Kumari Shanti Mudi vs Coal India Limited and Others

Aniruddha Bose, J.—The writ petitioner is the daughter of an erstwhile employee of Eastern Coalfields limited, Naran Mudi, who passed away while in service of the organization on 27th September, 1998. Father of the petitioner was engaged on 1st January, 1969, in Bhamuria unit of Parbelia colliery, at present under the Eastern Coalfields limited, (the company). Said Naran Mudi was survived by his widow and daughter, the latter being the petitioner. At the time of death of father of the petitioner, the National Coal Wage Agreement-VI (NCWA-VI) was in operation. The said agreement provides for appointment of close relatives of an employee who dies while his service, under certain conditions. The said provision is contained, inter alia, in clause 5.9.0 of NCWA-VI, which stipulates:-

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. 4000/- per month or employment irrespective of her age.

ii) In case of death/total permanent disablement due to causes 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. 2000/- per month or employment.

In case the female dependant is above 45 years of age 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 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. 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 finalized.

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

So far as the present case is concerned, originally mother of the petitioner had made an application for employment from the aforesaid category. She was sent for medical examination and her age was found to be between 47 and 52 years. Thus she was outside the ambit of the age-band specified in the NCWA-VI for being considered for employment from the said special category. The mother of the petitioner was informed of the said fact on or about 30th January, 2003. Thereafter, the petitioner made the application for being appointed on compassionate ground, in terms of the said provision of NCWA-VI. Case of the petitioner is that on 24th September, 2003, the Deputy Chief Personnel Manager of Sodepur area had sent a letter to the mother of the petitioner informing her that she was not eligible for being provided employment on the ground of being overage. In the same letter, it has been pleaded, that the mother of the petitioner was advised that if she had any other dependent such dependent could approach for employment on compassionate ground. It appears that the petitioner had submitted her application thereafter on 18th December, 2003. There was medical fitness test of the petitioner and on being declared medically fit, her name was recommended for employment by the Personnel Manager, Perbalia Group. This has been disclosed in annexure ''P4'' of the writ petition, in which the recommendation for her employment appears to have been endorsed by the General Manager of the area. Thereafter, the Deputy Chief Personnel Manager of the company had sent the employment file of the petitioner for approval of the employment authority. This appears from the copy of his communication bearing reference no. Pd/c-6/04/empl/2041 dated 30th November/1st December, 2004, addressed to the Personnel Manager (EMPL) (WD), a copy of which has been made Annexure "P5" to the writ petition. There is reference, in this communication, to para 9.3.2 of the NCWA VI. This clause mainly provides for employment and payment of monetary compensation in terms of clause 9.5.0, so far as female dependents of an employee who dies while in service are concerned.

The recommendation in favour of the petitioner, however, was rejected on 24th April, 2006, on the ground of her being underage. This has been specified in a note sheet bearing reference no. ECL/CMD/D-6B/EMPL/06/371 dated 20/24th April, 2006 issued by the Personnel Manager (Employment) of the E.C.L. (HQ), Sanctoria, the copy of which has been annexed to the writ petition as "P6". The ground for rejection as recorded in the said note sheet, is:-

The female claimant was 16 years, 5 months and 9 days on date of death of the ex. employee and there is no provision to keep the name of the female dependent in Live Roster as per provision of NCWA. On date of claim also underage.

In view of the above, the employment proposal of the aforesaid dependent has been submitted for perusal and approval of the Competent Authority to regret the claim for employment.

On the same note sheet, the agreement of the Committee with this rejection proposal has been endorsed.

As has been referred to in the said provision of the NCWA VI, a male dependent of a deceased workman is required to be kept on the live roster, if he is above 12 years in age, in case where a female dependant is not offered employment. Such male dependant is to be given employment on attaining the age of 18 years. But there is no such provision for a female dependent being kept on live register. In MAT No. 1298 of 2009 (Smt. Santi Rui Das Vs. Coal India Ltd. & Ors.) decided on 25th February, 2010, an Hon''ble Division Bench of this Court examined a similar provision contained in NCWA-V, on the complaint of a female dependent, whose claim for employment was rejected on the ground of being underage. In that case, age of the dependant female employee was 17 years, 11 months and 17 days on the date of death of her father. The Hon''ble Division Bench found the provision in the coal wage agreement under which a male dependent could be kept on the live roster from the age of 15 (in NCWA V) but a female dependent would lose her opportunity of employment unless she was 18 years of age on the date of death of the concerned workman to be discriminatory. The Hon''ble Division Bench held:-

