Case: Mohan Mahto Vs. M/S Central Coal Field Ltd.

Appellants 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:(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 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) aboveAppellant 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 stating:With 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 dependentRespondent 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 following terms:It 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 reasoning. Considering 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 stipulated time. Therefore, all the Staff Officers (Pers.) should discuss this matter with the Personnel Executives of the Unit/Establishments and advise them accordinglyIt was replaced by another circular letter issued in the year 2000 stating:It 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. Now in 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 employmentA 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-à-vis the relevant provisions of N.C.W.A. V holding:From 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 petitioners appointment was refused on the ground of his elder brother, having been in employment of the subsidiary company. This fact was subsequently falsified in the manner discussed herein above. For the aforesaid reasons, this writ application is allowed and the impugned letters are quashed. Respondents 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 CompanyAn intra-court appeal was preferred there against by the respondent herein which by reason of the impugned judgment was allowed by a Division Bench stating:In the case of Commissioner of Public Instructions Vs. 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 Vs. Union of India reported in 2005 (1) JCR 282 (Jhr.)

Reasoning:
We 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 doneReliance 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 caseIn Umesh Kumar Nagpal v. State of Haryana and Others [(1994) 4 SCC 138] whereupon reliance has been placed by Dr. Singhvi, this Court held:6. 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 overWhat should be a reasonable period would depend upon the rules operating in the field