- Divorced Daughter
- (2015) 1 Cal LT 160 (Maino Mejhian v. Eastern Coalfields Limited).
- (1996) 2 SCC 380 (Savita Samvedi (Ms) v. Union of India)
- (2003) 1 CLJ 407 (Smt Usha Singh v. State of West Bengal)
- Savita v. Union of India reported in 1996 (2) SCC 380
- (2006) 2 Cal LJ (Cal) 15 (Kisto Dasi v. Coal India Limited)
- (2010) 2 Cal LT 703 (Santi Ruidas v. Coal India Limited)
- (2011) 4 CHN 84 (Chitra Mali (Mondal) v. State of West Bengal)
- (2012) SCC Online Cal 3577 (Kumari Purnima Bhui v. State of West Bengal).
- (2013) SCC Online Cal 1375 (Eastern Coalfields Limited v. Babunti Kumari)
- (2013) 2 WBLR (Cal) 559 (Durgapur Project Limited v. Kumari Purnima Bhui).
- (2013) SCC Online Cal 4285 (Eastern Coalfields Limited v. Dilip Singh)
- (2014) SCC Online Cal 17187 (Kaberi Pal (Sinha) v. State of West Bengal)
- (2015) SCC Online Cal 1682 (Papia Banerjee v. State of West Bengal)
- (2015) SCC Online Cal 6880 (Sephali Majhi v. State of West Bengal)
- (2015) SCC Online Cal 2097 (Jadavpur University v. Jolly Dey Bose).
- (2010) 11 SCC 661 (State Bank of India v. Raj Kumar)
- (2003) 7 SCC 704 (State of Haryana v. Ankur Gupta)
- (2009) 13 SCC 112 (Eastern Coalfields Limited v. Anil Badyakar)
- (2016) 1 WBLR (Cal) 632 (Biva Mondal v. Union of India)
- (2009) 9 SCC 551 (Bhavesh Jayanti Lakhani v. State of Maharashtra)
- (1997) 6 SCC 241 (Vishaka v. State of Rajasthan)
- 2001 (2) BLJR 1290 (Malti Kumari v. State of Bihar)
- (1944) 1 KB 718 (Young v. Bristol Aeroplane Company, Limited).
- (1981) 2 SCC 362 (Waman Rao v. Union of India)
Service Law – Appointment on Compassionate Grounds – Whether a divorced daughter falls in the category of ‘unmarried daughter’ for the purpose of employment of a dependant of the worker who dies while in service / permanently disabled – Held, the task in this extraordinary jurisdiction is to assess the propriety of the impugned action by interpreting the clause in a negotiated settlement. Such interpretation does not call for any element of tinkering with the terms of the settlement on the basis of any misplaced sense of sympathy or from a pretentious pulpit of morality. That a divorcee daughter has not been included in the relevant clauses of NCWA-VI for a compassionate appointment to be obtained by her has to be seen as a conscious and deliberate scheme of the settlement; no more and no less. The petitioner had no right to obtain a compassionate appointment and there is no basis to her being aggrieved by the order impugned herein.
# Divorced Daughter
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE
BEFORE SANJIB BANERJEE J.
May 18, 2016.
WP 4290 (W) of 2016
SMT PUTUL RABIDAS -VERSUS- EASTERN COALFIELDS LIMITED AND OTHERS
For the Petitioner: Mr Siddhartha Banerjee, Adv., Mr Chiranjib Sinha, Adv., Mr Shankar Mukherjee, Adv.
For the Respondents: Mr Anubhav Sinha, Adv., Ms Sanchita Barman Roy, Adv., Ms Radhika Misra, Adv.
The petitioner seeks an appointment on compassionate grounds under the National Coal Wage Agreement following the death in harness of her mother. The mother was employed at the Sanctoria Hospital of Eastern Coalfields Limited and died in December, 2011.
2. The petitioner was married in the year 2000, but such marriage was dissolved by a decree of divorce in August, 2009. The petitioner claims that since the dissolution of her marriage she moved in with her mother and both the petitioner and her minor son were wholly dependent on the mother immediately prior to the mother’s death. The petitioner claims that she does not have any independent income or source of funds and her former husband did not provide for any maintenance or financial support for her or her child. The petitioner also claims that during the lifetime of the petitioner’s mother, the mother had filed an affidavit with the employer in 2009 indicating that the petitioner and the petitioner’s minor son were the dependants of the petitioner’s mother. The petitioner says that upon her mother’s application, the names of the petitioner and her son were incorporated in the service-book of the petitioner’s mother as the only dependants of such employee.
3. Following the death of her mother, the petitioner applied on February 21, 2012 for an appointment to be given to her on compassionate grounds. The petitioner claims that she waited for some time for her application to be processed, but finding no response from ECL despite gathering informally that a legal opinion obtained by ECL was in her favour, the petitioner raised a query under the Right to Information Act, 2005, seeking the legal opinion on the petitioner’s application. The legal opinion was forwarded to the petitioner and it appears therefrom that it was stated therein that “a divorced daughter falls in the category of ‘unmarried daughter’ for the purpose of employment of a dependant of the worker who dies while in service/permanently disabled”.
4. Upon the employment sought by the petitioner not being offered to her despite the legal opinion as aforesaid, the petitioner instituted WP 6522 (W) of 2015 before this court, which was disposed of by an order dated March 25, 2015 by directing the General Manager (Personnel) of ECL to consider the petitioner’s application of February 21, 2012 and to communicate a reasoned decision to the petitioner within eight weeks of the service of a copy of such order. The concerned general manager declined the application by his order of May 29, 2015 which has been challenged herein. The official quoted clause 9.3.3 of the relevant NCWA, noticed that there was no provision therein for a divorcee daughter of an employee to be considered as a dependant of an employee and referred to clause 13.3.0 of NCWA which prohibits the unilateral interpretation thereof and any difficulty in interpretation being required to be referred to a special committee. The official also noticed that the petitioner had cited the case of one Kisto Dasi where a divorcee daughter was granted employment under an order of court. The official observed that the case of Kisto Dasi could not be regarded as a precedent since that case was considered by this court “on the basis of economic condition and the respondent company had consented to provide the employment”. For good measure, the concerned official pointed out that after the death of the petitioner’s mother, she has been paid in excess of Rs.20 lakh on account of gratuity and pension.
