-!^^S^i'<^/^Afr'.^ ,M ^ »3 C-^'Z'CT^/- IN THE HIGH COURT OF CHHAHISGARH AT BILASPUR WRfT PETITION No. ABS^J /20Q6 Petitioner Respondents .-•s^'"^, -•'"*s-.-.. ^?'^!:J!:^^:. .^-""^.^ ' ^ \ ^1) Santosh Kumar Singh, Aged about 33 years, S/o Ram Raj Singh, R/o CRO Colony, Rajnagar, Hasdeo Area. 2) Smt. Asha Devi, aged about 30 year§, W/o Santosh Kumar Singh, R/o CRO Colony, Rajnagar, Hasdeo Area. Versus ,.'('[) South Eastern Coalfields Limited Through its Chairman-cum-Managing Director Seepat Road, Bilaspur(CG)-495006 (2) Chief General Manager, South Eastern Coalfields Limited Hasdeo Area. Writ Petition under Article 226 ofthe Constitution of Indfa. / I* ^•!L HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition No. 4064 of 2006 PETITIONER RESPONDENTS VERSUS Santosh Kumar Singh and another SECL and others e Shri Gary Mukhopadhayaya counsel forthe petitioner. Shri Ravi Ranjan Sinha counsel for the respondents. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA O RD E R (01.12.2011) Challenge in the present writ petition is to the order dated 1.3.2006 passed by the respondents rejecting the application of petitioner No.1 for dependant emp!oyment. 2. Facts of the case in brief are that petitioner No.1 is theson-in-law of late Jagnarayan Singh who died on 14.7.1994 being in the employment of SECL,and Petitioner No.2 is the wife of petitioner No.1 and daughter-in-law ofthe deceased employee namely Jagnarayan Singh (hereinafter referred to as deceased employee). On 22.7.2003 wife of the deceased employee namely Shesha Devi filed an application before the respondents seeking dependant employment in favour of petitioner No.1. When the said application was not considered by the authorities, the petitioner No.1 gave a reminder on 28.8.2004 but ultimately vide order impugned the claim ofthe petitioner No.1 was rejected. / 3: ~ Counsel for the petitioner submits that application of petitioner No.1 has been rejected on wrong premises that as the marriage ofthe petitioner No.1 with petitioner No.2 was performed after the death of the deceased employee, he was not entitled for dependant employment. According to the counsel for the petitioner, very basis of rgjecting the claim of petitiongr No.1 is incorrect because marriage ofpetitioner No.1 with petitioner No.2 was solemnized on 5.5.1993 i.e. prior to the death of decfeased employee and to this effect several documents i.e. certificate issued by the<Gram Panchayat (Annexure P-4), marriage certificate issued by the marriage officer, Bhojpur, Bihar (Annexure P-5), certificate of 3&*--C;.i; . L<1 ~"''%-A- \ /^\ jf ii^£ 1 —'3-— Janpad Panchayat, Anuppur, M.P. (Annexure P-6), certificate issued by Rashtriya Colliery Mazdoor Congress (Annexure P-8) and certificate issued by Madhya Pradesh Koyla Mazdoor Sabha (Annexure P-9). He submits that as per clause 9.3.3 of Chapter 9 of the National Coal Wage Agreement (for short NCWA) petitioner No.1 being the son-in-law of the deceased employee comes within the meaning of dependant and therefore he is entitled for dependant employment. He submits that claim of petitioner No.1 has been rejected by wrongly considering clause 9.3.2 whereas he is entitled for the same under clause 9.3.3 thereof. In support of his submissions, counsel for the petitioner placed reliance on the decisions of the Supreme Court in the matter of Ntohan IWahto v. Central Coal Field Ltd. and others reported in 2007 (8) SCC 549 and in the matter of State Bank of India and another v. Raj Kumar reported in 2010 (11) SCC 661. 4. On the other hand counsel for the respondents submits that for getting dependant employment the petitioner No.1 has procured several documents Just to show that he got married with petitioner No.2 prior to the death of deceased employee whereas the fact remains that their marnage was performed after his death. He submits that as per the requirement of clause 9.3.3 of Annexure P-2, the petitioner No.1 was required to establish that he was residing with the deceased at the time of his death but in fact in this case there is no evidence to this effect. He submits that one son of the deceased employee namely Chandraket Singh is already an employee of SECL who is maintaining and taking care of the family of the deceased employee and therefore no dependant employment can be given to petitioner No.1. He further submits that even the wife of the deceased namely Shesha Devi had earlier given the affidavit for giving dependant employment in favour of her other son Ajit Kumar Singh vide Annexure R-5 and said Ajit Kumar Singh has also given an affidavit (Annexure R- 6) for getting dependant employment and therefore also the petitioner No.1 is not entitled.for any such employment. He submits that till 1994-95 the petitioners were'residing in the State of Bihar and their names have also been shown in the voter list - part of Annexure R-7 and therefore it is apparent that at the time of the death of deceased employee, the petitioners were not residing with him. He further submits that very purpose of giving dependant employment is to provide immediate assistance t6 the family of the deceasted but in the present case though the deceased-employee died on 14.7.1994 but the appiication by petitioner No.1 was filed on;22.7.2003 i.e. after about 9 years of the death and therefore also the petitioner No.1 is not entitled for such employment. It is argued that wife of the deceased employee has also expired on 6.9.2003 and therefore .,.y!'sa¥a!