{"id":138969,"date":"2007-09-18T00:00:00","date_gmt":"2007-09-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohan-mahto-vs-ms-central-coal-field-ltd-ors-on-18-september-2007"},"modified":"2015-03-01T09:44:17","modified_gmt":"2015-03-01T04:14:17","slug":"mohan-mahto-vs-ms-central-coal-field-ltd-ors-on-18-september-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohan-mahto-vs-ms-central-coal-field-ltd-ors-on-18-september-2007","title":{"rendered":"Mohan Mahto vs M\/S. Central Coal Field Ltd. & Ors on 18 September, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mohan Mahto vs M\/S. Central Coal Field Ltd. & Ors on 18 September, 2007<\/div>\n
Author: S.B. Sinha<\/div>\n
Bench: S.B. Sinha, Harjit Singh Bedi<\/div>\n
           CASE NO.:\nAppeal (civil)  4339 of 2007\n\nPETITIONER:\nMohan Mahto\n\nRESPONDENT:\nM\/s. Central Coal Field Ltd. & ors\n\nDATE OF JUDGMENT: 18\/09\/2007\n\nBENCH:\nS.B. Sinha & Harjit Singh Bedi\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T <\/p>\n
CIVIL APPEAL NO.     4339             OF 2007
\n[Arising out of  SLP (Civil) No. 13935 of 2006]<\/p>\n
S.B. SINHA, J :\n<\/p>\n
1. \tLeave granted.\n<\/p>\n
 2.\tAppellant’s father Rameshwar Mahto was employed as a Fitter,
\nCategory IV, in a coal mine belonging to the respondent known as Kuju
\nColliery.  He died in harness on 23.02.1997.  The terms and conditions of
\nthe service of the workmen working in coal mines are inter alia governed by
\na ‘Settlement’ known as National Coal Wage Agreement (N.C.W.A.) V.
\nIndisputably, the said settlement, in terms of Sub-section (3) of Section 18 of
\nthe Industrial Disputes Act, 1947 is binding on the parties.  Clause 9.3.2 of
\nN.C.W.A. V refers to appointment of dependants of the deceased employees
\nworking in the coal mines; sub-clause (iii) of Clause 9.5.0 whereof reads as
\nunder:\n<\/p>\n
“(iii) \tIn case of death either in mine accident or
\nfor other reasons or medical unfitness under
\nclause 9.4.0, if no employment has been
\noffered and the male dependent of the
\nconcerned worker is 15 years and above in
\nage he will be kept on a live roster and
\nwould be provided employment
\ncommensurate with his skill and
\nqualifications when he attains the age of 18
\nyears.  During the period the male dependant
\nis on live roster, the female dependant will
\nbe paid monetary compensation as per rates
\nat paras (I) and (ii) above.”\n<\/p>\n
3. \tAppellant filed an application for appointment on compassionate
\nground on 25.10.1997.  The same was denied to him inter alia on the
\npremise that he was a minor at the relevant time.  He filed an application in
\nprescribed form upon attaining majority on 26.09.1999 which was rejected
\nby an order dated 3.08.2000 stating:\n<\/p>\n
“With reference to the letter No. GM(K)\/PD-
\n9.3.2\/2000\/749 dated Nil of Staff Officer (P), Kuju
\nArea this is to inform you that the proposal has not
\nbeen agreed by the competent authority since the
\ndependent was not eligible for employment as he
\nwas under age and also his name was not kept in
\nlive roaster.  Also there was considerable delay in
\napplying for employment by the dependent.”\n<\/p>\n
4. \tRespondent purported to have issued a circular letter on 12.12.1995
\nproviding for six months’ limitation for filing such an application for
\nappointment on compassionate ground from the date of death of the
\nconcerned employees in the following terms:\n<\/p>\n
“It has been observed from the details of the
\nstatements prepared and submitted by the Area for
\nPlacement Interview under para 9.4.2 of NCWA-
\nIV, that cases pertaining to the period beyond 6
\nmonths are also entertained without any reasoning.