5. The petitioner claims that when a negotiated agreement between the employees of a public employer and such employer provides for certain benefits for the employees and their dependants, the quantum of death benefits received by a dependant of the deceased employee is irrelevant for the purpose of assessing her right to obtain a compassionate appointment under the NCWA. The petitioner also suggests that in furtherance of Article 15 of the Constitution and the larger concept of gender equality ingrained in Article 14 thereof, a liberal construction of the relevant clause of NCWA must be made so that it is rid of any vice of discrimination that it may apparently contain. The petitioner maintains that since the employer had obtained legal opinion which supported the petitioner’s claim for an appointment on compassionate grounds, it is arbitrary for such appointment to be denied to the petitioner.
6. ECL, in turn, claims that the plain words of the relevant clause in NCWA must be seen to convey exactly what they say and it is impermissible to read any more into them than what is stated there. ECL submits that when a negotiated settlement was arrived at between several unions representing the employees and the employer, it must be appreciated that the parties thereto would have contemplated all situations before identifying the classes of persons who ought to be regarded as the dependants of an employee or a deceased employee; and the enumeration has to be seen as exhaustive, implying that those not named have to be regarded as having been consciously excluded.
7. ECL refers to the preamble to NCWA-VI which contains the relevant provision pertaining to the employment of dependant family members of workers who are permanently disabled or die while in service. There is no dispute that the provision as contained in NCWA-VI is the one that would be applicable in this case. According to ECL, NCWA-VI, like its predecessor and successor agreements, was a settlement arrived at under Section 18(1) of the Industrial Disputes Act, 1947 and the same has to be regarded as binding both the employer and the workmen of coal companies, including those who claim through the workmen.
8. It is appropriate to see the relevant provision in NCWA-VI before taking up the illuminating discussion on law that the parties have presented:
“9.3.0 Provision of Employment to Dependents “9.3.1 Employment would be provided to one dependant of workers, who are disabled permanently and also those who die while in service. The provision will be implemented as follows:-
“9.3.2 Employment to one dependant of the worker who dies while in service.
In so far as female dependants are concerned, their employment, payment of monetary compensation would be governed by para 9.5.0.
“9.3.3. 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 deceased and almost wholly dependant on the earnings of the deceased may be considered to be the dependant of the deceased.
“9.3.4 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 limited 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.”
9. The parties have carried several judgments, particularly of this court, in support of their rival positions. However, ECL has attempted to refer to all the views expressed on the legal issue by this court over the years. ECL has also referred to some judgments from other High Courts which also deal with coal workers’ claims. ECL submits that there should be an element of uniformity so that coal companies know exactly what to do and the dependant members of workers who die in harness can be treated on a parity.
10. The petitioner first refers to a judgment reported at
# (2015) 1 Cal LT 160 (Maino Mejhian v. Eastern Coalfields Limited).
The consideration before a single bench of this court in that case was whether an appointment on compassionate grounds to a married daughter of a workman who had died in harness could be declined purely on the ground of her marital status. The mother of the petitioner in that case died in harness in the year 2015 and the petitioner claimed to be the only daughter and dependent on the mother’s income. The application made by the petitioner in that case was rejected on the ground that the applicant was a married daughter. The court noticed the submission on behalf of the petitioner that any discrimination between a married and an unmarried daughter would offend Articles 14 and 21 of the Constitution and that the relevant clause of NCWA-VI was liable to be struck down on such count or a married daughter of a deceased worker ought to be deemed to have been included therein.
11. In such context, the single bench opined that on the textual interpretation of the relevant clauses, only the persons named therein would be entitled to the benefit; but it “would be … different when such exclusion offends any of the Constitutional mandate or violates the law of the country or is opposed to public policy.” The court noticed the view expressed by another single bench of this court, particularly its reference to Section 26 of the Contract Act, 1872 which forbids any agreement in restraint of the marriage of any person other than minors and the Convention of Elimination of all forms of Discrimination Against Women (CEDAW), and concluded that “It is unconceivable (sic, inconceivable) and unthinkable that the married daughter shall be excluded from the purview of the said Clause, as the daughter shall remain the daughter throughout her life as held by the Apex Court …”
12. The petitioner submits that the several other judgments relied upon in Maino Mejhian should be taken into consideration for the present purpose, particularly the judgment reported at
# (1996) 2 SCC 380 (Savita Samvedi (Ms) v. Union of India)
where the issue pertained to a railway board circular. The circular permitted the official accommodation enjoyed by a railway servant to be allotted out of turn to his son, unmarried daughter, spouse or father, who had to be a railway servant, subject to the fulfillment of certain other conditions. The allotment could also be made in favour of a railway employee’s married daughter, provided that the retiring railway employee did not have any son and the married daughter was the only person who was prepared to maintain the parents. The appellants before the Supreme Court were a married daughter and the retired father. The circular was found to be unfair, gender-biased, unreasonable and liable to be struck down under Article 14 of the Constitution. The court read down the circular to include a married daughter within its fold, provided that such married daughter was a railway employee and the retiring official had exercised the choice in her favour for regularisation. In the discussion in the judgment that preceded the dictum, the Supreme Court referred to a common saying that a son is a son until he gets a wife, a daughter is a daughter throughout her life. But such saying, with respect, cannot be seen to be a part of the ratio decidendi in that judgment or be regarded as the law declared by the Supreme Court that is binding on all courts within the territory of India underArticle 141 of the Constitution.
