Central Coalfields Limited, Ranchi vs Binod Kumar Mandal And Ors

Heard learned counsel for the appellant and learned counsel for the substituted respondent.

The appellant Company is aggrieved by the impugned order dated 20.1.2017, passed by the Hon’ble Single Judge, in W.P.(S) No. 1389 of 2016,

whereby, the writ application, filed by the original respondent, i.e., the father of the present substituted respondent, for consideration of his application

for employment on compassionate appointment to his dependant, under the provisions of Clause-9.3.0 of the National Coal Wage Agreement-VII,

(hereinafter referred to as 'N.C.W.A.'), was allowed by the Hon’ble Single Judge, on the ground that after the application of the writ petitioner

declaring him unfit for duty, was rejected by the Central Medical Board, his application for sending him to the Apex Medical Board to decide his case

of disablement had not been allowed by the appellant Company and the original respondent was made to superannuate from service on 31.5.2016.

The facts of the case lie in a short compass. The original writ petitioner respondent was working as Head Security Guard in Giridih Project of the

appellant Company. He was to superannuate from his service from 31.05.2016, and he gave an application on 21.07.2014 to the competent authority,

stating that he was suffering from various diseases and also lost his eye sight, thus making out a case under the relevant provision of N.C.W.A.-VII,

for declaring him unfit for duty, and for compassionate appointment to his dependent.

It may be stated at this place that along with the application that he made on 21.07.2014 for declaring him unfit, and the compassionate appointment

of his son, he had stated that he was suffering from diabetes and heart disease and there was a medical prescription from Disha Eye Hospital Private

Limited, with respect to the cataract operation of the original respondent, for which, he was referred for cardiological check-up also. The document

relating to the cardiological check-up shows that he was fit from cardiac side, for surgery. It was also the case of the original respondent that he was

suffering from the cataract and had undergone the heart surgery, fixing pace maker, at Gandhinagar Hospital at Ranchi. The applicant was sent for

medical examination before the Central Medical Board on 8.7.2015 and 9.7.2015, and the Central Medical Board declared him fit for duty.

Accordingly, by office order dated 23.7.2017, issued by the Company, he was asked to resume his duty immediately. It was further case of the

original respondent that thereafter he gave an application for his examination before the Apex Medical Board, but he was never sent for his

examination before the Apex Medical Board. Due to his illness, he was not able to perform his duties and he was made to superannuate on

31.05.2016, without giving the benefits of compassionate appointment to his dependant.

The Hon’ble Single Judge, while adjudicating the writ application, took into consideration the fact that there was latches on the part of the

Company and the original respondent could not be made to suffer for the same. It was the appellant Company, which did not consider the case of the

original respondent within the specific time, as if the Company was waiting for superannuation of the original respondent. The Hon’ble Single

Judge, accordingly, directed the appellant Company to take a decision on the representation of the original writ petitioner to recommend him to the

Apex Medical Board, and if the Apex Medical Board decided the case in favour of the original writ petitioner, the case of his dependant should be

considered for appointment on compassionate ground in accordance with law.

Aggrieved by the aforesaid order, the appellant Company has preferred this LPA. Learned counsel for the appellant Company has drawn our

attention to N.C.W.A.-VII Clause 9.4.0, which deals with the employment to one of the dependant of the workman in his place, who is permanently

disabled. Learned counsel has placed reliance upon the Clauses 9.4.0 (i) and (ii), which read as follows:-

9.4.0 Employment to one dependant 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 central physical debility so certified by the Coal Company, the employee concerned will be eligible for the

benefit under this clause if he / she is up to the age of 58 years.â€​

It is submitted by learned counsel for the appellant Company that the case of the original respondent writ petitioner did not fall within the ambit of

Clauses 9.4.0(i) and 9.4.0(ii), in view of the fact that the disablement of the petitioner was not of such a permanent nature, resulting in the loss of

employment, and even upon being medically examined by the Central Medical Board, he was found to be fit for working. It is further submitted by

learned counsel that Clause 9.4.0 (ii) clearly prescribed that such application had to be made before the completion of 58 years by the concerned

workman, but in the present case, the writ petitioner had filed his application on 21.7.2014, when he was left with only one year, 10 months and 10

days of service. Admittedly, he had crossed the age of 58 years on the said date. Learned counsel has placed reliance upon the decision of the

Hon’ble Apex court in the Case of V. Sivamurthy Vs. State of Andhra Pradesh and Others, reported in (2008) 13 SCC 730, wherein the law in

this regard has been laid down by the Hon’ble Apex Court as follows:-

“30. There are of course safeguards to be taken to ensure the scheme is not misused. One is to ensure that mere medical unfitness to continue in a

post is not treated as medical invalidation for the purposes of compassionate appointment. A government servant should totally cease to be employable

and become a burden on his family, to warrant compassionate appointment to a member of his family. Another is barring compassionate appointments

to dependants of an employee who seeks voluntary retirement on medical grounds on the verge of superannuation. This Court observed in Ram Kesh

Yadav as follows: (SCC p. 535, para 9)

“9. … But for such a condition, there will be a tendency on the part of employees nearing the age of superannuation to take advantage of the

scheme and seek voluntary retirement at the fag end of their service on medical grounds and thereby virtually creating employment by

‘succession’. It is not permissible for the court to relax the said condition relating to age of the employee. Whenever a cut-off date or age is

prescribed, it is bound to cause hardship in marginal cases, but that is no ground to hold the provision as directory and not mandatory.

