Quashed

Dhaneshwari Devi v. Central Coalfields Ltd. through Its Chairman Cum Managing Director

Jharkhand HC7 Jun 2022WPC/1660/2020

Case brief

AI extract

What is this about?

The Jharkhand High Court quashed the order rejecting a compassionate appointment claim for a married daughter. The court held that excluding married daughters violates Articles 14 and 15 of the Constitution. The respondent was directed to reconsider the claim within four weeks, assessing dependency and financial means irrespective of marital status.

What did the court decide?

Quashed impugned order rejecting compassionate appointment; directed respondent to afford a fresh hearing and decide within four weeks assessing dependency irrespective of marital status.

Dhaneshwari Devi Vs Central Coalfields… — Pension and Retirement Benefits | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W. P. (S) No. 1660 of 2020

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Dhaneshwari Devi, aged about 55 years, W/o of Late Bisheshwar Saw.

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Arti Kumari, aged about 26 years, Daughter of Late Bisheswar Saw Both are residents of At – Moyal Bazar, P.O. – Chittarpur, P.S. – Rajrappa, District – Ramgarh. … … Petitioners

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Versus

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Central Coalfields Ltd. through its Chairman-cum-Managing Director, having its office at Darbhanga House, Ranchi, P.O. – G.P.O., P.S. – Kotwali, District –Ranchi.

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Director (Personnel), Central Coalfields Ltd. having its office at Darbhanga House, Ranchi, P.O. – G.P.O., P.S. – Kotwali, District – Ranchi.

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General Manager (MP & IR), Central Coalfields Ltd. having its office at Darbhanga House, Ranchi, P.O. – G.P.O., P.S.-Kotwali, District –Ranchi.

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General Manager, Rajrappa Area, Central Coalfields Ltd., having its office at Rajrappa, P.O. – Rajrappa, P.S. – Rajrappa Project, District – Ramgarh.

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Staff Officer (Personnel), Rajrappa Area, Central Coalfields Ltd., having its office at Rajrappa, P.O. – Rajrappa, P.S. – Rajrappa Project, District – Ramgarh.

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Project Officer, Rajrappa Project, Central Coalfields Ltd., P.O. – Rajrappa, P.S. – Rajrappa Project, District – Ramgarh.

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Deputy Manager (P & A), Rajrappa Project, Central Coalfields Ltd., P.O. – Rajrappa, P.S. – Rajrappa Project, District – Ramgarh. … … Respondents

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CORAM: HON’BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY ---

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08/07.06.2022

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1. Heard Mr. Uday Prakash, learned counsel appearing on behalf of the petitioners.

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2. Heard Ms. Kalpana Verma, learned counsel appearing on behalf of the respondents.

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3. This writ petition has been filed for the following reliefs: -

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“(a) For issuance of a writ(s)/order(s)/direction(s) particularly a writ in the nature of certiorari for quashing and setting aside the order dated 12.03.20220 (Annexure9/ii), whereby and whereunder, claim of compassionate appointment in respect of Petitioner No. 2 under the Provision 9.3.0 of National Coal Wage Agreement

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(hereinafter referred to as the ‘NCWA’) has been rejected on the ground that she is married daughter.

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AND

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(b) For issuance of a further appropriate writ(s)/order(s)/direction(s) particularly a writ in the nature of mandamus commanding upon the respondents to consider and provide employment to the Petitioner No. 2 under the Provision 9.3.0 of the NCWA.

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AND/OR

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(C) For the issuance of such other writ, order or direction as may appear just and proper in the facts and circumstances of the case for doing conscionable justice to the petitioners.”

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Arguments of the Petitioners

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4. Learned counsel for the petitioners submits that the present writ petition has been jointly filed by the wife and daughter of the deceased employee. The learned counsel submits that the claim for compassionate appointment to the daughter of the deceased employee has been rejected vide Annexure 9(ii) at page 39 of the writ petition solely on the ground that there is no provision for extension of compassionate appointment to a married daughter. The learned counsel submits that the deceased employee of the respondent-CCL had five married daughters and no son.