13. The petitioner has, finally, referred to a judgment reported at (2000) 6 SCC 493 (Balbir Kaur v. Steel Authority of India Limited) for the proposition that the receipt of terminal benefits by the family of an employee who dies in harness cannot disentitle the family of an appointment on compassionate grounds, if it is otherwise so entitled. This judgment has been placed by the petitioner in the context of the reference made in the impugned rejection by the concerned general manager that the petitioner had received a sum in excess of Rs.20 lakh and the insinuation therein that such amount would be sufficient to meet the petitioner’s needs without any appointment on compassionate grounds being extended to her.
14. ECL has cited several judgments of this court in chronological order. ECL says that though all the judgments do not necessarily speak in the same tune, or even in the same language, a recent judgment of a Division Bench of this court that has relied on the dictum of the Supreme Court should be regarded as the law as declared on the issue by this court.
15. In point of time, the first judgment cited by ECL is reported at
# (2003) 1 CLJ 407 (Smt Usha Singh v. State of West Bengal)
where a single bench of this court considered a similar issue in connection with an appointment on compassionate grounds in a government-aided primary school. An assistant teacher in the concerned government-aided primary school died while still in service and was survived by his widow and an unmarried daughter. The unmarried daughter applied for an appointment on compassionate grounds within a few months of her father’s death and was called by the primary school council to appear for an interview and present her testimonials. It was the positive case of the petitioner in that matter that at the interview she was informed that an appropriate recommendation would be made for her appointment. However, the appointment did not come within any reasonable time and the petitioner got married during such interregnum and took her mother in as there was none else to care for her. The council, thereafter, dealt with her application and rejected it on the ground that the petitioner was married. The court found that the relevant rule on which the appointment was rejected offended Article 15 of the Constitution and amounted to imposing a restraint on marriage, after observing as follows, at paragraph 10 of the report:
“10. The rationale of the rules quoted hereinabove is that the son or the daughter who applies for an appointment in the died-in- harness category should have been dependent upon the income of the deceased so that his untimely death left him/her/them in extreme economic hardship. The Avowed object of the rules is to provide relief to the family which is in extreme financial hardship and for this purpose an unemployed son can apply whether married or unmarried. Why then is the restriction upon a daughter that she should be unmarried in order to be eligible for appointment? An unmarried daughter can be a divorce fully dependent upon the father. She may have been an abandoned wife again fully dependent upon the father. She may have been married to an indigent husband so that both the married daughter and the son-in-law would have been dependent upon the income of the breadwinner whose death led them to extreme financial hardship. The concept of a “Ghar Jamai” (one who lives at one’s father-in-law’s house) is well accepted in Indian society particularly in those families where there is no son. There may be many other probabilities in which a married daughter may be fully dependent upon the income of her father so that death of the father would leave her and the rest of the members of the family in extreme economic hardship. Why should then a distinction be made between a son and a married daughter? An unemployed married son according to the rules is eligible but an unemployed married daughter is ineligible irrespective of the fact that they are or may be similarly placed and equally distressed financially by the death of the father. Take the case of a teacher who died in harness leaving him surviving his illiterate widow, an unqualified married son and a qualified married daughter who were all dependent on the income of the deceased. Following the rule as it is interpreted by the Council and its learned Advocate, this family cannot be helped. Is this the intended result of the rule? Or does this interpretation advance the object of the rule? What is the basis for the qualification which debars the married daughter? And what is the nexus between the qualification and the object sought to be achieved? In my view, there is none. If any one suggests that a son married or unmarried would look after the parent and his brothers and sisters, and that a married sister would not do as much, my answer will be that experience has been otherwise. Not only that the experience has been otherwise but also judicial notice has been taken thereof by a Court no less than the Apex Court in the case of
# Savita v. Union of India reported in 1996 (2) SCC 380
wherein Their Lordships quoted with approval a common saying; ‘A son is a son until he gets a wife. A daughter is a daughter throughout her life’.”
16. On the interpretation of the relevant clause in the NCWA, the petitioner refers to the judgment reported at
# (2006) 2 Cal LJ (Cal) 15 (Kisto Dasi v. Coal India Limited)
which was relied on in the recent single bench opinion in Maino Mejhian, without noticing that the judgment in Kisto Dasi was set aside in appeal. In Kisto Dasi, the daughter of an employee who retired on the ground of permanent disability was declined an appointment on compassionate grounds since she was a divorcee and not covered by the relevant clause. The applicable provision of NCWA-V that governed that matter is in pari materia with clause 9.3.3 of NCWA-VI that is the key provision in the present case. Several questions were framed by the single bench while considering the issue. Two of such questions, as recorded at paragraph 9 of the report, pertained to the propriety of rejecting an application for appointment on compassionate grounds by a divorcee daughter and the validity of such decision on the anvil of Articles 14, 15(3), 16 and 21 of the Constitution. The court observed that providing a job to a dependant of an employee who dies in harness or is permanently disabled was in keeping with the social welfare objective recognised in Articles 41 and 46 of the Constitution and opined that the “dependency of the member of a family either son or daughter has no nexus with the marital status for being included as direct dependants but it has only nexus with economic foundation and potentiality.” The court felt that “a divorcee daughter is in higher forum than married daughter on the same angle of economic potentiality.” The court noticed CEDAW to which India was a signatory and the Protection Human Rights Act, 1993 to conclude that the relevant issue was not res integra in view of the Supreme Court judgment in Savita Samvedi. The court referred to Section 26 of the Contract Act and the virtual restraint of marriage imposed by the impugned clause in NCWA-V to conclude that the word “unmarried’ preceding the word “daughter” in the relevant clause was ultra vires the Constitution and struck such word down. The dictum in Kisto Dasi appears to have been applied in several subsequent cases in this court without it being brought to the attention of the benches that the judgment stood set aside in appeal, though the result of the appeal may have opened up another set of problems.