Having considered the relevant clauses of the National Coal Wage Agreement -V in the light of Articles 14 and 16 of the Constitution of India as well as the above provisions of the Protection of Human Rights Act, 1993 and CEDAW and the aforesaid decisions of the Apex Court and this Court, we have no hesitation in holding that the writ petitioner who had completed 15 years of age but not 18 years of age on the death of her mother who was an employee of the appellant authority, was entitled to have her name kept on the live Register for employment upon completion of 18 years of age.

In light of the above discussion, we allow this appeal. The order of the Learned Single Judge is set aside and the respondents are directed to consider the appellant''s case for compassionate appointment without treating the appellant as disqualified on the ground that she was a female dependent and, therefore, having not completed 18 years of age on the date of death of her father, the appellant was not eligible for compassionate appointment upon completion of 18 years of age. The appellant''s case shall be considered within two months from today.

Though the decision in the case of Santi Ruidas (supra) was delivered while construing the provisions of clause 9.5.0 of the NCWA V, the said ratio would cover the same provision of NCWA VI as well, as I find the content of the same clause in both the coal wage agreements to be substantially same. There has been some minor alterations so far as clause 9.5.0 of NCWA VI is concerned, vis-�-vis the same clause of NCWA V, but there is no fundamental difference in the provisions of both these clauses in the two coal wage agreements.

In the writ petition, the point of discrimination has not been specifically taken but the judgment of the Hon''ble Division Bench was cited before me. The respondents, being the company and its officers, have also contested the writ petition by filing affidavit-in-opposition. Apart from taking the point that the petitioner is not entitled to relief prayed for as her case is not covered by the NCWA VI, the respondents have also resisted the writ petition on the ground of delay. It has also been argued on their behalf that the beneficial impact of the said clause would not apply to the petitioner even if her case is treated in the same terms as a male dependant, because in this case, her mother was offered employment at the initial stage.

I shall first examine the question as to whether I shall consider the ratio of the judgment of the Hon''ble Division Bench in the case of Smt. Santi Ruidas (supra) as in this case, no point of discrimination has been pleaded in the writ petition.

In my opinion, since the said judgment has been delivered in factual circumstances similar to the case of the petitioner, I should not shut out from my consideration the ratio of the said judgment, for the reason that the point of discrimination has not been specifically pleaded. The petitioner before me is the daughter of a deceased employee of the coal company, whose father served the company as a sweeper. While adjudicating in the Constitutional Writ jurisdiction of this Court, I cannot refuse to refer to an authority which has direct bearing on this case, and under ordinary circumstances a binding precedent on me, only because the rules of pleadings have not been strictly adhered to. The general plea of the respondents'' action being illegal and arbitrary has been taken in the writ petition. In the affidavit-in-opposition, the respondents made reference to the NCWA. In her affidavit-in-reply, the petitioner has assailed the said provision of NCWA to be discriminatory, relying on the provisions of Article 15 of the Constitution of India. In such circumstances, I am of the opinion that it would be within the jurisdiction of this Court to test the validity of the action of the respondents, in the Constitutional perspective.

As regards applicability of the said ratio, on behalf of the respondents certain distinguishing features of this case was argued by Mr. Majumdar, learned counsel for the respondents. He submitted that in this case, the mother of the petitioner was offered employment but that was not so in the case of Santi Ruidas. Mr. Majumdar submitted that the mother of the petitioner could have obtained financial compensation, which she did not. This submission of Mr. Majumdar has been made in reference to sub-clause (iii) of clause 9.5.0 of NCWA VI, which provides for deferred employment of a dependant male child of a deceased workman on his attaining majority, if employment to a female relative is not offered earlier. Case is sought to be made out on behalf of the respondents that since in this case the petitioner''s mother was offered employment earlier, the petitioner cannot invoke the said clause, even if the same is made applicable in favour of a dependant female child.

