Smt. Lalti Devi vs The Bharat Coking Coal Ltd.

D.G.R. Patnaik, J.—The petitioner''s case in brief is as follows:

That one Ramjee Harijan, the petitioner''s father, who was employed under the Respondent-B.C.C.L., had died in harness on 22.09.1995. The conditions of service of the employees of the B.C.C.L. on the date of death of the deceased-employee, was admittedly guided by the terms of N.C.W.A.V.

Upon his death, his son-in-law, Ram Dular Prasad, who is the husband of the petitioner, filed an application on 02.12.1995, claiming that he was an indirect dependent of the deceased employee and had requested for gram of compassionate appointment to him in terms of Clause 9.5.2 of the N.C W.A. Agreement.

Upon his prayer being rejected by the concerned authorities of the Respondents, he filed a writ application before this Court vide W.P. (S) No. 121 of 2002. The writ application was dismissed and against the order of dismissal, he preferred a L.P.A. vide L.P.A. No. 82 of 2002, before this Court. While disposing of the L.P.A. on 08.02.2002, this Court had directed the Respondent No. 2 to consider the prayer of the applicant in accordance with law.

Pursuant to the observations contained in the order passed in the L.P.A., a fresh representation was filed by Ram Dular Prasad, praying for grant of appointment on compassionate grounds and alternatively, to pay monetary compensation to his mother-in-law, namely, Smt. Dulari Devi the mother of the present petitioner, @ Rs. 3,000/- per month as per terms under Clause 9.5.0 of the N.C.W.A. VI with effect from 02.05.1995, i.e. the date of the death of the deceased-employee.

The concerned authorities of the Respondents upon considering the representation, while rejecting the petitioner''s claim for employment, conceded to grant compensation to the widow of the deceased employee @ Rs. 2,000/- per month from the effective date i.e. from the late of death of the deceased-employee. The arrears of such payment, calculated @ Rs. 2,000/- per month, was promptly released and paid by the Respondents in favour of Smt. Dulari Devi, widow of the deceased-employee.

After some time, the widow of the deceased-employee had died.

Not being satisfied with the amount of compensation @ Rs. 2,000/- per month, the petitioner being the daughter of the deceased-employee claimed that the amount of compensation, payable as per the. N.C.W.A. VI is @ Rs. 3,000/- per month, since such amount has been made applicable with effect from the date of enforcement of N.C.W.A. VI from 01.07.1996.

Upon refusal of the Respondents to concede to her demand, the petitioner has filed the instant writ application praying for a direction to the Respondents to pay the arrears of compensation @ Rs. 3,000/- per month.

The Respondents by their counter affidavit have denied the demand of the petitioner. The stand taken by the Respondents is that the amount of compensation as payable to the dependant-widow of the deceased-employee has to be assessed on the basis of N.C.W.A. V, which was applicable on the dale of death of the deceased-employee i.e. on 02.09.1995. The subsequent enhancement in the amount under the new N.C.W.A. VI is not applicable to the petitioner''s case, since it came into effect from 01.07.1996.

Heard Mr. Shailesh Kumar, learned Counsel for the petitioner and Mr. Anoop Kr. Mehta, learned Counsel for the Respondent-B.C.C.L.

Mr. Shailesh Kumar, learned Counsel for the petitioner would advance the following grounds:

(i) The Respondents were liable to pay compensation to the widow of the deceased-employee immediately upon the death of the employee, as per the terms of N.C.WA. Agreement. Referring to Sub-clause (iii) of Clause 9.5.0 of the Agreement, learned Counsel for the petitioner would explain that as per the terms contained in Clause (iii) of the Agreement where the female dependant of the deceased-employee is below the age of 45 years, she will have the option either to accept the monetary compensation or employment. If employment is not granted, then it is incumbent upon the Respondents-employer to pay the monetary compensation. It is further argued that though demand was made initially within the stipulated period of limitation, for compassionate appointment to the son-in-law of the deceased-employee but an alternative prayer was also made to pay the monetary compensation to the widow of the deceased-employee. The Respondents though refused to grant employment but had not taken any initiative to pay compensation as stipulated in the terms of Agreement as it then was. The final decision of the Respondents, as per the impugned order, was taken only alter the dependant of the deceased-employee had knocked the door of this Court and had obtained an order directing the Respondents to consider the representation of the petitioner by taking an appropriate decision.

Learned Counsel adds further that by the time, the decision was taken by the Respondents to pay compensation, the new N.C.W.A. Agreement VI, came into effect from 01.07.1996 and under Sub-clause (ii) of Clause 9.5.0 of the N.C.W.A. Agreement, the amount of compensation payable, has been fixed at Rs. 3,000/- per month and therefore, even though in the earlier N.C.W.A. Agreement, the amount was Rs. 2,000/- per month but it is the enhanced amount as envisaged in the new Agreement, which the Respondents are liable to pay by way of monetary compensation.

Refuting the arguments of the learned Counsel for the petitioner, learned Counsel for the Respondent-B.C.C.L., would want to justify the decision of the Respondents-authorities as per the impugned order and contend that a sum of Rs. 2,000/- per month has rightly been fixed by the Respondents towards monetary compensation, payable to the widow of the deceased-employee. Learned Counsel argues that since on the date of death of the deceased-employee, i.e. on 02.09.1995, the N.C.W.A. V was in force, the amount of compensation, which could legitimately be claimed, was Rs. 2,000/- per month under the said Agreement. Learned Counsel argues further by referring to Sub-clause iii of Clause 9.5.0 of the N.C.W.A., that even if the provisions of N.C.W.A. VI is sought to be enforced, the payment of monetary compensation will be effective from 01.01.2000 as declared in the aforesaid Sub-clause iii of Clause 9.5.0 and not from the date claimed by the petitioner.