17. ECL carried the judgment in Kisto Dasi in appeal by way of APO 97 of 2006 (Eastern Coalfields Limited v. Kisto Dasi). The appellate order of October 26, 2006 held as follows:
“3. We do not agree with the learned Judge who holds that the word ‘unmarried’ was invalid on account of its being ultra vires. It is a trite law that the question of constitutionality of a term or of a provision has to be considered only when it is imperative. In this case, it is not necessary to decide that aspect at all since clearly the status of the daughter of the writ petitioner was that of an “unmarried daughter” on the day when the writ petitioner claimed employment for her.
“4. Sri Dey, learned senior counsel appearing on behalf of ECL very clearly says that in pursuance of the order passed, the employment shall now be offered to the daughter of the writ petitioner. In fact, that should be the end of the controversy. We have only clarified the legal position that the term ‘unmarried’ preceding the word ‘daughter’ need not be considered as constitutionally invalid. It remains to be valid as such.
“5. With this we allow this appeal in part and dispose of the same in the light of the observations made above.”
ECL submits that though the reference to CEDAW and the invalidity of the relevant clause on constitutional grounds stood wiped out by virtue of the appellate order in Kisto Dasi, a larger conundrum may have been set loose by equating a divorcee daughter with an unmarried daughter.
18. The next judgment brought by ECL is reported at
# (2010) 2 Cal LT 703 (Santi Ruidas v. Coal India Limited)
where another Division Bench of this court accepted the reasoning in Kisto Dasi without being informed that such judgment stood set aside in appeal. The appellant in that case, an unmarried daughter of an employee who died in harness, was declined an appointment as she had not attained the age of 18 as on the date of death of her father. The argument on behalf of the appellant was that since she had applied at a time when she had attained the age of 18 she was entitled to the appointment. It is evident that the marital status of the daughter of the deceased employee was not in issue in Santi Ruidas and, as such, it does not appear that the reference to Kisto Dasi or Savita Samvedi was necessary in the context of the legal issue that arose for consideration in that case. However, Articles 14 and 16 of the Constitution, the Protection of Human Rights Act and CEDAW were all referred to in the paragraph 13 of the report which contains the ratio decidendi of the judgment but, with respect, it is submitted that such references have no impact on the dictum therein:
“13. Having considered the relevant clauses of the National Coal Wage Agreement-V in the light of Articles 14 and 16 of the Constitution of India as well as the above provisions of the Protection of Human Rights Act, 1993 and CEDAW and the aforesaid decisions of the Apex Court and this Court, we have no hesitation in holding that the writ petitioner who had completed 15 years of age but not 18 years of age on the death of her mother who was an employee of the appellant-authority, was entitled to have her name kept on the live Register for employment upon completion of 18 years of age.”
19. The judgment next placed by ECL is reported at
# (2011) 4 CHN 84 (Chitra Mali (Mondal) v. State of West Bengal)
where a Division Bench of this court considered the candidature of a daughter of a primary school teacher, who appears to have got married and divorced after the death of her teacher-father. The court referred to Article 15(3) of the Constitution and upheld the ratio in Usha Singh.
20. Next in point of time, comes the judgment reported at
# (2012) SCC Online Cal 3577 (Kumari Purnima Bhui v. State of West Bengal).
The petitioner’s father was an employee of Durgapur Project Limited, a State government undertaking. The father died in harness and the petitioner applied for a compassionate appointment and came to court upon her application not being attended to. The petition under Article 226 of the Constitution was disposed of by directing the concerned officer of DPL to consider the petitioner’s application in the light of any rule or practice that may have existed for appointments on compassionate grounds. The application was considered pursuant to such direction and rejected on the ground that the petitioner was married. The single bench noticed, inter alia, the judgments in Usha Singh and Chitra Mali and concluded that the impugned decision was violative of Article 15 of the Constitution and the petitioner was entitled to an appointment despite being married. The same bench rendered a similar order which is reported at (2012) SCC Online Cal 4567 (Swati Bose (Ghosh) v. State of West Bengal) and reiterated the identical view in the case of a married daughter of an employee of the West Bengal State Electricity Distribution Company Limited who had died in harness.
21. ECL has also placed the Division Bench judgments reported at
# (2013) SCC Online Cal 1375 (Eastern Coalfields Limited v. Babunti Kumari)
# (2013) 2 WBLR (Cal) 559 (Durgapur Project Limited v. Kumari Purnima Bhui).
The appeal in Babunti Kumari was directed against an order of a single bench of this court which relied on the judgment in Santi Ruidas and held that the daughter of a coal worker who died in harness was entitled to be considered for an appointment on compassionate grounds despite such daughter being a month short of 18 years on the date of death of the coal worker father. However, the Division Bench referred to Santi Ruidas in the context of the observation therein that the relevant clause in NCWA discriminated against female dependants and also relied on the fact that the special leave petition from the order in Santi Ruidas had been dismissed by the Supreme Court. The order impugned was affirmed. In the other judgment, delivered by the same Division Bench, the single bench judgment noticed earlier herein was reversed on the ground that when the policy excluded the married daughter, the court could not substitute the policy as the policy could not be said to be illegal or arbitrary. The essence of the opinion is captured at paragraphs 17 and 18 of the judgment:
“17. Reliance has been placed on the decision of the Division Bench of this Court inChitra Mali (Mondal) v. State of West Bengal & Ors. (supra), the married daughter was entitled to claim compassionate appointment. The policy of compassionate appointment expression “daughter” thus it was held that daughter includes married daughter also. However, the policy in question in the present case excludes the married daughters. Expression is not the daughter but unmarried daughter thus married daughter has been specifically ousted from provision of dependent in the policy. Thus when the policy excludes the married daughter obviously it is not for the Court to substitute the policy as the policy cannot be said to be illegal or arbitrary. There is no question of violation of the provisions contained in Article 15 of the Constitution. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 15(3) provides that nothing in this article shall prevent the State from making any special provision for women and children. Article 15(3) is an enabling provision for providing special treatment for women and children by the State. When State Government has formed a policy in a particular manner and particularly considering concept of dependency and marital status and fact that compassionate appointment is not the realm of right and is not beyond policy it cannot be said that there is any violation of provision contained in Article 15 of the Constitution of India.