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5. The learned counsel submits that the provision of National Coal Wage Agreement (hereinafter referred to as the ‘NCWA’) was subject matter of consideration by the Hon’ble Chattisgarh High Court in W.P. (S) No. 4994/2015 and the specific point for consideration was whether exclusion of married daughter of the deceased employee for being considered for dependent employment under the terms of National Coal Wage Agreement-VI read with National Coal Wage Agreement-IX was just, fair and reasonable. He submits that this issue has been decided by the Hon’ble Chattisgarh High Court in the aforesaid writ petition and the findings have been recorded in paragraph-29 of the said judgment, whereby the writ petition has been allowed and clause 9.3.3 of NCWA-VI, which was made applicable to clause 9.4.0 (I) of NCWA-IX, has been held to be violative and discriminatory and the said clause to the extent it impliedly excluded

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married daughter from consideration of dependent employment has been declared to be void and inoperative. The learned counsel submits that the judgment passed by the Hon’ble Chattisgarh High Court has been upheld by the Hon’ble Supreme Court, in as much as, the Special Leave Petition against the same has been dismissed.

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6. The learned counsel has also submitted that the issue of discrimination on the basis of gender in the matter of compassionate appointment has been subject matter of consideration before this Court in L.P.A. No. 617/2017 (Madhubala Sinha vs. Central Coalfields Limited & Others) with other analogous cases with regard to sister and mother of deceased employee and this Court followed the judgment passed by the Full Bench of Hon’ble Calcutta High Court in the case of Purnima Das and recorded that in view of the law laid down by the Full Bench of Calcutta High Court, in Purnima Das’s case (supra), while giving interpretation to the term dependent in terms of NCWA itself, that for the purpose of a scheme for compassionate appointment every such member of the family of the employee who is dependent on the earnings of such employee for his/her survival must be considered to belong to ‘a class' and their exclusion cannot be only on the ground of gender or marital status. It was also observed that the judgement in the case of Purnima Das has been followed by this court in the case of Hemanti Devi by the respondents themselves.

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7. The learned counsel has also referred to the judgment passed by this Court in L.P.A. No. 196/2017 (Central Coalfields Limited and others versus Hemanti Devi and others) dated 16.08.2018, whereby the appeal filed by the Central Coalfields Limited was dismissed. The learned counsel submits that the matter of grant of compassionate appointment to a married daughter directly fell for consideration in the said case and this Court held that the discrimination on the basis of marital status is not based on any reasonable and rational criteria and accordingly, read down the expression “unmarried” qualifying the expression daughter as a non-essential component of clause 9.3.0

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NCWA-VI and passed appropriate direction for consideration of the case for compassionate appointment of the married daughter.

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8. The learned counsel has also referred to another judgment passed by this Court in W.P. (S) No. 2174/2018, wherein the issue involved was as to whether a female dependent could be kept in live roster of the company. The said issue has also been decided in favour of the petitioner-Mina Devi on the ground that no discrimination can be made on the point of gender of the dependent. In the aforesaid writ petition being W.P. (S) No. 2174/2018, the decision refusing to grant compassionate appointment to a married daughter has been quashed with a direction to the respondents for a fresh consideration.

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9. The learned counsel submits that the case of the present petitioner No. 2 having been rejected solely on the ground of her marital status, the same cannot be sustained in the eyes of law in view of the aforesaid judicial pronouncements.

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Arguments of the Respondents.

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10. Learned counsel appearing on behalf of the respondents, on the other hand, while opposing the prayer does not dispute the fact that the issue involved and argued by the learned counsel for the petitioners is covered by the aforesaid judgments. But, the learned counsel submits that appropriate amendment in National Coal Wage Agreement has not yet been done and therefore, the petitioners are not entitled to the relief as prayed for by them.

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Findings of this Court

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11. The only ground to reject the claim of compassionate appointment to the petitioner no. 2 is that it cannot be extended to married daughter as per clause 9.3.0 of National Coal Wage Agreement.

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12. The relevant Clause 9.3.0 of the National Coal Wages Agreement-VI deals with employment of dependents on account of death in harness category. This provision stipulates:

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“9.3.0 Provision of Employment to Dependants.

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9.3.1 Employment would be provided to one dependant of workers who are disabled permanently and also those who die while in service. The provision will be implemented as follows.

