Dismissed

Nemchand Yadav v. Central Coal Fields Limited through Its Chairman Cum Managing Director

Jharkhand HC7 Oct 2020LPA/736/2018

Case brief

AI extract

What is this about?

The court condoned a 673-day delay in filing an appeal regarding a rejected compassionate ground appointment. The court examined the appellant's eligibility based on his birth relative to his parents' marriage dates. Finding the appellant to be a step-son rather than a biological child of the deceased employee, judged fabricated documents being procured by suppress facts, the court dismissed the a

What did the court decide?

The intra-court appeal is dismissed. The decision of the learned Single Judge to reject the petition for compassionate appointment is upheld.

Nemchand Yadav Vs Central Coal Fields… — Pension and Retirement Benefits | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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L.P.A No. 736 of 2018

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Nemchand Yadav, Age 39 years, Son of Yognath Yadav, Mother’s nameLate Jugli Devi, Resident of Village: Gharwatand, P.O-Chanpi, P.S. Peterwar, Dist-Bokaro, Jharkhand. …… Appellant

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…… Appellant

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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, District-Ranchi.

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

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3.General Manager, ( P & IR), Central Coalfields Limited, Darbhanga House, P.O-G.P.O, P.S-Kotwali, District-Ranchi.

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4.The General Manager, Central Coal Fields Limited, Kathara Area, At & P.O- Kathara, P.S-Kathara, Dist-Bokaro, Jharkhand.

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5.The Project Officer, Kathara Colliery, Central Coal Fields Limited, At & P.O- Kathara, P.S-Kathara, Dist-Bokaro, Jharkhand.

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6.The Senior Officer ( P & A), Kathara Colliery, Central Coal Fields Limited, At & P.O- Kathara, P.S-Kathara, Dist-Bokaro, Jharkhand.

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…..… Respondents

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---------

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CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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---------- For the Appellant : Mr. A.K. Sahani, Advocate For the Respondents : Mr. Rajesh Lala, Advocate -----------

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Oral Judgment: Order No.10/Dated: 07^th October, 2020

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The matter has been heard through video conferencing with the consent of the learned counsel for the parties. None of the parties has raised any complaint regarding audio and visual quality.

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I.A. No.767 of 2020

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The instant appeal has been filed after delay of 673 days and as such, interlocutory application has been filed under Section 5 of the Limitation Act

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for condoning the aforesaid delay, inter alia , on the ground that the writ petition being W.P.(S) No.1880 of 2016 which was dismissed vide order dated 06.01.2017 but according to the writ petitioner-appellant, the fate of the writ petition was not communicated and as such, the writ petitioner could not be able to know about the outcome of the aforesaid writ petition. On 02.12.2018, when he contacted his counsel on coming to Ranchi then he could know about the outcome of the writ petition and accordingly, he collected the documents from the concerned conducting counsel as also the copy of the impugned order dated 06.01.2017 and, thereafter, the appeal was instructed to be drafted and finally it was filed on 11.12.2018. As such, delay of 673 days has been caused.

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It has been stated that the aforesaid delay is not intentional rather due to unavoidable circumstances. As such, it is urged that the same is liable to be condoned.

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Learned counsel for the respondents, although has not filed any separate counter affidavit to the aforesaid interlocutory application but has filed response in the counter affidavit filed in the instant memo of appeal on 06.07.2020 wherein, at paragraph no.2, an objection has been made that since the delay has not been satisfactorily explained, the same is not fit to be condoned.

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We have heard learned counsel for the parties. On perusal of the reason assigned in the interlocutory application for delay of condonation visa-vis counter affidavit filed by the respondent authorities, we deem it fit and proper to condone the delay.

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We, accordingly, condone the delay of 673 days in filing the appeal.

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The interlocutory application being I.A. No.767 of 2020 stands allowed.

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L.P.A No.736 of 2018

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This instant intra-court appeal has been preferred against the order/judgment dated 06.01.2017 passed by learned Single Judge of this Court in W.P.(S) No.1880 of 2016 by which the writ petition has been dismissed, denying interference in the impugned decision of the authority dated 16.01.2015, by which the claim of the writ petitioner for his appointment on compassionate ground on account of death of his mother, v.i.z. Jugli Devi has been rejected.

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The brief fact of the case stands enumerated as hereunder:

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The writ petitioner claims to be the son of one Jugli Devi, who was working as ‘Mazdoor’, Category-II inKathara Colliery underthe respondent no.1.

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It is the case of the writ petitioner that his mother died on 24.10.2012 in harness. It is further case of the writ petitioner that he was totally dependent on earning of his mother. The petitioner since was aged about 21 years at the time of death of his mother, made an application for appointment on compassionate ground in terms of Clause 9.3.2 of the National Coal Wage Agreement ( in short N.C.W.A) but his claim was rejected vide order dated 16.01.2015, which was challenged before this Court by invoking Article 226 of the Constitution of India being W.P.(S) No.1880 of 2016, but the learned Single Judge has refused to interfere with the order dated 16.01.2015, which is the subject matter of this intra-court appeal.

