Mina Devi And Ors vs M/s Central Coalfields Limited And Ors

Heard, Mr. Ashutosh Anand, learned counsel for the petitioners and Mrs. Ranjana Mukherjee, learned counsel for the respondent-CCL.

This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.

The petitioners have preferred this writ petition for quashing the order dated 10.09.2017 contained in Annexure-6 and order dated 06.03.2018 contained in Annexure-8 whereby the claim of the petitioner no. 2 for keeping her name in live roster has been rejected on the ground that there is no provision for keeping the name of female dependent in live roster and subsequently granting appointment to the petitioner no. 2 has been rejected on the ground that she is less than 18 years of age. Further prayer has been made for direction upon the respondents to keep the name of petitioner no. 2 in live roster in terms of Clause 9.5.0 of NCWA and to pay monetary compensation to the petitioner no. 1 and consider the case of the petitioner no. 2 for employment on attainting majority.

The case of the petitioners is that the husband of the petitioner no. 1 and father of the petitioner no. 2 namely, Late Deo Dutt Kumar Singh was employed under the respondents in Category-1 on 28.04.1994. At the time of appointment, petitioner no. 2 was not born and she was born on 03.08.2000. The father of the petitioner no. 2 applied for inclusion of her name as dependent which was accepted and acknowledgement dated 20.03.2004 was issued. Unfortunately, late Deo Dutt Kumar Singh passed away on 17.08.2016 and accordingly, name of Late Deo Dutt Kumar Singh was struck off from the roll of company w.e.f. 17.08.2016. The petitioner no. 1 submitted application before the respondents to keep the name of petitioner no. 2 in live roster as she is about 16 years i.e less than 18 years. At the time of death, National Coal Wage Agreement X was applicable which was effective from 01.07.2016 to 30.06.2021 and status quo was maintained in respect to clauses 9.3.0, 9.4.0 and 9.5.0. The claim of the petitioner no. 2 was rejected on the ground that that she is female and the benefit of compassionate appointment cannot be extended in view of clause 9.5.0 of NCWA.

The case of the respondents-CCL is that late Deo Dutt Kumar Singh was an employee of the respondent-CCL at SDOCM under Dhori Area. He died on 17.08.2016.The name of late Deo Dutt Kumar Singh was struck off from the roll of the respondent-company w.e.f. 17.08.2016. The name of Shivangi Singh daughter bearing date of birth as 03.08.2000 was included in the service records of the deceased employee by a letter dated 20.03.2004. The petitioner no. 2 is a female independent and her name cannot be kept in live roster which de-horse the provisions of the National Coal Wage Agreement. The female dependents can be eligible for monetary compensation and no male dependents are allowed for monetary compensation. The National Coal Wage Agreement is an agreement between the Management and Union representatives as Joint Bipartite Committee. So, there is no illegality in the impugned order and the writ petition is fit to be dismissed.

Mr. Ashutosh Anand, learned counsel for the petitioners assailed the impugned orders on the ground of race, religion and caste. He contended that claim of the petitioners cannot be allowed to be rejected. He submitted that the case of the petitioners is fully covered in view of judgement rendered by this Court in W.P.(S) No. 1048 of 2011 dated 09.08.2011 and W.P.(S) No. 1742 of 2009 dated 03.12.2014 contained in Annexure-9 series. He further submitted that Single Judge in both the cases have considered this aspect of the matter that on the ground of female, the rejection order is not sustainable and both the writ petitions were allowed. He further submitted that the case of the petitioners is fully covered in view of judgment of the Hon'ble Division Bench of this Court in L.P.A. No. 617 of 2017 with L.P.A. No. 475 of 2017 whereby the Hon'ble Division Bench directed the respondents to consider the appointment on compassionate ground.

On the other hand, learned counsel for the respondent-CCL submitted that in view of National Coal Wage Agreement, the case of the petitioners are fit to be rejected as the female is entitled for monetary compensation. She relied on judgment of the Calcutta High Court in the case of "Eastern Coalfields Limited Vs. Kumari Kiran Singh & Ors." By way of relying paragraph nos. 46, 47, 48, 49, 54 and 56 of the said judgment, she submitted that this aspect has been considered by the Calcutta High Court and it has been affirmed that female is not entitled for appointment on compassionate ground. She submitted that the said judgment of the Calcutta High Court was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court has been pleased to dismiss the S.L.P. by order dated 23.09.2019. She further submitted that in the light of the said judgment it is well-settled that female cannot be allowed the appointment on compassionate ground. She further relied on judgment in the case of " N.C. Santhosh Vs. State of Karnataka & Others". Relying on the said judgment, she submitted that the Hon'ble Supreme Court has considered this aspect about minor and affirmed the order of tribunal as well as the High Court. She submitted that in the light of these judgments, the case of the petitioners is fit to be rejected.