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The issue is not what is most advantageous to the government servant, but what is the actual term of the scheme. The question is not whether an

interpretation which is more advantageous or beneficial to the government servant should be adopted. The question is whether the policy as it stands

which is clear and unambiguous, is so unreasonable or arbitrary or absurd as to invite an interpretation other than the normal and usual meaning.

Matters of policy are within the domain of the executive. A policy is not open to interference merely because the court feels that it is not practical or

less advantageous for government servants for whose benefit the policy is made or because it considers that a more fairer alternative is possible.

Compassionate appointment being an exception to the general rule of appointment, can only be claimed strictly in accordance with the terms of

scheme and not by seeking relaxation of the terms of the scheme. -----------. As stated above, these are matters of policy and the courts will not

interfere with the terms of a policy, unless it is opposed to any constitutional or statutory provision or suffers from manifest arbitrariness and

unreasonableness.â€​

(Emphasis supplied.)

Placing reliance upon this decision, learned counsel for the appellant Company submitted that the present case is squarely covered by the law laid

down by the Hon’ble Apex Court and the original writ petitioner was not entitled to any relief. Accordingly, it is submitted that the impugned order,

cannot be sustained in the eyes of law.

Learned counsel for the substituted respondent, on the other hand, has submitted that the original writ petitioner was suffering from several

diseases, such as cataract and heart ailment, as also had a sight problem due to which, it was not possible to resume his duties and, accordingly, he did

not work after 21.7.2014, when he gave the application for compassionate appointment of his dependant, on the ground of medical disability. It is

submitted by learned counsel that during the pendency of this appeal, the original writ petitioner had died and he was substituted by his son, for whom,

the application for compassionate appointment was made. Learned counsel has drawn our attention towards the Guidelines, issued by the appellant

Company under the NCWA-V with respect to the provisions under Clause-9.4.0 relating to the appointment on compassionate ground, on permanent

disablement of the worker, wherein it is stated that the disablement of the worker concerned should be of a permanent in nature, resulting in a loss of

employment, and it should be so certified by the company concerned. From this guideline learned counsel has also pointed out that the cases of only

such workers could not be considered, who were to superannuate within the period of six months from the date of application. Learned counsel

accordingly, submitted that since the petitioner was suffering from diabetes and heart disease, for which, he was implanted with pace maker, it was

not possible for him to attend his duties and his disease was permanent in nature. Learned counsel for the respondent submitted that there is no

illegality in the impugned order passed by the Hon’ble Single Judge, when the Hon’ble Single Judge took note of the fact that in spite of the

application given by the applicant for being referred to the Apex Medical Board, the applicant was not referred to the Apex Medical Board for the

reasons best known to the authorities. As such, the impugned order cannot be interfered with.

Having heard leaned counsels for both the sides and upon going through the record, we find that the guidelines, on which, learned counsel for the

respondent has placed reliance, relates to N.C.W.A-V and not to N.C.W.A-VII, under which the application was made by the original writ petitioner.

Under N.C.W.A-VII, the maximum age, by which, the application for compassionate appointment on medical ground could be made, was up to the

age of 58 years. There is no dispute to the fact that the application was made by the original writ petitioner after he had crossed the age of 58 years.

This apart, we do not find any document on record to show that the ailment of the writ petitioner was such that he could not join his duties. In fact the

Central Medical Board found him fit for duty and he was asked by the authorities concerned to join his duties forthwith, still he did not join. There is no

document supporting the fact that the original writ petitioner so terminally disabled, that he could not have performed his duties. Simply the fact that

pace maker was implanted for heart disease, does not make out a case that he was unfit for doing his work.

We are of the considered view that the present case is fully covered by the decision of the Hon’ble Apex Court in V. Sivamurthy's case

(supra), wherein, the Hon’ble Apex Court has clearly laid down the law that the disablement should be such that the employee should totally cease

to be employable and become a burden on his family, to warrant compassionate appointment to a member of his family. It has also been held by the

Hon’ble Apex Court that the scheme could not be allowed to virtually create employment by ‘succession’, and whenever a cut-off date or

age is prescribed, it is a matter of policy and the Courts will not interfere with the terms of that policy, unless it is opposed to any constitutional or

statutory provision, or suffers from manifest arbitrariness and unreasonableness. In the facts of the case, we find that the very application of the

original writ petitioner for declaring him unfit and compassionate appointment for his dependant, was made after the cut-off date, i.e., after the age of

58 years, and the same could not have been considered. The Hon’ble Single Judge has failed to appreciate the law in its right perspective.

For the foregoing reasons, we find that the impugned order dated 20.1.2017, passed by the Hon’ble Single Judge, in W.P.(S) No. 1389 of

2016, cannot be sustained in the eyes of law, which, we hereby, set aside.

This appeal is, accordingly, allowed. The interlocutory application stands disposed of.