\nConsidering this situation also in order to
\nstreamline the activities of the manpower and to
\nhave effective control over it, it has been decided
\nthat the cases falling beyond 6 months from the
\ndate of death of the concerned employees, the
\ndependent of the deceased employees will not be
\nentertained, unless express permission is given by
\nHqtrs. after thorough scrutiny of the case.  Now as
\naction will be taken against those who fail to
\ncomplete the work within stipulated time.\n<\/p>\n
\tTherefore, all the Staff Officers (Pers.)
\nshould discuss this matter with the Personnel
\nExecutives of the Unit\/Establishments and advise
\nthem accordingly.”\n<\/p>\n
5. \tIt was replaced by another circular letter issued in the year 2000
\nstating:\n<\/p>\n
“It has been observed from the case files received
\nfrom areas for appointment of dependants of ex-
\nemployees under para 9.3.2 of NCWA V\/VI that
\nthe cases pertaining to the period beyond six
\nmonths are also entertained and sent without any
\nreasoning.  Therefore, vide circular No.
\nPD\/MP\/9.4.2\/95\/1151 dated 12.12.95 all areas
\nwere advised that the cases falling beyond six
\nmonths from the date of death of the concerned
\nemployee will not be entertained unless express
\npermission is given by Hqtrs. after thorough
\nscrutiny of the case.\n<\/p>\n
\tNow in view of the persistent demands of
\nunions relaxation was granted for one year from
\nFeb. 2000 which was subsequently discussed and
\nreviewed in the meeting held with unions at
\nCorporate Level.  It was decided that henceforth
\napplication submitted under clause 9.3.2. within
\none year after demise of an employee will not be
\ntreated as belated case.  Thus the application
\nsubmitted by dependant concerned after expiry of
\none year from the date of death of ex-employee
\nwill not be considered for employment.”\n<\/p>\n
6. \tA writ petition was filed by the appellant before the High Court of
\nJharkhand, Ranchi which was marked as WPS No. 471 of 2003 questioning
\nthe order declining him the grant of appointment on compassionate ground
\nby the respondent.  Before the High Court, the respondent took a stand that
\nas the elder brother of the appellant has already been in employment, he was
\nnot entitled thereto.  The said contention has since been given up.  A learned
\nSingle Judge of the High Court took notice of the aforementioned circulars
\nvis-`-vis the relevant provisions of N.C.W.A. V holding:\n<\/p>\n
\t“From the scheme quoted herein above, it is
\nclear that if on the date of death of the deceased
\nemployee, the male dependant is 15 years and
\nabove in age then he will be kept on a live roster
\nand would be provided employment commensurate
\nwith his skill and qualification when he attains the
\nage of 18 years.  During the period the male
\ndependant is on live roster, the female dependant
\nwill be paid monetary compensation.  Admittedly,
\nin 1997 petitioner was more than 15 years of age
\nand an application was filed by the petitioner in
\n1997 but neither the petitioner was kept in live
\nroster nor the widow of the deceased employee
\nwas paid monetary compensation.  After attaining
\n18 years of age petitioner as per the aforesaid
\nclause applied for compassionate appointment in
\n1999 which has been arbitrarily rejected by the
\nrespondents on the ground of delay.  While the
\npetitioner approached this court by filing instant
\nwrit application third case has been made out by
\nthe respondents that petitioner’s appointment was
\nrefused on the ground of his elder brother, having
\nbeen in employment of the subsidiary company.
\nThis fact was subsequently falsified in the manner
\ndiscussed herein above.\n<\/p>\n
For the aforesaid reasons, this writ application is
\nallowed and the impugned letters are quashed.
