Sanjay Bhuian vs Union Of India And Ors

Heard counsel for the parties.

The present writ petition has been filed for quashing the Award dated 30.04.2014 passed in Reference No. 314 of 1999 by the learned Presiding Officer, C.G.I.T. (No.2), Dhanbad whereby the reference has been answered against the petitioner (claimant) whereby the compassionate appointment claimed by the petitioner, has been denied.

From arguments and pleading of the parties, it appears that the father of the petitioner Late Jagdish Bhuian was a permanent employee of the respondent-management who died on 26.06.1996. Before death, the father of the petitioner has been dismissed from the service w.e.f. 16.06.1995 on the ground of absenteeism by holding ex-parte enquiry.

After the death of petitioner's father, an application has been submitted by the dependent under 9.3.2 of NCWA claiming compassionate appointment, but the same has not considered and as such Industrial Dispute has been raised which has been referred as Reference No. 314 of 1999. The terms of reference is as follows:-

SCHEDULE

"Whether the action of the Management of M/s BCCL, Bararee Colliery in denying employment to the dependant son of Sh. Jagdish Bhuia who died on 26.6.1996 on the grounds that he had been dismissed w.e.f. 16.6.1995 after ex-parte enquiry during the period of his illness and treatment in Central Hospital is just, proper, and legal? If not, to what relief the dependant son of the erst workman is entitled."

The award is in following term:-

"Having gone through the materials available on the case record, I am of the considered view that the claim of the petitioner for his employment in place of his father is not justified, for the reason that his father as the workman for his wilful absence from his duty as usually in his past career earlier dismissed and he had lost his lien on his service. Hence it is hereby awarded that the action of the Management of the M/s BCCL, Bararee Colliery in denying employment to the dependant son of workman Jagdish Bhuia who died on 26.6.1996 on the ground of having been dismissed earlier w.e.f. 6.6.1995 after ex-parte enquiry during the periods of his illness and treatment at Central Hospital, Dhanbad is just, proper and legal for the reasons of his wilful long absence, resulting in lose of his lien on his service. Hence the present dependant of the Ex-workman is not entitled to any relief."

Thus, the reference has been answered against the petitioner on the ground that his father was not in employment when he died. Death in harness is sine qua non for providing compassionate appointment.

It is settled law that compassionate appointment is an exception to the general rule and that has to be provided strictly in accordance with the scheme.

In the present case, the compassionate appointment is covered by the National Coal Wage Agreement which contemplates that in the case of death in harness the compassionate appointment will be extended to the one of the dependent of the employee. As in the present case, the death is not in harness and as such the petitioner claimant is not entitled to get benefit of compassion under the NCWA.

Counsel for the petitioner has relied upon the judgment of this Court in the case of Smt. Meena Kumari Vs. Union of India reported in 2005 (2) JLJR 475 (HC) Jharkhand, and argued that the order of dismissal passed on the basis of ex-parte enquiry i.e. in violation of principle of natural justice, is null and void and it requires no such declaration.

In the present case, the factual aspect is different as the petitioner's father was regularly absent, and for that, he has been proceeded. After holding ex-parte enquiry, he has been dismissed from the service w.e.f. 16.6.1995. The father of the petitioner Late Jagdish Bhuian has died on 26.06.1996 and till his death, the order of dismissal has not been questioned.

Be as it may, in the present case the death is of the year 1996 and now we are in 2019. Thus, the petitioner has crossed the area of compassion by afflux of time.

In view of above discussion, this Court finds no reason to interfere with the Award dated 30.04.2014 passed in Reference No. 314 of 1999 by the learned Presiding Officer C.G.I.T. (No.2), Dhanbad.

Resultantly, the present writ petition stands dismissed.

Pending I.A. if any, stands disposed of.