LPA No.617 of 2017
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
LPA No.617 of 2017
Madhubala Sinha …. Appellant
Versus
1. M/s. Central Coalfields Limited, Ranchi,
through its Chairman-cum-Managing Director.
2. Chairman-cum-Managing Director,
M/s. Central Coalfields Limited, Ranchi.
3. Director, Personnel,
M/s Central Coalfields Limited, Ranchi.
4. General Manager (Personnel Industrial relation)
Central Coalfields Limited, Ranchi.
5. General Manager, Kuju Area,
M/s. CCL, Kuju, Ramgarh.
6. Personnel Manager,
M/s. CCL, Kuju, Ramgarh.
7. Chief Manager (MM), Regional Store, Kuju Area,
M/s. CCL, Kuju, Ramgarh.
8. M/s. Coal India Limited, Kolkata,
represented through its Chairman.
9. Chairman, M/s. Coal Indian Limited, Kolkata.
10. Director (Personnel),
M/s. Coal India Limited, Kolkata. ….. Respondents
11. Seema Kumari ….. Proforma Respondent
With
LPA No.475 of 2017
Smt. Gendia Debi …. Appellant
Versus
1. The Central Coal Fields Limited,
Through its Chairman-cum-Managing Director, Ranchi.
2. The Chief Manager,
Central Coal Fields Limited, Ranchi.
3. The Manager, Personnel (NEE),
Central Coal Fields Ltd., Ranchi.
4. Coal India Limited, Ranchi.
5. Miss Sarita Kumari …. Respondents
————–
PRESENT
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE DEEPAK ROSHAN
————–
LPA No.617 of 2017
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-2-For the Appellants : Mrs. M.M. Paul, Sr. Advocate
Mr. Mahesh Tewari, Advocate
Mr. Abhishek Kr. Dubey, Advocate
For the Respondents CCL : Mr. Amit Kumar Das, Advocate
Miss Pooja Kumari, Advocate
Mrs. Swasi Shalini, Advocate
Mr. Aditya Jha, Advocate
For CIL : Mr. V.K. Dubey, Advocate
(Advocates in respective cases)
————–
C.A.V. on: 30.07.2019 Pronounced on: 16.09.2019
H.C. Mishra, A.C.J.:- The common question of law that is involved in both these
Letter Patent Appeals, is 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. As such, both the appeals have been heard together and are
being disposed of by this common Judgment.
2. Heard learned counsels for the appellants and learned counsel
for the respondents CCL in both these matters.
3. In both these matters, the Writ Court has denied the relief to the
appellants writ petitioners, stating that the mother and the sister did not fall
within the definition of the dependents under Clause 9.3.3 of the NCWA,
and were not entitled for compassionate appointment upon the death of the
deceased workman.
4. Facts in LPA No.617 of 2017 :- The appellant in this appeal is
the widow of late Anil Kumar, who had been working with the respondent
CCL, and died in harness, while on duty. Thereafter her son Kundan Prakash
was granted compassionate appointment in lieu of his deceased father, with
the undertaking that he shall take care of his mother, i.e., the appellant
herein, his inborn blind sister Pooja Kumari and also his unmarried sister at
that time, Seema Kumari, who is the Performa respondent in the present
appeal. Seema Kumari was subsequently married in the year 2014. The son
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of the appellant also met with an accident and died on 15.8.2015, while he
was aged only of 23 years, and was unmarried, leaving behind his mother,
who at that time was about 43 years of age, inborn blind and unmarried
sister and also one married sister, Seema Kumari. Thereafter, the appellant
applied for compassionate appointment in place of her deceased son under
the provisions of Clause 9.3.3 of NCWA, since she had no income for
survival of herself and her inborn blind daughter, and they were facing
financial hardships. Her prayer was rejected on the ground that under
Clause 9.3.3 of NCWA, the mother and sister do not come within the
definition of dependent. Against the said order, appellant preferred WP(S)
No. 3406 of 2016, in this Court and the Writ Court by the impugned
Judgment dated 14.07.2017, dismissed the writ application stating that the
mother does not fall within the definition of dependents. Aggrieved thereby,
the present LPA has been filed by the appellant, claiming appointment on
compassionate ground, being the mother of the deceased employee.