\nRespondents are directed to give benefit of
\nNational Coal Wage Agreement  VI to the
\npetitioner by appointing him in place of his
\ndeceased father, who died in harness, as regular
\nemployee of the Company.”\n<\/p>\n
7. \tAn intra-court appeal was preferred thereagainst by the respondent
\nherein which by reason of the impugned judgment was allowed by a
\nDivision Bench stating:\n<\/p>\n
\t“In the case of Commissioner of Public
\nInstructions Vrs. K.R. Vishwanath, reported in
\n2005 (7) SCC 206, the Supreme Court held that the
\nCourt has no jurisdiction to extend the period of
\nlimitation and so was of the view of the Division
\nBench of this Court in the case of Sushil Kumar
\nVengra Vrs. Union of India reported in 2005 (1)
\nJCR 282 (Jhr.)”\n<\/p>\n
8. \tMr. Rajesh Kumar, learned counsel appearing on behalf of the
\nappellant, inter alia submitted:\n<\/p>\n
(i)\tthe Division Bench of the High Court committed a serious error in
\nrelying upon the judgment of this Court in Commissioner of Public
\nInstructions and Others v. K.R. Vishwanath<\/a> [(2005) 7 SCC 206] as
\ntherein a statutory rule was made providing for a limitation of one
\nyear for filing an application for appointment on compassionate
\nground from the date of death of the employee;\n<\/p>\n
(ii)\tThe period of six months envisaged under the circular letter dated
\n12.12.1995 will have no application as: (a) it is directory in nature
\nand (b) the same was substituted by another circular of 2000.\n<\/p>\n
9. \tDr. A.M.Singhvi, learned senior counsel appearing on behalf of the
\nrespondents, on the other hand, urged:\n<\/p>\n
(i)\tRespondent as an employer is entitled to take a policy decision in
\nregard to  implementation of the  settlement.\n<\/p>\n
(ii)\tGrant of appointment on compassionate ground, being an
\nexception to Article 16 of the Constitution of India, should be
\nstrictly construed.\n<\/p>\n
(iii)\tAs the circular letter issued in 2000 is prospective in nature, the
\nsame will have no application in the instant case.\n<\/p>\n
10. \tA settlement within the meaning of Sub-section (3) of Section 18 of
\nthe Industrial Disputes Act is binding on both the parties and continues to
\nremain in force unless the same is altered, modified or substituted by another
\nsettlement.  No period of limitation was provided in the settlement.  We
\nwould assume that the respondent had jurisdiction to issue such circular
\nprescribing a period of limitation for filing application for grant of
\nappointment on compassionate ground.  But, such circular was not only
\nrequired to be strictly complied with but also was required to be read
\nkeeping in view the settlement entered into by and between the parties.  The
\nexpanding definition of workman as contained in Section 2(s) of the
\nIndustrial Disputes Act would confer a right upon the appellant to obtain
\nappointment on compassionate ground, subject, of course, to compliance of
\nthe conditions precedent contained therein.\n<\/p>\n
11. \tThe right to obtain appointment on compassionate grounds emanates
\nfrom the settlement.  Settlement is defined in Section 2(p) of the Industrial
\nDisputes Act to mean ‘a settlement arrived at in the course of conciliation
\nproceeding and includes a written agreement between the employer and
\nworkmen arrived at otherwise than in the course of conciliation proceeding
\nwhere such agreement has been signed by the parties thereto in such manner
\nas may be prescribed and a copy thereof has been sent to an officer
\nauthorized in this behalf by the appropriate Government and the conciliation
\nofficer’.\n<\/p>\n
12.\tEven in regard to prescription of a period of limitation, the respondent
\nought to have kept in view the spirit thereof.\n<\/p>\n
13. \tWe are not oblivious that grant of appointment on compassionate
\nground is an exception to Article 16(1) of the Constitution of India.\n<\/p>\n
 \tIn I.G. (Karmik) and Ors. v. Prahalad Mani Tripathi [2007 (6) SCALE
\n370], this Court observed:\n<\/p>\n
“An employee of a State enjoys a status.\n<\/p>\n
Recruitment of employees of the State is governed
\nby the rules framed under a statute or the proviso
\nappended to Article 309 of the Constitution of
\nIndia.   In the matter of appointment, the State is
\nobligated to give effect to the constitutional
\nscheme of equality as adumbrated under Articles
\n14 and 16 of the Constitution of India. All
\nappointments, therefore, must conform to the said
\nconstitutional scheme. This Court, however, while
\nlaying emphasis on the said proposition carved out
\nan exception in favour of the children or other
\nrelatives of the officer who dies or who becomes
\nincapacitated while rendering services in the police
\ndepartment.  See Yogender Pal Singh and Others
\nv. Union of India and Others<\/a> [A.I.R. 1987 SC
\n1015].\n<\/p>\n
\tPublic employment is considered to be a
\nwealth.  It in terms of the constitutional scheme
\ncannot be given on descent. When such an
\nexception has been carved out by this Court, the
\nsame must be strictly complied with.\n<\/p>\n
Appointment on compassionate ground is given
\nonly for meeting the immediate hardship which is
\nfaced by the family by reason of the death of the
\nbread earner.  When an appointment is made on
\ncompassionate ground, it should be kept confined
\nonly to the purpose it seeks to achieve, the idea
\nbeing not to provide for endless compassion.\n<\/p>\n
\tIn National Institute of Technology & Ors.
