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Judgments of Supreme Court of India and High Courts

Eastern Coalfields Limited vs Kumari Kiran Singh & Ors on 14 December, 2018

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IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
(Original Side)

Present:

The Hon’ble Chief Justice Debasish Kar Gupta
And
The Hon’ble Justice Shampa Sarkar

A.P.O. 505 of 2017
G.A. 2449 of 2017
With
W.P. 556 of 2014
Eastern Coalfields Limited
-Vs-
Kumari Kiran Singh Ors.

For Appellants : Mr. Malay Kr. Basu
Senior Advocate
Mr. R.N. Majumdar
Mr. Nikhil Roy
For Respondent : Mr. U.S. Agarwal

A.P.O. 344 of 2017
G.A. 2093 of 2017
With
W.P. 554 of 2014
Eastern Coalfields Limited

-Vs-

Bhuban Mejhain

For Appellants : Mr. Malay Kr. Basu
Senior Advocate
Mr. Alok Kr. Banerjee
Ms. Sanchita Barman Roy

For Respondent : Mr. U.S. Agarwal

A.P.O. 182 of 2018
G.A. 1812 of 2017
W.P. 232 of 2015
Eastern Coalfields Limited
-Vs-
Oindrila Barman Others
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For Appellants : Mr. Anubhav Sinha

Ms. Sanchita Barman Roy

For Respondents : Mr. Partha Ghosh
Mr. Subhojit Seal

Heard on : 05/07/2018, 13/09/2018, 20/09/2018, 27/09/2018, 04/10/2018

Judgment on : 14/12/2018

Shampa Sarkar, J. :

These three intra-court appeals involve similar questions. The appellant in

all these appeals is the Eastern Coalfields Limited (hereinafter referred to as ECL).

This Court has decided to hear these appeals analogously with the consent of the

parties.

2. APO No.505 of 2017 arises out of W.P.No.556 of 2014 (hereinafter

referred to as the writ petition no.1).

3. APO No. 3444 of 2017 arises out of W.P. No.554 of 2014 (hereinafter

referred to as the writ petition no.2).

4. APO No.182 of 2018 arises out of W.P. No.232 of 2015 (hereinafter

referred to as the writ petition no.3).

5. The writ petition no.1 was filed by the respondent/writ petitioner, Kumari

Kiran Singh, for setting aside the order passed by the General Manager (P IR)

Eastern Coalfields Limited dated 28/29 November, 2013, by which her prayer for

appointment under the appellant on compassionate grounds was rejected. A

further prayer for employment in place of her father, late Dilip Kumar Singh, an

ex-employee of the appellant who had died-in-harness was also made. The father

of Kumari Kiran Singh died-in-harness on January 26, 2004. At the time of death
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of her father, she was 17 years 8 months and 6 days old. Upon attaining the age

of 18 years, she applied for compassionate appointment. On May 12, 2005, the

General Manager, Sodepur area sent her documents to the Chairman-cum-

Managing Director, Eastern Coalfields Limited, Headquarters who was the

competent authority. The competent authority failed to take any action, even

pursuant to two representations dated December 16, 2005 and July 6, 2006.

Finally in 2011, she filed W.P. No.634 of 2011, being aggrieved by the inaction on

the part of the appellant. The said writ petition was disposed of by a learned

Single Judge of this court on August 12, 2013, with a direction upon the General

Manager (personnel) Eastern Coalfields Limited, to consider the case for

compassionate appointment of Kumari Kiran Singh in accordance with law upon

giving her a hearing and by passing a reasoned order. On October 28, 2013,

Kumari Kiran Singh appeared before the General Manager (P IR), Eastern

Coalfields Limited Head quarters. By an order dated November 28/29 of 2013, the

General Manager (P IR) Eastern Coalfields Limited rejected her prayer for

compassionate appointment by assigning the following reasons:-

“I have gone through the representation and argument of Kumari Kiran Singh
and found that:

a) Admittedly she was 17 years 8 months and 6 days old on the date of death of
her father.

b) The relevant portion of National Coal Wage Agreement (NCWA) applicable to
the case is reproduced below:

“9.5.0 (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 dependant of the concerned worker is 12 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 dependant is on live roster, the female
dependant will be paid monetary compensation as per rates at paras (i) (ii)
above. This will be effective form 1.1.2000”.

From the above it is evidently clear that there is a provision of keeping the
name of male dependant in the live roster till he attains eighteen years of age,
which is the minimum age for employment under Mines Act, 1952. But the
same is not applied to the female dependant.

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The Petitioner Kumari Kiran Singh being the female dependant is not entitled
for the same consideration.

c) The NCWA-III is a bipartite agreement between the five federations of trade
unions representing the workmen of Coal Industry and the Management of
Coal India, Singareni Collieries Co. Ltd. (SCCL).

The Subsidiary Companies of CIL such as ECL, has no authority to interpret
the provision of said agreement or rewriting in any manner, the contents of the
said agreement.”

6. Aggrieved by the aforesaid decision Kumari Kiran Singh filed writ petition

no.1.

7. The appellant filed an affidavit-in-opposition to the said writ petition and

contended that for the welfare of the employees of the Coal Industry a

memorandum of agreement dated December 11, 1974 was executed between the

management and representing workmen, whereby and whereunder the wage

structure and other conditions of service including fringe benefits under the

recommendation of Central Wage Board was made applicable. The workmen

category of all coal industries demanded review of the wage structure. The

Government of India considered and approved the proposal for setting up a joint

bipartite Wage Negotiation Committee for the Coal Industries. The committee in

which the trade unions were represented came to an agreement in respect of wage

scale, wage structure and other service conditions which subsequently came to be

known as The National Coal Wage Agreement (in short NCWA).