5. Facts in LPA No.475 of 2017 :- The appellant is the widow of
late Nun Chand Mahto, who was employed under the CCL as driver, and
after the death of Nun Chand Mahto in harness, his son Guruchand Mahto,
being the dependent, was provided compassionate appointment by the
respondent Company. Guruchand Mahto remained unmarried and he also
died in harness on 28.11.2011. His service book reveled that his mother,
i.e., the appellant herein, unmarried sister and his grandmother were
dependents upon him. After the death of her son, the appellant gave
application for the appointment of her unmarried daughter Sarita Kumari for
appointment on compassionate ground. Since the sister was not included in
the list of dependents for being appointed on compassionate ground in
Clause 9.3.3 of NCWA, her claim was rejected by the respondent
authorities. The appellant preferred WP(S) No. 6099 of 2012, in this Court,
which was dismissed by the Writ Court by the impugned Judgment
dated 17.07.2017, stating that since the sister was not included in the list of
dependents in Clause 9.3.3 of NCWA, her prayer was not tenable in the eyes
of law. Aggrieved thereby, the present LPA has been filed by the appellant,
claiming appointment on compassionate ground for her daughter, who is the
sister of the deceased employee.
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6. Learned counsels for the appellants in both these appeals have
submitted that the action of the respondent CCL in denying the
compassionate appointment to the mother and the unmarried sister of the
deceased employees, who also died unmarried, cannot be sustained in the
eyes of law. Learned counsels drew our attention towards Clause 9.3.3 of
NCWA, which defines the word ‘dependant’ for the purpose of employment
to be given in the event of the death of a worker while in service, which only
include the wife / husband, unmarried daughter, son and legally adopted son,
and if none of them are available for the employment, the brother, widowed
daughter / widowed daughter-in-law or son-in-law, residing with the
deceased and almost wholly dependent upon the earnings of the deceased,
may be considered to be the dependent of the deceased employee. It is
submitted by learned counsels that this list of dependents is absolutely unjust
and it wholly excludes the dependents of an unmarried worker, dying while
in service, except his brother. It is submitted by learned counsels that this
list is wholly unrealistic and it also suffers from gender bias, inasmuch as, if
the brother of the deceased employee comes within the zone of consideration
for employment on compassionate ground, there is no reason as to why, the
sister, whether married or unmarried, should be excluded from that zone, if
such sister is also fully dependent upon the deceased workman. It is also
submitted by learned counsels for the appellants that there is no reason as to
why in case of unmarried workman, who dies in harness, the father and
mother of the deceased, if they are otherwise fit to be employed, be not
given employment on compassionate ground, and even their exclusion from
list of the dependents is thus absolutely unjust, unrealistic and uncalled for,
particularly in view of the fact that the deceased workman was morally and
legally under obligation to maintain his parents, and there is no reason as to
why, after his death, if they are eligible to be employed, they be denied
appointment on compassionate ground. In support of their contentions,
learned counsels for the appellants have relied upon several precedents also,
as discussed herein after.
7. In Union of India Ors. Vs. E.S. Radha, in OP (CAT)
No. 214 of 2016 (Z), decided on 19.10.2016, by the Kerala High Court, the
appellant was the mother of the deceased, who was working as GDS Mail
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Deliverer who had died in harness on 9.7.2011, leaving behind his mother
and father as dependents. The mother gave application for her appointment
on compassionate ground, stating that her husband was not in a position to
do any physical labour, and she and her husband were dependents of the
deceased, but her claim was denied by the officials on the ground that the
term ‘dependent family member’, in the relevant scheme for compassionate
appointment, did not include the father and mother of the deceased
employee. The Central Administrative Tribunal held that the exclusion of
father and mother is highly unjust and prejudicial to the parents of an
unmarried Government employee, and passed direction for treating them as
dependent family members. The Union of India challenged the said decision
before the Kerala High Court, and Kerala High Court also affirmed the
decision of the Central Administrative Tribunal, stating that the order passed
by the Central Administrative Tribunal was neither perverse nor patently
illegal, warranting any interference by the High Court. The Union of India
again moved SLP in the Supreme Court of India being SLP (C) No.109300
of 2017, which was also dismissed by the Hon’ble Supreme Court.
