J. Padma vs The Singareni Collieries Co. Ltd. and Others

The petitioner is a widow of one late J. Kumara Swamy, J. Kumara Swamy was working as a Fitter Grade-I in K.K.I. Incline of Singareni Collieries Company Limited; he met with a road accident on September 20, 1991 and ultimately he died on October 8, 1991. After the death of the employee, the petitioner - wife made an application on October 4, 1992 to the third respondent seeking appointment on compassionate grounds in terms of the scheme framed by the management of the Company. The Company did not provide her appointment. On the other hand, she was informed by the Colliery Manager, KKI Incline, the third Respondent herein, by his letter dated November 27, 1992 that there was no provision for providing employment to female dependent and the petitioner was therefore, eligible to get Rs. 50,000/- in lieu of dependent employment as per the Rules in vogue. Hence this writ petition seeking a declaration that the action of the respondents in refusing to provide suitable employment as illegal, arbitrary and discriminatory, and for a consequential direction to the respondents to appoint the petitioner in the post of Clerk Grade-II or any other suitable post commensurate with the qualification possessed by the petitioner.

The Respondents on service of notice, have filed counter resisting the claim.

Heard the learned counsel for the parties.

Sri G. Vidyasagar, learned Counsel for the petitioner firstly contended that the management of the Company cannot depart from the terms of National Coal Wage Agreement, to which the management of the Company was also a party and the National Coal Wage Agreement specifically provides for appointment of widows of deceased employees and therefore, the action of the Company in refusing to appoint the petitioner should be held to be in violation of the terms of the National Coal Wage Agreement. Secondly, the learned Counsel would submit that the action should be condemned as discriminatory, violative of Articles 14 and 16 of the Constitution, inasmuch as the petitioner is denied employment on the ground only of ''sex'', which us prohibited under Clause(2) of Article 16 of the Constitution. Thirdly, the learned Counsel would argue that the so-called settlement dated October 25, 1991, strictly speaking, is not a binding settlement, inasmuch as no demand was raised by the trade unions and at the most, the so called settlement dated October 25, 1991 can only be a Memorandum of Understanding between the trade union and the management. Lastly, the learned counsel would submit that the petitioner''s husband died on October 8, 1991 and the so-called settlement was entered into between the management and the trade union only on October 25, 1991 and therefore, the provisions of the settlement could not be enforced against the petitioner. On the other hand, Sri K. Srinivasa Murthy, learned Standing Counsel for the respondent-Company would support the impugned action.

I do not find any merit in any of the four contentions advanced on behalf of the learned counsel for the petitioner. In the first place, nothing was placed before the Court to show that the National Coal Wage Agreement is a settlement between the capital and the labour and the one executed under the provisions of Section 12(3) of the Industrial Disputes Act. On the other hand, it is specifically stated in the counter filed by the respondents that, that was only a memo of understanding and not a settlement within the meaning of Section 2(p) of the Act. I have carefully gone through the memo of settlement dated October 25, 1991 placed before the Court. The preamble to the settlement refers to the participation of the office bearers of the trade unions and the representatives of the management and about their discussing the "issue with regard to providing employment to the female dependents of the employees who die while in service or who are declared medically unfit", and then it incorporates certain terms of the settlement. Therefore, it cannot be said that there was no demand by the trade unions to specify the terms relating to employment of the female dependents of the employees who die in harness. It is beyond my comprehension to conceive an issue, in legal parlance, without there being a demand and denial. The resultant position is that if the National Coal Wage Agreement is only a Memorandum of Understanding, whatever be the terms of such understanding, can validly be modified, altered or even deleted altogether by executing a valid settlement as provided under the provisions of the Industrial Disputes Act and if there is any inconsistency between a Memorandum of Understanding and a settlement executed under-Section 12(3) of the Act, then, the terms of settlement should prevail over the terms of Memorandum of Understanding. Therefore, the first and third contentions of the learned Counsel for the petitioner do not merit acceptance.

The second contention of the petitioner that the action of the respondents in refusing to appoint the petitioner tantamounts to invidious discrimination, is not well founded. It is true that the likes should be treated alike is a constitutional right which flows from Articles 14 15 and 16 of the Constitution. At the same time, it is settled position in law that a reasonable classification can be made. The management has definitely made the classification of the applicants into female dependents of the deceased employees and the male dependents of the deceased employees. Unless the classification is found to be grounded on an intelligible differential which distinguishes persons or things that are grouped together from others left out of the group, and that, that differential must have rational relation to the object sought to be achieved, the classification cannot be sustained. The terms of settlement specifically refer to the fact that women employment is prohibited in Mines and restricted to surface departments only; employment opportunities to the female dependents are very much restricted, and it states that difficulty was experienced in providing employment to female dependents and therefore, it incorporated a scheme of providing monetary benefits in lieu of providing employment to female dependents. If this is the background and the solution was suggested by the Trade Unions themselves, can it be said that the classification made by the company into males and females, is based on the ground only of ''sex'' ? The obvious answer is ''no''. The classification is not based on the ground only of ''sex'', but for other valid reasons. The classification is based on intelligible differential and it is not barred by Art. 16(2) of the Constitution.

I do not find any merit in the last contention of the learned Counsel for the petitioner. It is true that the husband of the petitioner died in harness on October 8, 1991 whereas the settlement was executed between the trade unions and the management only on October 25, 1991. But it is also an admitted fact that the petitioner made the application only on October 4, 1992. The event, i.e., the death of the husband itself did not vest in the petitioner a right to the employment in the Company. When that event happened, what the petitioner acquired was a right to apply or a right to be considered for appointment on compassionate grounds. As on October 4, 1992 when the application was made, the settlement was already in force. Therefore, the application of the petitioner was required to be considered by the management of the Company in terms of the settlement.

I am of the considered opinion that in a case where the partners of the industry - the capital and the labour thought it fit, having regard to the peculiar nature of the industry and for certain practical difficulties, that it was not feasible nor expedient to make provisions for providing appointment on compassionate grounds to the female dependents of the employees dying in harness and enter into a settlement in the course of conciliation in that regard, it will be improper for this Court, in exercise of its discretionary power under Article 226 of the Constitution, to upset that arrangement, and if the Court does it, it will not be conducive to maintain a healthy and good industrial relations in the industry. Looking from an angel, I do not find any irrationality or objectionable discrimination in the impugned action of the management. The writ petition is devoid of merit.

In the result, the writ petition fails, and it is accordingly dismissed. No costs.