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9.3.2 Employment to one dependant of the worker who dies while in service

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In so far as female dependants are concerned, their employment/payment of monetary compensation would be governed para 9.5.0

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9.3.3 the dependant for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment, brother, widowed daughter/widowed daughter-inlaw or son-in-law residing with the deceased and almost wholly dependant on the earnings of the deceased may be considered to be the dependant of the deceased.”

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13. The said Clause 9.3.0 of the National Coal Wages AgreementVI was subject matter of consideration before Hon’ble Chattisgarh High Court in W.P. (S) No. 4994/2015 decided vide judgment dated 15.03.2016.

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The question of law for consideration was whether exclusion of married daughter for being considered for dependent employment under the terms of National Coal Wages Agreement is just, fair and reasonable?

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It has been held in the aforesaid judgement at para 28 as follows: -

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“ (28) Thus, from the aforesaid cases it is quite vivid that marriage is a social circumstance and basic civil right of man and woman, and marriage by itself is not a disqualification. Thus, denial of dependent employment to married daughter of SECL employee is gender biased, unreasonable and violative of Articles 14 and 15 of the Constitution of India and it is clearly impermissible in law, as such, a clause in the National Coal Wage Agreement excluding consideration of married daughter for dependent employment, which has the force of law, is unjust, unfair and opposed of law.”

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Vide para 29 of the judgement, the writ petition has been allowed and consequently clause 9.3.3 of NCWA-VI, which has been made applicable to clause 9.4.0(I) of NCWA-IX, has been held to be violative and discriminatory and the said clause has been declared void and inoperative to the extent of impliedly excluding married daughter from consideration for dependent employment.

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14. In the judgement passed by this court in L.P.A. No. 196 of 2017 (Central Coalfielss Limited vs. Hemanti Devi & Others) , the writ petitioner’s plea for compassionate appointment was turned down by the appellant- Central Coalfields Limited on the ground that the writ petitioner was married and hence was dependent on her husband. In the said case also, the provision of clause 9.3.0 of the National Coal Wages Agreement-VI has been considered in details and the aforesaid judgement passed by Hon’ble High Court of Chhattisgarh, Bilaspur in W.P. (S) No. 4994 of 2015 has also been considered wherein the said clause 9.3.3 has been quashed to the extent the same excludes from the benefits the claim of a married daughter. This Court also considered the Judgment dated 13^th September, 2017 passed by Hon’ble Calcutta High Court in the case of State of West Bengal Vs. Purnima Das and Ors (F.M.A. 1277 of 2016) and observed that a similar provision contained in West Bengal Scheme for Compassionate Appointment 2013 was examined and the Full Bench opined that exclusion of daughter solely on the basis of her marital status would not be reasonable. This court ultimately held and directed as follows: -

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“In this background, in our opinion, the clause 9.3.3 has to be construed to include married dependent daughter also. We are conscious of the fact that before us, vires of the aforesaid clause of the NCWA has not been challenged and what we are dealing with in this appeal is a industry-wide agreement and not a direct statutory provision. But the employer in this appeal is a public sector unit coming within the ambit of “State” under Article 12 of the Constitution of India. Thus, since the agreement directly deals with matters of employment, the said provision has to meet the tests of Articles 14 and 16 of the Constitution of India. The manner in which the appellant wants the aforesaid provision to be interpreted would render it invalid as there can be no justification for not qualifying the son’s eligibility on the basis of marital status whereas a daughter has been placed under restriction on that count. Such discrimination is not based on reasonable or rational criteria. We have to read down the expression “unmarried” qualifying the expression daughter as a non-essential component of the aforesaid clause and this interpretation would otherwise save the said provision.”

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This court held and directed as under: -

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“ We accordingly sustain the decision which is appealed against. We, however, make it clear that the authority, taking decision on the basis of the direction of the learned First Court, should ascertain, upon giving the writ petitioner an opportunity of hearing, that the petitioner was dependent on her mother’s income at the time of her mother’s death and at present does not have sufficient means to run her household irrespective of the fact as to whether she was married or not. The appeal stands disposed of in the above terms. The exercise shall be completed within a period of eight weeks from the date of communication of this order.”

