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Judgment
S.B. Sinha, J
This application is directed against an award dated 20.11.85 which is contained in Annexure 1 to the writ application passed by the respondent No. 1 in Reference Case No. 44 of 1985 whereby and whereunder it was held that the dependent of deceased workman late Sahdeo Saw, Wagon Loader who died in harness, should be employed by the petitioner''s in their mines. The fact of the matter lies in a very narrow compass.
The Central Government being the appropriate Government in exercise of its power conferred upon it u/s 10 (1) (d) of the Industrial Disputes Act, 1947 issued a notification dated the 20th April, 1985 referring the following dispute for its adjudication by the respondent No. 1 :�
Whether the demand that the dependant of the deceased workman, Late Sahadeo Saw, Wagon Loader of Bhowra, Distt. Dhanbad who died while in service should be employed by the management in their mine, is justified ? If so, to what relief, the dependant of the deceased workman is entitled ?
The case of the respondent No. 2 (Union) in short was that late Sahadeo Saw was a permanent Wagon Loader and was employed in Bhowra (N) Colliery. He was also a member of the Coal Mines Provident Fund Scheme and his account number was C/26/955. While in service he died on 23.11.80 leaving behind his widow Kalia Devi and a son named Sadhu Sao aged about 18 years and two minor daughters as his dependants.
The respondent No. 2 contended that in terms of Clause 10.4.2 of NCWA-II one of the dependant of the deceased workman was entitled to obtain employment under the petitioner Comapny. It was further alleged that Kalia Devi wife of late Sahadeo Saw made several representations for giving job to her or to her son Sadhu Saw, but her request was not acceded to and thus the management violated the provisions of Clause 10.4.2 of the National Coal Wages Agreement No. 11.
It was also stated that the dependants of the said late Sahadeo Saw have been facing starvation and in that situation an industrial dispute was raised leading to the reference of the aforementioned dispute by the Central Government for its adjudication by the respondent No. 1.
The case of the petitioner, on the other hand, was that late Sahadeo Saw was employed as Casual Wagon Loader with effect from 8.3.1976 and he died a natural death on 23.11.80. According to the management, late Sahadeo Saw had not put in 240 days of continuance attendance in a period of 12 months and according to the prevailing practice, a dependant of the workman is provided employment only if there is a requirement of additional Wagon Loaders. It was also alleged that there was no practice for providing employment to the dependants of a casual employee.
By reason of the impugned award as contained in Annexure-1 to the writ application, the respondent No. 1 held that the late Sahadeo Saw was a permanent workman. It was further held that in any event, there is nothing in National Coal Wages Agreement No. II to show that Clause 10.4.2 thereof is applicable only to a permanent workman.
The respondent No. 1, therefore, held that the demand of respondent No. 2 was not (sic) justified and thus the management was directed to give employment to Sadhu Saw, son of late Sahadeo Saw within one month from the date of the publication of the award.
In this case, on 1.10.1991 i.e. when the case was taken up for hearing an application was filed on behalf of the petitioner praying therein that the petitioner be permitted to raise the contention that the relevant clause for providing employment to the dependant of the deceased workman is violative of Article 16 of the Constitution of India.
Mr. K.D. Chatterjee, learned Senior counsel appearing on behalf of the petitioner has raised two contentions in support of this application.
It was firstly submitted that Clause 10.4.2 of National Coal Wages Agreement No. II is violative of Article 16 of the Constitution of India.
The Learned Counsel in this connection has strongly relied upon an unreported decision of mine in M.L. Gupta and Others Vs. Instrumentation Ltd. and Others .
The Learned Counsel next contended that regard being had to the definition of ''permanent workman'' as contained in the certified standing order of the concerned colliery, the findings of fact arrived at by the Respondent No. 1 that late Sahadeo Saw was a permanent workman was perverse in so far as the respondent No. 1 failed (sic) took into consideration irrelevant fact namely the length of service of the workman to arrive at a conclusion that Late Sahadeo Saw was a permanent workman, which has nothing to determine the question of fact with regard to the nature of job held by a workman.
Mr. Chatterjee, did not challenge the other findings of fact arrived at by the respondent No. 1.
Mrs. Jaya Roy, the Learned Counsel appearing on behalf of the respondent No. 2, on the other hand, took toe through the award of the respondent No. 1 as contained in Annexure-1 to the writ application and submitted that as Clause 10.4.2 was a beneficent provisions and was inserted as a condition of service by way of social security, the same should be liberally construed.
The Learned Counsel, further submitted that the petitioner-company having entered into a ''settlement'' which has the force of law, cannot contend that the aforementioned provision is ultravires Article 16 of the Constitution of India.
The Learned Counsel further submitted that the finding of the respondent No. 1 that late Sahadeo Saw continuously worked for a period of more than 240 days in a year being a finding of fact, the same cannot be interfered with by this Court.
