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IN THE HIGH COURT OF JHARKHAND AT RANCHI
SHREE CHANDRASHEKHAR, J.
Latika Devi w/o Late Jagdish Oraon – Appellant
Versus
Central Coal Field Ltd. - Respondent
W.P.(S) No.1632 of 2013
Decided on : 10-04-2018
Compassionate Appointment - Employment Rights - National Coal Wage Agreement (NCWA) - Section 7(3) of Payment of Gratuity Act, 1972 - Section 108 of the Evidence Act - [Clause 9.5.0 of NCWA, Section 7(3) of Payment of Gratuity Act, 1972, Section 108 of the Evidence Act] - The court discussed the provisions of NCWA, Payment of Gratuity Act, and Evidence Act in the context of compassionate appointment and payment of post-retiral benefits. It emphasized that the delay on the part of the dependant or procedural delays cannot be grounds for rejecting a claim for compassionate appointment. The court also recognized the concept of 'civil death' and its statutory recognition under section 108 of the Evidence Act, and held that the claim for compassionate appointment is maintainable once the employer takes a decision on post-retiral benefits and strikes off the employee's name from the company's roll.
Fact of the Case:
The petitioner, widow of an employee, sought compassionate appointment after her husband's civil death. The employer declined the appointment, citing the absence of a specific clause in NCWA for civil death cases. The petitioner's post-retiral benefits were also unpaid.
Finding of the Court:
The court found serious infirmity in the employer's decision and quashed the order declining compassionate appointment. It directed the employer to assess the petitioner's suitability for compassionate appointment within 6 weeks.
Issues: The issues involved included the denial of compassionate appointment, non-payment of post-retiral benefits, and the employer's reliance on the absence of a specific clause in NCWA for civil death cases.
Ratio Decidendi: The court held that delay on the part of the dependant or procedural delays cannot be grounds for rejecting a claim for compassionate appointment. It also recognized the concept of 'civil death' and its statutory recognition under section 108 of the Evidence Act.
Final Decision: The writ petition was allowed, and the employer was directed to assess the petitioner's suitability for compassionate appointment within 6 weeks.
The petitioner, widow of the employee-Jagdish Oraon, is aggrieved of order dated 05.10.2012 by which she has been declined compassionate appointment.
2. Before adverting to facts of the case and the issue involved in this writ petition, it would be appropriate to recapitulate the previous orders passed in the present proceeding. These orders would reveal that there was no delay on the part of the petitioner in raising the claim for payment of post-retiral benefits, family pension and compassionate appointment to her. The aforesaid claims have yet not been settled and compassionate appointment to the petitioner has been declined; one of the grounds is that the family has survived so long. Order dated 15.01.2018 was passed, when it was found that in the counter-affidavit necessary details pertaining to employment of late Jagdish Oraon were not disclosed and post-retiral benefits have not been paid to the petitioner. Order dated 15.01.2018 reads as under:
Aggrieved of non-compliance of the order passed in W.P.(S) No.1460 of 2012 whereby the respondent-General Manage (P&IR) was directed to decide the claim of the petitioner, the petitioner has approached this Court.
During the course of hearing it has been revealed that after death of the employee-Jagdish Oraon the post-retiral benefits have not been paid to his widow.
The Chief General Manager, Dhori Area-M/s Central Coal Fields Limited-respondent no.2 shall file an affidavit disclosing correct complete facts pertaining to employment of late Jagdish Oraon. It shall be revealed whether his name was struck-off from the roll of the company or not and if yes, when. The respondent no.2 shall also state (i) whether the dependants of late Jagdish Oraon were informed of their rights under NCWA and/or under any other statutory settlement/agreement, (ii) whether the format in which claim for compassionate appointment shall be made was handed-over to the dependants and
(iii) whether the dependants of the deceased employee were informed of the period within which application shall be submitted.
3. The respondents have filed an affidavit on 28.02.2018 in which they have admitted that the dependants of late Jagdish Oraon were not informed about their rights under National Coal Wage Agreement (NCWA) and they were not provided the form/format for submitting the application for compassionate appointment.
4. It further appears that even after filing three affidavits and, that too, on the direction of this Court still complete facts on employment of the husband of the petitioner and payment of post-retiral benefits were not brought on record, accordingly order dated 19.03.2018, which reads as under, was passed:
“As many as three affidavits have been filed by the respondent-M/s CCL and, that too, on the direction of this Court, however, complete facts pertaining to employment of the husband of the petitioner and payment of post-retiral benefits accrued on death of the employee have still not been brought on record. It is not known whether the petitioner has crossed the age of 45 years which is the maximum age for appointment of a female dependant on compassionate ground. In its affidavits the respondent-M/s CCL has not pleaded whether monetary compensation in terms of Clause 9.5.2. and 9.5.3 of NCWA is payable to the petitioner or not.
2. The learned counsel for the respondent-M/s CCL submits that there is no application by the petitioner for payment of monetary compensation.
3. The aforesaid contention is without substance. In “Shreejith L. Vrs. Deputy Director (Education) Kerala and Others” reported in (2012) 7 SCC 248 it has been held by the Supreme Court that application for compassionate appointment cannot be rejected on the ground that it was not in the prescribed format. This judgment in “Shreejith L.” case, in my opinion, is squarely attracted in cases in which claim for compassionate appointment has been declined, but the female dependant is entitled for monetary compensation. On payment of po
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