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Judgment
The petitioners have filed the present petition under Article 226 of the Constitution of India seeking following relief:-
(i)That this Hon’ble Court may kindly be pleased to issue appropriate writ/writs, order/orders, direction/directions and please to quash the impugned order dated 3.3.2015 (ANNEXURE P/1) and its Hindi translation (ANNEXURE P/2) holding it illegal and direct the respondents to grant benefit of Clause 9.4.0 of the National Coal Wage Agreement to the Petitioner No. 2 by appointing him on compassionate grounds.
ii) Any other relief which this Hon’ble Court may deem fit in the facts and circumstances of the case, may also kindly be granted together with cost of litigation.
2 . It is submitted by learned counsel for the petitioners that petitioner No.2 had applied for appointment on compassionate ground as the father of the petitioner No.2 had sustained injuries while working with the respondents company on 01.04.1997. It is further submitted that the petitioner No.1 was also awarded compensation vide award dated 07.02.2002 under the Workmen's Compensation Act by the competent Labour Court, which establishes that the petitioner No.1 had sustained injuries while performing his duties with the respondents.
It is submitted that the petitioner No.2. is entitled to be appointed on compassionate ground as per Clause 9.4.0 of the National Coal Wage Agreement-VI (Hereinafter referred to as "of the NCWA-VI for the sake of brevity), which provides that in case of disablement arising out of general physical debility, so certified by the coal company, the employee concerned will be eligible for the benefit under this clause if he/she is upto the age of 58 years. It is submitted that the as the petitioner No.1 had sustained injuries on 01.04.1997 prior to his retirement i.e. 58 years, and had also suffered permanent disability to the extent of 45% in his right hand, as certified by the doctors and duly proved before the Labour Court, therefore, petitioner No. 2 ought to have been appointed on compassionate grounds in the light of clause 9.4.0 (ii) of the NCWA-VI. It is submitted that the petitioners submitted various representations to the respondents on 01.01.1998 (Annexure P/6), 14.05.2000 (Annexure P/8), 30.04.2007 (Annexure P/10), 03.02.2009 (Annexure P/11), 18.02.2009 (Annexure P/12), 23.05.2009 (Annexure P/13), 25.05.2009 (Annexure P/14) and 28.08.2009 (Annexure P/15). It is further submitted that the petitioner No.1 also obtained a certificate from the Medical Board of the District Hospital dated 23.05.2009 (Annexure P/13), wherein it is opined that the father of petitioner No.2 was unfit for the reasons mentioned therein. It is submitted that as the respondents did not issue any certificate of debility and petitioner No. 1 continued to work till the age of retirement, petitioner No.2 was not granted compassionate appointment. Thereafter, the representation of the petitioners was rejected vide order dated 03.03.2015 (Annexure P-1). Therefore, the present petition has been filed praying for a direction to the respondents to appoint petitioner No. 2 on compassionate grounds
Per contra, learned counsel for the respondents has vehemently submitted that the petitioner No.2 is not entitled for compassionate appointment on the ground that the clause 9.4.0 of the NCWA-VI provides that the employee should suffer from the debility certified by the company prior to age of retirement and only thereafter the case of the dependent, which are mentioned under clause 9.4.0 of the NCWA-VI, be considered for the employment. It is submitted that the debility certificate was never issued by the respondent company in favour of the petitioner No.1. Petitioner No.1 continued to work till the age of his retirement. Therefore, as petitioner No. 1 served the respondents till the age of retirement, the question of granting compassionate appointment to his dependent during his service, in terms of Clause 9.4.0 of the NCWA-VI, did not arise. Accordingly, learned counsel for the respondents prayed for dismissal of the petition.
Heard learned counsel for the parties and perused the record.
Undisputedly, the petitioner No. 1 was awarded compensation for the injuries sustained during the course of his employment vide award dated 07.02.2002 passed by the competent Labour Court. A finding has also been recorded that petitioner No.1 had suffered disability to the extent of 45% in the right hand. It is also not disputed that the petitioner No.1 continued to work till the age of retirement, i.e. up to 58 years, as per clause 9.4.0 of the NCWA-VI and thereafter extended till 60 years by the virtue of the policy of the respondent company. It is further not disputed that despite several representations submitted by the petitioners, debility certificate was never issued by the respondent company.