8. It was the specific case of the appellant before the learned Single Judge

that the age of the writ petitioner, Kiran Singh, as assessed by the Internal

Medical Examination Board was 17 years 8 months and 6 days on the date of

death of her father and as such she was not entitled to an appointment unlike a

male dependant as her name could not have been kept alive in the live roster as

per the provisions of Clause 9.5.0 of NCWA (VI). Such provision has been accepted

and adopted in all subsequent NCWAs.

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9. According to the appellant, the NCWA was a settlement within the

meaning of Section 2 (p) of the Industrial Dispute Act, 1947 (hereinafter referred

to as the said Act of 1947) and was binding on the employees as also on the

management and the settlement could be challenged either before the Labour

Court or the Industrial Tribunal.

10. The learned Single Judge upon hearing the writ petition, by judgment

and order dated February 24, 2017, allowed the writ petition and held as follows:-

“This Court, therefore, deprecates the manner in which the authority had
proceeded to decide the application in refusing to apply the ratio laid down in
Babunti Kumari’s case.

The order impugned is thus set aside and quashed.

Because of the observations of the said authority this Court feels that it
would be a futile exercise to remit the matter back to the same authority for fresh
consideration. The respondent no.4, who is the superior authority, is hereby
directed to consider the application of the petitioner afresh and shall dispose of
the same within eight weeks from the date of communication of this order in the
light of the observations made hereinabove as well as the other conditions
required under the said scheme.

The writ petition is thus disposed of.

There will be no order as to costs.”

11. Aggrieved by the aforementioned judgment and order APO No.505 of

2017 has been filed by Eastern Coalfields Limited.

12. Writ Petition No.2 was filed by the respondent/writ petitioner Bhuban

Mejhain for a direction upon the appellant (respondent therein) to set aside the

order passed by the Welfare Officer (T), Pandaveswar Colliery dated February

17/20, 2009 and for a further direction upon the appellant/respondent to provide

her with an appointment on compassionate ground in place of her father, late

Nitai Majhi who died-in-harness on January 2, 2001. Her mother made an

application for her appointment. By order dated February 17/20, 2009 the

competent authority rejected the prayer for compassionate appointment of the

petitioner on the ground that on the date of death of her father she was 17 years 5

months 18 days old and was not entitled to be appointed as a female dependant
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as per the provisions of NCWA. Aggrieved by the rejection, the petitioner filed the

writ petition. The appellant who was a respondent therein, filed an Affidavit-in-

Opposition and the contentions raised by the appellant in the said opposition

were similar to those raised by them in their Affidavit-in-Opposition filed to the

writ petition no.1.

13. The learned Single Judge upon hearing the contentions of the respective

parties remitted the matter back to the General Manager Pandaveswar area, by

setting aside the order of rejection dated February 17/20, 2009, with a direction

upon the said authority to consider the application for compassionate

appointment of Bhuban Mejhain afresh in the light of the observations made in

the judgment and order. The relevant portion of the judgment is set out here

under:-

“In the instant case, the application for compassionate appointment is rejected as
the female dependant is only entitled to monetary compensation and cannot
seek the appointment on compassionate ground under the said NCWA scheme. If
the male dependant was minor at the time of the death of the employee his name
is required to be kept in live roster. There is no justification in rejecting the
application that the female dependant was not major at the time of death.
Furthermore, the Clause 9.5.0 of NCWA has been held by the Court
unconstitutional and discriminatory and the female dependant was found to be
equally entitled to be considered for appointment on compassionate ground, this
court, therefore, feels both the grounds assigned by the authority cannot be
sustained. The order dated 20th February, 2009 is hereby set aside.
The matter is remitted back to the respondent no.6, being the appropriate
authority, to consider the application afresh in the light of the observation made
hereinabove and the other conditions envisaged under the said scheme and
shall see that the same is disposed of within six weeks from the date of
communication of this order.

There will be no order as to costs.”

14. Aggrieved by the aforesaid judgment and order APO No. 344 of 2017 has

been filed by ECL.

15. Writ petition no.3 was filed by Oindrila Barman for a declaration that

the discriminatory clause in 9.5.0 (iii) in the NCWA was ultra vires the

Constitution of India. A prayer was made for setting aside the decision dated
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January 3, 2015 taken by the CMS (I/C) Administration, CH Kalla, Eastern

Coalfields Limited and to provide her appointment as also monetary compensation

under the died-in-harness category in place of her mother.

16. The petitioner’s mother Dipti Barman died-in-harness on March 6, 2007

in a road accident and her father namely Indrajit Barman made an application

before the authorities on March 21, 2007 to keep the name of the petitioner in the

live roster and also for monetary compensation. That the petitioner through her

father on attaining the age of majority submitted her documents on December 4,

2009. There was a Pre-Employment Medical Examination and the petitioner was

asked to appear before the screening committee by a letter dated July 31, 2010.

The petitioner’s claim for compassionate appointment was rejected by an order

dated March 10, 2011 by the competent authority with the following observation:-

“The aforesaid case file was placed before the higher authority for decision as
the claimant was Minor on the date of death of the deceased employee.
Whereupon, after going through all the materials/documents on record the said
authority has shown his inability to consider the instant claim since Kumari
Oindrila Barman daughter of Lt. Dipti Barman (Roy), Ex. Dresser (F) was Minor
i.e below the age of 18 years as on date of death of her mother and therefore,
she is not eligible for employment as per relevant provision of NCWA”. The
petitioner was above 15 years at the time death of her mother”

17. The writ petitioner did not challenge the aforesaid order but made

another application on April 10, 2014 before the competent authority for

compassionate appointment and by an order dated July 3, 2014 her case was

once again rejected on the same ground. The petitioner was informed that her

claim had already been rejected by a letter dated March 10, 2011 which she had

duly received as per the records of the appellant. Aggrieved by the aforesaid

rejection as communicated by a letter dated July 3, 2014, the petitioner filed W.P.

