Judgment:
D.G.R. Patnaik, J.
1. The petitioner's father Devendra Prasad Jha was in the service of the Central Coalfields Limited and was employed as an U.D.C. in Kedla underground project. He died in harness on 9.4.2003.
After his death, his widow applied before the respondent CCL on 26.5.2003 for compassionate appointment under Clause 9.3.2. of the National Coal Wage Agreement VI/VII. The petitioner also moved his application along with the application filed by his widow mother for his compassionate appointment. In response to the application, the petitioner was called upon by the concerned authority of the respondents to appear at the Area Level Screening Committee. The petitioner appeared before the Screening Committee.
2. However, the petitioner received a letter dated 5.5.2004 (Annexure-7) from the respondents, whereby he was intimated that his application for compassionate appointment was rejected on the ground that his eldest brother was in employment of Indian Army and that, as per norms of the Company, the petitioner cannot be provided with compassionate appointment.
3. Against the aforesaid letter, the petitioner preferred 'appeal' before the General Manager (P&IR;), CCL, Ranchi (respondent No. 3) In his appeal, the petitioner had categorically stated that his elder brother had ceased to be dependent of his deceased father ever since 1985 and that, such declaration was made even by the deceased in his service records. On the other hand, it was the petitioner who was shown by the deceased as his dependent. It was stated in the letter of appeal that the eldest brother had severed his relations and connection with the remaining members of the family of the deceased ever since 1985 and this was certified even by the Circle Officer, Sursand on 26.5.2003. In addition, the said eldest brother of the petitioner had also filed his declaration on affidavit that he was in employment in the Indian Army since 1986 and was not in a position to contribute anything to the family of the deceased on account of his own financial liabilities. However, the petitioner's appeal was rejected by the respondent No. 3.
4. The petitioner has challenged the order of rejection of his application for compassionate appointment on the following grounds:
i. that, he is dependent of his deceased father.
ii. that, his eldest brother had severed his relation with the family of the deceased way back in the year 1985 and was not dependent upon his deceased father ever since after separation.
iii. that, even otherwise, his eldest brother was not granted any employment by the respondent CCL on the basis of the service of the deceased.
iv. that, under Clause 9.3.2 of the N.C.W.A. VI/VII, the petitioner is eligible and entitled to claim appointment on compassionate grounds.
5. Per contra, the stand taken by the respondents vide their counter-affidavit is that the application of the petitioner for his compassionate appointment was rejected on the ground, even as declared by the petitioner's widow mother, that her eldest son namely Rabindra Kumar was employed in Indian Army.
6. The question raised by the petitioner is, whether the ground taken by the respondents for rejecting the petitioner's claim for compassionate appointment on the plea that the petitioner's eldest brother was gainfully employed in the Indian Army, is not illegal and arbitrary?
7. Admittedly, the deceased father of the petitioner was employed in the CCL. The terms and conditions of service of the workmen working in coal mines are governed by a 'Settlement' referred to as N.C.W.A. VI/VII. The said settlement in terms of Sub-section (3) of Section 18 of the Industrial Disputes Act, 1947 is binding on the employer and its workmen.
8. Clause 9.3.0 of the N.C.W.A. lays down provisions of employment to the dependents of the deceased workers who are disabled permanently and also those who die while in service. The terms 'dependent' has been explained in Clause 9.3.2. of the N.C.W.A and includes the wife/husband as the case may, unmarried daughter, son and legally adopted son, residing with the deceased and almost wholly dependent on the earnings of the deceased. It is not disputed that the petitioner was the dependent son of the deceased employee and the facts which the petitioner had placed on record, amply indicate that except the petitioner and his widow mother, no other person was dependent on the earnings of the deceased. This fact was reflected in the service records of the deceased employee. The fact which has also been brought on record is that the eldest brother of the petitioner has severed all relations with the family of the deceased ever since his appointment in Indian Army in 1985 and therefore, he was neither residing with the deceased, nor was dependent upon the earnings of the deceased and as per his declaration on affidavit, on account of his own financial burdens, he was not able to make any financial contribution to the deceased and other members of his family. There is nothing brought on record by the respondents to contradict this statement. The petitioner has certainly made out a firm and reasonable ground for claiming compassionate appointment on the basis of the terms of settlement under the N.C.W.A. The denial of the petitioner's claim on the ground of his elder brother gainfully employed, is totally unjustified and arbitrary and therefore, it cannot be sustained.
9. Learned Counsel for the respondents CCL by referring to the judgment of the Supreme Court in the case of SAIL and Anr. v. Awadhesh Singh and Ors. reported in : (2001)ILLJ163SC and to the judgments passed by this Court in the case of Ashok Nonia v. Central Coalfields Limited and Ors. vide CWJC No. 1290 of 2000, in the case of Sri S.D. Prasad v. Central Coalfields Limited and Ors. vide CWJC No. 1167 of 1992(R) and the judgment in the case of Ramsay Oraon v. Chairman-cum-Managing Director, CCL and Ors. vide CWJC No. 2918 of 2000, argues that the claim for compassionate appointment even under the NCWA agreement, cannot be allowed to the dependent of the deceased employee, if some other dependent of the deceased employee was already in service.
10. I have gone through each of the above judgments cited by the learned Counsel for the respondents and I am of the opinion that none of the judgments apply to the facts of the present case. The essential question which was raised in the above referred cases was whether the N.C.W.A. agreement permits appointment on the death of the employee to one of the dependent of the deceased employee if some other dependent of the deceased employee is already in service. In each of the above referred judgments, the admitted position was that some dependent of the deceased employee was already in service. It is in the above context that the issue was decided by the Supreme Court in several judgments that since one of the dependents of the deceased employee was already in service, employment to another dependent of the deceased employee cannot be claimed under the terms of the N.C.W.A.
11. In the present case, even according to the declaration made by the deceased during his life time which finds entered into his service records maintained by the respondent employer, the eldest son was not dependent upon the deceased and neither was he residing with the deceased and neither was he contributing any financial assistance to the deceased or to other members of the family of the deceased. Thus, for all practical purposes, the petitioner and his widow mother were the only dependents on the earnings of the deceased during his life time. As observed earlier, the respondents have not brought anything on record to contradict this fact.
12. In the light of the above discussion, I find merit in this application. Accordingly, this application is allowed. The impugned letter (Annexure-7), issued by the respondent No. 3. is hereby quashed. The respondents are directed to offer appointment to the petitioner on the suitable post within eight weeks from the date of this order.
Let a copy of the order be given to the counsel for the respondents.