Gopinath Tudu vs Eastern Coalfields Limited And Ors

This intra-court appeal has been preferred by the writ petitioner-appellant assailing the decision dated 13.08.2018 passed by a learned single Judge of

this Court in W.P.(S) No. 716 of 2016.

The writ petition was filed for quashing the letter dated 20/21.11.2013 and letter dated 26/28.10.2015 issued by the Deputy General Manager

(Personal) by which he had rejected the claim of the petitioner for compassionate appointment in place of his deceased father, who was an employee

of Simlong Colliery under Rajmahal Area of Eastern Coalfields Limited. The father of the writ petitioner was working as Clerk under the respondents-

M/s Eastern Coalfields Limited, Simlong who died on 04.03.1996. This is admitted that after death of his father, mother of the writ petitioner applied

for her appointment on compassionate ground and her application was under the process of approval or was approved but before she could have been

provided appointment, she died on 08.04.1999 and thereafter, upon attaining majority, the writ petitioner filed his application for appointment on

compassionate ground. This is further admitted that as per the matriculation certificate, the date of birth of the writ petitioner is 24.02.1990 and as

such, at the time of death of his father on 04.03.1996, he was about 5-6 years of age.

The question which arose for consideration by the writ court was as to whether in such a situation, the writ petitioner was eligible to be appointed on

compassionate ground. The respondent-Eastern Coalfields Limited had taken a decision that he was not.

This is further admitted position that the National Coal Wage Agreementâ€"V which is a bipartite agreement between the Management and the Union

of the workers and has statutory fervour as the same has its root under Section 18 of the Industrial Disputes Act, 1947. Clause 9.5.0 (iii) would be the

provision which would govern the field. For better appreciation the same is extracted and quoted as under:

“9.5.0. Employment/Monetary compensation to female dependant Provision of employment/monetary compensation to female dependants 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) xxx xxx xxx

(ii) xxx xxx xxx

(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 15 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) & (ii) above.

(iv) xxx xxx xxx

(v) xxx xxx xxx

(vi) xxx xxx xxxâ€​

(Emphasis is ours)

From bare perusal of the aforesaid provision it emerges that in case of death of the employee due to any accident or otherwise, if no employment has

been offered and the male dependent of the concerned worker is of 15 years and above of age, he will be kept on a live roster and would be provided

employment commensurate with his skill and qualification when he attains the age of 18 years.

However, in the case of writ petitioner, it is admitted that he was merely of 5-6 years of age and since he was not of 15 years of age at the time of

death of his father, his name could not have been kept on live roster as per the aforesaid provision. Once it is found as such, since his name could not

be kept on live roster, there will be no question of his consideration for appointment on compassionate ground.

In support of his submission that in extraordinary situation his case should be considered, learned counsel for the appellant has placed reliance upon a

decision of Division Bench of this Court rendered in Ruplal Das v. Bharat Coking Coal Ltd. & Ors., 2011(1) AIR Jhar R 4.8 In the aforesaid decision

the case of the writ petitioner was that the father of the writ petitioner, who was an employee of B.C.C.L., Gobindpur Colliery and working as

Fireman expired on 29.01.1997 while in service and after his death, petitioner’s mother was offered appointment by the Management of the

respondent-B.C.C.L. as the petitioner was minor at the time of death of his father. The petitioner’s mother declined to accept the job of wagon-

loader as she was incapable of doing such duty. She then filed a representation saying that she should be granted appointment on any other post than

Wagon-Loader but her representation remained pending for long and nobody responded to it. Then, in the year1998 she filed a petition that in her

place her son should be given appointment on the post of Wagon-Loader who had attained majority in the year 1998 but was minor at the time of

death of his father. The Management did not respond to the application for more than a decade then again a representation was filed in the year 2008

but no heed was paid at that point of time also. Then the writ petition was filed. The Division bench, after considering the extraordinary facts and

circumstances, had allowed the writ petition and directed for consideration of appointment of the son on compassionate ground.

However, apart from the fact that the factual matrix of this case is different from the aforesaid case, we have noticed that the provisions of National

Coal Wages Agreementâ€"IV which was applicable since 01.01.1987 to 30.6.1991 was neither raised nor considered by the Division Bench while

deciding the issue. Whether such provision of keeping the son on live roster was there or not or what was the cut-off age for such consideration was

not at all raised and, thus, was not considered by the Division Bench. However, father of the writ petitioner having died on 04.03.1996 and the writ

petitioner being 5-6 years of age at that point of time, present case is admittedly covered by the N.C.W.A.-V, which was governing the field since

01.07.1991 to 30.06.1996, and in which under Clause 9.5.0.(iii), there was an exclusive provision that for keeping the son of the deceased-employee on

live roster, he had to be a minor but of the age of 15 years or above.

It appears from the decision of the learned Single Judge that he has considered N.C.W.A.-VI in place of N.C.W.A.-V which would govern the field.

However, that would make no difference because even in N.C.W.A.-VI also the cut-off age of the minor has been laid down as 12 years in place of

15 years whereas the writ petitioner was admittedly of the age of 5-6 years at the relevant point of time. Therefore, whether the N.C.W.A.-V was

governing the field or N.C.W.A.-VI, would be of no consequence as he was not eligible to be kept on live roster.

Accordingly, this appeal would fail as we do not find any error in the order passed by the learned Single Judge.

In the result, this appeal is dismissed.