SECL challenged a Single Judge order directing it to grant dependent employment to the son of an employee who died in harness. The Division Bench held the claim was not belated since the widow had applied in 2003 and proceedings were delayed by a succession dispute, relying on Syed Khadim Hussain. Appeal dismissed.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Appeal No. 163 of 2024
1. South Eastern Coalfields Ltd. Through Chairman-Cum-Managing Director, South Easter Coalfields Ltd. Seepat Road, Bilaspur.
2. Sub Area Manager SECL Dugga Sub Area, Bhatgaon Area, TehsilBisrampur, District : Surajpur, Chhattisgarh.
3. Chief General Manager SECL, Bhatgaon Area, Tehsil- Bisrampur, District : Surajpur, Chhattisgarh.
4. Personnel Manager SECL, Bhatgaon Area, Tehsil- Bisrampur, District : Surajpur, Chhattisgarh.
---- Appellant
Versus
1. Vishal @ Rahul Rajwade S/o Late Ramdhar Rajwade Aged About 20 Years Occupation- Student.
2. Smt. Manmati Wd/o Late Ramadhar Rajwade Aged About 40 Years, R/o Village- Jhumrapara, Post- Karanji, P.S.- Jainagar, Tehsil & District Surajpur, Chhattisgarh.
---- Respondents For appellant : Shri K.K. Shrivastava, Advocate. For Respondents : Shri Ashok Kumar Shukla, Advocate.
Hon'ble Shri Justice Ramesh Sinha, CJ Hon’ble Shri Justice Ravindra Kumar Agrawal, J
Judgment on Board
08.04.2024
Per, Ravindra Kumar Agrawal, J
1. Being aggrieved by the order dated 24.01.2024 passed by learned Single Judge in WPS No.2655 of 2018, the appellants-SECL have filed the instant writ appeal. By the said impugned order dated 24.01.2024, the writ petition filed by the respondents herein (petitioners in the original writ petition) have been allowed and the appellants-SECL
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(respondents in the writ petition) have been directed to grant compassionate/dependent employment to respondent No.1.
2. Brief facts of the case are that, the father of respondent No.1 and husband of respondent No.2 namely Ramadhar was an employee of the appellant SECL and working on the post of Dumper Operator in Dugga Sub Area, Bhatgaon colliery, SECL. He died on 18.04.2002 while in service. After death of employee Ramadhar, his wife applied for dependent employment under the provisions of Clause 9.5.0 of the National Coal Wage Agreement-II (in short, NCWA). The said application was considered by the SECL and she was subjected to her medical examination, but instead of providing employment, an option was given on 29.01.2003 to choose alternative option to receive Rs.3000/- per month as monetary compensation in lieu of dependent employment. The petitioner did not choose to accept the officer of monetary compensation. It was also the case of the petitioner that at the time of death of employee Ramadhar, the petitioner No.1 was minor, aged about 5 years. In the year 2003, some dispute arose in the family of petitioners and some of her family members raised a dispute before the Civil Judge, Class-I Surajpur, District Surguja on 12.03.2003 by filing an application for grant of succession certificate in their favour. In the said dispute, the SECL was also made as party-non applicant. The said succession case was decided vide order dated 29.04.2013 by partly allowing the same in favour of the applicants and they were also held to be successor of estate of the deceased employee Ramadhar being wife and son of the deceased.
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3. It was also the case of he petitioner that when succession case was decided on 29.04.2013, the petitioner No.1 attained the age of majority and on 11.04.2016 the petitioner No.2 have filed an application to the SECL that on account of death of her husband, she has made an application for dependent employment and she underwent her medical examination and in the meantime her father in law have filed a court case and then the concerned authority have said that employment could only be provided after decision of the court. On 11.04.2016 when she filed an application, she stated that now she does not want to do service and her son i.e. the petitioner No.1 may be provided dependent employment. Another application was filed by the petitioner No.1 on 03.11.2016 claiming that on 18.04.2002 when his father has died, he was minor, but at present he attained his majority and he wants to obtain dependent employment which may be considered by the authorities. Despite various representations when dependent employment have not been provided to the petitioner No.1 and he was denied for dependent employment on 29.01.2018, the writ petition was filed by the petitioners seeking following relief:
4. The SECL by filing their return have contested the claim of the petitioners and have submitted that the petitioner No.2 had applied for dependent employment in the year 2003, but the same was not considered due to her age under the relevant provisions of NCWA and
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she was informed to opt for accepting monitory compensation vide letter dated 29.01.2003. Some dispute arose in the family of the petitioners and ultimately succession case was proceeded before the court of Civil Judge Class-I Surajpur which ultimately decided on 29.04.2013. The succession certificate was issued for the limited purpose of payment of dues of late Ramadhar, but it does not say about employment of petitioner No.1. After about three years of decision of succession certificate, the petitioners have filed their application for providing dependent employment to the petitioner No.1 which is highly belated and therefore the same was not considered. As per the Clause 9.5.0 of NCWA, the name of dependent on live roster is subject to his age of 15 years and above on the date of death of his father, and attaining the age of 18 years the dependent employment is to be considered for him. The case of the petitioners does not fall within the purview of abovementioned provisions of NCWA and therefore their case was not considered for dependent employment as the same was submitted after 15 years of death of employee.