No.726 of 2014. The said writ petition was disposed of by an order dated August

25, 2014 by a learned Single Judge of this court directing the authorities to
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reconsider the case of the petitioner in the light of the judgments of this court and

the Hon’ble Supreme Court on the self same issue. The case of writ petitioner was

once again considered and rejected by the appellants by an order dated January

3, 2015. The relevant portion of the order is set out herein below:-

“Restrictive provisions for employment of women on compassionate
ground which may be looked to be discriminatory on the face of it but in view of
restriction in deploying the women worker under the provisions of the Mines Act
as discussed hereinabove the management of coal companies and the
representative of the workmen through various federal unions have made
restrictive provision in NCWA with respect to the women in giving compassionate
appointment.

The above factors has limited the scope of employment of women in the Coal
Mining Industries and the Company is running with surplus female employees
and to get rid of such surplus female employees it has to bring Spl V.R Scheme.

The employment of Minor daughter under compassionate employment was also
not provided by the functioning Trade Unions and management in line with our
social customs in which the daughter after marriage goes to the father in law’s
house. Based on all such factors the discrimination provided in the agreement
seems not to be unreasonable and irrational. More over in this particular case the
petitioner who is admittedly not entitled for employment because of her under
age on the cut of date i.e. Date of Death of her mother was living along with her
father. Her father was economically sound and was not declared as a dependent
of her mother although living in the same family. Hence there is no economic
hardship to the lone daughter.

In view of the above facts and circumstances, since the Compassionate
employment is not a vested right, and since the father is economically sound, I
am inclined to hold that compassionate employment is a misplaced proposition
stemmed not out of need but out of greed. The Hon’ble Supreme Court has
already settled through its varied judgment the law that compassionate
employment is not a vested right and meant to provide the livelihood of the
family of the deceased ex-employee to cope up with sudden financial crisis due
to death of the soul bread earner of the family. It is also stated that mere death
of an employee in a government or public sector undertaking in harness does not
entitle the family to claim employment as it is not a vested right. The competent
authority has to examine the financial condition of the family of the deceased
employee and if it satisfied that without providing employment the family will not
be able to meet the financial crisis that a job is to be offered to the eligible
members of the family.”

18. Aggrieved by the order of rejection dated January 3, 2015 the petitioner

filed the writ petition No.3.

19. The appellant was the respondent in the writ petition and filed an

affidavit-in-opposition and relied upon Clause 9.5.0 of NCWA (VI) which has been
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accepted in the subsequent NCWAs, in order to justify the order of rejection of the

case of the petitioner for compassionate appointment. The appellant further

contended that as per Section 46 of the Mines Act, 1952 (hereinafter referred to as

the said Act of 1952), a women shall not be employed, in any part of a mine which

was below the ground. As 85% of the mines of the appellant were underground

mines there was very little opportunity to employ and engage women in the

remaining few open caste mines. This section was elaborately explained in the

opposition, which also provided that every woman should be engaged in a mine

only between 6 a.m. to 7 p.m. with interval of not less than 11 hours between

termination of employment on any one day and the announcement of next period

of employment. It was contended that as the scope of appointment of women in

coal mines, was limited the NCWA being a settlement under the Section 2 (p) of

the said Act of 1947, was binding on the parties.

20. The learned Judge upon hearing the parties was pleased to allow the

said writ petition and held as follows:-

“In my opinion, there is no whisper in the existing rules to what extent a
female would be excluded in consideration for employment. In fact, there is
nothing in the National Coal Wage Agreement which limits the employment of
females in the organization. The National Coal Wage Agreement only says that a
minor female dependant would not be placed in the live roster.

This issue about a minor female being excluded in the live roster has been
considered at the level of the Division Bench of this Court when a finding has
been entered that there was no justification for excluding females from the live
roster and that if a female crossed the age of 18 years, then normally she could
be appointed in the compassionate category, as noted earlier.

I feel myself bound by those judgments.

I am also of the opinion that the adjudicating authority ought to have
confined himself to the issue referred to him by the order of this Court dated 25th
August, 2014 instead of digressing to some other areas which were not in issue
before the Court when it passed the said order. If Mr. Majumdar has to succeed,
either the National Coal Wage Agreement has to be altered with retrospective
effect or the decision of our Division Bench overruled by the Supreme Court.

In those circumstances, the impugned decision dated 3rd January, 2015 is
set aside. The petitioner is now over 18 years of age. The respondent no. 3 is
directed to appoint the petitioner in any suitable post within three months of
communication of this order without insisting on following a list of such
candidates serially.”

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21. Aggrieved by the above judgment and order APO 182 of 2018 has been

filed by ECL.

22. Mr. Malay Kumar Basu, learned Senior Advocate appeared on behalf of

the appellant ECL in the first two appeals and submitted that once the parties

bound themselves by an agreement (NCWA), they would not be entitled to

question the validity of the clauses, save and except under section 36A of the said

Act. According to him, the settlement was binding and the appropriate forum to

decide any issue regarding the same would either be the Labour Court or the

Appropriate Government. He further contended that both the writ petitions should

have been dismissed in the absence of any challenge to the vires of clause 9.5.0 of

the NCWA.