8. In Kumari Saraswati Vs. Hon’ble the High Court of
Rajasthan Anr., in Civil Writ Petition No.12539 of 2012, decided by the
Rajasthan High Court on 26th August 2013, the unmarried sister of the
deceased employee was not included in the relevant Rules as dependent of
an employee. The Hon’ble Rajasthan High Court held that unmarried sister
of the deceased employee is required to be treated as daughter, if the father
is not alive and sister is wholly dependent on brother, holding that a wide
interpretation of the Rule was required, even though the unmarried sister
was not included in the definition of the dependent.
9. Learned counsels have also placed reliance upon two full Bench
decisions of Calcutta High Court in Putul Rabidas Vs. Eastern Coalfields
Ltd. Ors., reported in 2017 SCC Online Cal 13128, and in The State of
West Bengal Ors. Vs. Purnima Das Ors., reported in
2017 SCC Online Cal 13121. Both these cases were also covered by the
NCWA. Putul Rabidas was denied the benefit of employment on
compassionate ground, as she was a married daughter, but her marriage had
been dissolved by a decree of divorce by the competent Court, and since
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then she and her minor son were residing with her mother, who was an
employee of ECL, and died in harness. Her case was rejected on the ground
that the list of dependents did not include the married daughter, rather it
included only unmarried daughter of a deceased employee. The Hon’ble
Calcutta High Court laid down the law as follows:-
“31. However, before we move on to the main issue, it needs
to be clarified that unlike schemes for compassionate
appointment that normally come up for consideration before
courts of law, compassionate appointment / monetary
compensation that is envisaged in para 9.3.0 of Chapter IX is
not dependent on the quantum of financial benefits that might
have accrued in favour of a worker on his death. Para 9.3.0 or
for that matter any other para / clause in Chapter IX does not
make receipt of a particular quantum of money by a dependant
of a deceased worker because of the latter’s death on account of
death benefits a disqualification for compassionate
appointment / monetary compensation. In that view of the
matter, irrespective of the quantum of death benefits that a
dependent might have received owing to death of his / her
father / mother / father-in-law / mother-in-law / brother / sister,
ECL cannot repudiate a claim for compassionate appointment
/ monetary compensation on the ground that the family, having
received substantial death benefits, is not in need thereof. The
terms of the NCWA-VI are such that a dependent, if he / she
satisfies all the conditions in clauses 9.3.3 and 9.3.4, i.e. he /
she is a dependent of a deceased worker and has the requisite
qualification for being given employment by ECL, is entitled to
claim as of right that he / she ought to be extended the benefit
of compassionate appointment or monetary compensation, as
the case may be, under Chapter IX.
*** *** ***
51. Having regard to the scheme of compassionate
appointment as envisaged in Chapter IX of NCWA-VI, we have
no doubt in our mind and accordingly, hold that an “unmarried
daughter” as appearing in clause 9.3.3 would not only include
a daughter who has never been married, but also a daughter
who was once married but her marriage has been dissolved by
a decree of divorce and she remains ‘not married’ on the date of
death of her father / mother (the worker). We find no good
reason as to why by putting a strained construction on the
words “unmarried daughter”, a divorcee daughter should be
held to have been excluded and, a fortiori, ineligible for
consideration.”
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10. In Purnima Das’s case, Purnima was the married daughter of
the deceased worker, who died in harness. She also claimed appointment
on compassionate ground, which was also rejected on the ground that the
married daughter was not included in the list of the dependents. The full
Bench of Calcutta High Court has laid down the law as follows:-
“75. —————–. A person dependent would be one who for
his survival was entirely dependent on the earnings of the
Government employee and should he / she be appointed, is
likely to take care of the other family members by his / her
earning. It is permissible for the State to categorise persons to
be comprised in ‘dependent family member’; however, in the
exercise of making such categorisation, care must be taken to
ensure that no class of dependants is excluded without there
being a plausible justification. The exclusion, if challenged,
must pass the test of reasonable classification. ——————.