*i S' ^ ^:¥ ff' I '•Sea^ 1 ^•..^.y/ .v?~^y —1 also the petitioner No.1 being son-in-law of the deceased employee and Shesha Devi, is not entitled for any such relief. 5. Replying to this argument of the counsel for the respondents, it has been submitted by the counsel for the petitioners that elder son of the deceased employee namely Chandraket Singh is an employee of SECL since 1981 and as he is living separately his employment will not come in the way of granting dependant employment in favour of petitioner No.1. He submits that so far as the application of other son Ajit Kumar Singh is concerned, in the service excerpts there is no mentipn of Ajit Kumar Singh and therefore any affidavit given by wife of the deceased or Ajit Kumar Singh himself, cannot have any adverse impact on the claim of the petitioner No.1. He submits that these affidavits appear to be fabricated ones. In respect of petitioners' names in the voter list of Bihar, it is submitted that it is a routine matter where though the person has shifted from Bihar to M.P. (now CG), his name continues to be in th.e voter list of Bihar but all this cannot be taken as conclusive proof against the petitioners. 6. Heard counsel for the parties and perused the documents available on record. 7. Undisputed facts are that Jagnarayan Singh died on 14.7.1994 and his wife Shesha Devi also expired on 6.9.2003. It is not disputed that elder son of the deceased namely Chandraket Singh is already in the employment of SECL since 1981. Petitioner No.1 applied for dependant employment for the first time on 22.7.2003 i.e. after 9 years ofthe death ofthe deceased. Though the petitioners have filed certain documents showing that their marriage was solemnized prior to the death of the deceased employee but all these documents have been obtained by petitioner No.1 in the year 2006. Even the marriage certificate issued in favour of the petitioners by the marriage officer (Annexure P-5) has been issued on 13.4.2006 mentioning in it that the petitioners have made a declaration before_it that their marriage was solemnized on 5.5.1993. Likewise, even the otherjcertificates produced by the petitioners are also of year 2006. At this stage, this Court is not required to make any comment on the documents filed by the petitioner. Suffice to say that there is absolutely no conclusive proof that at the time of death of the deceased employee the petitioner No.1 was residing with /....... ^l*-. . .. . . him. On the contrary, vo'ter list (part of Annexure P-7) shows that in the year 2003-04 the petitioners were residing in State of Bihar. < 8. As per the judgmeht cited by the petitioners once NCWA provides for giving such dependants employment, claim ofthe dependant,cannot be denied •^- but the facts of this case are entirely different from the one cited by the petitioners. In the case in hand, there is no concrete evidence as to whetherthe petitioners were residing with the deceased at the time of his death. Clause 9.3.3 of NCWA reads as under: "9.3.3 - The dependant for this purpose means, the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment, brother, widowed daughter/ widowed daughter-in-lawor son- in-law residing with the deceased and almost wholly dependant on the earnings of the deceased may be considered to be the dependant ofthe deceased." A bare reading of said clause would show that in the absence of any direct dependant, son-in-law would be entitled for dependant employment provided he was residing with the deceased employee and almost wholly dependant on his earnings. In the case in hand, there is no such concrete evidence on record to show that the deceased was residing with the petitioners or that the petitioners were wholly dependant on the deceased employee and thus it cannot be said that decision of the respondents in not granting dependant employment to petitioner No.1 is bad. Further, there is no conclusive evidence that marriage of the petitioners was performed prior to the death of the deceased employee, except few certificates issued by certain authorities. That apart, as per clause 9.3.3 the dependant employment has to be first granted to 4he wife/husband as the case may be, unmarried daughter, son and legally adopted son. In the present case, son of the deceased employee namely Chandraket Singh is alread'y in the employment of SECL and that in National Coal Wage Agreement (Annexure P-2) there is no such mention that even if the son is in employment, other dependant has to be granted the dependant employment. Moreover, there is another disputed fact that wife ofthe deceased employee and son Ajit Singh have also filed affidavit seeking appointment in favour ofAjit Singh. ^~'" 9. - lt is now well settled that appointment on compassionate ground is not a source of recruitment. Rather it is an exception to the general rule and unless it is established by the petitioner that after the demise of the deceased employee the surviving family members are hot in a position to pull any further in the absence of compassionate appoiRitment to any one of the ifcurviving dependents, the normal rule of appointment should not be said a goodbye to. The whole object of r' the scheme of compassionate; appointment is to provide succor to the family to tide over the sudden financial crisis befallen the dependents on account of untimely demise of its sole earning member. The purpose of providing —-£>— & appointment on compassionate ground is to mitigate the hardship due to the death ofthe bread earner in the family. 