Vs. M/S. Central Coal Field Ltd. & Ors  Insc 951 (18 September 2007)
Sinha & Harjit Singh Bedi
APPEAL NO. 4339 OF 2007 [Arising out of SLP (Civil) No. 13935 of 2006] S.B.
Appellant's father Rameshwar Mahto was employed as a Fitter, Category IV, in a
coal mine belonging to the respondent known as Kuju Colliery. He died in
harness on 23.02.1997. The terms and conditions of the service of the workmen
working in coal mines are inter alia governed by a 'Settlement' known as
National Coal Wage Agreement (N.C.W.A.) V. Indisputably, the said settlement,
in terms of Sub-section (3) of Section 18 of the Industrial Disputes Act, 1947
is binding on the parties. Clause 9.3.2 of N.C.W.A. V refers to appointment of
dependants of the deceased employees working in the coal mines; sub-clause
(iii) of Clause 9.5.0 whereof reads as under:
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
dependent of the concerned worker is 15 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) and (ii) above."
Appellant filed an application for appointment on compassionate ground on
25.10.1997. The same was denied to him inter alia on the premise that he was a
minor at the relevant time. He filed an application in prescribed form upon
attaining majority on 26.09.1999 which was rejected by an order dated 3.08.2000
reference to the letter No. GM(K)/PD- 9.3.2/2000/749 dated Nil of Staff Officer
(P), Kuju Area this is to inform you that the proposal has not been agreed by
the competent authority since the dependent was not eligible for employment as
he was under age and also his name was not kept in live roaster. Also there was
considerable delay in applying for employment by the dependent."
Respondent purported to have issued a circular letter on 12.12.1995 providing
for six months' limitation for filing such an application for appointment on
compassionate ground from the date of death of the concerned employees in the
has been observed from the details of the statements prepared and submitted by
the Area for Placement Interview under para 9.4.2 of NCWA- IV, that cases
pertaining to the period beyond 6 months are also entertained without any
this situation also in order to streamline the activities of the manpower and
to have effective control over it, it has been decided that the cases falling
beyond 6 months from the date of death of the concerned employees, the
dependent of the deceased employees will not be entertained, unless express
permission is given by Hqtrs. after thorough scrutiny of the case. Now as
action will be taken against those who fail to complete the work within
all the Staff Officers (Pers.) should discuss this matter with the Personnel
Executives of the Unit/Establishments and advise them accordingly."
was replaced by another circular letter issued in the year 2000 stating:
has been observed from the case files received from areas for appointment of
dependants of ex- employees under para 9.3.2 of NCWA V/VI that the cases
pertaining to the period beyond six months are also entertained and sent
without any reasoning. Therefore, vide circular No. PD/MP/9.4.2/95/1151 dated
12.12.95 all areas were advised that the cases falling beyond six months from
the date of death of the concerned employee will not be entertained unless
express permission is given by Hqtrs. after thorough scrutiny of the case.
view of the persistent demands of unions relaxation was granted for one year
from Feb. 2000 which was subsequently discussed and reviewed in the meeting
held with unions at Corporate Level. It was decided that henceforth application
submitted under clause 9.3.2. within one year after demise of an employee will
not be treated as belated case. Thus the application submitted by dependant
concerned after expiry of one year from the date of death of ex-employee will not
be considered for employment."
writ petition was filed by the appellant before the High Court of Jharkhand, Ranchi which was marked as WPS No. 471 of
2003 questioning the order declining him the grant of appointment on
compassionate ground by the respondent. Before the High Court, the respondent
took a stand that as the elder brother of the appellant has already been in
employment, he was not entitled thereto. The said contention has since been
given up. A learned Single Judge of the High Court took notice of the
aforementioned circulars vis-`-vis the relevant provisions of N.C.W.A. V
the scheme quoted herein above, it is clear that if on the date of death of the
deceased employee, the male dependant is 15 years and above in age then he will
be kept on a live roster and would be provided employment commensurate with his
skill and qualification 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. Admittedly, in 1997 petitioner was more than 15 years of
age and an application was filed by the petitioner in 1997 but neither the
petitioner was kept in live roster nor the widow of the deceased employee was
paid monetary compensation. After attaining 18 years of age petitioner as per
the aforesaid clause applied for compassionate appointment in 1999 which has
been arbitrarily rejected by the respondents on the ground of delay. While the
petitioner approached this court by filing instant writ application third case
has been made out by the respondents that petitioner's appointment was refused
on the ground of his elder brother, having been in employment of the subsidiary
fact was subsequently falsified in the manner discussed herein above.