“18. Classification made and exclusion of married daughter is not arbitrary. The petitioner cannot claim such appointment as of right. Thus para 2 of the policy contained in the notification dated 31st March, 2008 cannot be said to be arbitrary or violative of Articles 14 and 15 of the Constitution of India.”
22. The next judgment, in chronological order, reported at
# (2013) SCC Online Cal 4285 (Eastern Coalfields Limited v. Dilip Singh)
carried by ECL, was also rendered by the same Division Bench on the issue whether an illegitimate son of a worker who died in harness could claim an appointment on compassionate grounds under clause 9.3.3 of NCWA-VI. The court noticed a Supreme Court pronouncement to the effect that the right to compassionate appointment was not a heritable property and that an appointment on compassionate grounds was an exception to the constitutional scheme of equality as adumbrated under Articles 14 and 16 of the Constitution and observed that since the right to compassionate appointment was an exception to the general rule of recruitment by public competition, such privilege had “to be strictly construed according to the terms and conditions of the scheme and the same cannot be rewritten by the courts.” It was held that since the expression in the clause was “legally adopted son”, an illegitimate son could not claim the benefit thereunder.
23. In the next judgment referred to by ECL, reported at
# (2014) SCC Online Cal 17187 (Kaberi Pal (Sinha) v. State of West Bengal)
the matter again pertained to an appointment on compassionate grounds following the death of an employee of a government-aided school. The single bench referred, inter alia, to the judgments in Usha Singh and Chitra Mali while dealing with the objection to the appointment on the ground that the petitioner was married and held that in view of the Division Bench dictum in Chitra Mali, the marital status of an applicant seeking a compassionate appointment was of no relevance.
24. ECL also refers to an order of this bench reported at
# (2015) SCC Online Cal 1682 (Papia Banerjee v. State of West Bengal)
where a clause in the West Bengal Service Rules permitting appointment on compassionate grounds to dependant unmarried daughters was found to be irrational and it was read down by disregarding the word “unmarried” preceding the word “daughter”. The relevant provision in that case covered two conditions: the specified relationship with the deceased employee and the dependency of such relative on the deceased employee. Upon it being held that it was irrational to make a distinction on the basis of the marital status of a daughter, it was observed as follows:
“The aspect of the matter is relevant in view of the second condition apparent from the relevant provision, which is just and reasonable. The unfortunate death of a government employee cannot be used as a fortuitous circumstance for a relative to obtain an appointment on compassionate grounds unless the family of the deceased employee is in financial distress and the conditions in the relevant provision quoted above are complied with. If the widow of a deceased employee is qualified to obtain an appointment on compassionate grounds but is not desirous of accepting the same, she can pass on the benefit to any other eligible relative including a married daughter. However, a married daughter would not, ordinarily, have been dependent on the deceased employee and, as such, the second condition in the relevant provision would then not be complied with.
“In such circumstances, though the order impugned dated September 19, 2012 is set aside and the candidature of the petitioner for appointment on compassionate grounds following the death of her father is required to be reassessed, it is made clear that a medical examination of the widow of the deceased employee will first be conducted and if the medical opinion rendered is that she is unfit for employment, will the candidature of the petitioner be considered. Again, if the petitioner is given an appointment upon the petitioner’s mother being found medically unfit to take up employment, a condition will be attached to the appointment that the widow of the deceased employee shall be looked after by the petitioner and any complaint by the widow of her daily needs not being taken care of by the petitioner will result in the petitioner’s employment being terminated.”
25. Another single bench judgment of this court reported at
# (2015) SCC Online Cal 6880 (Sephali Majhi v. State of West Bengal)
has been placed by ECL where the issue was whether a married daughter could obtain the benefit of an appointment that accrued to her parents’ family upon the parental family losing a part of its land to acquisition by the State. The District Magistrate had declined the application of the petitioner in that case on the ruse that the petitioner was married and was no longer a part of her mother’s family from whom the land had been acquired by the State. The single bench referred to the dictum in Chitra Mali and also read Santi Ruidas to imply that a married daughter was “also entitled to claim an appointment on compassionate grounds in case of her late father.”
26. On the judgments of this court pertaining to compassionate appointments, the petitioner has preserved the coup de grace till the end by finally referring to a decision reported at
# (2015) SCC Online Cal 2097 (Jadavpur University v. Jolly Dey Bose).
That case involved an application by an employee of the university for a compassionate appointment upon the death in harness of her father which was rejected on the pretext that the petitioner was married. The writ petition was allowed by a single bench. The appellate court noticed the appellate judgment in Kumari Purnima Bhui and the observation therein that when the policy for compassionate appointment excluded the married daughter, the court could not rewrite such policy. Reference was also made to the Supreme Court judgment reported at
# (2010) 11 SCC 661 (State Bank of India v. Raj Kumar)
where it was held that a claim for a compassionate appointment was traceable only to the specific scheme framed by the employer and there was no right outside such a scheme. Another judgment reported at
# (2003) 7 SCC 704 (State of Haryana v. Ankur Gupta)
was also noticed for the proposition that a court could not grant a compassionate appointment de hors a statutory policy. The Division Bench observed that when the scheme pertaining to the university specifically referred to unmarried, divorced and widowed daughters, the scheme must be seen to have excluded married daughters. The Division Bench also observed that Maino Mejhian was not good law in the light of the Division Bench dictum in Kumari Purnima Bhui. ECL also refers to the ad interim order in the appeal arising from Maino Mejhian that stayed the order pending the disposal of the appeal.
