Chandan Ravidas vs Bharat Coking Coal Ltd.

Rakesh Ranjan Prasad and Rongon Mukhopadhyay, JJ.—Heard learned Counsel appearing for the appellant and learned Counsel appearing for the BCCL.

One Braham Deo Ravidas was under the employment of Bharat Coking Coal Limited (hereinafter referred to as ''BCCL"). He was made to retire on 31.7.2004. The said Braham Deo Ravidas expired on 29.10.2005.

Thereupon, Chandan Ravidas, son of late Braham Deo Ravidas, filed an application before the authority for his appointment on compassionate ground in the establishment of BCCL.

When no decision was taken, he filed a writ application before this Court vide W.P.(S) No. 7123 of 2006. That writ application was disposed of on 11.12.2006, directing the Director (Personnel), Bharat Coking Coal Limited, Dhanbad to consider the claim of the petitioner and to pass appropriate order in accordance with law.

Pursuant to that order, claim of Chandan Ravidas for appointment on compassionate ground was considered but it was rejected on 17.3.2007.

That order was challenged before this Court vide W.P.(S) No. 2668 of 2007. The said writ application was also dismissed vide order dated 18.12.2007, by holding that the application for appointment on compassionate ground has been filed by the petitioner after about 10 months of the retirement 6f his father from the service, m other words, the application for appointment has never been made on the ground that the father of the Chandan Ravidas died in harness. That order was challenged in Letters Patent Appeal bearing L.P.A. No. 24 of 2008. That was also dismissed on 10.6.2008. However, while dismissing, it was observed that if the petitioner is aggrieved by the date of retirement of his father, his remedy is elsewhere. Perhaps taking cue from the said observation, a writ application was filed by Shakunti Devi, widow of the deceased Braham Deo Ravidas vide W.P.(S) No. 2538 of 2008, praying therein to direct the respondents-BCCL to correct the entry in respect of date of birth of her husband-an employee of BCCL, on the plea that a notice had been served upon the deceased-employee on 1.4.2004, informing therein that Braham Deo Ravidas (husband of the petitioner-Shakunti Devi) retired on 31.7.2004, treating his date of birth as 4.7.1944, as recorded in E.D.P. records. Upon receiving of the said notice, an objection was taken to the effect that the entry in the E.D.P. records be recorded as per the entry made in Form-B Register and not to force him to retire on 31.7.2004. Thereupon, the petitioner''s husband case was forwarded to the Personnel Manager of the respondent company to the "Age Determination Committee" for correction of his date of birth, but the petitioner made to retire on 31.7.2004, while the matter relating to date of birth was pending. The said Braham Deo Ravidas even after his retirement, went on pursuing his matter relating to date of birth. The Deputy Chief Personnel Manager Area-IX and the General Manager Area-IX being convinced of the genuineness of the claim of the employee, made recommendation for necessary correction in entry concerning his date of birth as per the entry made in the Form-B Register. The said Braham Deo Ravidas would have retired on April, 2009. Since, thereafter, the said Braham Deo Ravidas died, nothing was done by the authority. When the matter was moved by the widow of the said Braham Deo Ravidas before this Court, an objection was taken to the prayer made on behalf of the petitioner of that case. However, this Court, vide order dated 17.7.2009, did find that the authorities had arbitrarily and illegally denied the benefit of the date of birth recorded in the Form-B Register. By the said order, the authorities were to compensate the petitioner of that case for the loss, which the husband of the petitioner suffered on account of wrong entry made in the E.D.P. Records.

That order was challenged by way of intra Court appeal vide Letters Patent Appeal No. 509 of 2009 by the BCCL. That appeal was dismissed by this Court vide its order dated 5.5.2011.

Thereupon, Chandan Ravidas, son of late Braham Deo Ravidas claimed again for his appointment on compassionate ground. That claim was rejected by the BCCL vide order dated 11.4.2012, taking a plea that the claim of appointment on compassionate ground had earlier been rejected, which had been challenged before this Court but the Court did not interfere with the order and thereby, in such situation, claim of the petitioner cannot be acceded to.

That order was challenged before this Court in W.P.(S) No. 3820 of 2011, which was dismissed on 30.8.2012 for the reason that no specific assertion is there that the petitioner was totally dependent on his father and that even after seven years of the expiry of his father, the petitioner survived, which does suggests that there had been no financial crisis and in that event, question of grant of compassionate appointment does not arise.

Being aggrieved with that order, this Letters Patent Appeal has been filed.

Learned Counsel appearing for the appellant submits that the appellant, after the death of his father, had applied for compassionate appointment in the year 2006, whereas the appellant''s father had died on 29.10.2005, which was to be considered under the scheme of Social Security, as enshrined in the National Coal Wage Agreement (hereinafter referred to be as "NCWA"), but the authority while rejecting the claim had never given due regard to the provision of NCWA and, therefore, any rejection can be said to be extraneous, which was not permissible and, thereby, the authority did commit illegality in rejecting the claim of the appellant. Learned Single Judge while dealing with the matter, also did not consider this aspect of the matter and did hold that the petitioner/appellant is not entitled to compassionate appointment for the reason, which never seems to be in consonance with the provision of NCWA. The claim of compassionate appointment of the petitioner/appellant was rejected on the ground, which can be said to be foreign to NCWA and thereby, learned Single Judge did commit illegality in dismissing the writ application.

As against this, Mr. Sen, learned Counsel appearing for the BCCL submits that admittedly, the claim of the appellant for appointment on compassionate ground had earlier been rejected and the same issue has been agitated, which cannot be allowed to be entertained even after any fresh ground did accrue to the appellant, after dismissal of the earlier writ application. Learned Counsel, in support of his submission, has referred to a decision rendered in a case of S. Nagaraj (dead) by LRs. and Others Vs. B.R. Vasudeva Murthy and Others etc. etc., .

The terms and conditions of the service of the workmen working in Coal Mines are inter alia governed by the settlement known as "NCWA". Undisputedly, the said settlement in terms of section 18(3) of the Industrial Disputes Act, 1947, is binding upon the parties.

Clause 9.3.0 and also other clauses such as 9.3.1, 9.3.2, 9.3.3 and 9.3.4 of the NCWA deal with the matter relating to employment to the dependents, which reads as follows:--

"9.3.0: Provision of Employment to Dependants.

9.3.1: Employment would be provided to one dependant of workers who are disable 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, younger brother, widowed daughter/widow 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".

It be reiterated that the said settlement is binding upon the parties and hence, the respondent a public sector undertaking/State within the meaning of Article 12 of the Constitution of India, is not only expected to act fairly but also reasonably and bonafidely. The authority cannot be said to have acted fairly, as the claim of the appellant has been rejected on the ground that the petitioner/appellant''s claim for compassionate appointment had earlier been rejected, which order, was never interfered with by tins Court, but that ground cannot be said to be a legitimate ground, as any ground, rejecting the claim of compassionate appointment should be within the realm of tile provision relating to employment to dependants, as indicated above. Learned Single Judge also failed to take to into account this aspect of tile matter and, thereby, the order passed by the learned Single Judge, cannot be sustained.

So far submission advanced on behalf of the BCCL to the effect that once the writ application was dismissed on the issue, the same cannot be agitated again even on a new ground, does not appear to be tenable in the facts and circumstances of the case.

It be stated that the earlier when the application for appointment on compassionate ground was made, the writ application was dismissed on the ground that the petitioner/appellant had approached to the authority much after the retirement of his father. In other words, purport of the order was that it is never the case of the petitioner/appellant that his father died in harness.

In this regard at the cost of the repetition, it be stated that the petitioner/appellant''s father was made to retire in the year 2004 on the basis of the wrong entry relating to date of birth made in the record. Subsequently, this Court, did find that the action of the respondents -BCCL in allowing the petitioner/appellant''s father to retire in the year 2004 was quite illegal as he, in view of the entry made in the relevant record, was supposed to be retired in the year 2009. The petitioner/appellant''s father laid died in year 2005. Therefore, after the order was passed on a writ application relating to correction of the date of birth, the petitioner/appellant''s father can be treated to have been died in harness, which is one of the grounds apart from permanent disablement, for seeking employment on compassionate ground, m that view of the matter, it cannot be said that the petitioner/appellant''s claim for appointment in the second writ application was on a fresh ground, rather it was the sole legitimate ground. Under this situation, the order dated 30.8.2012 passed by the learned Single Judge in W.P.(S) No. 3820 of 2012 is, hereby, set aside and the matter is remanded back to the authority of the BCCL, for taking decision in the matter relating to compassionate appointment of the petitioner/appellant in accordance with the terms of settlement of NCWA within a period of three months from the date of receipt/production of a copy of this order.

Thus, this Letters Patent Appeal stands disposed of.