Conditions of appointment of the dependent on account of the debility suffered by an employee of the respondent company are provided in Clause 9.4.0 of the NCWA-IV , which reads as under:-
"9.4.0 Employment to one dependant of a worker who is permanently disabled in his place.
(i)The disablement of the worker concerned should arise from injury or disease, be of a permanent nature resulting into loss of employment and it should be so certified by the Coal Company concerned.
(ii)In case of disablement arising out of general physical debility so certified by the Coal Company, the employee concerned will be eligible for the benefit under this clause if he/she is upto the age of 58 years. The term 'general physical debility' would mean deficiency of a workman due to any disease or other health reason leading to his/her duties regularly and/or efficiently.
(iii)The dependant for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment, brother, widowed daughter, widowed daughter-in-law or son-in-law residing with the employee and almost wholly dependent on the earning of the employee may be considered. In so far as female dependants are concerned, their employment would be governed by the provisions of Clause 9.5.0.
(iv)The dependants to be considered for employment should be physically fit and suitable for employment and aged not more than 35 years provided that the age limit in case of employment of female spouse would be 45 years as given in Clause 9.5.0. In so far as male spouse is concerned, there would be no age limit regarding provision of employment."
8 . From a perusal of the Clause 9.4.0 (ii) of the NCWA-VI, it is crystal clear that for getting the benefit of compassionate appointment to the dependent of an employee of the respondent company, two conditions are required to be fulfilled. Firstly, the employee should not have attained the age of 58 years, i.e., the age of retirement. Secondly, a certificate of debility is required to be issued by the respondent company. When the facts of the present case have been tested on the touchstone of the conditions laid down in the said agreement, it is found that though the petitioners submitted various representations, but the respondents had never issued a certificate of debility in favour of the petitioner No.1. The petitioner No.1 continued to work in the respondent company till his retirement. The petitioner No.1 did not file any such document to show that because of the alleged debility he could not perform his work and, therefore, he was not paid the salary/wages till his retirement. Therefore, it cannot be gathered that the petitioner No.1 was deprived of any monetary benefits due to the injury alleged to have been sustained by him resulting in such debility.
9 . This Court has no iota of doubt that when an employee has been allowed to continue in service till the age of retirement, there cannot be any appointment on a compassionate basis during the service period of such employee, because the very object of providing appointment to the dependent is to ensure that an employee who suffers debility during the course of employment is not left without any financial resource. In the present case, When the father of the petitioner continued in service till the age of retirement, there was no circumstance resulting in any financial crunch in the family of the petitioner, which could give any reason for the petitioner to claim appointment on the compassionate basis. It is not the object of the scheme or the agreement that the dependent as well as the employee could be benefited on account of debility suffered by the employee during the course of employment. If the employee has been allowed to continue working till the age of 58 years and has received all the consequential monetary benefits, there is no condition for which the case of the petitioners could be considered for the compassionate appointment. It is also found that the condition enumerated in the said clause is that the employee should not attain the age of 58 years. In the present case, petitioner No.1 continued to work in the respondent company till the age of 58 years. Learned counsel for the petitioners has emphasized the finding recorded by the authorities in the impugned order that as only three months were left for the retirement of the petitioner No.1, therefore the case of the petitioners could have been considered at the time of the passing of the order. The said submission was refuted by the counsel for the respondents by saying that by the operation of the policy of the respondent company, the age of retirement was extended from 58 years to 60 years. Even otherwise, as it is already observed by the this Court that only on account of alleged debility suffered by the petitioner, which was never certified by the respondent company, the petitioner could not claim any compassionate appointment when the petitioner No.1 continued in service. It is only in cases where an employee is unable to continue working in the respondent company and in order to meet the financial distress of the family, employment is provided to the dependent
In the present case, it is found that the petitioner No.1 continued to work till the age of retirement. Therefore, there is no question of granting any benefit to the petitioners under the National Coal Wage Agreement-VI. This Court does not find that the conditions prescribed under Clause 9.4.0 of the NCWA-VI have been fulfilled by the petitioners. Therefore, no case is made out for interference in the impugned order.
Accordingly, this writ petition sans merit and is hereby dismissed.