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CASE NO.: Appeal (civil)  4339 of 2007

PETITIONER: Mohan Mahto

RESPONDENT: M/s. Central Coal Field Ltd. & ors

DATE OF JUDGMENT: 18/09/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T  

CIVIL APPEAL NO.     4339             OF 2007 [Arising out of  SLP (Civil) No. 13935 of 2006]

S.B. SINHA, J :          1.      Leave granted.

2.     Appellant’s 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) above."

3.      Appellant 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 dependent."

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4.      Respondent 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 accordingly."

5.      It 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 employment."

6.      A 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-‘-vis the relevant provisions of N.C.W.A. V holding:

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       "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 petitioner’s 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 \026 VI to the  petitioner by appointing him in place of his  deceased father, who died in harness, as regular  employee of the Company."   

7.      An intra-court appeal was preferred thereagainst 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 Vrs. 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 Vrs. Union of India reported in 2005 (1)  JCR 282 (Jhr.)"

8.      Mr. Rajesh Kumar, learned counsel appearing on behalf of the  appellant, inter alia submitted:

(i)     the Division Bench of the High Court committed a serious error in  relying upon the judgment of this Court in Commissioner of Public  Instructions and Others v. K.R. Vishwanath [(2005) 7 SCC 206] as  therein a statutory rule was made providing for a limitation of one  year for filing an application for appointment on compassionate  ground from the date of death of the employee; (ii)    The period of six months envisaged under the circular letter dated  12.12.1995 will have no application as: (a) it is directory in nature  and (b) the same was substituted by another circular of 2000.

9.      Dr. A.M.Singhvi, learned senior counsel appearing on behalf of the  respondents, on the other hand, urged:

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(i)     Respondent as an employer is entitled to take a policy decision in  regard to  implementation of the  settlement. (ii)    Grant of appointment on compassionate ground, being an  exception to Article 16 of the Constitution of India, should be  strictly construed. (iii)   As the circular letter issued in 2000 is prospective in nature, the  same will have no application in the instant case.          10.     A settlement within the meaning of Sub-section (3) of Section 18 of  the Industrial Disputes Act is binding on both the parties and continues to  remain in force unless the same is altered, modified or substituted by another  settlement.  No period of limitation was provided in the settlement.  We  would assume that the respondent had jurisdiction to issue such circular  prescribing a period of limitation for filing application for grant of  appointment on compassionate ground.  But, such circular was not only  required to be strictly complied with but also was required to be read  keeping in view the settlement entered into by and between the parties.  The  expanding definition of workman as contained in Section 2(s) of the  Industrial Disputes Act would confer a right upon the appellant to obtain  appointment on compassionate ground, subject, of course, to compliance of  the conditions precedent contained therein.   

11.     The right to obtain appointment on compassionate grounds emanates  from the settlement.  Settlement is defined in Section 2(p) of the Industrial  Disputes Act to mean ’a settlement arrived at in the course of conciliation  proceeding and includes a written agreement between the employer and  workmen arrived at otherwise than in the course of conciliation proceeding  where such agreement has been signed by the parties thereto in such manner  as may be prescribed and a copy thereof has been sent to an officer  authorized in this behalf by the appropriate Government and the conciliation  officer’.

12.     Even in regard to prescription of a period of limitation, the respondent  ought to have kept in view the spirit thereof.

13.     We are not oblivious that grant of appointment on compassionate  ground is an exception to Article 16(1) of the Constitution of India.   

       In I.G. (Karmik) and Ors. v. Prahalad Mani Tripathi [2007 (6) SCALE  370], this Court observed:  "An employee of a State enjoys a status.    Recruitment of employees of the State is governed  by the rules framed under a statute or the proviso  appended to Article 309 of the Constitution of  India.   In the matter of appointment, the State is  obligated to give effect to the constitutional  scheme of equality as adumbrated under Articles  14 and 16 of the Constitution of India. All  appointments, therefore, must conform to the said  constitutional scheme. This Court, however, while  laying emphasis on the said proposition carved out  an exception in favour of the children or other  relatives of the officer who dies or who becomes  incapacitated while rendering services in the police  department.  See Yogender Pal Singh and Others  v. Union of India and Others [A.I.R. 1987 SC  1015].

