Ranjit Banerjee & Anr vs Eastern Coalfields Limited & Ors

Shampa Sarkar, J

The petitioner no. 1 is a retired Store Keeper of Barakar Engineering & Foundry Works under the Eastern Coalfields Limited. Due to failing health condition, the petitioner no. 1 applied before the concerned authorities to declare him medically unfit along with all relevant papers some time around July 2008. The petitioner no. 1 requested the authorities to provide employment to his son, i.e. the petitioner no. 2, under Clause 9.4.1 read with Clause 9.4.3 (ii) of the National Coal Wage Agreement - V (in short NCWA-V). According to the petitioner no. 1, although he was sent for medical examination before the Apex Medical Board of the Eastern Coalfields Limited on August 4, 2009, a copy of the report was not supplied to him. Aggrieved by such non-supply of the medical report of the Apex Medical Board, the petitioner no. 1 filed writ petition bearing no. W.P. 11400 (W) of 2011. The said writ petition was disposed of by an order dated July 27, 2011, which is quoted below:

"Supplementary affidavit filed in Court today be kept with the records.

This writ application is filed by the petitioner for publishing the result of the Apex Medical Board on August 4, 2009 in respect of the claim of the petitioner with regard to his physical disablement to perform his duties under the respondent no.5.

The above medical report dated August 4, 2009 of the Apex Medical Board is produced before this Court today by the learned counsel appearing for the respondents. A true copy of the above report is also handed over to the learned counsel appearing for the petitioner.

In view of the above, no further order need be passed in this writ petition. However, I make it clear that I have not examined the above medical report in this writ petition.

This writ petition is thus disposed of.

There will be, however, no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis."

According to the said order, it appears that the medical report dated August 4, 2009 of the Apex Medical Board was produced before the learned Single Judge and the same was handed over to the learned counsel appearing for the petitioner no. 1. The learned Single Judge however, recorded that the report was not examined by the Court.

According to the writ petitioner, instead of handing over the report dated August 4, 2009, the learned counsel for the petitioner no. 1 was handed over a communication dated July 25, 2011, by the Deputy General Manager, Eastern Coalfields Limited. The contents of the said letter is quoted below:

"With reference to your application made from Medical unfit under clause 9.3.0 of NCWA This is to inform you that the medical board has declared you FIT as communicated vide letter no. ECL/CMD/C-613/GM/(P&IR)/09/5 GENL/319 dated 17.10.2009 issued by the GM (P& IR) ECL, HQ.

This is for your record please."

This writ petition has been filed on the ground that during the proceedings before the learned Single Judge in the earlier writ petition, the letter impugned to this writ petition dated July 25, 2011 was handed over and the medical report was not handed over to the petitioner no. 1. Hence, the petitioner no. 1 seeks interference of this Court and prays for a direction upon the respondents to cancel the contents of the letter dated July 25, 2011 and further direct the respondents to provide employment on compassionate ground to the petitioner no. 2 by declaring the petitioner no. 1 unfit on the basis of the diagnosis of other doctors who have found the petitioner no. 1 suffering from dementia, ischaemic heart disease with urinary tract infection. The petitioner no. 1 submits that only with the affidavit-in-opposition filed in this proceeding, which was affirmed as late as on July 19, 2019, did the authorities disclose the medical report dated August 4, 2009. The petitioner no. 1 draws the attention of the Court to the finding of the Apex Medical Board where it has been stated that the petitioner suffered from Episodic Memory Loss and also there was huge loss of monthly wages due to absence from duty when he was ill. According to the petitioner no. 1, the finding of the Board would be sufficient proof of the fact that the petitioner no. 1 was actually medically unfit. Although the Apex Medical Board in the said report after examining the petitioner no. 1 found the petitioner no. 1 fit for duty.

In the meantime, during the pendency of the writ petition, by a letter dated September 14, 2012 the petitioner no. 1 was informed by the Deputy General Manager (E & M)/AGENT that the petitioner no. 1 would retire from service on March 31, 2013. Thereafter, documents have been disclosed to show that the petitioner no. 1 by a letter dated January 5, 2013 applied before the Deputy General Manager, Barakar Engineering & Foundry Works, Eastern Coalfields Limited for payment of gratuity. The pension payment order is also disclosed by the authorities. Sufficient documents have been annexed to the affidavit-in-opposition of the respondents to show that the petitioner voluntarily accepted all the retirement benefits and also made necessary applications for payment of the same. Moreover, the letter dated July 25, 2011 discloses that the medical board had declared the petitioner no. 1 fit and from the order dated July 27, 2011 it appears that the report of the medical board dated August 4, 2009 was handed over to the learned counsel for the petitioner. It is the case of the petitioner no. 1 that the same was not correct and in effect only the letter dated July 25, 2011 was handed over in Court and as such the petitioner should be further allowed to assail the said report.