5. After considering the submissions made by the counsel for the parties and hearing them, the learned Single Judge has allowed the writ petition filed by the petitioners and directed the SECL to consider the application of petitioner No.1 and grant him dependent employment within stipulated period. Hence this writ appeal by the SECL.
6. Learned counsel for the appellants-SECL submits that as per clause 9.5.0 of the NCWA, the name of petitioner No.1 was not there in the live roster as he was only five years of age at the time of death of the
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employee whereas, the said provision of NCWA provides that if an employment has been offered and the male dependent 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. In the present case, at the time of death of worker he was only 5 years of age and therefore his name was not kept in live roster. He has moved his application for dependent employment after about 14 years of death of the worker which is highly belated and against the provisions of NCWA. Hence he is not entitled for dependent employment. He would rely upon the order passed by the coordinate Bench of this court in Writ Appeal No.771 of 2018, decided on 18.10.2023, in which the provisions of NCWA-II was considered in similar facts and circumstances of the case and held that belated application for grant of dependent employment cannot be considered. Thus, applying the same analogy the writ petition ought to have been dismissed by learned Single Judge, however, it has been allowed. Therefore, the same may be interfered with in the present writ appeal.
7. Per contra, the counsel for the respondents (petitioners in writ petition) have submitted that employee has died on 18.04.2002 while he was in service. As per the provisions of clause 9.5.0 of the NCWA, the wife of the deceased employee moved an application for grant of dependent employment before the respondent authorities. She underwent her medical examination, but in the meantime, some dispute arose in her family and ultimately a succession case was filed by some of her family
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members on 12.03.2003 which ultimately decided on 29.04.2013. The SECL were the party/non-applicant in the said succession case. Therefore, they did not provide any dependent employment to the wife of the deceased employee and said that she could be provided employment only after final adjudication of the succession case. After adjudication of the succession case, the petitioner No.2 have moved an application to the SECL stating therein that due to lapse of time for the reasons of succession dispute, the dependent employment could not be provided to her, but now she does not want to get an employment, however, in her place, her son may be provided dependent employment. The application of the petitioner No.2 itself have been filed by the SECL as Annexure A-2 with the writ appeal. The petitioner No.1 has also moved his application for grant of dependent employment on 03.11.2016 before the SECL authority and prayed for the same. Despite having various representations, dependent employment have not been provided to petitioner No.1, but his request has been rejected. He would further submit that as per provisions of clause 9.5.0 of NCWA the petitioner No.2 was entitled for dependent employment irrespective of her age, but she was not provided employment due to her age which is in violation of provisions of NCWA. It is not a case that petitioner No.1 have approached before the authorities for grant of dependent employment after about 14 years, but it is a case where his mother i.e. the petitioner No.2 have already availed her remedy for grant of dependent employment in the year 2003 itself which has been considered by the authorities, but due to succession proceeding and
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age she could not be provided dependent employment and offered for monetary compensation, which she refused. Thus, the claim of the petitioners stands till the decision of succession case and thereafter the petitioners have moved their application for which the authorities are bound to consider in favour of petitioner, but they denied. He would further submit that the judgment passed by the coordinate bench of this court, relied upon by the appellant SECL, is not applicable to the facts of the present case. Learned Single Judge has rightly considered the case of the petitioners relying upon the judgment passed by the Supreme Court as well as by this court and thus, the appeal does not have merit and is liable to be dismissed.
8. We have heard the submissions made by the parties and perused the records.
9. It is not in dispute that the father of petitioner No.1 and husband of petitioner No.2 was an employee of appellants-SECL and he died on 18.04.2002 in harness. After the death of employee, the petitioner No.2 has moved her application for grant of dependent employment on 09.01.2003 upon which the SECL have given an option to opt for monetary compensation of Rs.3000/- per month in lieu of dependent employment. The said option given to her has been filed by the petitioners as Annexure P/4 in their writ petition. Admittedly, despite having claim by the wife of the deceased employee, she was not provided dependent employment and she was given an option to receive monetary compensation. In the return filed by the SECL, they have submitted that due to the age of petitioner No.2, her application
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was not considered for dependent employment. Clause 9.5.0 of NCWA-
II is reproduced hereinbelow for ready reference-
“9.5.0. Employment/Monetary compensation to female dependent-
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. 3000/- 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. 2000/- per month or employment.
