Kanaklata (Mrs.) vs Union of India and Others

Sanjay Yadav, J.

Heard

Order dated 23-02-2006 passed by Sub Area Manager, South Eastern Coal Fields Limited, Bijuri, Sub-Area Hasdeo, is being assailed vide this writ petition, whereby claim for appointment on compassionate ground in lieu of death of Rambharose has been declined on the ground that as per practice adult dependant male member of the deceased employee has the priority right for appointment. Rambharose employed with the respondents-SECL expired on 22-07-2001. Married to one Jamvati, Rambharose had five issues from the marriage, viz., Ashok Lal, Munni Bai, Sangeeta, Santosh and Manbodh. Later two are still minors. Jamvati died on 05-05-1999. It is said that the petitioner subsequently got married to Rambharose. After whose death dispute regarding succession to the corpus of Rambharose got settled in a succession case No. 49/2001 decided on 15-06-2005, whereby the petitioner and the progenies from the wedlock of Rambharose and Jamvati got 1/6th share each. It is on the strength of the succession certificate the petitioner applied for appointment on compassionate ground which was declined by impugned order stating that it is the adult dependant male member who has the priority right for appointment on compassionate ground.

Employment of dependant of the worker who dies while in service in SECL is governed by the provisions contained in National Coal Wage Agreement-VI. It is not disputed by either of the parties that the provisions contained in NCWA-VI is binding on the management and the workmen. Chapter IX of NCWA deals with social security whereunder clause 9.3.0 stipulates provision regarding employment to dependants.

Clause 9.3.2, 9.3.3, 9.3.4 and 9.5.0 of the NCWA-VI respectively provides for:-

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, brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the deceased and almost wholly dependant on the earnings of the deceased may be considered to be the dependant 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 hat 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.

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) In case of death due to mine accident the female dependant would have the option to either accept the monetary compensation of Rs. 4,00/- per month or employment irrespective of her age.

(ii) In case of death/total permanent disablement due to cause other than mine accident and medical unfitness under clause 9.4.0 if the female dependant is below the age of 45 years she will have the option either to accept the monetary compensation of Rs. 3,000/- per month or employment.

In case the female dependant is above 45 years, she will be entitled only to monetary compensation and not to employment.

(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 12 years and above in age, he will be kept on a five 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) and (ii) above. This will be effective from 1.1.2000.

(iv) Monetary compensation wherever applicable, would be paid till the female dependant attains the age of 60 years.

(v) The existing rate of monetary compensation will continue. The matter will be further discussed in the Standardisation Committee and finalised.

Note : In the case of TISCO, the matter would be settled at bipartite level.

No other provisions, than the clauses above are brought on record, nor shown during the course of hearing which governs employment to dependants.

Apparent it is from the clauses, viz., Clause 9.3.2, 9.3.3, 9.3.4 & 9.5.0 that there is no priority right in favour of adult dependant male member in respect of employment on compassionate ground. On the contrary, clause 9.3.3 delineate the line of succession being wife/husband, as he case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available than brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the deceased and almost wholly dependant on the earnings of the deceased. The NCWA having a binding effect, no amount of common practice said to be followed by the Sub-Area Manager of preferring an adult dependant male member of deceased for compassionate appointment will override the terms and conditions of the NCWA. The rejection of application by the petitioner on the ground that she has no priority right over the adult dependant male son, being dehors the terms of NCWA deserve to be quashed.

The question next would be whether in the wake of objection by the children of the deceased regarding marriage between Rambharose and the petitioner any right accrued in favour of the petitioner by virtue of order dated 15-06-2005 passed in the succession case instituted u/s 372 of the Indian Succession Act, 1925 (for short the Act of 1925).

Section 372 of the Act of 1925 makes a provision regarding grant of succession certificate, procedure therefor as provided u/s 373 which is in the nature of a summary proceedings as it stipulates:

373: Procedure on application :-(1) If the District Judge is satisfied that there is ground for entertaining the application, he shall fix a day for the hearing thereof and cause notice of the application and of the day fixed for the hearing-

(a) to be served on any person to whom, in the opinion of the Judge, special notice of the application should be given, and

(b) to be posted on some conspicuous part of the Court-house and published in such other manner, if any, as the Judge, subject to any rules made by the High Court in this behalf, thinks fit, and under the day fixed, or as soon, therefore, as may be practicable, shall proceed to decide in a summary manner the right to the certificate.