It is in the background of these three conditions that we are to
consider whether the policy decision of the State Government to
exclude ‘married daughters’ from the scope of compassionate
appointment is constitutionally valid.
*** *** ***
88. The classification here is brought about by excluding
‘married daughters’ of a deceased Government employee from
the purview of compassionate appointment, and the so called
“intelligible differentia” put forward is that ‘married daughters’
cease to be part of the family of the Government employee on
marriage. As noticed earlier, the object of appointment on
compassionate ground is to save the wrecked family by
ensuring that the dependents have a few crumbs of bread and a
few yards of cloth. This raises a few important questions. First,
as to who could form a class to which the scheme for
compassionate appointment would apply? The appropriate
answer would be the immediate members of the family of the
deceased employee. This question being answered, the
incidental question would be who are the immediate family
members? For a broad idea of who would constitute the family
of a person, the relevant personal laws including family and
succession laws may be looked at. However, in the context of
compassionate appointment, such laws may not be seen
because the purpose thereof is totally different. We are inclined
to hold that for the purpose of a scheme for compassionate
appointment every such member of the family of the
Government employee who is dependent on the earnings of
such employee for his / her survival must be considered to
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ground that he / she is not so dependent would be justified, but
certainly not on the grounds of gender or marital status. If so
permitted, a married daughter would stand deprived of the
benefit that a married son would be entitled under the scheme.
A married son and a married daughter may appear to
constitute different classes but when a claim for compassionate
appointment is involved, they have to be treated equally and at
par if it is demonstrated that both depended on the earnings of
their deceased father / mother (Government employee) for their
survival. It is, therefore, difficult for us to sustain the
classification as reasonable.” (Emphasis supplied).
11. It is submitted by learned counsels that relying upon the full
Bench decision of the Calcutta High Court, Jharkhand High Court also in
case of Central Coalfields Ltd. Vs. Hemanti Devi Ors., in LPA
No.196 of 2017, decided on 16th August 2018, has upheld the decision of
the Writ Court, directing for consideration of a married daughter of the
deceased workman of CCL, for compassionate appointment.
12. Again in Smt. Vimla Srivastava Vs. State of U.P. Anr.,
in Writ C No.60881 of 2015 and analogous matters, decided by the
Allahabad High Court on 4th December 2015, wherein Rule 2(c) of the
Dying-in-Harness Rules framed by the State of U.P., which included only
unmarried daughters and not the married daughters, of the deceased
employee in the list of dependents, has held the exclusion of the married
daughters to be illegal unconstitutional, being violative of Articles 14
and 15 of the constitution of India, and the High Court has struck down
the word ‘unmarried’ in Rule 2 (c) of the aforesaid Rules.
13. In Rekha Nanakchand Yadav Vs. Union of India, in
R/Special Civil Application No.6658 of 2014 decided by the Gujrat High
Court on 12th June 2018, wherein the sister of one Shri Kuldip Yadav,
who had been taken in captive in Pakistan on the charge for spying for
India, and who was recruited by BSF for RAW, and was sent on a secret
mission to Pakistan, has been directed to be appointed on compassionate
ground, but this decision has been passed considering the case to be
absolutely exceptional one. The SLP filed against the said order was also
dismissed by the Hon’ble Apex Court.
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14. It is submitted by learned counsels for the appellants, relying
upon the decision of the Hon’ble Supreme Court in Madan Singh
Shekhawat Vs. Union of India Ors., reported in (1999) 6 SCC 459,
that it is the duty of the Court to interpret a provision, especially a
beneficial provision liberally, so as to give a wider meaning rather than a
restrictive meaning which would negate the very object of the rule. Again
placing reliance upon the decision of the Hon’ble Supreme Court in
Central Inland Water Transport Corporation Ltd. Anr, etc. Vs.
Brojo Nath Ganguly Anr., reported in 1986 AIR 1571, it is submitted
that a Government company being “the State” within the meaning of
SectionArticle 12, is bound to act fairly and reasonably, and if it does not do so,
its action can be struck down under SectionArticle 14 as being arbitrary.