(iii) In case of death either in mine accident or for other reasons or medical unfitness under clause 9.4.0 if on 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 dependants is on live roster, the female dependant will be paid monetary compensation as per rates at paras (i) and (ii) above.”
10. From bare perusal of provisions of 9.5.0 of NCWA, in clause (i) it appears that the female dependent of the employee would have the option either to accept the monetary compensation of Rs.3000/- per month or employment irrespective of her age . As per the return filed by the SECL, the wife of the deceased employee was not provided dependent employment on the ground of her age whereas, the provision says that she is entitled for dependent employment irrespective of her age. It is further observed that from the year 2003 itself the succession case was pending before the court Civil Judge Class-I Surajpur in which the SECL was also a party/non applicant. The
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said succession case was finally decided on 29.04.2013 and by that time the petitioner No.1 had attained the age of majority and thereafter he moved an application for grant of dependent employment. The wife of the deceased has also moved an application to the authorities that with the passage of time she does not want to obtain dependent employment, however the same may be provided to her son i.e. the petitioner No.1. It is not the case that after death of the deceased employee on 18.04.2002, after about 14 years the petitioner No.1 has moved his application for grant of dependent employment. Rather, the claim of dependent employment was already raised in the year 2003 itself and dispute continued up to 2013. Therefore, it cannot be said that the claim of the petitioners are highly belated. The learned Single Judge has rightly considered the judgment passed by the Supreme Court in Syed Khadim Hussain Vs. State of Bihar & Others, 2006 (9)SCC195, in which the Supreme Court has observed in paragraphs 5 & 6 as under:
“5. We are unable to accept the contention of the counsel for the State. In the instant case, the widow had applied for appointment within the prescribed period and without assigning any reasons the same was rejected. When the appellant submitted the application he was 13 years' old and the application was rejected after a period of six years and that too without giving any reason and the reason given by the authorities was incorrect as at the time of rejection of the application he must have crossed 18 years and he could have been very well considered for appointment. Of course, in the rules framed by the State there is no specific provision as to what should be done in case the dependents are minors and there would be any relaxation of age in case they did not attain majority within the prescribed period for submitting application.
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appellant should have been considered in her place for appointment. Counsel for the State could not point out any other circumstance for which the appellant would be disentitled to be considered for appointment. In the peculiar facts and circumstances of this case, we direct the respondent authorities to consider the application of the appellant and give him appropriate appointment within a reasonable time at least within a period of three months. The appeal is disposed of in the above terms.”
11. Further, the Single Judge has also rightly relied upon the ratio of law laid down in the judgment passed by the coordinate Bench of this court in M/s South Eastern Coalfields Ltd. and Others Vs. Avinash Saloman (Writ Appeal No.20 of 2016, decided on 11.10.2023).
12. The facts of case cited and relied upon by the SECL i.e. the order passed in Writ Appeal No.771 of 2018 are distinguishable to the facts of the present case and therefore no benefit can be extended on the basis of judgment passed by the coordinate Bench in Writ Appeal No.771 of 2018.
13. In an intra court appeal, the interference in routine is normally not warranted unless palpable infirmities are noticed on a plain reading of the impugned order. In the present case, there is no palpable infirmities found on the order passed by the learned Single Judge and the same is based on sound principle of law applicable to the facts and circumstances of the case, which needs no interference.
14. In the result, the appeal being devoid of merit deserves to be and is hereby dismissed.
Sd/Sd/(Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice
inder
2 issues framed by the court
Whether the writ petitioner, a minor son at the time of his father's death in service, is entitled to dependent/compassionate employment under Clause 9.5.0 of NCWA-II despite a belated application.
Whether the claim was belated given that the mother's claim was raised in 2003 but stalled by a succession dispute pending until 2013.
Colour shows how this judgement treated each authority
Syed Khadim Hussain Vs. State of Bihar & OthersRelied on¶10
2006 (9)SCC195
M/s South Eastern Coalfields Ltd. and Others Vs. Avinash SalomanRelied on¶11
Writ Appeal No.20 of 2016, decided on 11.10.2023
Writ Appeal No.771 of 2018, decided on 18.10.2023Distinguished¶12
South Eastern Coalfields Ltd. through Chairman-Cum-Managing Director, SECL
Sub Area Manager SECL Dugga Sub Area, Bhatgaon Area
Chief General Manager SECL, Bhatgaon Area
Personnel Manager SECL, Bhatgaon Area
Vishal @ Rahul Rajwade
Smt. Manmati Wd/o Late Ramadhar Rajwade
Ramesh Sinha
Ravindra Kumar Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