Upon hearing the rival submissions, the question which calls for determination is whether the Respondents are liable to pay compensation on the basis of the provisions of N.C.W.A. VI @ Rs. 3,000/- per month from 01.07.1996, i.e. from the date when the new N.C.W.A. VI was made effective.

For better appreciation, a reference to the provisions in Clause 1.2 under N.C.W.A. VI, as contained in Chapter I, which relates to the scope and coverage of the Agreement, would be relevant.

Clause 1.2 of the Agreement declares that the Agreement shall cover all categories of employees in the Coal Industry, who have been covered by National Coal Wage Agreement-I, II, III, IV and V and also to the employees of those establishments, which are functioning and may be functioning under the coal Companies. Clause 1.3 of the Agreement declares that the scope of Agreement covers the wage structures including Dearness allowance, fitment in the revised scale of pay, pension, fringe benefits, service conditions and other allied matters, including welfare/safety measures as contained in the different Chapters of this Agreement.

It is apparent therefore, that the scope of Agreement covers all such employees, who were earlier covered under the terms of the previous National Coal Wage Agreements.

It is not disputed that the deceased-employee, on the date of his death, was covered under the provisions of the N.C.W.A. V and to the benefits of the welfare/safety measures as contained under the provisions of N.C.W.A. V, which was available to the dependants of the deceased-employee, who were the beneficiaries of the provisions containing welfare measures, including monetary compensation, were also covered under the new N.C.W.A. VI.

N.C.W.A. VI was admittedly declared effective from 01.07.1996 to 30.06.2001.

Under Sub-clause ii of Clause 9.5.0 of N.C.W.A. VI, the amount of monetary compensation has been fixed at Rs. 3,000/- per month where the female dependant of the deceased-employee does not opt for employment or is found not eligible for employment. Apparently, as compared to the corresponding clause for compensation, as contained in the earlier Agreement, namely, N.C.W.A. V, enhancement of amount of compensation was made from Rs. 2,000/- per month to Rs. 3,000/- per month with effect from 01.07.1996. The beneficiaries of the welfare Scheme under the earlier Agreement, being thus made entitled to continue as beneficiaries under the new Agreement also, the benefits of the enhanced amount, has in consonance of a just demand, to be extended to all such beneficiaries. Under such circumstances, the logical inference would be that even if the amount of compensation as calculated @ Rs. 2,000/- per month as per the N.C.W.A. V, was payable from the date of death of the deceased-employee on 01.02.1995, the privilege of enhancement of the compensation amount would be available to the beneficiaries from the date when such enhancement was made under the new Agreement.

Learned Counsel for the Respondent-B.C.C.L., would insist that even if such enhanced amount is found payable, yet such payment would be effective from 01.01.2000 as declared in Sub-clause 3(i) of Clause 9.5.0 of the N.C.W.A. VI.

Sub-clause iii of Clause 9.5.0 of the N.C.W.A. VI reads as follows:

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 liver 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.

From a bare reading of the provisions of the aforesaid Clause, it would be manifest that it refers to a specific circumstance, where there is a male dependant of the deceased-employee and such male dependant is of the age of 12 years and above and in which case, such a minor dependant on being kept on live roster for being provided employment upon his attaining the age of majority and till such time as he attains the age, while keeping him on the live roster, the female dependant will be paid monetary compensation. Thus, while on the one hand guaranteeing or assuring employment to the male dependants of the deceased-employee if seeks to ensure that the female dependant of the deceased-employee do not suffer from financial constraints. To make it more clear, the provisions of this Clause declare that the minor male dependant of the deceased-employee if surviving, shall be kept on a live roster where after, on attaining the age of 18 years, he will be provided employment and till such date of employment, the female dependants will be paid monetary compensation. This obligation on the part of the employer has been made effective from 01.01.2000 and the amount of compensation, payable to the female dependant during the interregnum shall be at the same rate as stipulated in the Sub-clause i and ii of Clause 9.5.0 of the N.C.W.A. Agreement.

By carving out such circumstances as an exception to the general Rule, the provisions in the aforesaid cause declare that the payment of compensation shall be made effective from 01.01.2000. Learned Counsel for the petitioner would argue that such classification is illegal. Since such ground does not involve the dispute in the present writ application, the same would not invite any further discussion on the same. Suffice it to say that it being n exception to the general Rule, would not apply to the cases where there is no surviving male dependant of the deceased-employee and no employment is granted to the female dependant of the deceased. The female dependant in such cases would be entitled to the monetary compensation at the rate stipulated from the effective date, which accrues at any time after the N.C.W.A. VI became effective.

In the light of the above discussions, the Respondents are directed to calculate the amount of compensation, payable to the widow of the deceased-employee @ Rs. 3,000/- per month from 01.07.1996, till the date of death of the widow of the deceased-employee and to pay the difference of amount in her account to the petitioner within three months from the date of receipt/production of a copy of this order.

With these observations, this writ application stands disposed of.

Let a copy of this order be given to the learned Counsel for the Respondent-B.C.C.L.