       Public employment is considered to be a  wealth.  It in terms of the constitutional scheme  cannot be given on descent. When such an  exception has been carved out by this Court, the  same must be strictly complied with.     Appointment on compassionate ground is given

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only for meeting the immediate hardship which is  faced by the family by reason of the death of the  bread earner.  When an appointment is made on  compassionate ground, it should be kept confined  only to the purpose it seeks to achieve, the idea  being not to provide for endless compassion.

       In National Institute of Technology & Ors.  v. Niraj Kumar Singh [2007 (2) SCALE 525], this  Court has stated the law in the following terms:-

"16.  All public appointments must be in  consonance with Article 16 of the  Constitution of India.    Exceptions carved  out therefore are the cases where  appointments are to be given to the widow  or the dependent children of the employee  who died in harness.   Such an exception is  carved out with a view to see that the family  of the deceased employee who has died in  harness does not become a destitute.   No  appointment, therefore, on compassionate  ground can be granted to a person other than  those for whose benefit the exception has  been carved out.   Other family members of  the deceased employee would not derive any  benefit thereunder."

14.    In State Bank of India and Another v. Somvir Singh [(2007) 4 SCC  778], this Court held:

"10. There is no dispute whatsoever that the  appellant-Bank is required to consider the request  for compassionate appointment only in accordance  with the scheme framed by it and no discretion as  such left with any of the authorities to make  compassionate appointment de hors the scheme. In  our considered opinion the claim for  compassionate appointment and the right, if any, is  traceable only to the scheme, executive  instructions, rules etc. framed by the employer in  the matter of providing employment on  compassionate grounds. There is no right of  whatsoever nature to claim compassionate  appointment on any ground other than the one, if  any, conferred by the employer by way of scheme  or instructions as the case may be."

                         15.     The period of six months’ limitation prescribed in the circular letter  dated 12.12.1995 was not statutory.  It is also not imperative in character.   Even for entertaining such an application beyond the period of six months,  the Headquarters of the Central Coal Field Limited is entitled to consider the  facts and circumstances of each case.  Admittedly, Appellant filed an  application for grant of appointment on compassionate ground when he was  a minor.  His application was rejected on that premise at the first instance  but even at that point of time the respondent did not take a stand that the  same had not been entertained on the ground that the same was filed after  expiry of the period of six months.   

16.     It is neither in doubt nor in dispute that the case for grant of

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compassionate appointment of a minor was required to be considered in  terms of Sub-clause (iii) of Clause 9.5.0 of the N.C.W.A.V.  In terms of the  said provision, the name of the appellant was to be kept on a live roster.  He  was to remain on the live roster till he attained the age of 18 years.   Respondents did not perform their duties cast on them thereunder.  It took an  unilateral stand that an application has been filed in the year 1999 in the  prescribed form.  For complying with the provisions of a settlement which is  binding on the parties, bona fide or otherwise of the respondent must be  judged from the fact as to whether it had discharged his duties thereunder or  not.  In this case, not only it failed and/ or neglected to do so, but as  indicated hereinbefore it took an unholy stand that the elder brother of the  appellant being employed, he was not entitled to appointment on the  compassionate ground.  Thus, what really impelled the respondent in  denying the benefit of compassionate appointment to the appellant is,  therefore, open to guess.  We expect a public sector undertaking which is a  ’State’ within the meaning of Article 12 of the Constitution of India not only  to act fairly but also reasonably and bona fide.  In this case, we are satisfied  that the action of the respondent is neither fair nor reasonable nor bona fide.   

17.     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 done.

18.     Reliance 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 case.

19.     In 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

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the crisis is over."

       What should be a reasonable period would depend upon the rules  operating in the field.

20.     For the reasons aforementioned, the impugned judgment cannot be  sustained which is set aside accordingly.  The appeal is allowed.   Respondent is hereby directed to offer appointment to the appellant on a  suitable post within eight weeks from date.  As the appellant is not in  employment for a long time, he is entitled to costs throughout.  Counsel’s  fee assessed at Rs. 25,000/-.