23. Justifying the clauses of the agreement, Mr. Basu contended, that it

was difficult for a lady to work in a colliery and the parties to the agreement,

consciously did not include minor female dependants of ex-employees who died-

in-harness in the live roster unlike minor male dependants but, the female

dependants were entitled to appropriate monetary compensation.

24. Mr. Basu, relied upon a Full Bench decision of this court in Putul

Rabidas vs Eastern Coalfields Limited Others (In re: F.M.A No. 4401 of

2016) and contended that Their Lordships had held that as the NCWA was a

settlement under the said Act, arrived at between the parties after protracted

deliberation, the same was binding on the parties under Section 18 (3) of the said

Act of 1947. Mr. Basu referred to the decisions of the Apex Court in the matter of

Eastern Coalfields Limited Others vs Shanti Mudi and Others (In re: Special

Leave Petition No. C (s) 8320 of 2015) and in the matter of Eastern Coalfields
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Limited Others vs Santi Ruidas (In re: Special Leave to Appeal Civil No.(s)

16870 of 2010) and urged that the judgments relied upon by the writ

petitioners/respondents in support of their claim for compassionate appointment

and also relied upon by the respective learned Single Judges, were subject

matters of challenge in the Special Leave Petitions mentioned hereinabove and

those appeals were disposed of by the Hon’ble Supreme Court keeping the point of

law raised by the appellant open and therefore, the decisions of the learned Co-

ordinate Benches of this court in Eastern Coalfields Limited Others vs.

Shanti Mudi Others (In re: A.P.O No. 106 of 2014) and Santi Ruidas vs. Coal

India Limited Another, reported in (2010) 2 CAL/LT/703 (HC) were not

binding on us.

25. Per contra, Mr. U.S.Agarwal learned Advocate who appeared on behalf of

the respondents in the first two appeals relied upon the decisions of the learned

Co-ordinate Benches of this court mentioned hereinabove as also the decision of

the Hon’ble Supreme Court in Eastern Coalfields Limited vs. Babunti Kumari

Ors. (In re: Special leave to Appeal (Civil) No. (s) 16475 of 2013) by which the

Special Leave Petition was dismissed. According to him, the writ petitioners were

entitled to have similar benefits as male dependants of an employee who had died-

in-harness as decided by other learned Division Benches of this court.

26. Mr. Anubhav Sinha, learned Advocate appeared on behalf of the

appellant in the third appeal. While adopting the contentions of Mr. Basu, he

urged that the reason for excluding minor female dependants from the live roster

was in furtherance of the mandate of Section 46 of The Mines Act. He submitted

that NCWA was a bipartite agreement arrived at after prolonged discussion and

deliberation and its clauses could not be challenged by way of a writ petition. He
12

relied upon the observations of the larger bench in Putul Rabidas (supra) in

support of such submission. Reliance was also placed in the matter of Kisto Dasi

vs. Coal India Limited, reported in (2006) 2 CAL LJ 15, Eastern Coalfields

Limited vs. Smt. Kisto Dasi and Another (In re: A.P.O 97 of 2006), Eastern

Coalfields Limited vs Dilip Singh Others, reported in (2013) SCC Online Cal

4285, State Bank of India Another vs. Raj Kumar, reported in (2010)11 SCC

661, Jadavpur University Another vs. Jolly Dey Bose Others, reported in

(2015) SCC Online Cal 2097, Maino Mejhian vs. Eastern Coalfields Limited

Others, reported in (2015) 1 CAL LT 160 (HC) and Smt. Papiya Banerjee vs.

The State of West Bengal Others, reported in (2015) SCC Online Cal 1682.

27. Mr. Partha Ghosh, learned Advocate appeared for the writ

petitioner/Respondent and relied on the decisions of the various Learned Co-

ordinate Benches of this court by which it had already been decided that Clause

9.5.0 (iii) of the NCWA was arbitrary and violative of Article 14 and 16 of The

Constitution of India. Mr. Ghose relied upon the decision of the Apex Court in

Chennai Port Trust vs. The Chennai Port Trust Industrial employees Canteen

Workers Welfare Association Others, reported in 2018 (4) Supreme 487. He

further submitted that as similar reliefs had been granted by this court to other

female dependants of deceased employees, the petitioner being similarly placed

should be granted the same relief. His next contention was that by an earlier

order dated August 25, 2014 in W.P NO.726 a learned Single Judge of this court

had directed the competent authority of the appellants to consider the case of the

writ petitioner, Oindrila Barman, in terms of the orders of the Hon’ble Supreme

Court and the learned Division Benches of this court thereby, declaring the right

of the petitioner to get the same relief as Santi Ruidas (supra) , Shanti Mudi
13

(supra) and Babunti Kumari (supra) and, the appellant not having challenged

the said judgment, could not turn around and maintain the instant appeal. Mr.

Ghosh further submitted that the appellant had called Oindrila Barman for

medical examination and had recommended her case initially which displayed an

intention on the part of the authority to appoint her on compassionate ground

but, thereafter the authorities rejected her application on the basis of Clause 9.5.0

(iii) of the NCWA.

28. Mr. Sinha refuted such contention of Mr. Ghosh by submitting that as a

matter of course, as soon as applications were made by dependants of deceased

employees, their papers were processed and medical examinations were

conducted but, such actions on the part of the employer did not amount to any

indication that candidates were fit for appointment on compassionate grounds.