the aforesaid reasons, this writ application is allowed and the impugned
letters are quashed.
are directed to give benefit of National Coal Wage Agreement VI to the
petitioner by appointing him in place of his deceased father, who died in
harness, as regular employee of the Company."
intra-court appeal was preferred thereagainst by the respondent herein which by
reason of the impugned judgment was allowed by a Division Bench stating:
the case of Commissioner of Public Instructions Vrs. K.R. Vishwanath, reported
in 2005 (7) SCC 206, the Supreme Court held that the Court has no jurisdiction
to extend the period of limitation and so was of the view of the Division Bench
of this Court in the case of Sushil Kumar Vengra Vrs. Union of India reported
in 2005 (1) JCR 282 (Jhr.)"
Rajesh Kumar, learned counsel appearing on behalf of the appellant, inter alia
the Division Bench of the High Court committed a serious error in relying upon
the judgment of this Court in Commissioner of Public Instructions and Others v.
K.R. Vishwanath [(2005) 7 SCC 206] as therein a statutory rule was made
providing for a limitation of one year for filing an application for
appointment on compassionate ground from the date of death of the employee;
The period of six months envisaged under the circular letter dated 12.12.1995
will have no application as:
is directory in nature and
same was substituted by another circular of 2000.
A.M.Singhvi, learned senior counsel appearing on behalf of the respondents, on
the other hand, urged:
Respondent as an employer is entitled to take a policy decision in regard to
implementation of the settlement.
Grant of appointment on compassionate ground, being an exception to Article 16
of the Constitution of India, should be strictly construed.
As the circular letter issued in 2000 is prospective in nature, the same will
have no application in the instant case.
settlement within the meaning of Sub-section (3) of Section 18 of the
Industrial Disputes Act is binding on both the parties and continues to remain
in force unless the same is altered, modified or substituted by another
settlement. No period of limitation was provided in the settlement. We would
assume that the respondent had jurisdiction to issue such circular prescribing
a period of limitation for filing application for grant of appointment on
compassionate ground. But, such circular was not only required to be strictly
complied with but also was required to be read keeping in view the settlement
entered into by and between the parties. The expanding definition of workman as
contained in Section 2(s) of the Industrial Disputes Act would confer a right
upon the appellant to obtain appointment on compassionate ground, subject, of
course, to compliance of the conditions precedent contained therein.
The right to obtain appointment on compassionate grounds emanates from the
settlement. Settlement is defined in Section 2(p) of the Industrial Disputes
Act to mean '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'.
Even in regard to prescription of a period of limitation, the respondent ought
to have kept in view the spirit thereof.
are not oblivious that grant of appointment on compassionate ground is an
exception to Article 16(1) of the Constitution of India.
I.G. (Karmik) and Ors. v. Prahalad Mani Tripathi [2007 (6) SCALE 370], this
employee of a State enjoys a status.
of employees of the State is governed by the rules framed under a statute or
the proviso appended to Article 309 of the Constitution of India. In the matter
of appointment, the State is obligated to give effect to the constitutional
scheme of equality as adumbrated under Articles 14 and 16 of the Constitution
of India. All appointments, therefore, must conform to the said constitutional
scheme. This Court, however, while laying emphasis on the said proposition
carved out an exception in favour of the children or other relatives of the
officer who dies or who becomes incapacitated while rendering services in the
police department. See Yogender Pal Singh and Others v. Union of India and
Others [A.I.R. 1987 SC 1015].
employment is considered to be a wealth. It in terms of the constitutional
scheme cannot be given on descent. When such an exception has been carved out
by this Court, the same must be strictly complied with.
on compassionate ground is given only for meeting the immediate hardship which
is faced by the family by reason of the death of the bread earner. When an
appointment is made on compassionate ground, it should be kept confined only to
the purpose it seeks to achieve, the idea being not to provide for endless
National Institute of Technology & Ors. v. Niraj Kumar Singh [2007 (2) SCALE 525], this
Court has stated the law in the following terms:- "16. All public appointments
must be in consonance with Article 16 of the Constitution of India. Exceptions
carved out therefore are the cases where appointments are to be given to the
widow or the dependent children of the employee who died in harness. Such an
exception is carved out with a view to see that the family of the deceased
employee who has died in harness does not become a destitute. No appointment,
therefore, on compassionate ground can be granted to a person other than those
for whose benefit the exception has been carved out. Other family members of
the deceased employee would not derive any benefit thereunder."