\nv. Niraj Kumar Singh<\/a> [2007 (2) SCALE 525], this
\nCourt has stated the law in the following terms:-\n<\/p>\n
“16.  All public appointments must be in
\nconsonance with Article 16 of the
\nConstitution of India.    Exceptions carved
\nout therefore are the cases where
\nappointments are to be given to the widow
\nor the dependent children of the employee
\nwho died in harness.   Such an exception is
\ncarved out with a view to see that the family
\nof the deceased employee who has died in
\nharness does not become a destitute.   No
\nappointment, therefore, on compassionate
\nground can be granted to a person other than
\nthose for whose benefit the exception has
\nbeen carved out.   Other family members of
\nthe deceased employee would not derive any
\nbenefit thereunder.”\n<\/p>\n
 14.\tIn State Bank of India and Another v. Somvir Singh<\/a> [(2007) 4 SCC
\n778], this Court held:\n<\/p>\n
“10. There is no dispute whatsoever that the
\nappellant-Bank is required to consider the request
\nfor compassionate appointment only in accordance
\nwith the scheme framed by it and no discretion as
\nsuch left with any of the authorities to make
\ncompassionate appointment de hors the scheme. In
\nour considered opinion the claim for
\ncompassionate appointment and the right, if any, is
\ntraceable only to the scheme, executive
\ninstructions, rules etc. framed by the employer in
\nthe matter of providing employment on
\ncompassionate grounds. There is no right of
\nwhatsoever nature to claim compassionate
\nappointment on any ground other than the one, if
\nany, conferred by the employer by way of scheme
\nor instructions as the case may be.”\n<\/p>\n
15. \tThe period of six months’ limitation prescribed in the circular letter
\ndated 12.12.1995 was not statutory.  It is also not imperative in character.
\nEven for entertaining such an application beyond the period of six months,
\nthe Headquarters of the Central Coal Field Limited is entitled to consider the
\nfacts and circumstances of each case.  Admittedly, Appellant filed an
\napplication for grant of appointment on compassionate ground when he was
\na minor.  His application was rejected on that premise at the first instance
\nbut even at that point of time the respondent did not take a stand that the
\nsame had not been entertained on the ground that the same was filed after
\nexpiry of the period of six months.\n<\/p>\n
16. \tIt is neither in doubt nor in dispute that the case for grant of
\ncompassionate appointment of a minor was required to be considered in
\nterms of Sub-clause (iii) of Clause 9.5.0 of the N.C.W.A.V.  In terms of the
\nsaid provision, the name of the appellant was to be kept on a live roster.  He
\nwas to remain on the live roster till he attained the age of 18 years.