According to him, in all cases of like nature medical examinations were made as a

routine activity and the papers were sent to the competent authority. It was the

competent authority who was to ultimately decide the eligibility of the candidates

on the basis of the NCWA which contained the scheme for compassionate

appointment.

29. Having heard the arguments advanced by the respective parties at

length we now proceed to deal with the issues one after the other.

30. The first issue to be decided is whether this bench sitting in coordinate

jurisdiction can hear these appeals. Having gone through the judgments of the

Hon’ble Supreme Court in both Santi Ruidas (supra) and Shanti Mudi (supra),

we find that although, the special leave petitions were disposed of, the question of

law in both the cases had been kept open. In Babunti Kumari, the special leave

petition was dismissed without going into merits. Moreover, Babunti Kumari
14

(supra) was decided on the basis of the decision in Santi Ruidas (supra). The

Hon’ble Supreme Court in the matter of Santi Ruidas (supra), has kept the point

of law open and as such there is no bar in considering these appeals, there being

no finality to the judgments of the learned Division Benches of this court.

31. Now, we proceed to deal with the nature of the NCWA. The NCWA is a

negotiated agreement between the employees of a public employer and such

employer, arrived at after collective bargaining and prolonged deliberation. It is a

product of meeting of minds. It is not a product of a unilateral decision of the

employer. It has a statutory force and is binding on the parties. It must be

appreciated that the parties therein were equally represented from both

employer’s and employee’s side and had contemplated all situations, before

indentifying the classes of persons who ought to be kept in the live roster,

implying thereby that the class not included in the relevant clause of the NCWA

were consciously excluded. The NCWA was revised from time to time and fresh

agreements and settlements were arrived at with modifications of previous

settlements and introduction of additional benefits to the workers keeping pace

with changed situations but the relevant provision of 9.5.0 (iii) has never been

altered. The NCWA made provisions for compassionate appointment or in the

alternative, monetary payment of monthly compensation for the dependants of

employees of Coal Companies under Clauses 9.3.0, 9.4.0 and 9.5.0.

32. The participants in the bipartite agreement, leading to the NCWA-VI

were as follows:-

Name of the Organisation No. of Members

Representing Management

a) Coal India Limited and its Subsidiary Companies 12
b) Singareni Collieries Co. Ltd. 1
15

c) Tata Iron Steel Co. Ltd. 1
d) Indian Iron Steel Co. Ltd. 1

Representing Workmen

a) Indian National Trade Union Congress 6
b) All India Trade Union Congress 3
c) Hindu Mazdoor Sabha 3
d) Bhartiya Mazdoor Sangh 3
e) Centre of Indian Trade Unions 3

33. It is seen that not only Coal Companies which are State under

Article 12 of the Constitution of India, but private Coal Companies were also

parties to the agreement. It further appears that a charter of demand of the

aforementioned unions were integrated and after protracted negotiations a

memorandum of understanding was arrived at on December 13, 2000

covering all the demands of the unions. In terms of the said memorandum of

understanding the agreement called the National Coal Wage Agreement

was born.

34. The NCWA is a settlement under Section 2(p) of the said Act of

1947. Section 2 (p) states as follows:-

” ‘settlement’ means a settlement arrived at in the course of conciliation
proceeding and includes a written agreement between the employer and
workmen arrived at otherwise than in the course of conciliation proceeding
where such agreement has been signed by the parties thereto in such
manner as may be prescribed and a copy thereof has been sent to [an
officer authorized in this behalf by] the appropriate Government and the
conciliation officer;]”

The NCWA is binding under Section 18(3) of the said Act. Section 18(3)

states as follows:-

“18. Persons on whom settlements and awards are binding.-

1. *********

2. *********

(3) 4 ] A settlement arrived at in the course of conciliation proceedings
under this Act 5 or an arbitration award in a case where a notification has
16

been issued under sub- section (3A) of section 10A] or 6 an award 7 of a
Labour Court, Tribunal or National Tribunal] which has become
enforceable] shall be binding on–

(a) all parties to the industrial dispute;

(b) all other parties summoned to appear in the proceedings as parties to
the dispute, unless the Board, 5 arbitrator,] 8 Labour Court, Tribunal or
National Tribunal], as the case may be, records the opinion that they were
so summoned without proper cause;

(c) where a party referred to in clause (a) or clause (b) is an employer, his
heirs, successors or assigns in respect of the establishment to which the
dispute relates;

(d) where a party referred to in clause (a) or clause (b) is composed of
workmen, all persons who were employed in the establishment or part of
the establishment, as the case may be, to which the dispute relates on the
date of the dispute and all persons who subsequently become employed in
that establishment or part.”

35. Reliance is placed on the decision of the Learned Full Bench of this

court as to the binding nature of the NCWA. The relevant portions of the

decision in Putul Rabidas (supra) are quoted below:-

“25. We agree with the learned Judge to the extent that in a given
case a distinction may be made between cases where rules framed by the
employer are found to be discriminatory and those cases which considered
a clause in a settlement arrived at between the employees and the public
employer. That is precisely the reason why no departure from whatever is
provided in para 9.3.0 would be warranted. Without any addition or
subtraction, the various terms of the NCWA-VI have to be read and the
meaning of words used therein gathered from the context. Additionally,
since a settlement in view of Section 18 of the 1947 Act (which obviously
had duly been arrived at between the parties after protracted
deliberations) is binding on such parties, we any have to pin down all the
parties including ECL to the terms thereof.”