(2) When the Judge decides the right thereto to belong to the applicant, the Judge shall make an order for the grant of the certificate to him.

(3) If the Judge cannot decide the right to the certificate without determining question of law or fact which seem to be too intricate and difficult for determination in a summary proceeding, he may nevertheless, grant a certificate to the applicant if he appears to be the person having prima facie the best title thereto.

(4) When there are more applicants than one for a certificate, and it appears to the Judge that more than one of such applicants are interested in the estate of the deceased, the Judge may, in deciding to whom the certificate is to be granted, have regard to the extent of interest and the fitness in other respects of the applicants.

The question is while dwelling upon the limited issue of succession whether the succession Court is precluded from answering the issue set up regarding nullity of a marriage if one of the claimant has set up the claim on the basis of her being the widow.

In the considered opinion of this Court that though the proceedings are of summary nature to decide the right of the applicant(s) for certificate, the succession Court is not expected of first directing the party to seek a declaration as to validity of marriage, as the nullity thereof, as the case may be, and then set on to grant certificate. The said view finds support from a decision by learned single Judge, Madras High Court in Nevilee P. Mehta v. Mrs. Dolly Mehta: AIR 1976 Mad 138, wherein it is held:-

The question that arises for my determination is whether it is necessary for the plaintiff to obtain a declaration of nullity of the marriage before he could succeed and whether this Court sitting on the testamentary side cannot have jurisdiction to decide whether the wife, the dependant, is also a legal heir, in the absence of such a declaration. In other words, whatever may be said of the other cases, on the admitted facts in this case, the question is whether I cannot decide the validity of the marriage for the limited purpose of deciding as to who is the heir of late Pheroze Mehta. In Paramsami v. Sornathammal, AIR 1989 Mad 124= (81 Mad LW 460) it laid down that "resort to a court is necessary to declare a marriage null and void". Again it is observed that "even in a case where the marriage is a nullity, it would be necessary for the party complaining nullity of the marriage to get a declaration of nullity from court." These are the two passages on which, as I stated above, Mr. G. K. Damodar Rao relies on strongly. But, I do not think that as an axiomatic proposition, it could be said that in every case the moment a party sets up the nullity of marriage, or illegitimacy of the children, the testamentary could must direct the party to the ordinary civil court to obtain the necessary declaration. Such a procedure would be opposed to both public policy and expediency that are required from the court sitting on the testamentary side. It would and must have jurisdiction to decide the limited question of nullity of marriage on which decision alone the ultimate result depends. This would be more so in view of Section 387 of the Indian Succession Act which states that the proceedings are summary in character. If later on the party obtains a declaration of nullity, certainly the necessary result will flow from it and it may have a bearing on the testamentary proceedings also.

In the case at hand the succession Court categorically records a finding in paragraph 12 and 13 of the decision dated 15-06-2005 of the petitioner having married Rambharose on the basis whereof the Court directed for distribution of 1/6th share amongst the legal heirs of Rambharose, including the petitioner. The order passed by Succession Court is not shown to have been challenged in higher forum and thus has been allowed to attain finality. Moreover, there is also no material on record to show that the marriage of petitioner with Rambharose has been questioned in any forum.

Since there is a finding in favour of the petitioner that she was married to Rambharose, the NCWA creates a priority right in her for consideration for compassionate appointment in lieu of death of Rambharose. And as agreed by her during course of hearing that in case appointed fifty percent of the remuneration be delineated in favour of Santosh and Manbodh till they attain majority. Having thus considered, petition is allowed with a direction to the respondents to consider the case of the petitioner for appointment on compassionate ground in accordance with the provisions of NCWA-VI within three months from the date of communication of this order. In case if the petitioner is appointed, she would furnish an undertaking and a no-objection for deduction of fifty percent of the remuneration as agreed by her during course of hearing, for maintenance of Santosh and Manbodh till they attain majority. Parties to bear their own costs.