27. A judgment reported at
# (2009) 13 SCC 112 (Eastern Coalfields Limited v. Anil Badyakar)
has been placed by ECL for its enunciation of the principle that “compassionate appointment is not a vested right which can be exercised at any time in future … (and) compassionate employment cannot be claimed and offered after a lapse of time and after the crisis is over”. The issue, recorded at paragraph 2 of the report, was whether an appointment after 12 years would negate the object of compassionate appointment. The Supreme Court noticed several of its judgments to the effect that an appointment on compassionate grounds was an exception to the general rule of public appointments being made on merits and that compassionate employment could not be granted after a lapse of a reasonable period and annulled the single bench and Division Bench orders of this court providing for the belated appointment. Though the facts of such matter, as evident from paragraph 3 of the report, reveal that the appointment may have been covered by the NCWA prevailing at the time of the employee’s death in 1981, since there is no discussion in the judgment on such aspect, the decision cannot be regarded as a pronouncement on NCWA.
28. ECL has also relied on two recent orders of this bench where the discussion is on an aspect of the matter that may not have been noticed in other judgments of this court. In the judgment reported at
# (2016) 1 WBLR (Cal) 632 (Biva Mondal v. Union of India)
the issue was whether an unmarried sister of a coal miner who died in harness could be given an appointment on compassionate grounds under NCWA-VI. It was observed that “a distinction has to be made between the manner of interpretation of the clauses of an agreement that is born out of negotiations between the representatives of employees and the employer and the clauses contained in a set of unilateral rules imposed or introduced by the employer.” After noticing the relevant clauses in NCWA-VI and the contention of the petitioner in that case, that it was irrational in the context of Indian families that an unmarried sister of a workman who was dependent on the workman would not be regarded as a dependant for the purpose of the benefit under the clause, it was observed as follows:
“14. An agreement arrived at following negotiations and deliberations between representatives of the employees and the employer cannot be regarded on the same footing as a set of rules unilaterally imposed or formulated by the employer. There is no doubt that if Clause 9.3.3 were a part of any rules that had been laid down by the coal companies, it would have fallen foul of Article 14 of the Constitution in the seemingly laboured distinction therein being irrational, as similarly-situated persons ought to receive similar treatment. Indeed, it may have then been possible to read up the clause and interpret it to imply that the same benefits had also to be extended to any other female dependant of a deceased workman who was similarly situate as those dependant relatives specified in the clause.
“15. However, an agreement arrived at the end of prolonged deliberations and confabulations between persons who ought to have been aware of the social and family structures and surrounding circumstances pertaining to workmen in coal companies cannot be assessed or tested on the same lines. Even if the distinction between the manner of assessment of an agreement and the manner of assessing a statute is kept aside for the moment, it cannot be lost sight of that when the definition clause in a negotiated agreement refers to certain classes of persons, by necessary implication, the other classes of persons – however, similarly circumstanced – not expressly included therein have to be seen to have been consciously excluded from its sweep. The canons of statutory interpretation can scarcely be applied to an agreement that is a culmination of long- drawn negotiations between the employer, the representatives of the employees and statutory authorities.”
29. The other decision was rendered on March 22, 2016 on WP 28477 (W) of 2015 (Sapna Roy v. Union of India) where the petitioner sought pension after she had obtained voluntary retirement on medical grounds. Pension was covered in that case by a clause of a bipartite settlement that excluded employees who resigned or were dismissed or terminated or compulsorily retired. It was held that since pension was claimed under a bipartite settlement, the petitioner was not entitled to be given the benefit by reading up those covered by the entitlement or reading down those excluded thereunder since “all conceivable situations must be deemed to have been considered before framing the terms of the settlement.”
30. ECL commends the reasoning indicated in the Biva Mondal and Sapna Roy judgments to be accepted for the present assessment. It is the further contention of ECL that a distinction has to be made between the line of cases where the relevant rules framed by the employer were found to be discriminatory and those cases which considered a clause in a settlement arrived at between the employees and the public employer. ECL submits that the reliance on CEDAW in several of the judgments of this court noticed herein was misplaced in view of the jurisprudential distinction between dualism and monoism and the recognition of such distinction in Article 253of the Constitution that gives the Parliament the power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any country or countries or any decision made at any international conference, association or other body.
31. In such vein, ECL refers to a judgment reported at
# (2009) 9 SCC 551 (Bhavesh Jayanti Lakhani v. State of Maharashtra)
for the following observation at paragraph 45 of the report:
“45. India follows the doctrine of dualism and not monism. We may, however, hasten to add that this Court, however, at times for the purpose of interpretation of statute has taken into consideration not only the treaties in which India is a party but also declarations, covenants and resolutions passed in different international conferences …”
32. ECL refers to the Uncitral model of arbitration law and the Arbitration and Conciliation Act, 1996, by way of an example. The submission is that till such time that the 1996 Act was enacted and given effect to in this country, the Uncitral model law had no manner of application, notwithstanding India being a signatory to such model law. ECL insinuates that the original judgment in Kisto Dasi may have been inspired by the dictum in the judgment reported at
# (1997) 6 SCC 241 (Vishaka v. State of Rajasthan)
though the extraordinary measure in Vishaka to check the evil of sexual harassment at the workplace may have been under the exclusive authority of the Supreme Court by virtue of Article 142 of the Constitution. Indeed, such submission of ECL appears to be reflected in the Vishaka judgment at paragraphs 7 and 8 of the report:
“7. In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and norms by virtue ofArticle 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till Parliament enacts legislation to expressly provide measures needed to curb the evil.
“8. Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights meaningful. Governance of the society by the rule of law mandates this requirement as a logical concomitant of the constitutional scheme. The exercise performed by the Court in this matter is with this common perception shared with the learned Solicitor General and other members of the Bar who rendered valuable assistance in the performance of this difficult task in public interest.”