36. The Supreme Court while considering the provisions of the

aforesaid wage agreements in the case of Mohan Mahto v. M/s. Central

Coal Field Ltd Ors., reported in 2007 (6) Supreme 525 observed in the

first paragraph that workmen working in coal mines were, inter alia,

governed by a ‘Settlement’ known as National Coal Wage Agreement
17

(N.C.W.A.) V, which is indisputable a settlement in terms of sub-section (3) of

Section 18 of the Industrial Disputes Act.

37. In another decision M/S. Eastern Coalfields Ltd. Vs. Dewanti

Kumari Ors., reported in (2016) 3 WBLR (Cal) 464, it was held that it

was indisputable that the National Coal Wage Agreement was a bipartite

settlement between Coal India and its subsidiary companies and other

employers in the Coal Industry on the one hand and the workmen

represented by several trade unions on the other. That settlement had been

signed in conciliation and therefore was binding not only on those employees

who were in service on the date it was signed but on all future workmen as

well. In the same decision it was also held that the guidelines issued on

12th/19th December, 1994 did not have any force of law and was not binding

on the appellant.

38. Reference may also be made to the decision in Workmen of the

Motor Industries vs. Management of Motor Industries, reported in (1969)

2 SCC 13 in which the Hon’ble Supreme Court held that a settlement under

Section 2 (p) of the said Act of 1947, was binding on the workmen. In the

decision of Bibha Mondal vs. Union of India, reported in (2016) 1 WBLR

(CAL) 632, the issue was whether an unmarried sister of a coal miner who

died-in-harness could be given appointment on compassionate grounds

under NCWA (VI). It was held, that a distinction had to be made between the

manner of interpretation of a clause of an agreement that was born out of

negotiations between the representatives of employees and the employer and

a clause contained in a set of unilateral rules imposed and introduced by the

employer. Accordingly, the sister of an employee who died-in-harness was
18

denied any relief, as a sister did not come within the purview of Clause 9.3.3

as an indirect dependant although a brother was included therein.

39. The scheme governing the field of compassionate appointment for

female dependants of employees who died-in-harness under the appellant

have been incorporated in Clause 9.5.0 of the NCWA. The clause is quoted

below:-

“In so far as female dependants are concerned, their employment
would be governed by the provisions of Clause 9.5.0.

(iv) The dependants to be considered for employment should be
physically fit and suitable for employment and aged not more than 35
years provided that the age limit in case of employment of female spouse
would be 45 years as given in Clause 9.5.0. In so far as male spouse is
concerned, there would be no age limit regarding provision of employment.

9.5.0 Employment/Monetary compensation to female dependant.
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.
4000/- 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.3000/- per month or
employment.

In case the female dependant is above 45 years of age she will be
entitled only to monetary compensation and not to employment.

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 dependant of the concerned worker is 12 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 dependant is on
live roster, the female dependant will be paid monetary compensation as
per rates at paras (ii) (ii) above. This will be effective from 1.1.2000.

(iv) Monetary compensation, wherever applicable, would be paid till
the female dependant attains the age of 60 years.

(v) The existing rate of monetary compensation will continue. The
matter will be further discussed in the Standardisation Committee
finalized.”

19

40. Clause 9.5.0 (i), of the NCWA provides that in case of death due to

mine accidents, female dependants could claim either employment or

monthly monetary compensation per month irrespective of age. Clause 9.5.0

(ii) provides that in case of death or total permanent disablement occurring

for reasons other than accidents in mines the female dependant below the

age of 45 years could claim either employment or monetary compensation. If

a purposive construction is given to the said clauses it would be clear that

monetary compensation in either case would be given to female dependants

irrespective of their age which meant and included minor female dependants

as well.

41. The said provision had not been made applicable in case of male

dependants, and on the contrary when a male dependant of an employee

who died-in-harness was 12 years of age or above his name would be kept in

the live roster and he would be provided employment when he attained the

age of 18 years. During the period the name of the male dependant would be

in the live roster, the female dependant would be paid monetary

compensation. Clause 9.5.0 (IV) stipulates that monetary compensation,

wherever applicable would be paid to the female dependant up to the age of

60 years. While making provisions for female dependants, two situations

have been taken care of in the NCWA. A female dependant who had attained

majority could either opt for appointment or for monetary compensation. The

claim for monetary compensation could be made by a female dependant

irrespective of her age which, meant that the minor female dependants were

also entitled to monetary compensation under the NCWA and would

continue to get monetary compensation upto the age of 60 years.
20

42. In our opinion, the clauses were incorporated by a process of

deliberation and negotiation by and between the employer and the employee

keeping in mind the service conditions prevailing in the coal mines. Separate

provisions have been made for male dependants and for female dependants

as per the ground reality in coal mines. While there was an upper age limit

for appointment of female dependants, there was no such embargo in case of

male dependants. Although, a brother was treated as an indirect dependant

in the absence of a direct dependant, a sister was not treated as one.

43. In State of Chhattisgarh Ors. vs. Dhirjo Kumar Sengar,

reported in (2009) 13 SCC 600, it was held that appointment on

compassionate ground was an exception to the Constitutional Scheme of

equality under Article 14 and 16 in the Constitution of India. Compassionate

appointment was a special provision in the nature of a privilege given by an

employer to the dependant of an employee who either dies or was in-

capacitated, in order to allow the bereaved family means to tide over

immediate financial crisis. It is a deviation from the general method of

recruitment in public employment and is governed by a scheme.

44. The above provisions in the NCWA have been consciously arrived

at through a process of collective bargaining between the employer and

employees and cannot be tested on those parameters applicable to state

action in which, the employer imposes unilateral conditions by way of

Statutes, Rules, Regulations or Schemes. In those cases the employees do

not have any opportunity of putting forward their opinion and/or demands.

