W.P.NO.5976/2004
25.8.2010
Shri R.S. Verma, learned counsel for the petitioner.
Shri Anoop Nair, learned counsel for respondents.
With the consent, the petition is heard finally.
Grievance put-forth by the petitioner in this Writ Petition
under Article 226 of the Constitution of India is against the
order dated 15.1.2004; whereby, the claim of the petitioner for
grant of compassionate appointment in lieu of the death of her
husband has been negatived on the ground that the petitioner is
sanctioned monetary compensation.
Husband of the petitioner was employed as Tub-loader in
Nandan Mine No. 1, Western Coal Fields Ltd. He died on
20.10.1997 leaving behind the petitioner and a son and two
daughters.
That, in pursuance to National Coal Wage Agreement V,
an advise was tendered to the petitioner that, her son who was
aged 16 years will be placed in live roaster and on completion of
18 years, he will be given the compassionate appointment, till
then the petitioner was offered Rs.2000/- per month as
monetary compensation. The advise was tendered on the basis
of the letter No. 22/98/594 dt. 11.5.1996, which was in
pursuance to the application by the petitioner for appointment
on compassionate ground. The petitioner declined the offer vide
her letter dt. 20.5.1998 (Annexure R/2) whereby the petitioner
stated that she wants to educate her son. The petitioner;
however, expressed that she is interested in the appointment on
compassionate ground. The respondents though did not offer
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any job to the petitioner but as evident from the averment in the
return, the petitioner was paid monetary compensation w.e.f.
10.5.1998 to 9.5.2004 @ Rs.2500/- from 10.5.1998 to
9.11.1999 and Rs.3000/- from 12.11.99 to 9.5.04. This
monetary compensation was accorded vide order dated
11.5.1998. Later on the son of the petitioner when crossed 18
years of age the petitioner reminded her request for
compassionate appointment. The same was, however, turned
down on the ground that it is not permissible when the
petitioner has once declined to accept, the offer of appointment
to her son and having been granted the monetary compensation.
The petitioner is aggrieved of the denial of the claim for
compassionate appointment.
It is urged that, the authorities concerned have misguided
themselves by holding that the petitioner declined to accept the
offer. It is contended that the petitioner was never given an offer
of appointment. Instead, on an application by the petitioner, the
offer was made for appointment of the son and the petitioner
since wanted to educate her son, offered herself for
appointment. It is further contended that the respondents are
not justified in rejecting the claim of the petitioner.
The respondents on the other hand have justified their
action in rejecting the request of the petitioner for employment
on compassionate ground. It is urged that the petitioner was
granted monetary compensation and, therefore, she was not
provided the compassionate appointment.
The Scheme of Compassionate appointment is contained
in clause 9.5.0 of the NCWA V, which provides for:
“9.5.0: Employment/monetary compensation to female
dependant.
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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.3,000/- 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.2,000/- 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 15 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) and (ii) above.
(iv) Monetary compensation wherever applicable,
would be paid till the female dependant attains the age
of 60 years.
(v) the rate of monetary compensation which stands at
Rs.2000/- and Rs.3000/- per month as mentioned
above would be reviewed w.e.f. 01.07.1996.
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(vi) The rate of monetary compensation will be
reviewed as and when new wage agreements are
finalized.
Note. In the case of TISCO, the matter would be settled
at bipartite level.
This would supersede all past agreements, circulars
and instructions issued on the subject in so far as the
issues are covered by the provisions, herein above.”