33. Though, strictly speaking, ECL may not be required to justify the relevant clause in NCWA-VI, an erudite endeavour is made to demonstrate why a divorcee daughter may have been excluded from the provision and why the case of a divorcee daughter cannot be equated with that of an unmarried daughter. Section 21 of the Hindu Adoptions and Maintenance Act, 1956 is first placed to demonstrate the classes of persons regarded as dependants thereunder. The Hindu Marriage Act, 1955 is next placed for the distinction between a void marriage and a voidable marriage recognised in Sections 11 and 12 thereof and the provision for dissolution of marriage by a decree of divorce as provided in Section 13 thereof. Similar provisions have been placed from the Indian Divorce Act, 1869 that applies to Christians, the Parsi Marriage and Divorce Act, 1936 and theSpecial Marriage Act, 1954. ECL also refers to the distinction between faskh and talaq in the Muslim personal law. The submission is that upon the daughter of a workman covered by the NCWA obtaining a decree for divorce, her status does not revert to that of an unmarried daughter dependent on the father or mother; that an intelligible differentiation is possible between an unmarried daughter and a divorcee daughter; and, such distinction must, per force, be discovered in the relevant clause. ECL has also referred to the express inclusion of divorcee daughters in Rule 54 of the Central Civil Service (Pension) Rules, 1972 and in Section 14K of the West Bengal Land Reforms Act, 1955 to submit that when a divorcee daughter is provided for or included for the conferment of a benefit, there would be a specific reference in such regard.
34. ECL suggests that, in any event, the financial condition of a dependant seeking an appointment on compassionate grounds is always a relevant consideration since it is such financial condition which would justify a compassionate appointment as an exception to the general rule recognised in Article 16 of the Constitution. ECL says that it is possible that gratuity and provident fund due upon the death of a workman or a public employee are received by a nominee or nominees who may not have been dependants of the workman or public employee; but it cannot be said that compassionate appointment may be demanded as of right irrespective of the financial condition of the applicant.
35. Finally, ECL refers to the judgments delivered by some of the other High Courts which may be relevant in the context. An unreported judgment of the Chattisgarh High Court passed on March 15, 2016 in WP(S) No.4994 of 2015 (Smt. Asha Pandey v. Coal India Limited) has been placed for a similar discussion therein as in some of the judgments of this court noticed above, based on Articles 14 and 15 of the Constitution and the right of a daughter of a deceased employee to marry. The denial of a compassionate employment to a married daughter of a coal miner was held to be impermissible and clauses 9.3.3 of NCWA-VI and 9.4.0 of NCWA-IX were held to include married daughters being eligible for compassionate appointment, subject to the fulfillment of the other conditions. A Division Bench judgment of the Gujarat High Court passed on January 11, 2012 in LPA/2116/2011 (Nirmalaben v. State of Gujarat) has been placed for the interpretation of a clause in a scheme for compassionate appointments in a State Government undertaking. The relevant clause permitted only a son or an unmarried daughter or a legally adopted child of a deceased employee to be eligible. However, a later clause of the scheme expressly excluded the mother, the father, a brother, a sister and any other relative of the deceased employee to be eligible. In such backdrop, the court held that a divorcee daughter of a deceased employee could not be regarded as an unmarried daughter and the status of a married daughter could not be transformed after divorce to regard her as unmarried. Another judgment of the Gujarat High Court delivered on January 27, 2015 in Special Civil Application No. 10563 of 2013 (Rajrani Harishchandra Kapoor v. Shahnadhikari) has been placed by ECL which considered the statutory rules for family pension and observed that when the State Government had no provision to extend the benefit of family pension to a divorced child of a deceased employee, the married status of a divorcee daughter could not be wished away for her to be seen as an unmarried daughter for the purpose of the relevant rule.
36. A judgment of the Patna High Court reported at
# 2001 (2) BLJR 1290 (Malti Kumari v. State of Bihar)
has been placed for the enunciation of the following principle at paragraph 12 of the report:
“12. … The daughter ceases to be a dependant of the father after marriage in the eye of law and she becomes dependant on her husband. In the case of divorce, the dependency does not come to an end inasmuch as the husband is bound to provide for maintenance of the wife even after divorce. Thus, so far as financial destitution, mitigation whereof is the object of compassionate appointment, is concerned, by reason of the protection available to divorced daughter she cannot be called a destitute and, therefore, she cannot be treated at par with adopted son and hence eligible for appointment on compassionate ground …”
37. ECL has also placed the celebrated judgment of the court of appeal reported at
# (1944) 1 KB 718 (Young v. Bristol Aeroplane Company, Limited).
ECL maintains that the doctrine of precedents should not be seen as an insurmountable dogma that would perpetuate an erroneous decision to govern the field and cause serious injustice. The following passages from the judgment are placed:
“In considering the question whether or not this court is bound by its previous decisions and those of courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which we are now concerned, namely, cases where this court finds itself confronted with one or more decisions of its own or of a court of co-ordinate jurisdiction which cover the question before it, and there is no conflicting decision of this court or of a court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is where this court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) is where this court comes to the conclusion that a previous decision was given per incuriam. In the second and third classes of case it is beyond question that the previous decision is open to examination. In the second class, the court is unquestionably entitled to choose between the two conflicting decisions. In the third class of case the court is merely giving effect to what it considers to have been a decision of the House of Lords by which it is bound. The fourth class requires more detailed examination and we will refer to it again later in this judgment.”
“On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarize :
(i.) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow.
(ii.) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords.
(iii.) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.”
38. The legal issue that has arisen in the matter is easily decided; but the legal problem that has been created by orders of varying import calls for a degree of caution and an excusable sense of diffidence. That the law declared by the Supreme Court is binding on all courts within the territory of India is the mandate of Article 141 of the Constitution, but there is no statutory recognition of the doctrine of precedents. Even here, the principle of stare decisis, as recognised by the Supreme Court [in
# (1981) 2 SCC 362 (Waman Rao v. Union of India)
for example] requires judges to conform to a certain measure of discipline so that decisions of old standing are not overruled for the reason merely that another view of the matter could also be taken. The jurisprudence in such regard is founded on the qualities of predictability, certainty, uniformity and stability and recognises the hierarchy in the judicial system.
