The statutory right of a person cannot be taken away by an executive endorsement without the consent of the person to whom the right has been conferred under N.C.W.A.

JUDGMENT

Shree Chandrashekhar, J. – Petitioner has approached this Court with a grievance that his claim for appointment on compassionate grounds has been kept pending for years together and it has not been decided by the respondent authority.

2. Briefly stated, father of the petitioner namely, Dukhan Rawani was employed as Electricity Helper, who subsequently came under employment of the respondent-M/s Bharat Coking Coal Limited. He was married to one Sushni Devi, however, from the wedlock no child was born. Subsequently, Dukhan Rawani contracted a second marriage with Kalyani Devi and from this wedlock two sons were born. On a representation of the employee, name of his second wife and two sons were included in his service record. On death of Dukhan Rawani, his first wife namely, Sushni Devi was offered compassionate appointment. In the application form submitted by Sushni Devi name of the petitioner, his mother and his brother as family members of Sushni Devi was mentioned. The petitioner has claimed that by a registered adoption deed dated 09.07.1997 he was adopted by Sushni Devi as her son. The petitioner has pleaded that he and his brother were made nominee by Sushni Devi for payment of gratuity and Provident Fund amount. Sushni Devi died on 19.03.2012, where-after an application for compassionate appointment was filed by the petitioner on 23.07.2012.

3. In the aforesaid facts, contending that the respondent-M/s Bharat Coking Coal Limited, in terms of Clause 9.3.2 (ii) of N.C.W.A-VI, is under a duty to take a decision on the claim for compassionate appointment to the petitioner, the learned counsel for the petitioner submits that the respondents are required to take a decision in the matter.

4. Clause 9.3.2 of N.C.W.A provides that dependant of a deceased employee would include his spouse, wife/husband as the case may be, unmarried daughter, son and legally adopted son. In "Mohan Mahto v. M/s Central Coal Field Ltd. and Others" reported in (2007) 8 SCC 549 , the Supreme Court has observed that a settlement within the meaning of section 18 (3) of the Industrial Disputes Act would be binding on the parties. The National Coal Wage Agreement, which is a settlement between the Coal Companies, Trade-Union and the Central Government, is binding on the parties and, in fact, has attained statutory force. The petitioner has pleaded that other legal heirs of the deceased employee have submitted an application relinquishing their claim for compassionate appointment. The petitioner has claimed that by virtue of a registered adoption deed dated 09.07.1997, Sushni Devi adopted him as her son.

5. The endorsement on the service record of Sushni Devi to the effect that other sons and daughter of the deceased employee born out of wedlock with Kalyani Devi would not claim service benefits, in view of Clause 9.3.2 of N.C.W.A, would not take away the right in the petitioner to seek compassionate appointment on death of Sushni Devi, for a statutory right of a person cannot be taken away by an executive endorsement and, that too, without consent of the person to whom a right has been conferred under N.C.W.A. However, whether adoption of the petitioner by Sushni Devi allegedly through a registered adoption deed 09.07.1997 is valid or not, is not an issue before the Court and on this issue the respondent shall take a decision. It is expected that once it is found that petitioner was legally and validly adopted by Sushni Devi, his claim of compassionate appointment shall be considered, in accordance with law, however, it is made clear that his claim shall not be rejected on the ground of the aforesaid endorsement in the service record of late Sushni Devi. His claim shall also not be declined on the ground of delay, if any.

6. Let a decision on the claim of the petitioner be taken within a period of four weeks, communication thereof to the petitioner shall be given within four weeks thereafter.

7. The writ petition stands disposed of, in the aforesa