15. Placing reliance on these decisions learned counsels for the
appellants submitted that the exclusion of sister and mother from the list
of dependents in Clause 9.3.3 of the NCWA, cannot be sustained in the
eyes of law and it is a fit case, in which, the respondents be directed to
consider the cases of the appellants, irrespective of their non-inclusion in
the definition of dependant in Clause 9.3.3 of the NCWA.
16. Per contra, learned counsel for the Respondent CCL has
submitted that admittedly, neither the mother nor the sister are included in
the list of dependents of the deceased workman in Clause 9.3.3 of the
NCWA, and it is well settled principle of law that appointments on
compassionate ground cannot be claimed as a matter of right and it must
be provided as per the rules, regulations and schemes and if the
appointment is not provided under the scheme, no case is made out for
compassionate appointment. In support of his contention, learned counsel
placed reliance upon the decision of the Hon’ble Apex court in Steel
Authority of India Ltd. Vs. Madhusudan Das Ors., reported in
(2008) 15 SCC 560, wherein the law has been laid down as follows:-
“14. The appellant being State within the meaning of SectionArticle
12 of the Constitution of India, while making recruitments, is
bound to follow the rules framed by it. Appointment of a
dependant of a deceased employee on compassionate ground is
a matter involving policy decision. It may be a part of the
service rules. In this case it would be a part of the settlement
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having the force of law. —————-. The Division Bench of
the High Court, however, proceeded on the premise that the
employer was bound to provide appointment on compassionate
appointment (sic ground) in all cases involving death of an
employee. The Division Bench, in our opinion, was not correct
in its view.
15. This Court in a large number of decisions has held that
the appointment on compassionate ground cannot be claimed
as a matter of right. It must be provided for in the rules. The
criteria laid down therefor viz. that the death of the sole bread
earner of the family, must be established. It is meant to provide
for a minimum relief. When such contentions are raised, the
constitutional philosophy of equality behind making such a
scheme be taken into consideration. Articles 14 and 16 of the
Constitution of India mandate that all eligible candidates
should be considered for appointment in the posts which have
fallen vacant. Appointment on compassionate ground offered to
a dependant of a deceased employee is an exception to the said
rule. It is a concession, not a right.” (Emphasis supplied).
17. Learned counsel has also placed reliance upon the decision of
the Apex Court in State Bank of India Anr. Vs. Somvir Singh,
reported in (2007) 4 SCC 778, wherein the law has been laid down as
follows:-
“7. SectionArticle 16(1) of the Constitution of India guarantees to all
its citizens equality of opportunity in matters relating to
employment or appointment to any office under the State.
SectionArticle 16(2) protects citizens against discrimination in respect
of any employment or office under the State on grounds only of
religion, race, caste, sex and descent. It is so well settled and
needs no restatement at our end that appointment on
compassionate grounds is an exception carved out to the
general rule that recruitment to public services is to be made in
a transparent and accountable manner providing opportunity to
all eligible persons to compete and participate in the selection
process. Such appointments are required to be made on the
basis of open invitation of applications and merit. Dependants
of employees died in harness do not have any special or
additional claim to public services other than the one
conferred, if any, by the employer.
*** *** ***
10. There is no dispute whatsoever that the appellant Bank is
required to consider the request for compassionate appointment
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only in accordance with the scheme framed by it and no
discretion as such is left with any of the authorities to make
compassionate appointment dehors the scheme. In our
considered opinion the claim for compassionate appointment
and the right, if any, is traceable only to the scheme, executive
instructions, rules, etc. framed by the employer in the matter of
providing employment on compassionate grounds. There is no
right of whatsoever nature to claim compassionate appointment
on any ground other than the one, if any, conferred by the
employer by way of scheme or instructions as the case may be.”
(Emphasis supplied).
18. Learned counsel for the respondent has again placed reliance
upon of the decision of the Hon’ble Apex Court Bhawani Prasad Sonkar
Vs. Union of India Ors., reported in (2011) 4 SCC 209, wherein the
law has been laid down as follows:-
“20. 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.
*** *** ***
(iv) Compassionate employment is permissible only to one of
the dependants of the deceased/incapacitated employee viz.
parents, spouse, son or daughter and not to all relatives, and
such appointments should be only to the lowest category that is
Class III and IV posts.” (Emphasis supplied).