10. In the case in hand, the deceased employee died on 14.7.1994, claim for dependant employment was put forth by the wife of the deceased for the petitioner No.1 for the first time in the year 2003 i.e. nine years after the death of the deceased employee and even till today when about 17 years have passed by since the death of the deceased employee. Thus when the family of the deceased employee survived for more than nine years after the death of father- in-law of petitioner No.1 very purpose of giving such appointment would be defeated if it is given to petitioner No.1 after such a long time. In the matter of State of J&K and others v. Sajad Ahmed Mir reported in AIR 2006 SC 2473 it has been held by the Apex Court as under: "10. Having heard the learned counsel for the parties, in our opinion, the appeal should be allowed. Certain facts are not in dispute. The father of the applieant who was \n service, died-in-harness in March, 1987 and for the first time, the application was made by the applicant after more than four years i.e. in September, 1991. The family thus survived for more than four years after the degth of the applicant's father. Even at that time, the applicant, under the relevant guidelines, could not have been appointed and hence relaxation was prayed. It is no doubt true that the case of the applicant was favourably considered by the Departments and recommendation was made, but it is also a fact which has come on record that in March, 1996, a decision was taken by the authorities not to given appointment to the applicant on compassionate ground. From the affidavit-in- reply filed by the authorities in the High Court as also from the finding of the learned single Judge, it is clear that the applicant had knowledge about rejection of his application in 1996 itself. Nothing was done by the applicant against the said decision. Considerable period elapsed and only in 1999, when there was some inter-Departmental communication and Administrative Officer informed the Chief Engineer vide a letter dated 8 June, 1999 that the applicant could not be appointed on compassionate ground that the applicant woke up and filed a writ petition in the High Court. It is also •" ~ pertinent to note thatthe letter of 1999 itself recites thatthe case of the applicant for compassionate,appointmentwas considered and the prayer had already turned down by the Administrative Department and the said -fact had been communicated to the office of the Chief Engineer. A copy of the said letter was also annexed to the letter of 1999. In our opinion, th^refore, the learned single^Judge was right in dismissing fhe petition on the ground ofdelay and laches by holding that the applicant had not done anything for a considerabfe period after March, 1996 when hisclaim was rejected even though he was informed about the decision and was very much aware of it. The Division Bench,in our view, was not justified in setting aside the said order and in i. ''fe.A ^^ Ss^V^ S •aae-^h g^ <!».--«!i'J? ^s?.. ^:e€- '•^-^.^E^' £,- directing the authorities to consider the case of the applicant for compassionate appointment and by giving directions to give benefits. 17. In the case on hand, the father of the applicant died in March, 1987. The application was made by the applicant after four and half years in September, 1991 which was rejected in March, 1996. The writ petition was filed in June, 1999 which was dismissed by the learned single Judge in July, 2000. When the Division Bench decided the matter, more than fifteen years had passed from the date of death of the father of the applicant. The said fact was indeed a relevant and material fact which went to show that the family survived in spite of death of the employee. Moreover, in our opinion, the learned single Judge was also right in holding that though the order was passed in 1996, it was not challenged by the applicant immediately. He took chance of challenging the order in 1999 when there was inter- departmental communication in 1999. The Division Bench, in our view, hence ought not to have allowed the appeal." 11. Thus in view of the factual discussion and the judgment of the Supreme Court quoted above, this Court is of the considered opinion that the petitioners have utterly failed to make out a case for dependant/compassionate appointment in favour of petitioner No.1. Accordingly, the petition be1ng devoid of substance is liable to be dismissed and it is dismissed as such. — Sd/- Pritinker Diwakar Judge / I*