpose of obtaining employment. It has been contended that compassionate appointment is given to the dependent member for providing relief and financial support to the family of the deceased and not for the benefit of a single individual. All the heirs of the deceased are entitled to a share of the securities left by the deceased, regardless of the fact, whether the marriage is void or not.

It has been contended that in the event the Company decides to grant compensation in lieu of appointment then the other heirs of the deceased shall have a share in the said money.

The respondents rely upon the judgment delivered by this court in the matter of Namita Golder & Anr. Vs Union of India & Ors. reported in 2010(1) CLJ (Cal) 464 wherein the court held that no distinction can be made amongst the children of the first and second wife of a deceased employee. The son of the second wife is entitled to claim employment on compassionate ground on the death of the employee. The respondents submit that in the event the Suit is decreed in favour of the plaintiff she will have a say and right in the securities that will be payable to the heirs of the deceased employee.

The respondents pray for dismissal of the writ petition.

I have heard the rival contention of the parties.

In the order dated 4th December, 2018 the High Court clearly observed that the consideration of the petitioner's application for compassionate appointment should not be held up indefinitely. The court observed that it was anybody's guess as to how long it will take for the learned court below to dispose of the Title Suit. The matter may not rest there and may go higher up. Keeping the same in mind, the court specifically directed for consideration of the application of the petitioner without considering the pendency of the Title Suit, as a factor.

The Title Suit was filed by the plaintiff claiming her to be the wife of the deceased employee. She prayed for a declaration with regard to the debts and securities left behind by the deceased. She claimed a share in respect of the debts and securities of the deceased. In the entire plaint and the prayer the plaintiff did not raise any claim with regard to employment on compassionate ground. The averments of the plaint clearly indicate that she lays her claim with regard to the movable properties of the deceased employee. The fact that she is not interested in getting employment will be evident because till date she did not make any application before the Company praying for employment either for herself or for her son.

The plaintiff though claims to be the wife of the deceased she never disclosed her date of marriage with the deceased. She claims that after the death of the first wife Mamata Banerjee on 17th May, 1994 the deceased married the plaintiff. Till the employee expired on 24th September, 2015 he never disclosed the name of the plaintiff as his wife. The service records of the employee mentions the name of Mamata Banerjee as his wife, the petitioner as his elder son, one Chottan Banerjee as his younger son, Gita Banerjee as his mother and Monika Banerjee as his sister. Out of the dependents disclosed by the employee in his service records, his wife, his younger son and his mother have expired. The petitioner has annexed the death certificates of the aforesaid dependents with the writ petition. The sister of the employee Monika Banerjee is married and has not put forth her claim for employment. The petitioner is the only surviving heir of the deceased employee.

The court by an order dated 4th December, 2018 directed the respondent authorities that they shall be free to decide the matter if the petitioner is otherwise eligible for appointment. The court was candidly clear that the issue of second marriage of the employee ought not to be taken into consideration for the purpose of deciding the application for employment made by the petitioner.

On perusal of the impugned order in appears that the entire order has been passed revolving around the issue of the second marriage. The respondents came to the conclusion that the petitioner cannot be held to be the sole legal heir of the deceased. The issue of existence of other legal heirs could not have been raised in view of the specific order of the High Court restraining them to do so.

The respondent Company ought to have appreciated that the employee did not disclose the name of the plaintiff or her son as his dependents. The plaintiff has not produced any evidentiary proof before ECL to prove that she was the legally married wife of the employee. Her claim for declaration of her marital status with the employee is subjudice before the court of law. Until and unless the Suit filed by the plaintiff is finally disposed of by the court the respondents cannot treat the claim of the plaintiff as a valid one.

Moreover, the plaintiff has restricted her claim with regard to the securities left behind by the employee. She never raised any claim with regard to obtaining employment on compassionate ground. As long as the Suit is not decreed in favour of the plaintiff, the Company do not have any right to direct the petitioner to submit the no objection certificate from the alleged other legal heirs of the deceased employee as the status of 'legal heir' has not been acquired by the private respondent till date. Directing the petitioner to submit NOC from the other legal heirs would, in fact, be treating the plaintiff and her son as the legal heir of the employee, which will in turn, predetermine and prejudge the issue that is pending consideration in the Title Suit. The same is not permissible in law. The no objection certificate, if at all, given by the respondent No. 9 will be void ab initio, at this stage.