The petitioner no.1 lastly relies on a medical report issued by a local doctor dated July 30, 2019 which shows that the petitioner was suffering from memory loss on and from August 6, 2009 and also was unable to perform his daily duties.

Heard the parties. The National Coal Wage Agreement, is a bipartite agreement and a subsisting contract binding between the employer and employees. Under the provisions of the NCWA, until and unless the coal company certified the petitioner to be medically unfit and permanently disabled, the question of enforcement of Clause 9.4.1 did not arise.

With regard to whether the report dated August 4, 2009 was handed over to the petitioner no.1 this Court cannot go beyond the findings of the learned Single Judge in the order dated July 27, 2011. Had the petitioner been aggrieved by the contents of the order with regard to the observation about production of the report and the petitioner no. 1 wanted the order to be corrected, as such, the law is well-settled that the petitioner no. 1 ought to have approached the said Court itself.

The medical board comprised of experts and it is provided in Clause 9.4.3 of the NCWA-V as follows:

"9.4.3 Employment to one dependant of a worker who is permanently disabled in his place:

(i) **********

(ii) In case of disablement arising out of general physical debility so certified by Coal Company concerned, not arising out of injury or disease as in Para (i) above, the concerned employee will be eligible for the benefit under this Clause if the employees is upto the age of 58 years."

Unless the medical board of the coal company certified that the petitioner no. 1 was physically disabled, the authorities were not under any obligation under the aforesaid bipartite agreement to provide compassionate appointment to the petitioner no. 2. Once the petitioner no. 1 had retired from service, had himself prayed for payment of gratuity and accepted and is continuing to accept the retirement benefits, inspite of the pendency of this writ petition without indicating that he reserved his right to challenge the report in the writ petition bearing W.P. 17247 (W) of 2011, the petitioner no. 1 has consciously waived his right to further challenge the decision of the medical board.

Secondly, the petitioner no. 1 retired from service in 2013 and obtained his retirement benefits. The petitioner no.1 applied for compassionate appointment of his son upon him being declared to be disabled way back in 2008. Eleven years have passed since then.

Compassionate appointment is usually granted as a succor to the immediate financial hardship to the family of the employee would face in case the sole bread earner either passes away or becomes unable to attend his duty. It is a method of recruitment deviating from the general method of recruitment. In cases of compassionate appointment Article 14 has no application. It is not also a heritable right.

Some of the basic principles of compassionate appointment laid down in Arindam Choudhury vs. The State of West Bengal & Ors. (In re:W.P.S.T. 35 of 2018) are given below:

a) Appointment on compassionate ground, which is offered on humanitarian grounds, is an exception to the above rule of equality in the matter of public employment. However, compassionate appointment is not permissible in the absence of any scheme therefor, that is, the NCWA in this case.

b) None can claim compassionate appointment, on the occurrence of death/medical incapacitation of the concerned employee (the sole bread earner of the family), as if it were a vested right, and any appointment without considering the financial condition of the family of the deceased is legally impermissible.

c) The whole object of granting compassionate employment by an employer being intended to enable the family members of a deceased/incapacitated employee to tide over the sudden financial crisis, appointments on compassionate ground should only be made in exceptional cases to save the family of the deceased/incapacitated staff from destitution where, but for such appointment, they would not survive.

d) Compassionate employment cannot be granted after lapse of reasonable period, which must be specified in the scheme.

e) An appointment on compassionate ground made many years after the death/incapacitation of the employee or without due consideration of the financial resources available to the dependant of the deceased/incapacitated employee would be directly in conflict with Articles 14 and 16 of the Constitution.

As such, I do not find any reasons to allow the prayer of the petitioner no.1 for granting the reliefs prayed for in this writ petition. With regard to loss in wages during the period of illness no reliefs can be granted when the petitioner retired from service way back in 2013 upon full and final settlement of his dues.

The report of the Apex Medical Board dated August 4, 2009 cannot also be decided to be incorrect sitting in judicial review. It is also not for the writ Court to decide on evidence whether actually the report was handed over or not and also whether the petitioner no.1 was correctly examined by the expert body which had made the report. This certificate of the local doctor does not, however, disclose whether the petitioner was actually fit or unfit to perform his duty as a Store Keeper in the colliery.

Judicial scrutiny is limited to ascertaining whether the action or non-action of the respondent authorities have resulted in infringement of any fundamental right, statutory right or a vested right of the petitioner and whether the decisions or actions of the authorities are mala fide, arbitrary or unreasonable.

Such grounds do not exist in this case and as such, the writ petition is dismissed.

There shall be no order as to costs.

Urgent photostat certified copy of this order be given to the parties on priority basis, if the same is applied for.