Mr. Ashutosh Anand, learned counsel for the petitioners further relied on judgment of the High Court of Chhattisgarh, Bilaspur in the case of "Coal India Ltd. & Ors. Vs. Smt. Asha Pandey" and submitted that the Chhattisgarh High Court held that female is entitled for appointment on compassionate ground. He submitted that the said judgment was challenged before the Hon'ble Supreme Court in S.L.P. (Civil) No. 238 of 2020 and the Hon'ble Supreme Court has been pleased to dismiss the S.L.P. filed against the judgment of the Chhattisgarh High Court.

In the light of the submissions of the learned counsel for the parties, the Court proceeded to examine the validity of the impugned order. For the sake of convenience Clause 9.5.0 of the National Coal Wage Agreement is quoted here-in-below:

"9.5.0.:-Provision of employment/monetary compensation to female dependents 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. 4,000/- per month or employment irrespective of her age.

(ii) In case of death/total permanent disablement due to cause other then 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 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."

The aforesaid clause has already been interpreted by the Hon'ble Supreme Court in "Mohan Mahto Vs. Central Coal Field Ltd. & Ors." Reported in (2007) 8 SCC 549 and para 18 of the said judgment reads as under:

"18. We have indicated herein before, that it is not necessary for us to go into the question as to whether in the teeth of the provision of NCWA V, the respondent at all had any power to fix a time-limits and thereby curtailing the right of the workman concerned. We would assume that even in such a matter, it had a right. But, even for the said purpose, keeping in view the fact that a beneficial provision is made under a settlement, the "state" was expected to act reasonably. While so acting, it must provide for a period of limitation which is reasonable. Apart from the fact that the period of limitation provided for in the circular letter with a power of relaxation can never be held to be imperative from the subsequent conduct of the respondent insofar as it had issued another circular letter in the year, 2000 providing for filing of an application for appointment on compassionate grounds within a period of one year. It may be that the said circular letter has prospective operation but even in relation thereto we may notice that whereas the said circular letter was issued upon holding discussion with the unions, the circular letter of the year, 1995 was a unilateral one. Furthermore, in its letter dated 02.08.2003/3-8-2000, it will bear repetition to state that expiry of the period of limitation was not taken as a ground for rejecting his application. Underage and non-placement of his name in live roster are stated to be the reasons. It is therefore, unfair on the part of the respondent to raise such a plea for the first time in its counter-affidavit to the writ petition. If he was underage, definitely, it was obligatory on the part of the respondent to keep his name in the live roster, it was not done."

The Co-oridnate Bench of this Court in W.P.(S) No. 1048 of 2011 and W.P.(S) No. 1742 of 2009 came to the conclusion that females are also entitled to compassionate appointment. The Hon'ble Division Bench of this Court in L.P.A. No. 617 of 2017 and L.P.A. No. 475 of 2017 has also came to the same conclusion. Paragraph Nos. 24, 25 and 26 of the Division Bench Judgment is quoted here-in-below:

"24. So far as the sister is concerned, we find from a plain reading of Clause 9.3.3 of N.C.W.A. quoted above that the brother of the deceased workman dying unmarried, if fully dependent upon him, is also entitled to be considered for appointment on compassionate ground. In that view of the matter, there is no reason as to why, sister, whether married or unmarried, should be deprived of such benefit. If a sister is denied the benefit of compassionate appointment only on the ground that she is not included as dependent under Clause 9.3.3 of NCWA, this is a clear case of gender bias and the same cannot be sustained in the eyes of law, also on the touchstone of Articles 14 and 15 of the Constitution of India. At this juncture, we are tempted to quote Section 13 of the General Clauses Act, even though the General Clauses Act relates to Central Acts and Regulations. We are referring to this Section as admittedly the respondent Coal India Ltd. Is also 'State' within the meaning of Article 12 of the Constitution of India, and Section 13 of the General Clauses Act aims at non-discrimination only on the basis of gender. In other words, it prohibits gender discrimination, Section 13 of the General Clauses Act reads as follows:-