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15. In another judgement passed by this court being L.P.A. No. 617 of 2017 with L.P.A. No. 475 of 2017 , the point for consideration was as follows: -

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Whether sister and the mother of the deceased workman of CCL, who were admittedly not included as dependents under Clause 9.3.3 of the National Coal Wage Agreement (Hereinafter referred to as ‘NCWA’), could be appointed on compassionate ground, in absence of there being any other dependent under Clause 9.3.3 of the NCWA, and whether their non-inclusion in the list of dependents in the NCWA is unjust and uncalled for.

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This court ultimately held as under: -

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“24. So far as the sister is concerned, we find from a plain reading of Clause 9.3.3 of NCWA quoted above that the brother of the deceased workman dying unmarried, if fully dependent upon him, is also entitled to be considered for appointment on compassionate ground. In that view of the matter, there is no reason as to why, sister, whether married or unmarried, should be deprived of such benefit. If a sister is denied the benefit of compassionate appointment only on the ground that she is not included as dependent under Clause 9.3.3 of NCWA, this is a clear case of gender bias and the same cannot be sustained in the eyes of law, also on the touchstone of Articles 14 and 15 of the Constitution of India.

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26. Even otherwise, in view of the law laid down by the Full Bench of Calcutta High Court, in Purnima Das’s case (supra) , while giving interpretation to the term dependent in terms of the NCWA itself, that for the purpose of a scheme for compassionate appointment every such member of the family of the employee who is dependent on the earnings of such

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employee for his/her survival must be considered to belong to ‘a class’ and their exclusion cannot be only on the ground of gender or marital status, we are of the considered view that this decision has a binding effect on the respondents, as this decision was rendered in case of compassionate appointment in coal company itself, which was again governed by the NCWA itself. This decision was again followed by a co-ordinate Bench of this High Court also, in case of present respondents themselves, i.e., Central Coalfields Ltd., in Hemanti Devi’s case (supra) .

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27. For the forgoing reasons, the respondent Central Coalfields Ltd., is directed not only to consider the claims of the appellants for being appointed on compassionate ground in accordance with law, but also to take steps for inclusion of the parents and sister of the workman dying in harness, in the definition of dependents under Clause 9.3.3 of the NCWA. We would like to make it clear that consideration of the appellants for appointment on the compassionate ground, shall be subject to fulfillment of the other conditions necessary for such appointment, by the appellants.” (emphasis supplied)

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16. The aforesaid judgments have also been considered and followed by this Court in W.P. (S) No. 2147 of 2018 (Mina Devi & Anr. Vs. M/s Central Coalfields Ltd. & Others) decided on 20.08.2020.

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17. By considering the ratio of the aforesaid judgments which has been relied upon by the petitioners, this Court is of the considered view that the impugned order dated 12.03.2020 (Annexure- 9/ii), rejecting the claim of compassionate appointment of the petitioner No.-2, solely on account of her being a married daughter, cannot be sustained in the eyes of law and accordingly, the same is hereby quashed and set-aside. The arguments of the learned counsel for the respondents, that appropriate amendment in National Coal Wage Agreement has not yet been done, does not help the respondents in any manner whatsoever as the same cannot be a ground to deny compassionate appointment to a married daughter in view of aforesaid judicial pronouncements.

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18. The respondent No.-2 is directed to take a fresh decision in accordance with law by a speaking order within a period of 4 weeks from the date of receipt of a copy of this order along with a detailed

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representation and also a copy of the writ records. The representation should be filed by the petitioners within a period of two months from today. The reasoned order be communicated to the petitioners by speed post at the address to be provided by them in the representation itself. It is made clear that the authority taking the decision should ascertain, upon giving the writ petitioners an opportunity of being heard, that petitioner No.-2 was dependent on her father’s income at the time of his death and at present the petitioner no.2 does not have sufficient means to run her household irrespective of the fact that as to whether she is married or not.

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19. This writ petition is accordingly disposed of.

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20. Pending interlocutory application, if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Mukul

Dhaneshwari Devi v. Central Coalfields Ltd. through Its Chairman Cum Managing Director

Case brief

What is this about?

What did the court decide?

Dhaneshwari Devi v. Central Coalfields Ltd. through Its Chairman Cum Managing Director

Case brief

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