Letter dated 11.5.1998 on the basis whereof the proposal
dated 19.5.1998 communicated to the petitioner, it was stated
in clear terms that as per the stipulation in clause 9.5.0 (iii)
NCWA-V the name of the petitioner’s son would be kept on live
roster till 18 years and till then the petitioner would be given
Rs.2000/- towards monetary compensation and proposal for
employment of petitioner’s son would be sent to headquarters
once he completes 18 years of age. It was said :
vr% ,u-lh-MCY;w-&5 dh /kkjk 9-5-0&III ds vuqlkj muds
18 o”kZ dh vk;q ds gksus rd e`rd dh vkfJrk ifRu
Jherh dkS’kY;k dks 2]000@& :I;s ekWusVjh dEiUls’ku ysus
gsrq le>k;k tk, muls fyf[kr lgefr izkIr dh tk;s]
e`rd ds iq= ‘ke’ksj dh vk;q 18 o”kZ gksus ij mDr
jkstxkj iznku djus gsrq izLrko daiuh eq[;ky; Hkstk tk;sA”
The aforesaid decision was thus in consonance with the
provision 9.5.0 (iii) which aims at preserving right of male
dependent for an employment on a compassionate ground and a
monetary compensation to female dependant will not hamper
such a right. Having taken such decision it was incumbent
upon the respondents to have offered an employment in terms of
letter dated 11.5.1998 to the petitioner’s son on his attaining the
age of 18 years.
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The stand of the respondents as is reflected vide
communication dated 15.1.2004 that because the petitioner has
accepted the monetary compensation and, therefore, the male
dependent will not be entitled for compassionate appointment,
besides being contrary to the decision dt. 11.5.1998, is also not
in commensurate with the NCWA-IV
The effect of clause 9.5.0 of NCWA V was noted in the
following terms in Mohan Mahto v. Central Coal Fields Ltd.
(2007) 8 SCC 549 wherein it was observed by their Lordships:
“17. It is neither in doubt nor in dispute that the case
for grant of compassionate appointment of a minor
was required to be considered in terms of sub-clause
(iii) of Clause 9.5.0 of the N.C.W.A.V. In terms of the
said provision, the name of the appellant was to be
kept on a live roster. He was to remain on the live
roster till he attained the age of 18 years. Respondents
did not perform their duties cast on them thereunder.
It took an unilateral stand that an application has
been filed in the year 1999 in the prescribed form. For
complying with the provisions of a settlement which is
binding on the parties, bona fide or otherwise of the
respondent must be judged from the fact as to whether
it had discharged his duties thereunder or not. In this
case, not only it failed and/or neglected to do so, but
as indicated hereinbefore it took an unholy stand that
the elder brother of the appellant being employed, he
was not entitled to appointment on the compassionate
ground. Thus, what really impelled the respondent in
denying the benefit of compassionate appointment to
the appellant is, therefore, open to guess. We expect a
public sector undertaking which is a ‘State’ within the
meaning of Article 12 of the Constitution of India not
only to act fairly but also reasonably and bona fide. In
this case, we are satisfied that the action of the
respondent is neither fair nor reasonable nor bona
fide.
18. We have indicated hereinbefore, that it is not
necessary for us to go into the question as to whether
on the teeth of the provision of N.C.W.A.V., the
6respondent at all had any power to fix a time limit 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 in character, the matter should also be
considered 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 ground
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 an unilateral one. Furthermore, in its letter dated
2/3.08.2000, it will bear repetition to state, expiry of
the period of limitation was not taken as a ground for
rejecting his application. Under-age 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 under-
age, definitely, it was obligatory on the part of the
respondent to keep his name in the live roster. It was
not done.”
The contention put forth by the respondents that since the
petitioner accepted monetary compensation in lieu of
employment when adjudged on the touchstone of provisions
contained in clause 9.5.0 of NCWA V and letter dated 11.5.1998
leaves no iota of doubt that the monetary compensation to the
petitioner was as per the terms and condition of NCWA V and
not at the mercy of the respondents. And since the decision was
taken by the respondent in consonance with clause 9.5.0 (iii);
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incumbent it was upon them to have offered the job to male
dependant, i.e., son of the petitioner on his attaining 18 years.
The respondents are thus not justified in acting in contravention
to the stipulations of NCWA V and to the detriment of the
welfare of the petitioner.
In view of above decision, not granting employment to the
petitioner’s son is not sustainable. The respondents within two
months from the date of communication of this order shall
provide the benefit of appointment on compassionate ground to
the petitioner’s son as per the NCWA V.
In the result the petition is allowed to the extent above.
However no costs.
(SANJAY YADAV)
J U D G E
Vivek Tripathi