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Mr. A. K. Sahani, learned counsel for the appellant has submitted that the impugned order is not sustainable in the eye of law as the claim of the writ petitioner was not considered in right perspective and without examining the fact that the writ petitioner is the son of Jugli Devi, his claim

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for appointment on compassionate ground was rejected. The aforesaid aspect of the matter was agitated before the writ Court but the factual aspect has not been considered and the writ petition has been dismissed on the ground of disputed question of facts.

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According to the learned counsel for the appellant, learned Single Judge has not examined the factual aspects. Had it been examined, the writ Court would have come to the conclusion that there is no disputed question of fact as several unimpeachable documents were annexed in the writ petition, such as, the birth certificate of the writ petitioner, registration card issued by the Vinoba Bhave University, death certificate etc. In all the documents, the name of the mother of the writ petitioner has been referred as Jugli Devi and on the basis of these conclusive documents, it cannot be said that the writ petitioner is not the son of Jugli Devi.

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A counter affidavit has been filed in the instant appeal after seeking leave of this Court as no counter affidavit could be filed by the respondent authorities before the writ Court.

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On the strength of the counter affidavit, it has been urged that the writ petitioner has changed the entire case and by annexing several documents, which were not produced before the writ Court, to impress upon the Court that there is no disputed question of fact. Learned counsel further submits that actually the writ petitioner was the step son of Jugli Devi, who had solemnized second marriage with the father of the writ petitioner namely, Yognath Yadav.

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It is contended that the writ petitioner is son of Yognath Yadav with his first wife, i.e. before solemnization of marriage with late Jugli Devi. Jugli Devi was appointed after the death of her husband, v.i.z., late Ashok Yadav

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on 24.10.2012, who was posted at Kathara Washery of CCL as ‘Piece Rated Worker’. There is a child from the wedlock of first husband of Jugli Devi i.e. a daughter namely, Sunita Kumari, who has made a claim for appointment on compassionate ground after death of her mother namely, Jugli Devi. It has further been submitted by referring to Annexure-H, which is the nomination form duly furnished by the father of the writ petitioner, v.i.z., Yognath Yadav after putting his thumb impression, wherein the reference of age of the writ petitioner has been mentioned to be eight years on 21.06.1986 whereas, the writ petitioner-appellant has claimed his date of birth as 10.02.1989, therefore, the writ petitioner has tried to mislead this Court by showing himself to be the son of Jugli Devi, suppressing the fact that Jugli Devi got married with said Yognath Yadav on 05.03.1984 i.e., much after the birth of the writ petitioner. It is urged that the instant appeal is fit to be dismissed on that count itself since appellant has not approached this Court with clean hand rather by furnishing a wrong declaration.

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Further submission has been made that writ petitioner has not impleaded the daughter of Jugli Devi from the wedlock of first husband, v.i.z., Sunita Devi, who has claimed appointment on compassionate ground on account of death of her mother in harness by an application which has been annexed as Annexure-J to the counter affidavit.

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Learned counsel for the respondents, therefore, submits that if, in these circumstances, the decision has been taken by the authority to the effect that the writ petitioner is not the son of Jugli Devi rather he is step son of the late Jugli Devi, the deceased employee and on that ground the writ petitioner has not been found to be eligible for compassionate appointment as per the National Coal Wage Agreement, it does not suffer from any

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infirmity and the learned Single Judge, taking into consideration the aforesaid aspects of the matter, has rightly declined to interfere in the impugned order, thus, the impugned decision does not suffer from any infirmity.

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Learned counsel for the respondents has contended that the grounds which have been agitated in the letters patent appeal were not there before the writ Court, rather the writ petitioner has tried to set up a new case in the memo of appeal, which is not permissible.

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This Court, having heard learned counsel for the parties, has also perused the materials available on record, which have not been disputed by the learned counsel for the writ petitioner which have been brought on record along with the counter affidavit and which includes several documents of the father of the writ petitioner vis-a-vis the list of dependents and the details about deceased employee namely, Jugli Devi. Although a rejoinder has been filed but those statements have not been refuted and therefore, this Court is treating the said factual aspects, as stated in the counter affidavit, to be admitted facts.

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The writ petitioner claims to be the son of Jugli Devi and Yognath Yadav. The father of the writ petitioner namely, Yognath Yadav was appointed as ‘Piece Rated Worker’ on Swang Colliery of Kathara area CCL and subsequently, he was posted at Kathara Washery under Kathara area of CCL. Sri Yognath Yadav filled up option for availing LTC in lieu of RRF Form, had declared therein the description of his family members on 30.12.1983, wherein the name of the writ petitioner finds mentioned having age of four years on 30.12.1983 and as such, the date of birth of the writ petitioner will be sometime in the year 1979.

