Dismissed

Kapil Deo Sharma v. Central Coalfields Limited Through Its Chairman Cum Managing Director And Ors.

Jharkhand HC6 Mar 2019WPC/2606/2016

Case brief

AI extract

What is this about?

The petitioner, a Senior Overman exceeding 58 years of age at the time of application and who served to superannuation, sought dependent appointment under NCWA. The Court held he did not meet the age limit or loss of employment criteria, dismissing the petition.

What the court decided

AI extract

Kapil Deo Sharma Vs Central Coalfields… — Pension and Retirement Benefits | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI WP(S) No. 2606 of 2016

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Kapil Deo Sharma, son of late Bishundeo Singh, resident of Argada Colliery, P.O.Argada, P.S. Ramgarh, District- Ramgarh, Jharkhand. …... Petitioner(s)

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1. Central Coalfields Limited, through its Chairman-cum-Managing Director, having its office at Darbhanga House, P.O.-GPO, P.S. Kotwali, Ranchi.

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2. The General Manager (P& IR), CCL, Darbhanga House, P.O.-GPO, P.S. Kotwali, Ranchi.

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3. The General Manager, Argada, Sirka, CCL, Argada, Ramgarh.

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4. The Project Officer (SG), Sirka Colliery, Argada, Ramgarh.

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…... Respondent(s)

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For the Petitioner(s) Mr.Saurabh Shekhar, Advocate. For the CCL Mr. Amit Kr. Sinha, Advocate. . -----

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CORAM : HON'BLE MR. JUSTICE ANANDA SEN .

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06/06.03.2019: In this writ petition, the petitioner has prayed for a direction upon the respondent authorities to consider his case in terms of Clause 9.4.0 of the National Coal Wages Agreement (hereinafter to be referred as 'NCWA') as he was medically unfit and prayed that after getting him examined by the Medical Board and certification by the Medical Board, one of his dependent be appointed in Central Coalfields Limited (CCL).

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The petitioner was appointed and was working as Senior Overman in CCL. His date of superannuation was 31.1.2016. The petitioner was hospitalized on 30.7.2015 as he suffered from heart attack. The petitioner thereafter was referred to Ranchi on 31.7.2015. The petitioner was granted medical leave for six months by the competent authority. As his health was deteriorating, the petitioner filed an application under Clause 9.4.0 of the NCWA on 17.8.2015. The petitioner expected that he will be called by the Medical Board on 22.12.2015 but he was not called for and his application was not considered in terms of Clause 9.4.0 of the NCWA and he was allowed to superannuate in normal course on 31.1.2016.

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Counsel for the petitioner submits that the petitioner should have been examined and declared medically unfit and his son should have been appointed by the respondent authorities in terms of Clause 9.4.0 of the NCWA. He further submits that as per NCWA, an employee can nominate for employment, his/her dependent, therefore the son of the petitioner should have been appointed after retiring the petitioner on medical ground. The petitioner claims that his case has not been considered and the said benefit in terms of NCWA has not been extended to him, which is discriminatory. He further submits that similarly situated persons, who also crossed the age of 58 years, were extended the said benefit under the provision of clause 9.4.0 of the NCWA, but the petitioner has been discriminated. He also submits that the petitioner was at loss of employment from 31.7.2015 to 31.1.2016. He lastly submits that the petitioner was medically unfit

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and the provision under Clause 9.4.0 of the NCWA should have been invoked and his son should have been appointed.

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Mr. Amit Kr. Sinha, counsel for the CCL submits that there are three pre-conditions for invoking clause 9.4.0 of the NCWA; (i) certification of the Medical Board that the employee is medically unfit, (ii) loss of employment and (iii) the employee concerned is below the age of 58 years for making such application. These conditions have to be fulfilled simultaneously. He further submits that in this case, the petitioner does not fulfill the said three criteria, thus, he is not entitled to get benefit of the provision of NCWA. He further submits that it cannot be said that the loss of employment of the petitioner as the petitioner had already attained his duty for 260 days in the last year of his service. He also was more than 58 years when he tried to invoke the said clause.

