Quashed

Radhe Manjhi v. Central Coal Fields Limited And

Jharkhand HC5 May 2017WPC/3630/2011

Case brief

AI extract

What is this about?

Petitioner challenged rejection of compassionate appointment application filed on behalf of his deceased father. Court examined applicability of National Coal Wage Agreement circulars and procedural lapses by respondents.

What did the court decide?

Impugned order dated 26/28.10.2002 is quashed and matter remitted to respondent for reconsideration within six weeks if petitioner hasn't crossed 35 years.

Radhe Manjhi Vs Central Coal Fields… — Pension and Retirement Benefits | Jharkhand HC (2017)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 3630 of 2011

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Radhe Manjhi, son of Late Ram Manjhi, resident of Village-Basariya, P.O.Religarha, P.S.-Giddi 'A', District-Ramgarh, Jharkhand

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.... .... …. Petitioner

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Versus

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Central Coal Fields Limited through its Chairman-cum-Managing Director, Darbhanga House, P.O., G.P.O., P.S.-Kotwali,

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District-Ranchi

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Director (Personnel), Central Coal Fields Limited, At Darbhanga House, P.O.& P.S.Kotwali, District-Ranchi

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General Manager (P & I R), Central Coalfields Limited, Darbhanga House, P.O.& P.S.-Kotwali, District-Ranchi

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The General Manager, Central Coal Fields Limited, Argada Area, At &

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P.O.-Argada, P.S.-Giddi A, District-Ramgarh

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The Project Officer, Religarha Colliery, Central Coal Fields Limited, At & P.O.-Religarha, P.S.-Giddi 'A', District-Ramgarh, Jharkhand

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The Senior Personnel Manager, Religarha Colliery, Central Coal Fields Limited, At & P.O.-Religarha, P.S.-Giddi 'A', Ramgarh, Jharkhand

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.... .... .... Respondents

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CORAM : HON'BLE MR. JUSTICE DR. S.N. PATHAK

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For the Petitioner : Mr. Om Prakash Prasad, Advocate For the Respondents : Mr. Hardeo Prasad Singh, Advocate ------

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C.A.V. ON: 07.04.2017 PRONOUNCED ON:05/05.2017

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The petitioner has approached this Court for the following

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reliefs:-

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(i) For direction upon the respondent to consider the case of petitioner for appointment on compassionate ground in the light of the provisions contained in Clause 9.5.0 of N.C.W.A.

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(ii) For quashing the order dated 26/28.10.2002 passed by Dy. Chief Personnel Manager, (A), Sirka whereby the application of the petitioner filed under Clause 9.3.2 of N.C.W.A. has been rejected on the ground of delay.

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FACTUAL MATRIX

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Father of petitioner died in harness on 28.06.1999 and after the death of deceased father, the petitioner's mother informed the respondent company vide representation dated 05.07.1999 (Annexure 5 to the writ application) as a result of which name of his father was struck off

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from the Roll of the company w.e.f 29.06.1999. It is the case of the petitioner that after death of her husband petitioner's mother requested the respondents to keep the name of petitioner on live roster vide representation dated 05.07.1999 and further after attaining majority, she made a request to respondent-CCL to allow her son to apply for appointment on compassionate ground in terms of Para 9.5.0/9.3.2 of N.C.W.A. vide her letter dated 25.12.2001 (Annexure-7 to the writ application). In view of her request, the petitioner was called for interview vide letter dated 02.02.2002 in which the petitioner accordingly appeared before the Screening Committee but surprisingly the case of the petitioner was rejected on 26/28.10.2002 and hence the present writ application has been preferred challenging the order of rejection.

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Learned counsel for the petitioner strenuously urges that the action of the respondent is not justified in view of the fact that N.C.W.A. is bipartite agreement and the respondent cannot turn their back to the provisions of N.C.W.A.-VI. Learned counsel argues that the ground of rejection is wholly illegal and arbitrary as the period of limitation is applicable only in case of Clause 9.3.2 and not in case of Clause 9.5.0(iii). He further submits that it was obligatory on the part of the respondents to keep the name of petitioner in live roster particularly when the mother of the petitioner had requested for the same and had applied within time and it was soon after attaining the age of majority, a further request was made for consideration of her application for appointment. Learned counsel relied on the judgment of Hon'ble Apex Court reported in the case of Mohan Mahto Vs. M/s. Central Coal Field Ltd. reported in 2007 (4) JLJR 144(SC) which reads as under:-

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“ The terms and conditions of service of the workman working in coal mines are inter alia governed by settlement known as National Coal Wage Agreement (NCWA V). Indisputably, the said settlement, in terms of Sub section 3 of Section 18 of the Industrial Disputes Act, 1947 is binding on the parties. Clause 9.3.2 of N.C.W.A. V refers to appointment of dependents of the deceased employees working in the coal mines. Sub Clause (iii) of Clause 9.5.0 whereof reads as under:-

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(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 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. During the period the male dependent is on live roster, the female dependent will be paid monetary compensation as per rates at Paras (i) and (ii) above.”

