South Eastern Coal Fields Limited, Bilaspur & Another vs Gajanan Wadnerkar

Sanjay Yadav, J

There is delay of 22 days in filing the appeal, condonation whereof is being sought vide I.A.No.1921/2020.

Though opposed at by learned counsel for the respondent, however, taking into consideration the circumstances which prevented the appellant from

filing the appeal within the period of limitation, sufficient cause is made out. Consequently, delay is condoned. I.A.No.1921/2020 stands disposed of.

This appeal under Section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 is directed against order dated

17.10.2019 passed in Writ Petition No.10897/2008.

The petition was directed against the action of the South Eastern Coal Fields in boarding out the petitioner on medical ground being 100% disable.

The petitioner met with an accident on 11.09.1995 while working in the coal mine. He underwent treatment at Christian Medical College &

Hospital, Vellore. The petitioner was discharged on 25.05.1996. As per discharge ticket the petitioner was diagnosed to Traumatic

paraplegiaâ€"multiple pressure stores. The discharge summary recorded following facts as to petitioner’s physical status:

“Mr. Gajanand Wadnekar was admitted with multiple pressure stores: Debridement followed by excision and TFL flap for trocnanterit sore and STSG for sacral sore

were done. Pus culture grew MRSA and he was given a course of Cap Rifampicin. After the sore healed he was gradually mobilised and was given bilateral knee ankle

foot ortnoses. He started walking with cruteness. After evaluating his upper and lower urinary tracts he was taught intermittent clean catheteresation. He had urinary

leak. Urine micro snowed infection and he was put on low dose chemprophylaxis with nitrofurantion. As the leak persisted he was started on I Ditropan and the leak

stopped. Functional independence with calipers and crutches was planned initially. At discharge he could walk 35 meters with crutches. Due to personal problem he

wanted discharge. Hence, independence with crutches could not be achieved. He had elevated levels of alkaline phosphatase for which he was started on C loicin. He

is independent in all activities of daily living with calipers and walker.â€​

The summary also recorded that the petitioner is fit to do a desk job. The petitioner was thereafter medically examined by the Chief Medical

Officer, SECL on 03.02.1998 where he was found with following physical condition:

“Fracture L1 spine with para plegia with neurological bladder loss & bowel control fracture operated & fix at Bhilai.

Operated scar present. No infection. Neurological appear limb normal. Lower limb grade zero. Sowel bladder involvement present. Bad sore present over back of

nacrumâ€​

The petitioner was accordingly declared unfit for any job which resulted in dispensation of service under Rule 29M of the Mines Rules, 1955; which

envisages that :

“29M. Unfit persons not to be employed. â€

(1) Where, as a result of an initial medical examination made under clause (a), or of a periodical medical examination under clause (b) of rule 29B a person has been

declared unfit for employment in mines or in a particular category of mines or in any specified operations in mines, he shall not be employed or continue to be

employed in mine or in the category of mine or on the operations specified, after the expiry of thirty days from the date of his medical examination unless he has filed

an appeal under sub-rule (1) of rule 29J against the declaration.

(2) Where the person concerned has filed an appeal under sub-rule (1) of rule 29J, but has been declared by the Appellate Medical Board, after a medical re-

examination, to be unfit for employment in mines or in a particular category of mines or on any specified operations in mines, he shall not be employed or continue to

be employed in mine or in the category of mines or on the operations specified, after the expiry of thirty days from the date of his medical re-examination by the

Appellate Medical Board:

Provided that, if the Medical Officer carrying out the initial medical examination under clause (a), or the periodical examination under clause (b) of rule 29B, or the

Appellate Medical Board carrying out the medical re-examination of persons already in employment is of the opinion that the disability of the person examined is of

such a nature and degree that it will not seriously affect or interfere with the normal discharge of his duties, it may recommend his continuation in employment in the

mine for a period not exceeding six months during which such person may get his disability cured or controlled and submit himself for another medical examination

and be declared fit.â€​

That on 25.12.1999 the petitioner applied for monetary cash compensation as per the schemes. Consequent whereof the petitioner was allowed

monthly monetary cash compensation as per the NCWA-V with an initial amount of Rs. 3000/- per month which was enhanced to Rs.26293 per

month from 01.07.2016 as per revised NCWA-X.

That in 2008 the petitioner filed Writ Petition(s) No.1981/2008 against the order dated 24.03.1998 before the High Court of Chhatisgarh at Bilaspur

which was dismissed on 24.06.2008 on the ground of territorial jurisdiction with the liberty to the petitioner to approach the High Court of Madhya

Pradesh. That W.P.No.10897/2008 was filed for quashing of order dated 24/27.03.1998 and for reinstatement with full backwages and the direction to

send him for further treatment.

It is pertinent to note that the petition was filed by one R.Mukhopadhyay, a Trade Union Leader with no express authority in his favour. As no

such material document authorizing the said trade Union Leader to file the petition is commended. Be that as it may. The relief sought by the petitioner

was on the anvil of the provision contained under Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995.

Though in the Writ Petition, the petitioner had declared that there is “no delay in filing the petition, it is within time.†However, apparently the

order of 24/27.03.1998 was challenged in the year 2008, after a period of 10 years and after accepting/receiving monetary cash compensation for

years. And though an objection was raised on delay and laches, learned Single Judge glossed over the same and went on to examine the claim on the

basis of Section 97 of 1995 Act and ignoring the fact that the monetary compensation settled in favour of the petitioner was in accordance with the

stipulations in the Mines Act, 1952 and the Rules as well as the scheme framed thereunder, quashed the order dated 24.03.1998 and directed to treat

the petitioner in service.

The laches being not suitably accounted for can be a ground to deny equitable relief. A Division Bench of this Court in Focus Energy Ltd. (M/s) v.

Government of India, (DB) I.L.R. (2011) M.P. 53; relying upon judgments of the Apex Court observed -

10- Thus, facts stated supra leads to irresistible conclusion that appellant is guilty of delay and laches. Its conduct disentitles it to any relief. In New Delhi Municipal

Council v. Pan Singh and Others, AIR 2007 SC 1365 the Supreme Court has held that delay and laches are relevant factors for exercise of equitable jurisdiction. In

Municipal Council, Ahmednagar v. Shah Hyder Beig, (2000) 2 SCC 48 the Supreme Court has observed that discretionary relief can be provided to one who has not

by his act or conduct given a go-bye to his rights. Equity Writ Petition No.19423/2013 favours a vigilant rather than an indolent litigant. In the State of Haryana v.

Aravali Khanij Udyog, (2008) 1 SCC 663 it has been held that where third party rights are created, the High Court should not interfere. Similarly, in Shiba Shankar

Mohapatra (supra) it has been held that the Court exercising public law jurisdiction does not encourage agitation of state claims where the right of third parties

crystallizes in the interregnum.

Coupled with the fact that the petitioner has been compensated under the NCWA and is benefited with the enhancement from time to time. True

it is that Section 72 of 1995 Act provides that the provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of

any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefits of persons with

disabilities.

However, in a case as the present one with 100% disability and having opted for monetary compensation drawn for over 10 years, it is too late for

the petitioner to claim benefit under the Act of 1995.

When the impugned order is tested on the anvil of above analysis the same cannot be upheld. Consequently, order dated

10.2019 passed in Writ Petition No.10897/2008 is set-aside. The Writ Petition filed by the petitioner is dismissed.

Writ Appeal is allowed to the extent above. No costs.

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