The employer is bound to go by the declaration submitted by the employee in his service record. In case of dispute the employer ought to have referred the parties to the court of law for necessary relief. The employer ought not to have directed the party to obtain the NOC from persons whose names do not figure in the family declaration submitted by an employee.

It is settled law that appointment on compassionate ground is meant to tide over the immediate financial crisis which is faced by a family on the death of the bread winner. The same cannot be kept pending indefinitely.

The court in the matter of Dilip Singh (supra) categorically laid down that the liability to maintain illegitimate children as provided under Section 20 of the Hindu Adoptions and Maintenance Act is for the purpose of the said Act and the same cannot have any manner of application in respect of a Scheme for compassionate appointment. The same is in the nature of a privilege extended by an employer to the family of the deceased to tide over the financial hardship. The Scheme for compassionate appointment has not expressly provided such privilege to illegitimate children born out of a void marriage. The court in no uncertain terms held that the right to pension is a property of the deceased but the claim for compassionate appointment under the relevant Scheme is not so.

The provisions of the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 shall not be applicable in case of a claim for compassionate appointment. Compassionate appointment is not a matter of right, the claim flows from a Scheme. The application is liable to be considered strictly in accordance with the Scheme.

In the instant case even though a Title Suit is pending in between the parties the plaintiff has never raised any claim with regard to appointment on compassionate ground. In such a situation the employer ought not to have directed the petitioner to submit the NOC from the other persons claiming themselves to be the dependents of the deceased. "Dependent" in accordance with the NCWA does not include an illegitimate son born out of a void marriage.

The argument of the respondents that the compassionate appointment is meant for a family and not for a single individual is fallacious. The petitioner cannot be treated as a single individual as he himself has a family of his own. The petitioner is under no legal obligation to maintain the family of a third party.

The respondents have placed heavy reliance upon the alleged admission of the petitioner that the plaintiff being the respondent no. 8 herein is the wife and the respondent no. 9 is the son of the deceased employee. It has been submitted that as the petitioner has already accepted the relationship between the employee and the respondent no. 9 accordingly the claim of the respondent nos. 8 and 9 have to be kept in mind at the time of consideration of the application for employment made by the petitioner.

The said argument of the respondent must fail, as a marriage cannot be held to be valid on the basis of admission by a party. A marriage will be a valid one only if all the requisites as prescribed under law have been fulfilled by the parties at the time of marriage. Until and unless the requisites of a valid marriage are complied with, the marriage cannot be valid in the eye of law, regardless of the fact whether the same is admitted by a party or not. Whether the marriage in question was a valid one or not will be decided by the competent court in accordance with law. Till such time the respondent is liable to ignore such claim and is bound to consider the claim for employment advanced by the dependent son of the deceased employee.

The decision in the matter of Namita Goldar (supra) is distinguishable on facts. In Namita (supra) there was no rival claimant in respect of either the job or the terminal benefits because the first wife who was issueless predeceased the husband. In Namita (supra) the second wife and her children were the only claimants. In the case at hand the son of the employee whose name is recorded in the service records is the sole claimant for employment.

The interim order of injunction that was passed by the learned court below was in respect of the debts and securities of the employee. The same cannot be construed to be an order of injunction in respect of the employment claim of the petitioner.

In my opinion, the respondent has traversed beyond the order that was passed by this court on 4th December, 2018 directing the respondent to consider the claim for employment of the petitioner without considering the pendency of the Title Suit. The respondent Company did not prefer any appeal against the said order and accordingly the same attained finality. The respondent ought to consider the prayer of the petitioner in a manner as if the Suit does not exist. Moreover, the respondent has acted upon the said order but at the time of compliance the respondent has taken into consideration the factors which the court specifically directed not to take into consideration.

In view of the discussions made hereinabove the order impugned is liable to be set aside.

Accordingly, the reasoned order dated 14th February, 2019 impugned in the instant writ petition is set aside and quashed. The respondent no. 5 being the General Manger, Bankola area is directed to act in strict accordance with the order passed by the court on 4th December, 2018 in WP 21806 (W) of 2018 within a period of six weeks from the date of communication of a copy of this order and to pass a reasoned order to be communicated to the petitioner within a fortnight thereafter. In the event the petitioner is found otherwise eligible for appointment the said respondent shall take steps to process the claim of the petitioner without any unnecessary delay.

It is made clear that the instant judgment is restricted to the claim of the petitioner with regard to employment only. The learned court below shall be free to decide the Title Suit, in accordance with law, without being influenced by any observation made herein above.

W.P No. 126 of 2019 is disposed of accordingly.

No costs.

Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.