Re-Contention (1) :-Clause 10.4.1 and 10.4.2 of National Wages Agreement No. 11 read as follows :�
10.4.1.�Employment would be provided to one dependant of workers disabled permanently and those who meet with death in service. This provision will be implemented as follows.
10.4.2 (i)�The dependant of 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, younger brother, widowed daughter/widowed daughter in law residing with the deceased and almost wholly dependant on the earnings of the deceased may be considered to be the dependant of the deceased.
(ii) The dependant to be considered for employment should be physically fit and suitable for employment and aged not more than 35 years provided that the limit shall not apply in the case of spouse.
(Underlining is mine for emphasis)
It is not in dispute that the National Coal Wages Agreement No. II, came into force with effect from 1.1.1979. The said agreement was finalised by the Joint Bipartite Committee for the coal Industry. It consists of several chapters. Clause 10.4.1 aforementioned occurs in Chapter-X Part-D of the Agreement and contains one of the provisions relating to social security, Medical facilities and Welfare Scheme of the workmen engaged in the coal mining industry.
It is not in dispute that the petitioner is a ''State'' within the meaning of Article 12 of the Constitution of India.
The question therefore which arises for consideration is as to whether the aforementioned provision is ultra-vires Article 16 of the Constitution of India or not.
Mr. Chatterjee contended that taking into consideration the wide amplitude of Article 16, no person can be employed by a ''State'' within the meaning of Article 12 of the Constitution of India, unless the post is advertised and the cases of all eligible candidates is considered therefor.
Learned Counsel in this connection has placed strong reliance upon Paragraph 83 of the M.L. Gupta''s case (supra), which reads as follows :�
Article 16 of the Constitution of India provides that all citizens of India are entitled to get equal opportunity for the purpose of obtaining employment in State Service.
In M.L. Gupta''s case (Supra), this Court was considering a writ petition filed under Article 226 of the Constitution of India by workmen of M/s Instrumentation Limited for issuance of a writ of mandamus directing that their services may be regularised by the respondent thereof.
In that case itself this Court made a distinction as to the demand of regularisation of casual workman working in an Industry for a long time in the following words :�
Such a course of action may however be taken where the employer manages an industry and the casual employees employed therein gets a statutory right by working therein for a long time.
It is not in dispute that the National Coal Wages Agreements are Tripartite agreements providing for the terms and conditions of services of the workman employed in the Coal Mines. The first of such agreement namely National Coal Wages Agreement No. I came into force with effect from 15th November, 1973. National Coal Wages Agreement No. II came into force with effect from 1.1.1979 and the National Coal Wages Agreement No. III came into force with effect from 1.1.1983.
Now National Coal Wages Agreement No. IV is in force. In all the National Coal Wages Agreements provisions had been made for providing social security, medical facilities to the workman and other welfare measures to be adopted by the employer.
Whether such a beneficient provision will be hit by Article 16 of the Constitution of India is the question involved in this case.
Articles 14 and 16 of the Constitution of India do forbid class legislation. Article 16 is only an instance of the application of general rule of equality laid down in Article 14 and it should be construed as such. Article 16 thus does not debar a reasonable classification of the employee in the matter of appointment provided such classification is made with reference to the object, it seeks to achieve.
In this case, provision for giving employment to the dependant of an employee who dies in harness is a condition of service. Such a condition of service has been included in the settlement entered into by and between the employer and employees. Such a provision per se cannot be said to be unreasonable.
There are similar provisions in various rules framed under the proviso to Article 309 of the Constitution of India or made by the States in terms of its policy decisions.
Reference in this connection by way of example may be made to U.P. Recruitments Dependants of Government Servant Dying in Harness Rules, 1974 referred to and considered in Harbans Sahay and ors. v. State of U.P. and others reported in 1991 Vol. (2) L.L.J. Page 287.
In that case it was observed :
The clear intention of the Rules is to provide assistance to the family of the deceased who died in harness. It is at that time that the help is required by the family.
A statutory rule or a policy decision to give employment to the dependant of an employee who died in harness on compassionate ground, in my opinion, does not attract Article 16. Such employee would form a class by themselves which is not prohibited under Article 16 of the Constitution of India.
A distinction has to be made for providing employment to the children of an employee who has superannuated or whose dependants get preference while they are already in service. Such preferences in the matter of employment given will come within the mischief of Article 16 of the Constitution of India.
In A.K. Saba v. Central Bank of India reported in 1982 (2) L LJ p177 a division bench of the Calcutta High Court held that sole object of the circular in question was to give concessions to the children of the employees and not directly to the employees and the concession was being given solely on the ground of descent, which is clearly violative of Article 16 of the Constitution of India.
In Yogender Pal Singh v. Union of India reported in 1987 S.C. page 1015, the Supreme Court while striking down Rules 12, 14 and 12, 15 of the Punjab Police Rules, 1934, however stated :�
While it may be permissible to appoint a person who is the son of a Police Officer who dies in service or who is incapacitated while rendering service in the Police Department, a provision which confers a preferential right to appointment on the children or wards or other relatives of the police officers either in service or retired merely because they happen to be the children or wards or other relatives of such police officers would be contrary to Art. 16. of the Constitution.