Hence, the ratio of the decisions in Air India vs Nergesh Meerza, reported

in 1982 SCR (1) 438 and Central Inland Water Transport Corp. Ltd. and
21

Anr. vs. Brojonath Ganguly and Anr., reported in (1986) 3 SCC 156 shall

not be applicable here.

45. In a decision of a learned Co-ordinate Bench of this Court in

Eastern Coalfields Limited vs. Dilip Singh Others, reported in (2013)

SCC Online CAL 4285, it has been held that it was not open for the court to

re-write the terms of the scheme for compassionate appointment (NCWA)

but, compassionate appointment being a privilege extended and an exception

to the general rule of recruitment and given in terms of a scheme should be

strictly construed, and such appointment was not a heritable right. The

relevant portion of the said judgment is quoted below:-

“In the decision reported in 2005 LAB I.C. 386 (Geetha Ramani v. The
District Educational Officer, Kancheepuram) the Madra High Court applied
the provisions of Section 16 of the Hindu Marriage Act, 1955 to a scheme
for compassionate appointment to hold that a son born out of second
marriage would entitled to employment. We are unable to agree with such
proposition. The scheme of compassionate appointment is neither property
of the deceased nor a heritable right. It cannot be equated with a right to
pension of the employee or his dependants upon his death. Hence, the
ratio of the Madras High Court does not appear to be based on sound logic.
Reliance on the Apex Court decision is also faulty as a judgement is an
authority for what it decides and not what logically follows therefrom.
On the other hand, the decision of the Allahabad High Court reported in
2004 (100) FLR 111 (Ramesh Chand v. Executive Engineer, Electricity
Distribution Division – II, U.P. Power Corporation Ltd., Allahabad) has
rightly interpreted the restricted import of the legal presumption in Section
16 of the Act and rejected its applicability to matters relating to
compassionate appointment.

Right to compassionate appointment is an exception to the general rule
of recruitment by public competition. Such privilege therefore is to be
strictly construed according to the terms and conditions of the scheme and
the same cannot be rewritten by the Courts. In Bhawani Prasad Sonkar v.
Union of India reported in (2011) 4 SCC 209 THE Apex Court, inter alia,
held as follows:

“Thus, while considering a claim for employment on compassionate
ground, the following factors have to be borne in mind:

(i) Compassionate employment cannot be made in the absence of rules or
regulations issued by the Government or a public authority. The request is
to be considered strictly in accordance with the governing scheme, and no
discretion as such is left with any authority to make compassionate
appointment dehors the scheme.”

22

46. In State Bank of India vs. Jaspal Kaur, reported in (2007) 9 SCC

571 it has been held that a public post was not heritable property. If that be

so, then the daughter’s claim as a class I heir like a son cannot be applied in

cases of compassionate appointment.

47. Reference is made to the decision of State Bank of India

Another vs. Raj Kumar, reported in (2010) 11 SCC 661 wherein it has

been held that the claim for compassionate appointment was traceable only

to the specific scheme framed by the employer and there was no right

outside such a scheme. In another judgment State of Haryana vs. Ankur

Gupta, reported in (2003) 7 SC 704 it has been held that the court could

not grant compassionate appointment de hors statutory policy.

48. It should be kept in mind that compassionate appointment is given

in order to mitigate the immediate financial hardship caused to the

distressed family after the sudden death of the sole bread earner. Reference

is made to the decision of the Hon’ble Supreme Court in Umesh Kumar

Nagpal vs. State of Haryana, reported in 1994 SCC (4) 138, JT 1994 (3)

525 wherein it was impressed that as a rule, appointments in public

services should be made strictly on the basis of open invitation of application

and on merit but appointment on compassionate ground was an exception to

the aforesaid rule, which has given after taking into consideration the fact of

the death of the employee while in service and leaving his family without any

means of livelihood. In such cases, the object was to enable the family to tide

over sudden crisis. However, such appointments on compassionate grounds

have to be made in accordance with the rules, regulations or administrative
23

instructions taking into consideration the financial condition of the family of

the deceased.

49. In Jagdish Prasad vs. The State of Bihar Anr., reported in JT

1995 (9) SC 131, also it was held that the very object of appointment of a

dependant of deceased employee who died-in-harness was to relieve

unexpected immediate hardship and distress caused to the family by sudden

demise of the earning member of the family and such appointment could not

be given where the death occurred way back even if the claimant of such

benefit was a minor at the time of death of deceased Government servant.

The relevant portion is quoted below:-

“1. **********

2. ***********

3. It is contended for the appellant that when his father died in harness,
the appellant was minor; the compassionate circumstances continue to
subsist even till date and that, therefore, the court is required to examine
whether the appointment should be made on compassionate grounds. We
are afraid, we cannot accede to the contention. The very object of
appointment of a dependant of the deceased employees who die in
harness is to relieve unexpected immediate hardship and distress caused
to the family by sudden demise of the earning member of the family. Since
the death occurred way back in 1971, in which year the appellant was
four years old, it cannot be said that he is entitled to be appointed after he
attained majority long thereafter. In other words, if that contention is
accepted, it amounts to another mode of recruitment of the dependant of a
deceased government servant which cannot be encouraged, de hors the
recruitment rules.”