19. Learned counsel for the respondent has further placed
reliance upon yet another decision of the Hon’ble Supreme Court in MGB
Gramin Bank Vs. Chakrawarti Singh, reported in (2014) 13 SCC 583,
wherein the law has been laid down as follows:-
“6. Every appointment to public office must be made by
strictly adhering to the mandatory requirements of Articles 14
and 16 of the Constitution. An exception by providing
employment on compassionate grounds has been carved out in
order to remove the financial constraints on the bereaved
family, which has lost its breadearner. Mere death of a
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government employee in harness does not entitle the family to
claim compassionate employment. The competent authority has
to examine the financial condition of the family of the deceased
employee and it is only if it is satisfied that without providing
employment, the family will not be able to meet the crisis, that a
job is to be offered to the eligible member of the family. More
so, the person claiming such appointment must possess
required eligibility for the post. The consistent view that has
been taken by the Court is that compassionate employment
cannot be claimed as a matter of right, as it is not a vested
right. The Court should not stretch the provision by liberal
interpretation beyond permissible limits on humanitarian
grounds. Such appointment should, therefore, be provided
immediately to redeem the family in distress. It is improper to
keep such a case pending for years.” (Emphasis supplied).
20. Learned counsel has yet again placed reliance upon another
decision of the Hon’ble Supreme Court in State of Himachal Pradesh
Anr. Vs. Shashi Kumar, reported in (2019) 3 SCC 653, wherein the law
has been laid down as follows:-
“18. While considering the rival submissions, it is necessary
to bear in mind that compassionate appointment is an exception
to the general rule that appointment to any public post in the
service of the State has to be made on the basis of principles
which accord with Articles 14 and 16 of the Constitution.
Dependants of a deceased employee of the State are made
eligible by virtue of the policy on compassionate appointment.
The basis of the policy is that it recognises that a family of a
deceased employee may be placed in a position of financial
hardship upon the untimely death of the employee while in
service. It is the immediacy of the need which furnishes the
basis for the State to allow the benefit of compassionate
appointment. Where the authority finds that the financial and
other circumstances of the family are such that in the absence
of immediate assistance, it would be reduced to being indigent,
an application from a dependent member of the family could be
considered. The terms on which such applications would be
considered are subject to the policy which is framed by the
State and must fulfil the terms of the policy. In that sense, it is a
well-settled principle of law that there is no right to
compassionate appointment. But, where there is a policy, a
dependent member of the family of a deceased employee is
entitled to apply for compassionate appointment and to seek
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consideration of the application in accordance with the terms
and conditions which are prescribed by the State.
*** *** ***
20. In view of the clear terms of the policy, we are of the view
that the High Court was in error in issuing a mandamus to the
Government to disregard its policy. Such direction could not
have been issued by the High Court. —————-.”
(Emphasis supplied).
21. Placing reliance on these decisions, learned counsel for the
respondent has concluded that since SectionArticle 16(1) of the Constitution of India
guarantees to all its citizens equality of opportunity in matters relating to
employment or appointment to any office under the State, the appointment
on compassionate ground cannot be made only because of the fact that the
applicants were dependent upon the deceased employee, and particularly, in
view of the fact that Clause 9.3.3 of the NCWA do not include the mother
and sister of the deceased workman as dependents, to be appointed on
compassionate ground, they could not be appointed, as it is well settled
principle of law that such appointments cannot be made in absence of the
rules, regulations or schemes.
22. Learned counsel for the respondent CCL, also submitted that it
is not the case that the parents and the female siblings of the workman dying
in harness is left by the CCL absolutely uncared and starving. They are
entitled to the compensation under the workman compensation benefits
admissible under the Workmen’s SectionCompensation Act, as they fall within the
definition of ‘dependent’, given in Section 2(1)(d) of the said Act. Learned
counsel accordingly, submitted that there is no illegality in the impugned
Judgements passed by the Writ Court, rejecting the claims of the appellants.
