By Court: In this writ petition, the petitioner has challenged the award dated 29.10.2008 (Annexure-3) rendered by learned Central Government Industrial Tribunal No.1, Dhanbad in Reference Case No. 128/1999, whereby learned Tribunal has answered the said reference in favour of the respondent No.2-concened workman.

2. The short fact of the case is that Jagat Bahadur was a permanent employee of M/S B.C.C.L posted as Night Guard at Godhar Colliery. In 1991, he was declared medically unfit and was stopped from duty w.e.f 17.9.1991. According to the provisions contained in Clause 9.4.0 of National Coal Wage Agreement -V (NCWAV), which provides for compassionate appointment to a dependant of such employee, Chandrakala Devi (respondent No.2), the only living wife of Jagat Bahadur, applied for her compassionate appointment in place of Jagat Bahadur on 26.9.1991. The Management kept the said application pending for several years. Chandrakala Devi, thereafter, raised a dispute which was ultimately referred to learned Tribunal and has been answered by the impugned award.

3. It is relevant to mention here that Jagat Bahadur appeared before the Management and requested for giving employment to Chandrakala Devi stating that she is her only alive wife. The said fact has also been admitted by the Management in its written statement filed before learned Tribunal.

4. The Management contested the said reference on the ground that the name of Chandrakala Devi is not mentioned in the list of the dependants in the service excerpts of Jagat Bahadur, which was prepared in the year 1987. She is a stranger and is not entitled to get employment under the provision of Clause 9.4.0 of NCWA-V.

5. Both the parties adduced evidences in the said reference case.

6. After thorough discussion and consideration of the facts, evidences and materials on record, learned Tribunal held that the action of the Management in not providing employment to the only alive second wife Chandrakala Devi in place of Jagat Bahadur, Ex-Night Guard of Godhar Colliery under Clause 9.4.0 of NCWA-V, is not justified and she is entitled for employment under the Management.

7. Mr. A. K. Mehta, learned counsel appearing on behalf of the petitioner-Management, submitted that though the said award is challenged in this writ petition, the Management, subsequently, took decision to implement the said award. However, when Chandrakala Devi was sent to the Medical Board for that purpose on 15.12.2009, she was found aged about 47 years and six months. Learned counsel further submitted that in view of the said medical report, she is overaged for that purpose and is not entitled to get employment. She may be given monetary compensation.

8. Learned counsel appearing on behalf of the respondent No.2 -concerned workman, replying to the said contentions of learned counsel for the petitioner, submitted that valuable right of the concerned workman to get compassionate appointment, cannot be taken away due to negligence and laches on the part of the Management. Admittedly, when the concerned workman had applied for compassionate appointment on 26.9.1991, she was aged below 30 years and was eligible for getting employment. Her application was kept pending for several years by the Management. Thereafter, the concerned workman raised a dispute and ultimately the said dispute was decided in Reference Case No. 128/1999 by learned Central Government Industrial Tribunal No.1, Dhanbad holding that the concerned workman is entitled to get employment and that the action of the Management in not providing employment, is wholly unjustified.

9. Learned counsel submitted that in a number of judicial pronouncements, it has been clearly held that the compassionate appointment cannot be denied on the ground of being over age on the date of consideration, whereas the concerned workman was well within the prescribed age on the date of making the application and is entitled to get employment. Learned counsel referre