I am unable to accept this submission, which in my opinion is based on misconstruction of the provisions of the aforesaid clause of NCWA VI. The expression "no employment is offered", as used in the said clause would mean employment offered to an eligible female dependant, and by implication, should have been followed by rejection. In this case, mother of the petitioner was not really offered employment in terms of clause 9.5.0 of the NCWA VI. There was a proposal to that effect, but she was found ineligible as per the qualifying criteria. The process which could have culminated in her appointment on compassionate ground stood aborted at the threshold. In such circumstances, the petitioner cannot be disqualified on this count, for being considered for employment on compassionate ground in accordance with the aforesaid clause.

In the event mother of the petitioner had obtained any financial compensation, then it could have been contended that family of a deceased employee could not ask for double benefit. But in this matter, specific case of the petitioner is that after rejection of her mother''s claim she had made the application within a reasonable time at the request of the officers of the company. This has been pleaded in paragraph 11 of the writ petition. There has been no specific denial of this statement of the petitioner. In their affidavit-in-opposition, the respondents have dealt with paragraph 11 of the petition in the following manner:-

Save as what would appear from the records the allegations to the contrary made in paragraphs 11 and 12 of the petition are denied and disputed.

The other point on which the writ petition is resisted is on the ground of delay. The petitioner had made application for employment on 18th December, 2003, after her mother''s application was rejected. She was medically examined, and found fit for the job on 9th March, 2004. As per communication of 30th November/1st December, 2004, (Annexure ''P5'' to the writ petition), her file was sent to the Personnel Manager. The rejection of the claim of the petitioner for employment was made on 28th April, 2006, but case of the petitioner is that she was not informed of this order of rejection. The petitioner was informed of the order of rejection on 23rd November, 2007 after filing an application under the provisions of the Right to Information Act, 2005. Again, she made a representation on 17th October, 2008. The writ petition was filed on 28th March, 2010. In the event this was a civil suit, this proceeding would not have been time barred. I do not think a stricter test ought to applied in a writ petition while examining the question of maintainability on the ground of delay in bringing the action in this case. I would not like to dismiss the writ petition and non-suit the petitioner on this ground. While considering the question of delay in a writ petition, the social and economic background of the applicant would be a relevant factor. In this case, the applicant is the daughter of an employee of the coal company who was serving his employer as a sweeper at the time of his death. The petitioner was little over 16 years at the time of her father''s death. Her mother sought to obtain employment on compassionate ground on the basis of an industrial settlement, and when her mother''s claim was rejected for not fulfilling the eligibility criteria relating to age, the petitioner applied. I am satisfied that there was no unnecessary wastage of time on the part of the petitioner in bringing the action.

In a writ petition, the laws of limitation do not strictly apply. The Writ Court is guided by the equitable principles of acquiescence, lapses or delay while dealing with complaints of illegality. In the instant case, I do not think the petitioner was sitting idle at any point of time, to altogether forfeit her right to approach this Court. The cause of action of this proceeding accrued on 23rd November, 2007, when the petitioner was informed of the decision of the respondent authorities to reject her claim. This has been stated by the petitioner in her representation of 17th October, 2008. She made representation within a period of one year from the date of being informed of the rejection order. She instituted this action within three year period from the date of accrual of cause of action, as the time spent before that date cannot be considered for judging the question as to whether the present writ petition ought to be rejected on the ground of delay or not, as the petitioner was not informed of the decision to reject her claim. So far as the petitioner is concerned, it would be reasonable to presume that she was under the impression that her application was under process during the interim period.

Following the ratio of the judgment of the Hon''ble Division Bench of this Court in the case of Santi Ruidas, (supra) I allow the writ petition in the same terms as has been directed by the Hon''ble Division Bench. I am of the view that the principle of law laid down in the said decision that there should not be any difference between a male and a female dependent while considering the question of appointment on compassionate ground ought to apply in this proceeding as well. Admittedly the petitioner was beyond 12 years but below 18 years of age when her father passed away. The fact that there was proposal to employ the mother of the petitioner and she was found to have crossed the age bar in my opinion would not deprive the petitioner in obtaining the benefit which is prescribed in the NCWA VI. The respondents are accordingly directed to initiate the process of granting employment to the petitioner in terms of clause 9.5.0 of NCWA VI and complete the process within a period of 12 weeks from the date of communication of this order, if the petitioner otherwise meets the requisite criteria.

There shall be no order as to costs. Urgent certified photocopy of this order shall be made available to the parties if applied for, subject to compliance of all requisite formalities.