23. Having heard learned counsels for both the sides and upon
going through the record, we find that in both these appeals, Clause 9.3.3 of
the NCWA, which makes provision for employment of dependent of the
workman who dies while in service, needs to be interpreted, which reads as
follows:-
“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 dependent is
available for employment, brother, widowed daughter /
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widowed daughter-in-law or son-in-law residing with the
deceased and almost wholly dependent on the earnings of
the deceased may be considered to be the dependant of
the deceased.”
A bare reading of the aforesaid clause clearly shows that the brother
of the deceased workman comes within the zone of consideration for
appointment on compassionate ground in absence of wife, husband and
unmarried daughter, son and legally adopted son. The father, mother and
sister of the deceased workman have been totally excluded from the list of
dependants, though, it cannot be denied that an employee dying at a very
young age, may be leaving behind father and mother, who were dependants
upon him / her, still within the age of consideration of compassionate
appointment. Thus a plain reading of this provision clearly shows that if the
workman dies unmarried, except for his / her brother, no other blood relative
is within the consideration zone for employment on compassionate ground,
though they may be fully dependent upon the earnings of the deceased
workman at the time of his / her death in harness. We are of the considered
view that so far as the parents of the deceased workman are concerned, the
deceased was in a moral and legal obligation to maintain them and if he / she
failed to maintain them, the action would lie under Section 125 of the
Cr.P.C. as well. In that view of the matter, there appears to be no reason as
to why, such parents of the workman dying unmarried at an young age, be
not included in the list of the dependants for being considered for
compassionate appointment, if they are capable and otherwise eligible for
the same. Excluding such parents of the deceased workman, cannot be said
to be based on any plausible justification.
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
LPA No.617 of 2017
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LPA No.457 of 2017
– 15 –
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. At this juncture, we are
tempted to quote Section 13 of the General Clauses Act, even though the
SectionGeneral Clauses Act relates to SectionCentral Acts and Regulations. We are
referring to this Section as admittedly the respondent Coal India Ltd is also
‘State’ within the meaning of SectionArticle 12 of the Constitution of India, and
Section 13 of the General Clauses Act aims at non-discrimination only on
the basis of gender. In other words, it prohibits gender discrimination.
Section 13 of the General Clauses Act reads as follows:-
“13. Gender and number.- In all SectionCentral Acts and
Regulations, unless there is anything repugnant in the
subject or context,—
(1) words importing the masculine gender shall be
taken to include females; and
(2) words in the singular shall include the plural, and
vice versa.”
A plain reading of this Section clearly shows that all the words
importing the masculine gender shall be taken to include females and in that
view of the matter also, if brother is included in the list of dependents under
Clause 9.3.3 of NCWA, there is no reason as to why the word ‘brother’ shall
not include sister also.
25. We are of the considered view that the case of the appellants is
fully covered by the decisions relied upon by learned counsels for the
appellants herein before. The non-inclusion of the parents and sister of the
deceased workman dying in harness, in the list of dependants to be
appointed on compassionate ground, cannot be said to be based on any
rational basis, rather this is wholly unfair and absolutely unjust. It is also not
based on any intelligible differentia, and frustrates the very object the
scheme for compassionate appointment. These immediate blood relations
cannot be denied the benefit of compassionate appointment, if they are
otherwise entitled for the same, simply because of the fact that they may be
entitled to the compensation under the workman compensation benefits
admissible under the Workmen’s SectionCompensation Act, as they fall within the
definition of ‘dependent’, given in Section 2(1)(d) of the said Act.
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
LPA No.617 of 2017
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LPA No.457 of 2017
– 16 –
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
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 the present respondents themselves, i.e.,
Central Coalfields Ltd., in Hemanti Devi’s case (supra).
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.
28. In view of the foregoing discussions, we hereby set-aside the
impugned Judgments passed by the Writ Courts, being the Judgment
dated 14.07.2017, passed in WP(S) No.3406 of 2016, as also the Judgment
dated 17.07.2017, passed in WP(S) No.6099 of 2012, out of which, both
these appeals arise.
29. Both these appeals are accordingly allowed, with the directions
as above.
(H.C. Mishra, A.C.J.)
Deepak Roshan, J.:-
(Deepak Roshan, J.)
Jharkhand High Court, Ranchi.
Dated the 16th of September, 2019.
R. Kumar/NAFR
