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.
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: