Employers vs Their Workman

Heard counsel for the parties.

Present writ petition has been filed by the petitioner-BCCL Management against the Award dated 21.01.2015 passed in Reference Case No.37 of 2007 by learned Presiding Officer, Central Government Industrial Tribunal No.1, Dhanbad whereby reference has been answered positively i.e. in favour of the claimant-respondent, ordering for compassionate appointment under NCWA.

The mother-Chanda Modin of the claimant, who, was a regular employee of the petitioner-Management, on the post of Wagon Loader, has died in harness on 24.08.1999. On her death, gratuity amount has been received by the claimant-respondent and it has been asserted that the application has been made for compassionate appointment within time but the Management was sitting tight over the matter. Accordingly, industrial dispute has been raised by Janta Mazdoor Union vide I.D. No.1/23/2000-E5 in which management has appeared and has given assurance for providing compassionate appointment but subsequently, same has been denied and as such, fresh industrial dispute has been raised in the year 2005, as is evident from the conciliation failure report dated 11.04.2007, which has been referred as Reference Case No.37 of 2007. The terms of reference is as follows:

"Whether the action of the management of Jeenagora Colliery of M/s B.C.C.L. Ltd. in not providing dependent employment of Kumari Shakuntala Modin, daughter of late Chanda Modin, Wagon Loader under provision NCWA is justified and legal? If not, what relief is the dependant of the concerned deceased employee entitled?

From perusal of the written statement filed by the claimant/respondent, it appears that assertion has been made that the application has been made within time and being dependant unmarried daughter, she is entitled for compassionate appointment under NCWA.

The Management has disputed the claim of the claimant by filing written statement. Paragraphs-6, 7 and 8 are relevant, which are quoted herein below:-

"6.That Sakuntala Modin applied for employment after gap of three years. According to the circular of C.M.D. a compassionate appointment will not be provided if the claimant applied after 18 months from the date of death of the deceased employee.

That, Smt. Sakuntala Modin is a married daughter of the deceased employee.

That, the married daughter does not come under the perview of the dependant as defined on NCWA."

Thus, from the written statements of the parties, it is evident that the status of the claimant as daughter of the deceased-employee namely, Chanda Modin is not in dispute. Assertion has been made by the claimant that the application has been made within time and the same has been denied but the said denial is vague denial because denial has to be specific. If it has not been made within time, then date of application should have been disclosed.

It is trite that vague denial is no denial.

Second issue has been raised regarding marital status of the claimant and the argument has been advanced that the married daughter is not entitled for compassionate appointment.

Reference is made to the judgment passed in the case of Kalyani Kumari Mishra vs. State of Jharkhand reported in [2018 (3) JBCJ 166 {HC}]. Paragraph Nos.5 to 9 are relevant, which are quoted herein below:

The plea taken by the Committee, for rejecting the claim of the petitioner that the married daughter does not fall in the category of "dependant", is de hors the constitutional provisions engrafted under Article 15 and 16 of the Constitution of India. Any discrimination on the ground of sex is prohibited under Article 15 and Article 16 provides that no citizen shall on the grounds of sex, religion, race, caste, descent, place of birth or residence be ineligible, or discriminated against in respect of any employment or office under the State. Once it is found that a married son is not ineligible for compassionate appointment, attaching a disability to a daughter on the ground of her marriage for compassionate appointment is apparently illegal. Various High Courts have held that denial of compassionate appointment to a married daughter is illegal. One of the notable judgments has been rendered in "Krishnaveni vs Superintending Engineer, Kadamparai Electricity Generation Block, Coimbatore District", reported in (2013) 8 MLJ 684. In the said case referring to the provisions under Maintenance and Welfare of Parents and Senior Citizens Act, 2007, the Court has held that if son and daughter both have been put under a duty to take care of their parents at the old age, on death of their parents they cannot be extended unequal treatment.

Under Clause 1(c) of Memo dated 05.10.1991 only the son, unmarried daughter and widow of the son have been declared as dependant of the deceased employee. This clause further provides that adopted son, son-in-law and cousin are not considered as dependants. This definition has been provided by an executive instruction. The Constitution is the paramount law of the land and all laws in force in the territory of India derive their source from the Constitution of India. Any law, leave alone executive instruction, contrary to provisions of the Constitution of India is ultra-vires the Constitution.

Exclusion of a married daughter from the definition of dependant under Clause 1(c) in Memo dated 05.10.1991, in the above facts, must be held illegal and ultra-vires. Several cases of this nature have come to this Court wherein on the ground of married daughter not covered under the definition of "dependant", claim for compassionate appointment has been declined. Taking judicial notice of this situation, Clause 1(c) is held illegal, insofar as, exclusion of married daughter is concerned.

There is another aspect of this matter. Scheme for compassionate appointment has been formulated by the State, a welfare State, to provide succor to the family in distress on death of the bread-earner. Appointment on compassionate ground is an exception, however, there cannot be a dispute that the scheme for compassionate appointment is a beneficial provision, benefit of which must be extended to all eligibles whose claims were considered after the scheme became operative. The scheme for compassionate appointment formulated by the State of Jharkhand became operative from 01.12.2015. Under Clause 4 of 2015 scheme, a married daughter has been included in the definition of dependant of the deceased employee. Still, referring to Memo dated 05.10.1991 claim of the petitioner has been declined on the ground that at the time of death of her father she was married. In "Shashikalabai (Smt.) vs State of Maharashtra And Another" reported in (1998) 5 SCC 332, benefit of higher compensation under a circular issued after the death of the victim was extended to the family of the victim. The Supreme Court held that "since the present case was not closed on the date of the circular coming into effect, the appellant should have been granted benefit of new circular". Admittedly, claim of the petitioner for compassionate appointment has been rejected on 18.02.2017 and thus, claim of the petitioner has been considered by the District Compassionate Committee after the scheme for compassionate appointment became effective in the State of Jharkhand from 01.12.2015.

At this stage, it needs to be recorded that a welfare legislation should be given a purposive interpretation, safeguarding the rights of the havenots rather than giving literal construction. In "Madan Singh Shekhawat vs Union of India And Others" reported in (1999) 6 SCC 459, the Supreme Court has held that "it is the duty of the Court to interpret a provision, especially the beneficial provision, liberally so as to give it a wider meaning, rather than restrictive meaning which would negate the very object of the provision". Restricting operation of the definition of dependant under Clause 4 of 2015 scheme only from 01.12.2015, and not extending the benefit of the new rules to the claimant whose case was considered after 01.12.2015 would certainly defeat the very object of the scheme for compassionate appointment. In the aforesaid background, the irresistible conclusion which follows is that the petitioner's claim for compassionate appointment has been declined illegally. No other ground for rejection is reflected in the proceeding of District Compassionate Committee.

Since issue has been settled in the above judgment, married daughter cannot be discriminated and she is entitled to get compassionate appointment. Thus objections raised by the petitionermanagement are not sustainable as discussed above.

Accordingly, this Court finds no reason to interfere with the Award dated 21.01.2015 passed in Reference Case No.37 of 2007 by learned Presiding Officer, Central Government Industrial Tribunal No.1, Dhanbad.

Resultantly, this writ petition stands dismissed.