39. That the single bench judgment in Kisto Dasi was set aside in appeal was not noticed in the several subsequent judgments of this court where the principle is quoted or applied. However, the appellate order in Kisto Dasi plainly held that the status of a divorcee daughter would be that of an unmarried daughter and such view, without any discussion or reasons in support thereof, was rendered in the context of a claim by a dependent divorcee daughter of a coal miner. But it must also be seen that no further discussion on such aspect was necessary since the concerned coal company agreed to offer the appointment to the divorcee daughter.
40. In Santi Ruidas, as observed hereinabove, the decision did not turn on the principle enunciated in Kisto Dasi. Even if it did, it was without noticing that such aspect of Kisto Dasi stood set aside in appeal. The issue in Santi Ruidas was whether an underaged daughter was entitled to an appointment on compassionate grounds and it was held that such daughter was entitled to have her name recorded in the live register for employment upon completion of 18 years of age. In Babunti Kumari, the issue was, again, the age of the applicant daughter and not her marital status. The judgment in Maino Mejhian has been stayed in appeal and otherwise found to not hold good in Jolly Dey Bose. The Chattisgarh judgment is not acceptable since it reflects the same line of reasoning as in Kisto Dasi which has been upset in appeal in this court.
41. The judgments in Usha Singh and Chitra Mali were rendered on the interpretation of the rules as to compassionate appointments formulated by the employer and the dictum is distinguishable since the claim in this case is founded on a contract or a settlement and not on any statutory or administrative rules. The single bench judgments in Swati Bose and Kumari Purnima Bhui were also in matters covered by the rules framed by the employer for compassionate appointments. In any event, the judgment in Kumari Purnima Bhui was set aside in appeal on the ground that the rules reflected a policy which did not include a married daughter and it was not for the court to substitute or rewrite the policy. The judgment in Dilip Singh was on another aspect of the clause relevant for the present purpose as it pertained to a claim by an illegitimate son which was found to be unmeritorious since the clause includes a son and a legally adopted son, thus, excluding by implication, an illegitimate son. However, the major premise on which the decision in Dilip Singh is founded is that a claim for a compassionate appointment is traceable only to the scheme framed by the employer and there is no independent right outside such scheme.
42. The judgments in Papia Banerjee, Kaberi Pal, Sephali Majhi all pertained to schemes framed by the employer for compassionate appointments and not any settlement arrived at by the employer and the employees under Section 18 of the Industrial Disputes Act. Though the judgment in Jolly Dey Bose is also based on the rules framed or a scheme propounded for compassionate appointments by the employer, the ratio therein is inspired by a Supreme Court dictum that a compassionate appointment cannot be given de hors the policy framed therefor and there is no room for any sympathetic consideration by the court to dictate to the employer to rewrite its policy.
43. The Gujarat judgments in Nirmalaben and Rajrani Harishchandra Kapoor took the view that when a divorced daughter or child of a deceased employee had not been included within the ambit of persons eligible to obtain a compassionate appointment, the court could not devise a new scheme to make such persons eligible for the benefit. For different reasons, the Patna judgment in Malti Kumari echoed the same opinion.
44. It must be recorded that considerable industry is evident from the quality of the submission on either side, particularly on behalf of ECL, to bring many judgments which could have a bearing on the legal issue, so that there is an element of certainty. One of the aspects touched upon by the parties is the quantum of death or severance benefits received by a bereaved family or the retiring employee and whether that would be relevant for assessing if a compassionate appointment ought to be given to a dependant of the deceased or the incapacitated employee. In several schemes or sets of rules introduced by public employers for compassionate appointments to dependent family members of their deceased or medically incapacitated employees, certain conditions are incorporated as to the minimum tenure in service of the deceased or incapacitated employee or the number of years left in service at the time of death or incapacitation. Most other rules and schemes also require an inquiry to be made as to the financial condition of the bereaved or distressed family and an element of discretion is available on such count. Since this is a judgment on the legal issues that have arisen on a set of facts, and not a treatise on compassionate appointments, it may only be observed that the apparent bounty received by the petitioner that has been cited by the employer as a disqualification for her obtaining an appointment on compassionate grounds, may not be a relevant consideration. Just as when a scheme for compassionate appointments is recognised by a bipartite or tripartite settlement, nothing more may be read into the same and nothing subtracted therefrom; when the right to obtain a compassionate appointment does not the make the exercise of such right subject to any conditions, the pay-out to the dependant may not be cited to deny such appointment.
45. The several judgments referred to herein do not call for the applicable clauses of NCWA-VI to be modified or interpreted to include any person not specifically mentioned therein. If the appellate judgment in Kisto Dasi is seen to be on the basis of the concession by ECL, the judgments in Dilip Singh and Jolly Dey Bose instruct that the scope of compassionate appointment cannot be enlarged beyond the set of guidelines relevant thereto. Apart from the fact that the alleged discrimination between different sets of relatives cannot be looked into, particularly as the guidelines here are contained in a negotiated settlement and not in any unilateral set of rules laid down by the employer, ECL has sufficiently indicated why a distinction was made between an unmarred daughter and a divorcee daughter for the benefit not to be extended to the divorcee daughter.
46. In fine, it must be seen that the task in this extraordinary jurisdiction is to assess the propriety of the impugned action by interpreting the clause in a negotiated settlement. Such interpretation does not call for any element of tinkering with the terms of the settlement on the basis of any misplaced sense of sympathy or from a pretentious pulpit of morality. That a divorcee daughter has not been included in the relevant clauses of NCWA-VI for a compassionate appointment to be obtained by her has to be seen as a conscious and deliberate scheme of the settlement; no more and no less.
47. The petitioner had no right to obtain a compassionate appointment and there is no basis to her being aggrieved by the order impugned herein.
48. WP 4290 (W) of 2016 fails. There will be no order as to costs.
49. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.