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Admittedly, the petitioner was an employee of CCL and his date of superannuation was 31.1.2016. He had invoked clause 9.4.0 of the NCWA and sought for declaring him medically unfit and his son to be appointed in terms of the said clause.

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NCWA is an agreement between the Management of Coal India Limited and the Labour Unions. This agreement governs the condition of service so far as workmen are concerned, who are employed in different subsidiaries of Coal India Limited including CCL. Clause 9.4.0 of the said Agreement provides to give employment to one of the dependents of a workman, who is permanently disabled. Sub-clause (I) and (ii) of Clause 9.4.0 of the NCWA are important to decide the case of the petitioner, which read as under:-

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“(i) The disablement of the worker concerned should arise from injury or disease be of a permanent nature resulting into loss of employment and it should be so certified by the Coal Company concerned.

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(ii) In case of disablement arising out of general physical debility so certified by the Coal Company, the employee concerned will be eligible for the benefit under this clause if he/she is upto the age of 58 years.

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The term 'general physical debility' would mean deficiency of a workmen due to any disease or other health reason leading to his/her disablement to perform his/her duties regularly and/or efficiently.”

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The first clause deals with the disablement of a workman which arises from injury or diseases of permanent nature, resulting into loss of employment. In case of disablement, out of general physical debility, there should be certification of the Coal Company and the age of the employee concerned should be less than 58 years.

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In this case, admittedly, the petitioner suffered heart attack on 30^th July, 2015. He applied before respondent authority invoking clause 9.4.0 of the NCWA on 17.8.2015 i.e. 5 ½ months prior to his superannuation. Thus, the

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petitioner had crossed his age of 58 years by then. To invoke the said clause of NCWA, the workman should be less than 58 years in age.

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In this case, I find that the petitioner was more than 58 years at the time of invoking clause 9.4.0 of NCWA. Clause 9.4.0 of the NCWA is binding upon both the parties, as the same is an agreement under the Industrial Disputes Act. In view of the decision rendered by the Hon'ble Supreme Court in the Case of Mohan Mahto Vs. Central Coalfields Limited and Ors. , reported in (2007) 8 SCC 549, it has been held that the agreement is binding on the parties . Since this agreement is binding upon both the parties, no one can tinker with any of its clause. Since the petitioner was more than 58 years at the time of making his application under Clause 9.4.0 of the NCWA, he is not entitled to get the benefit under the said clause.

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Further I find that admittedly the petitioner was not examined by the Medical Board, which is also the pre-condition for appointment under clause 9.4.0 of the NCWA. The Hon'ble Division Bench of this Court in LPA Nos. 614 and 615 of 2002 [Employers in relation to the management of Central Coalfields Limited (in both cases) Vs. The Presiding Officer and Anr. (in both cases)] , while discussing the applicability of clause 9.4.0 of the NCWA has held that when the workmen concerned continued in service till the date of his/her superannuation, Clause 9.4.0 of the NCWA cannot be invoked as it cannot be said that there was any loss of employment. 10. The contention of the petitioner that there is some incident where the persons, who were more than 58 years, were extended the benefit under Clause 9.4.0 of the NCWA is concerned, the said contention cannot be accepted by this Court. If an illegality has been committed by any authority, this Court cannot issue a mandamus to the authority to commit the same illegality. There cannot be any equality in illegality.

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Considering the aforesaid facts, I find that the petitioner was more than 58 years in age on the date of making his application under clause 9.4.0 of the NCWA, also he continued in service till last date of his superannuation in normal course and he already attained his duty 260 for days in the last year of his service which suggest that there was no loss of employment. Thus he is not entitled to get any benefit under Clause 9.4.0 of the NCWA as claimed by him. . 12. Accordingly, this writ petition is dismissed.

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(ANANDA SEN, J.)

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Anu/-CP-2.

Kapil Deo Sharma v. Central Coalfields Limited Through Its Chairman Cum Managing Director And Ors.

Case brief

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Kapil Deo Sharma v. Central Coalfields Limited Through Its Chairman Cum Managing Director And Ors.

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