"13. Gender and number.- In all Central Acts and Regulations, unless there is anything repugnant in the subject or context,-

(1) Words importing the masculine gender shall be taken to include females; and (2) Words in the singular shall include the plural and vice versa." A plain reading of this Section clearly shows that all the words importing the masculine gender shall be taken to include females and in that view of the matter also, if brother is included in the list of dependents under Clause 9.3.3 of NCWA, there is no reason as to why the word 'brother' shall not include sister also.

We are of the considered view that the case of the appellants is fully covered by the decisions relied upon by learned counsels for the appellants herein before. The non-inclusion of the parents and sister of the deceased workman dying in harness, in the list of dependants to be appointed on compassionate ground, cannot be said to be based on any rational basis, rather this is wholly unfair and absolutely unjust. It is also not based on any intelligible differentia and frustrates the very object the scheme for compassionate appointment. These immediate blood relations cannot be denied the benefit of compassionate appointment, if they are otherwise entitled for the same, simply because of the fact that they may be entitled to the compensation under the workman compensation benefits admissible under the Workman's Compensation Act, as they fall within the definition of 'dependent', given in Section 2 (1) (d) of the said Act.

Even otherwise, in view of the law laid down by the Full Bench of Calcutta High Court, in Purnima Das's Case (supra), while giving interpretation to the term dependent in terms of the NCWA itself, that for the purpose of a scheme for compassionate appointment every such member of the family of the employee who is dependent on the earnings of such employee for his/her survival must be considered to belong to 'a class', and their exclusion cannot be only on the ground of gender or marital status, we are of the considered view that this decision has a binding effect on the respondents, as this decision was rendered in case of compassionate appointment in coal company itself, which was again governed by the NCWA itself. This decision was again followed by a co-ordinate Bench of this High Court also, in case of the present respondents themselves, i.e., Central Coalfields Ltd., in Hemanti Devi's case (supra)."

The judgment of the Chhattisgarh High Court was affirmed by the Hon'ble Supreme Court. So far as the judgment relied on by the learned counsel for the respondent-CCL in the case of N.C. Santhosh (supra) is concerned, that was on the different facts and circumstances. The Hon'ble Supreme Court considered Rule 5 of Compassionate Appointment Rules, 1996 of Karnataka Government where there is no provision of live roster of minor and in that view of the matter the Hon'ble Supreme Court passed the order that the petitioner is not entitled for appointment on compassionate ground. The fact of the said case is different from the fact of this case and thus the said judgment of the Hon'ble Supreme Court is not helping the respondents.

In view of the judgment of the Hon'ble Division Bench of this Court in L.P.A. No. 617 of 2017 and 475 of 2017, the Court held that the non inclusion of the parents and sisters of the deceased workman dying in harness, in the list of dependents to be appointed on compassionate ground, cannot be said to be based on any rational basis, rather this is wholly unfair and absolutely unjust, judgment of the Calcutta High Court relied on by the learned counsel for the respondents-CCL is not helping to the respondents.

In para 23 of the counter-affidavit of the respondents-CCL, it has been stated that in a similar nature of the writ application an order dated 17.07.2017 was passed dismissing W.P.(S) No. 6099 of 2012 in the case of Smt. Gendia Devi Vs. Central Coalfields Limited & Ors., which is under challenge by way of a Letters Patent Appeal being L.P.A. No. 475 of 2017 before the Hon'ble Division Bench of this Court and the said L.P.A. No. 475 of 2017 has already been decided by the Division Bench along with L.P.A. No. 617 of 2017 and thus+, the point taken by the respondents-CCL is not tenable in view of the Judgment of the Division Bench.

As a cumulative effect of the above discussions, considering the above facts and in view of the aforesaid decisions, the Court hereby quash and set-aside order dated 10.09.2017 and order dated 06.03.2018 passed by the respondents and directs the respondents to take a decision afresh in the light of the aforesaid discussions within a period of eight weeks from the date of receipt/production of a copy of this order.

The writ petition stands allowed and disposed of.