State Bank of India and Another v. Somvir Singh [(2007)
4 SCC 778], this Court held:
There is no dispute whatsoever that the appellant-Bank is required to consider
the request for compassionate appointment only in accordance with the scheme
framed by it and no discretion as such left with any of the authorities to make
compassionate appointment de hors 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."
The period of six months' limitation prescribed in the circular letter dated
12.12.1995 was not statutory. It is also not imperative in character.
for entertaining such an application beyond the period of six months, the
Headquarters of the Central Coal Field Limited is entitled to consider the
facts and circumstances of each case. Admittedly, Appellant filed an
application for grant of appointment on compassionate ground when he was a
minor. His application was rejected on that premise at the first instance but
even at that point of time the respondent did not take a stand that the same
had not been entertained on the ground that the same was filed after expiry of
the period of six months.
is neither in doubt nor in dispute that the case for grant of compassionate
appointment of a minor was required to be considered in terms of Sub-clause (iii)
of Clause 9.5.0 of the N.C.W.A.V. In terms of the said provision, the name of
the appellant was to be kept on a live roster. He was to remain on the live
roster till he attained the age of 18 years.
did not perform their duties cast on them thereunder. It took an unilateral
stand that an application has been filed in the year 1999 in the prescribed
form. For complying with the provisions of a settlement which is binding on the
parties, bona fide or otherwise of the respondent must be judged from the fact
as to whether it had discharged his duties thereunder or not. In this case, not
only it failed and/ or neglected to do so, but as indicated hereinbefore it
took an unholy stand that the elder brother of the appellant being employed, he
was not entitled to appointment on the compassionate ground. Thus, what really
impelled the respondent in denying the benefit of compassionate appointment to
the appellant is, therefore, open to guess. We expect a public sector
undertaking which is a 'State' within the meaning of Article 12 of the
Constitution of India not only to act fairly but also reasonably and bona fide.
In this case, we are satisfied that the action of the respondent is neither
fair nor reasonable nor bona fide.
have indicated hereinbefore, that it is not necessary for us to go into the
question as to whether on the teeth of the provision of N.C.W.A.V., the
respondent at all had any power to fix a time limit and thereby curtailing the
right of the workman concerned. We would assume that even in such a matter, it
had a right. But, even for the said purpose, keeping in view the fact that a
beneficial provision is made under a settlement, the 'State' was expected to
act reasonably. While so acting, it must provide for a period of limitation
which is reasonable. Apart from the fact that the period of limitation provided
for in the circular letter with a power of relaxation can never be held to be
imperative in character, the matter should also be considered from the
subsequent conduct of the respondent insofar as it had issued another circular
letter in the year 2000 providing for filing of an application for appointment
on compassionate ground within a period of one year. It may be that the said
circular letter has prospective operation but even in relation thereto we may
notice that whereas the said circular letter was issued upon holding discussion
with the Unions, the circular letter of the year 1995 was an unilateral one.
Furthermore, in its letter dated 2/3.08.2000, it will bear repetition to state,
expiry of the period of limitation was not taken as a ground for rejecting his
application. Under-age and non- placement of his name in live roster are stated
to be the reasons. It is, therefore, unfair on the part of the respondent to raise
such a plea for the first time in its counter-affidavit to the writ petition.
If he was under-age, definitely, it was obligatory on the part of the
respondent to keep his name in the live roster. It was not done.
Reliance placed by the High Court on K.R. Vishwanath (supra), with respect, is
misplaced. Therein, the terms and conditions of the parties were governed by a
statute known as 'Karnataka Civil Services (Appointment on Compassionate
Grounds) Rules, 1996'. Rule 5 of the said Rules provided for a period of
limitation. The said decision, therefore, cannot be said to have any
application whatsoever in the instant case.
Umesh Kumar Nagpal v. State of Haryana and
Others [(1994) 4 SCC 138] whereupon reliance has been placed by Dr. Singhvi, this
For these very reasons, the compassionate employment cannot be granted after a
lapse of a reasonable period which must be specified in the rules. The
consideration for such employment is not a vested right which can be exercised
at any time in future. The object being to enable the family to get over the
financial crisis which it faces at the time of the death of the sole
breadwinner, the compassionate employment cannot be claimed and offered
whatever the lapse of time and after the crisis is over."
should be a reasonable period would depend upon the rules operating in the
the reasons aforementioned, the impugned judgment cannot be sustained which is
set aside accordingly. The appeal is allowed.
is hereby directed to offer appointment to the appellant on a suitable post
within eight weeks from date. As the appellant is not in employment for a long
time, he is entitled to costs throughout. Counsel's fee assessed at Rs.