The Supreme Court in that case took into consideration its earlier decision in Gazula Dasaratha Rama Rao v. State of Andhra Pradesh (AIR 1961 S.C. 564) and observed :�
We are of opinion that the claim made by the appellants for the relaxation of the Rules in their cases only because they happen to be wards or children or relatives of the Police Officers has got to be negative since their claim is based on ''descent'' only, and others will thereby be discriminated against as they do not happen to be sons of Police Officers. Any preference shown in the matter of public employment on the grounds of descent only has to be declared as unconstitutional. The appellants have not shown that they were otherwise eligible to be recruited as Constables in the absence of other order of relaxation on which they relied, Hence they cannot succeed.
It is therefore, clear from the aforementioned decision that the prohibition of Article 16 of the Constitution shall apply only if preference based on ''descent'' is given and not in a case where provisions for employment has been made on compassionate grounds.
This aspect of the matter has also been considered recently by a division bench of this Court in Bijoy Kumar Sinha v. State of Bihar reported in 1991 (1) PLJR page 316. It was held :
It is not a general concession to all the dependants of the deceased employees. It is confined to the selection to one to compensate the loss by giving employment to him. If one bread earner is there, another is not allowed to enter in the preference. The circular is, thus, one which has conferred a preferential right to appointment to the dependants of a deceased employee who died in harness by identifying the economic backwardness and also the loss which unless compensated shall force the family to go further down.
Clause 10.4.2 of National Coal Wages Agreement No. II does not contemplate a case for giving appointment to all the dependants irrespective of the fact as to whether he is qualified therefor or not. Such offer of appointment to a dependant of the deceased employee can be made on fulfilment of the conditions mentioned therein. Such a rule evidently was laid down by way of welfare measure of a deceased employee for the purpose of rendering immediate help to the bereaved family. The said rule, therefore, in my opinion is not ultravires Article 16 of the Constitution India.
Re-Contention-2 :� In terms of the certified Standing order which was marked as Ext. W/8 : a permanent employee is one who is appointed for an unlimited period or who has satisfactorily put in 6 months continuance service in a permanent post as a probationer. A temporary employee is one who is engaged for work which is of essential temporary character which is likely to be finished within the limited period.
Mr. Chatterjee, contended that although a finding of fact arrived at the late Sahadeo Saw was working as Wagon Loader from 1976 to 23.11.80, there is nothing to show that he was appointed for an unlimited period.
According to the Learned Counsel evidences had been adduced for the purpose of showing that the concerned workman had not completed 240 days in a year and as he was not a permanent workman.
The question as to whether the workman was appointed for an unlimited period or not is essentially a question of fact. It has not been disputed that the post of Wagon Loader is a permanent post. A Wagon Loader is engaged on a work of permanent nature which lasts throughout the year. The petitioner has produced various records in respect of the employment of late Sahadeo Saw which are contradictory to each other. (Ext. M/4) which is the Bonus Register of 1974 showed that late Sahadeo Saw had been working since the week commencing from 3.1.1976, whereas the Identity card Register (Ext. M/3) shows that he had been working from 8.3.1976. These discrepancies had not been clarified.
MW-2 in his cross-examination, was confronted with a Bonus Register wherefrom it appeared that late Sahadeo Saw had been in employment since January, 1975, but he could not clarify the position.
The management did not produce the Bonus Registers in respect of late Sahadeo Saw prior to 1976. The specific case of the workman was that late Sahadeo Saw had been working since before the nationalisation of the coal mines which took place on 1.5.1972.
The respondent No. 1 in his award has held :�
MW-2 has stated that he did not see Form H in respect of Sahadeo Saw. He has further stated that Form H will show the date from which Sahadeo Saw became member of C.M.P.F. The fact that the management have suppressed the Bonus Register prior to 1976 and Form H show that as the late Sahadeo Saw was working as Wagon Loader since before 1976, the same has not been produced as that would have established the fact that Sahadeo Saw was working since before 1976 and that he had attendant (sic) of 240 days in the previous years. Taking all these facts and circumstances into consideration it appears that late Sahadeo Saw was actually a permanent workman and was not a casual workman.
Further the respondent No. 1 has held that NCWA-II apply to all classes of workmen and thus clause 10.4.2 of NCWA-II was confined to a permanent workman only.
This finding of respondent No. 1 has not been questioned before me.
In any event, as an employee had been working for a long time, assuming that he had been working intermittently, if on compassionate ground, by reason of the impugned award his son has been directed to be employed, in my opinion, this is not a fit case in which this Court should exercise its discretion under Article 227 of the Constitution of India.
In the result, there is no merit in this application, which is accordingly dismissed with costs. Advocate''s fee is quantified at Rs. 500/-.