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Learned counsel in order to strengthen his argument further relies on the Circular dated 24.01.2004 by B.C.CL. and submits that the Circular has not been taken into account whereby Area Incharge/Manager of the concerned mines have been directed to immediately communicate the name of dependents of deceased employee to the Headquarter. In view of the aforesaid and specific provision under N.C.W.A. even though an application was not submitted for enrollment on the live roster, since no monitory compensation has been extended to the family of the petitioner, it was the duty of the respondent-CCL to get the petitioner enroll on live roster and on attaining majority according to suitability and eligibility of the petitioner, employment is to be offered by the respondent-CCL. Learned counsel further submits that in view of the judgment of Hon'ble Supreme Court passed in Mohan Mahto (supra) and in view of the circular of BCCL which is a subsidiary of Coal India Ltd. and in view of the fact that petitioner's case is covered under Clause 9.5.0 of N.C.W.A. deserves to be appointed on compassionate ground. 4. Per contra counter affidavit has been filed. Learned counsel for the C.C.L. vehemently opposes the contention of the learned counsel for the petitioner and submits that the case of the petitioner is fit to be dismissed in limine on the ground that the petitioner has approached this Hon'ble Court after nine years from the date of rejection i.e. 26.10.2002. Learned counsel for the respondent draws the attention of the court towards Paragraphs 19, 20 and 21 and submits that on the date when the employee died the provision of compassionate appointment were covered

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under the provisions of N.C.W.A. V which provided to keep a male dependent aged 15 years and above in the live roster. Learned counsel further submits that Circular of BCCL is not applicable in the case of CCL and as such this ground is not available to the petitioner as the claim of petitioner is barred by limitation, the impugned order is fully justified and writ petition is fit to be dismissed.

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Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner deserves reconsideration on the following grounds:-

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(i) The petitioner's mother applied for keeping the name of petitioner on live roster soon after death of her husband i.e. 05.07.1999 and as such the plea taken by the respondent that she did not apply within time is not acceptable to this Court. It is also evident that soon after majority an application was made by the mother of the petitioner for consideration of appointment.

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(ii) The plea of the respondents that Circular of BCCL is not applicable in CCL is misconceived as BCCL and CCL are subsidiary of Coal India Ltd. and are guided by the same Circular and no independent Circular is there for different subsidiary and as such the Circular of BCCL is also fully applicable as it is regarding provisions of Rule 9.5.0. The case of petitioner is fully covered by the provisions of Clause 9.5.0 of N.C.W.A.

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The Hon'ble Supreme Court in the case of Mohan Mahto

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(supra) at Para 17 held as under:-

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“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 respondent 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

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considered from the subsequent conduct of the respondent in so far 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 2/3.8.2000 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 nonplacement of his name in live roster are stated 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.”

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As the matter relates to the case of the appointment on compassionate ground and it is because of laches on the part of the respondent authorities, the petitioner or his mother was not made aware of the rejection order which was rejected illegally, arbitrarily and in a mechanical manner. The impugned order dated 26/28.10.2002 nowhere reveals that it was ever informed to the petitioner or his mother. It is only in the counter affidavit. This Court is of the view that the case of the petitioner is fully covered by Clause 9.5.0 of N.C.W.A. VI and it is settled principle of law that the law prevalent at the time of consideration has to be taken into account and not the law prevalent at the time of making of the application. The Hon'ble Apex Court in case of Sataya Narayan Choudhary Vs. Central Coalfields Limited reported in 2007 (3) JLJR 692 held that circular prescribing the period of limitation which was in force at the time of consideration of the case of the applicant for appointment on compassionate ground has to be taken into consideration not the circular which was in force on the date of application.

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The same view was reiterated in the case of Somdev Kapoor Vs State of West Bengal & Ors. reported in (2014) 1 JBCJ 213 SC that

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Rules which are prevalent on the date when application is considered are to be applied and not the date when application is made.

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As a cumulative effect of the aforesaid fact, rules, guidelines and legal propositions, the impugned order dated 26/28.10.2002 is hereby, quashed and set aside. The matter is remitted back to the respondent authorities for reconsideration of the case of the petitioner if he has not crossed the age of 35 years.

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Let an appropriate order be passed by the respondent CCL within a period of six weeks from the date of receipt of copy of this order.

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(Dr. S. N. Pathak, J.)

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Jharkhand High Court, Ranchi Dated, 5 May, 2017 Anit/A.F.R.

Radhe Manjhi v. Central Coal Fields Limited And

Case brief

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Radhe Manjhi v. Central Coal Fields Limited And

Case brief

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