50. In the case of Local Administration Department and Anr. Vs.

Selvanayagam @ Kumaravelu, reported in 2011 (2) CLJ (SC) 209 it has

been held that when a minor had applied after seven years and six months of

his father’s death, appointment could not be said to be sub-servient to the

basic object and purpose. The Apex Court had thus laid down:-

“9. In this case the Respondent was only 11 years old at the time of the
death of his father. The first application for his appointment was made on
24

July 2, 1993, even while he was a minor. Another application was made
on his behalf on attaining majority after 7 years and six months of his
father’s death. In such a case, the appointment cannot be said to sub-serve
the basis object and purpose of the scheme. It would rather appear that on
attaining majority he staked his claim on the basis that his father was an
employee of the Municipality and he had died while in service. In the facts
of the case, the municipal authorities were clearly right in holding that with
whatever difficulty, the family of Meenakshi Sundaram had been able to
tide over the first impact of his death. That being the position, the case of
the Respondent did not come under the scheme of compassionate
appointments.”

51. Reference is made to the decision of Mumtaz Yunus Mulani (Smt.)

vs State of Maharashtra Ors., reported in (2008) 11 SCC 384. In this

case the husband of the appellant died in 1996 and she made an application

for compassionate appointment in 1997. Another person was appointed in

that vacancy. No other post was available to accommodate the appellant.

Twelve years had passed since the death of appellant’s husband and in the

meantime her children had grown up and family pension was received. The

High Court had refused to grant relief to the appellant. The Hon’ble Supreme

Court upheld the decision of the High Court.

52. In all these appeals before us almost 14 years have lapsed since

the death of the deceased and the family had managed to tide over the

immediate financial crisis. The female dependants were entitled to monetary

compensation. Moreover, Oindrila Barman had her father to look after her.

In case of Bhuban Mejhain, her mother could have opted for compassionate

appointment at the time of death of her husband but instead, prayed for her

daughter’s appointment. These crucial aspects and settled legal propositions

as regards compassionate appointment have not been considered by the

learned Single Judges while disposing of the respective writ petitions.
25

53. We now propose to deal with the judgments of the Learned Co-

ordinate Benches of this Court which have decided this issue. In the matter

of Santi Ruidas (supra), Coal India Limited was directed to consider the case

of the female dependant for compassionate appointment without treating her

to be disqualified on the ground that she was a female dependant and

therefore, had not completed 18 years of age on the date of the death of her

father. Their Lordships relied on the decision of Smt. Kisto Dasi (supra) and

examined the National Coal Wage Agreement (NCWA-V) on the touchstone of

the provision of Article 14 of The Constitution of India read with Section 2 (d)

and 12 of the Protection of Human Rights Act, 1993 and the Convention for

the Elimination of All Forms of Discrimination Against Women, 1979 (in

short CEDAW). The decision of Kisto Dasi (supra) was on the point as to

whether the marital status of the female child would ipso facto be a

disqualification from getting appointment on compassionate ground. A

learned Judge struck down the prefix “unmarried” in the expression

“unmarried daughter” appearing in Clause 9.4.0 (III) to be arbitrary and

unconstitutional. The said judgment in Santi Ruidas (supra) was passed

without considering that in an appeal namely Eastern Coalfields Limited

vs. Kisto Dasi (In re: APO No. 97 of 2006) a Division Bench of this Court

had set aside the judgment of the learned Single Judge. The relevant portion

of the order of the Division Bench is quoted herein below:-

“3. We do not agree with the learned Judge who holds that the word
‘unmarried’ was invalid on account of its being ultra vires. It is a trite
law that the question of constitutionality of a term or of a provision
has to be considered only when it is imperative. In this case, it is not
necessary to decide that aspect at all since clearly the status of the
daughter of the writ petitioner was that of an “unmarried daughter”
on the day when the writ petitioner claimed employment for her.

26

‘4. Sri Dey, learned senior counsel appearing on behalf of ECL very
clearly says that in pursuance of the order passed, the employment
shall now be offered to the daughter of the writ petitioner. In fact, that
should be the end of the controversy. We have only clarified the legal
position that the term ‘unmarried’ preceding the word ‘daughter’ need
not be considered as constitutionally invalid. It remains to be valid as
such.

“5. With this we allow this appeal in part and dispose of the same in
the light of the observations made above.”

54. In Babunti Kumari (supra), Santi Ruidas (supra) and Shanti

Mudi (supra) the provisions of Clause 9.5.0 of the NCWA and the binding

effect of the NCWA under Section 18 of the said Act of 1947 were not

considered. Moreover, all these judgments were pronounced before the

decision of the Learned Full Bench in Putul Rabidas (supra). Most

importantly after the decision of the learned Full Bench of this Court in

Putul Rabidas(supra) the binding nature of Clause 9.5.0 (iii) is well settled.

55. We respectfully disagree with those decisions of this court. In view

of the decision of the learned Full Bench in Putul Rabidas (supra) those

decisions are impliedly overruled. For the above reasons, the decision in

Chennai Port Trust (supra) does not have any manner of application.

56. The learned Single Judge in writ petition no. 1 and 2 erred in

directing the appellants to re-consider the case of the writ petitioners in the

light of the decisions in Santi Ruidas(supra), Shanti Mudi (supra) and

Babunti Kumari(supra), de hors the NCWA without considering the question

of inordinate delay and the ability of the family to tide over immediate

financial hardship. In writ petition no.3, the learned Single Judge erred in

directing appointment relying on those decisions after a lapse of several

years. The orders impugned to these appeals are hereby quashed and set
27

aside. The respondents/writ petitioners are entitled to payment of monetary

compensation as per the provisions of the NCWA.

57. The three appeals are allowed without however any order as to

costs.

58. Urgent Photostat certified copy of this judgment, if applied for be

given to the parties on priority basis.

I agree,

(Debasish Kar Gupta, CJ.) (Shampa Sarkar, J.)

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