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Taking his age as on 30.12.1983 as four years, Yognath Yadav had nominated the writ petitioner under Gratuity Nomination Form on 21.06.1986 as his dependent along with other son from his first wedlock. As per this document, writ petitioner has been shown to be of eight years on 21.06.1986. As such, the year of birth of the writ petitioner would be sometime in the year 1978. Taking into consideration the LTC Form and Gratuity Nomination Form which is annexed as Annexures-G and H to the counter affidavit, the writ petitioner will be said to have taken birth in between the year 1978-79, therefore, his date of birth is prior to marriage of his father with Jugli Devi, who had solemnized second marriage with Yognath Yadav on 05.03.1984.

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In view of such unimpeachable documents, this Court is not hesitant in coming to conclusion that the writ petitioner has taken birth prior to solemnization of marriage of his father with Jugli Devi and hence, he cannot be said to have taken birth from the wedlock of Yognath Yadav and Jugli Devi.

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It is also evident from the materials available on record, annexed to the counter affidavit that Jugli Devi had finally nominated her daughter namely Sunita Devi in Form-F for receiving the amount of Gratuity as per the provision of Payment of Gratuity Act, 1972 and, therefore, after the death of Jugli Devi the only surviving dependent was her daughter namely Sunita Kumari.

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It is further evident from Annexure-J, which is an application made by Sunita Kumari, daughter of Jugli Devi on 06.11.2012 i.e. prior to application of the writ petitioner, for getting appointment on compassionate ground, wherein she has claimed for disbursement of death-cum-retiral dues of her

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deceased mother as also for consideration of her appointment on compassionate ground.

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This Court, on the basis of the aforesaid documents, has come to the conclusive finding that the writ petitioner has not approached to this Court with clean hand rather, by suppressing the factual aspects, the writ petition has been filed making a simple case of appointment on compassionate ground by questioning the impugned order dated 16.01.2015 knowing fully well that there is sole dependent of late Jugli Devi, namely, Sunita Kumari, her daughter and, with the ulterior motive, she has not been impleaded as respondent.

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Further, the writ petitioner has annexed the document of birth certificate showing his date of birth as 10.02.1989. If the aforesaid birth certificate is compared with the document annexed as Annexure-G and H, it would be evident that the writ petitioner, in order to mislead this Court, has subsequently somehow procured a false birth certificate issued on 30.12.2002 showing his date of birth as 10.02.1989 whereas the documents, as contained in Annexure-G and H, the age of the writ petitioner in the LTC Form, has been shown as four years while in the Gratuity Nomination Form of Yognath Yadav as eight years, therefore, his date of birth cannot be said to be 10.02.1989 taking into consideration the fact that if the writ petitioner was having the age of four years as on 30.12.1983, his date of birth would be sometime in the year 1979 and further, his age has been shown to be eight years in the nomination form which was under thumb impression of Yognath Yadav on 21.06.1986. Therefore, his date of birth has to be assessed sometime in the year 1978. Thus, writ petitioner cannot be said to have taken birth in the year 1989 from the wedlock of Yognath Yadav and Jugli Devi,

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since Yognath Yadav, the father of the writ petitioner had solemnized second marriage with Jugli Devi on 05.03.1984.

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In view of the aforesaid aspects of the matter, the writ petitioner has not approached the writ Court as also this Court with clean hands. It is settled position of law that a litigant, if approaches the court of equity, it is incumbent upon such litigant to approach it with clean hands. In case of suppression of facts or misrepresentation of facts, no relief is to be granted. As discussed above, we have already held that the writ petitioner has approached this Court not only by suppressing facts but even has procured fabricated documents, as such the writ petitioner does not deserve any relief.

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Further, the writ petitioner has tried to make out a case changing the entire pleading which was not made before the writ Court. It is settled position of law that the appeal, since is the continuation of the original proceeding, the change in the entire factual aspect is not fit to be entertained. 14. We, therefore, are of the view that in these circumstances, if the authorities have taken decision by taking into consideration the entire documents holding the writ petitioner as step son of Jugli Devi and finding him not fit for consideration of his claim under the provision of Para- 9.3.2 of the N.C.W.A, the same cannot be said to be unjustified, as the writ petitioner, being the step son of the deceased employee will not come under the definition of dependents of the deceased employee as provided under the provision of Para-9.3.2 of the N.C.W.A.

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We, therefore, are of the considered opinion that the decision of learned Single Judge not to interfere with the impugned order on the ground of serious question of disputed facts, does not suffer from any infirmity.

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In the result, this appeal fails and is, accordingly, dismissed.

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(Dr. Ravi Ranjan, C.J.)

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(Sujit Narayan Prasad, J.)

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Saket/-

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N.A.F.R.

Nemchand Yadav v. Central Coal Fields Limited through Its Chairman Cum Managing Director

Case brief

What is this about?

What did the court decide?

Nemchand Yadav v. Central Coal Fields Limited through Its Chairman Cum Managing Director

Case brief

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What did the court decide?

What the court decided

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