\nRespondents did not perform their duties cast on them thereunder.  It took an
\nunilateral stand that an application has been filed in the year 1999 in the
\nprescribed form.  For complying with the provisions of a settlement which is
\nbinding on the parties, bona fide or otherwise of the respondent must be
\njudged from the fact as to whether it had discharged his duties thereunder or
\nnot.  In this case, not only it failed and\/ or neglected to do so, but as
\nindicated hereinbefore it took an unholy stand that the elder brother of the
\nappellant being employed, he was not entitled to appointment on the
\ncompassionate ground.  Thus, what really impelled the respondent in
\ndenying the benefit of compassionate appointment to the appellant is,
\ntherefore, open to guess.  We expect a public sector undertaking which is a
\n‘State’ within the meaning of Article 12 of the Constitution of India not only
\nto act fairly but also reasonably and bona fide.  In this case, we are satisfied
\nthat the action of the respondent is neither fair nor reasonable nor bona fide.\n<\/p>\n
17. \tWe have indicated hereinbefore, that it is not necessary for us to go
\ninto the question as to whether on the teeth of the provision of N.C.W.A.V.,
\nthe respondent at all had any power to fix a time limit and thereby curtailing
\nthe right of the workman concerned.  We would assume that even in such a
\nmatter, it had a right.  But, even for the said purpose, keeping in view the
\nfact that a beneficial provision is made under a settlement, the ‘State’ was
\nexpected to act reasonably.  While so acting, it must provide for a period of
\nlimitation which is reasonable.  Apart from the fact that the period of
\nlimitation provided for in the circular letter with a power of relaxation can
\nnever be held to be imperative in character, the matter should also be
\nconsidered from the subsequent conduct of the respondent insofar as it had
\nissued another circular letter in the year 2000 providing for filing of an
\napplication for appointment on compassionate ground within a period of one
\nyear.  It may be that the said circular letter has prospective operation but
\neven in relation thereto we may notice that whereas the said circular letter
\nwas issued upon holding discussion with the Unions, the circular letter of the
\nyear 1995 was an unilateral one.  Furthermore, in its letter dated
\n2\/3.08.2000, it will bear repetition to state, expiry of the period of limitation
\nwas not taken as a ground for rejecting his application.  Under-age and non-
\nplacement of his name in live roster are stated to be the reasons.  It is,
\ntherefore, unfair on the part of the respondent to raise such a plea for the first
\ntime in its counter-affidavit to the writ petition.  If he was under-age,
\ndefinitely, it was obligatory on the part of the respondent to keep his name in
\nthe live roster.  It was not done.\n<\/p>\n
18. \tReliance placed by the High Court on K.R. Vishwanath (supra), with
\nrespect, is misplaced.  Therein, the terms and conditions of the parties were
\ngoverned by a statute known as ‘Karnataka Civil Services (Appointment on
\nCompassionate Grounds) Rules, 1996’.  Rule 5 of the said Rules provided
\nfor a period of limitation.  The said decision, therefore, cannot be said to
\nhave any application whatsoever in the instant case.\n<\/p>\n
19. \tIn Umesh Kumar Nagpal v. State of Haryana and Others [(1994) 4
\nSCC 138] whereupon reliance has been placed by Dr. Singhvi, this Court
\nheld:\n<\/p>\n
“6. For these very reasons, the compassionate
\nemployment cannot be granted after a lapse of a
\nreasonable period which must be specified in the
\nrules.  The consideration for such employment is
\nnot a vested right which can be exercised at any
\ntime in future.  The object being to enable the
\nfamily to get over the financial crisis which it faces
\nat the time of the death of the sole breadwinner,
\nthe compassionate employment cannot be claimed
\nand offered whatever the lapse of time and after
\nthe crisis is over.”\n<\/p>\n
\tWhat should be a reasonable period would depend upon the rules
\noperating in the field.\n<\/p>\n
20. \tFor the reasons aforementioned, the impugned judgment cannot be
\nsustained which is set aside accordingly.  The appeal is allowed.
\nRespondent is hereby directed to offer appointment to the appellant on a
\nsuitable post within eight weeks from date.  As the appellant is not in
\nemployment for a long time, he is entitled to costs throughout.  Counsel’s
\nfee assessed at Rs. 25,000\/-.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mohan Mahto vs M\/S. Central Coal Field Ltd. & Ors on 18 September, 2007 Author: S.B. Sinha Bench: S.B. Sinha, Harjit Singh Bedi CASE NO.: Appeal (civil) 4339 of 2007 PETITIONER: Mohan Mahto RESPONDENT: M\/s. Central Coal Field Ltd. & ors DATE OF JUDGMENT: 18\/09\/2007 BENCH: S.B. Sinha & Harjit Singh […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-138969","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMohan Mahto vs M\/S. 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