Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 2658 of 2010 ------- Amit Kumar, son of Late Diwakar, resident of Qr. No.-182, Nichhitpur Township, P.O.-Bansjora, P.S.-East Bauriya, District-Dhanbad. ... Petitioner Vs. 1.Bharat Coking Coal Limited, through C.M.D., Koyla Bhawan, Koyla Nagar, Dhanbad. 2.Chairman-cum-Managing Director, Bharat Coking Coal Limited, Koyla Bhawan, Koyla Nagar, Dhanbad. 3.Director Personnel (I&R) Bharat Coking Coal Limited, Koyla Bhawan, Koyla Nagar, Dhanbad. 4.General Manager, Bharat Coking Coal Limited, Sendra Bansjora Colliery, Sijua Area, Sijua, P.S. Sijua, Dist- Dhanbad. 5.Project Officer, Sendra, Bansjora Colliery of Bharat Coking Coal Limited, Sijua Area, Sijua, P.S. Sijua, Dist-Dhanbad. … ... Respondents ------ CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ------ For the Petitioner : Mr. R.N. Sahay, Sr. Advocate. Mr. M.K. Roy, Advocate. For the Respondents : M/s Anoop Kumar Mehta & Amit Kumar Sinha, Advocates. ------ 09/ Dated:
04. h August, 2016 Per Pramath Patnaik, J.: In the accompanied writ application, the petitioner has inter alia prayed for quashing letter dated 19.01.2004, by which, the services of the father of the petitioner has been dismissed and further for quashing letter dated 29/30.04.2010, whereby the compassionate appointment has been refused to the petitioner on the ground that the father of the petitioner has been dismissed from services of the company and further for direction upon the respondents to appoint the petitioner on compassionate ground. 2 2. The facts, as delineated in the writ application, is that the father of the petitioner was employed with the management of BCCL as Electrician in the year 1981. It has further been stated that unfortunately, the father of the petitioner went missing from 20.03.2000 and thereafter, he never returned home, to which, it is reported to the police station on 29.04.2000, however, no trace of the father of the petitioner could be found. It has further been averred that seven year had passed since the father of the petitioner had last been heard of, the mother of the petitioner filed a Title Suit bearing T.S. No. 38 of 2007 in the Court of learned Munsif, Dhanbad, impleading respondents-BCCL as party-respondents, for a declaration that her husband, namely, Diwakar, son of late Batohi Bhiya was dead. It has been submitted that said suit was decreed in favour of the plaintiff vide judgment dated 30.01.2009. It has been averred in the writ application, for the first time, in the Title Suit, the petitioner and his family members came to know that services of the deceased-employee had been terminated vide order dated 19/21.01.2004.
3. Learned counsel for the petitioner submitted that the order of dismissal is bad in law as the fact regarding the missing of the father of th petitioner was well within the knowledge of the respondents-authorities, hence, no proceeding could have been initiated against the father of the petitioner. It has further been submitted that no notice of any sort was ever served upon any of the family members of the missing employee, either prior to initiation of departmental 3 proceeding or before passing the final order of dismissal. Learned counsel for the petitioner further submitted that the the petitioner and his mother repeatedly submitted representations i.e. representation dated 03.12.2002, 17.12.2002, and 10.10.2003 etc. to provide employment to the petitioner in place of his father, hence, the respondents- authorities have knowledge about the missing of the father of the petitioner before passing the impugned order of dismissal. It has further been submitted that the entire departmental proceeding has been conducted behind the back of the petitioner and his mother and impugned order of dismissal has been passed in utter violation of principles of natural justice.
4. Learned counsel for the petitioner after getting the decree from the Competent Court of law regarding the death of his father on the ground of unheard of for the last seven years, the petitioner submitted representation before the respondents-authorities, but the same was rejected vide order dated 29/30.04.2010, on the ground that since the father of the petitioner was dismissed, there is no question to give compassionate appointment to the petitioner, which is impugned in this writ application.
5. In support his contention, learned counsel for the petitioner relied upon the judgment rendered in the case of Kamaldeo Kumar Vs. M/s BCCL & Ors as reported in 2015(4) JLJR237 4 6. At the very outset, learned counsel for the respondents submitted that since the remedy of appeal is available with the petitioner, the writ petition is not maintainable. On the merit of the case, learned counsel for the respondents submitted that deceased-employee absented himself from duties since 20.03.200, while application for compassionate appointment was submitted on 24.06.2009 and by that time, the very object and purpose of compassionate appointment had become frustrated, as by that time, the family of the deceased- employee was able to tide over the loss of the bread earner. It has further been submitted that notices in the departmental proceeding were sent at the residential address of the workman but neither the petitioner nor the mother of the petitioner submitted representation to the respondents that the petitioner is missing since 22.03.2000, hence, no proceeding ought to be continued against him. Since no such representation/information was furnished to the respondents- authorities, the final order of dismissal from service was passed on 19.01.2004.
7. After hearing learned counsel for the parties at length and on perusal of the documents available on record, I am of the considered view that the petitioner has been able to make out a case for interference for the following facts, reasons and judicial pronouncements: (I).On chronological scrutiny of facts, it appears that the father of the petitioner went missing sicne 20.03.2000, to which, the petitioner reported to the local police on 5 29.04.2000. However, when the father of the petitioner was unheard of for the last seven years, the mother of the petitioner filed a Title Suit No. 38 of 2007, impleading the respondents-authorities as party-respondents, for declaration that her husband, Diwakar, son of late Batohi Bhiya, is dead, which was decreed in favour of the plaintiff vide judgment dated 30.01.2009. (ii).It is no more res-integra that there is any distinction between the civil death and natural death of a person after such a declaration is made by the competent Court of law under Section 108 of the Indian Evidence Act, 1872, as has been held in the case of Bijay Kumar Pradhan Vs. State of Jharkahnd & Ors as reported in 2014(1) JLJR33 Furthermore, from the sequence of facts, it appears that on the ground of absentism, the father of the petitioner has been dismissed from services, but, on declaration of civil death by the Competent Court of law, the impugned order of dismissal from services dated 19.01.2004 is a nullity against all the canons of justice, equity and fair play. (iii).It further appears that just after four months of obtaining decree from the Civil Court, the petitioner submitted representation dated 07.05.2009 and 24.06.2009, annexing the decree and other documents, for compassionate appointment, but that representation was rejected on the ground that since the father of petitioner had been dismissed from services vide order dated 6 21.01.2004, the petitioner is not entitled to get compassionate appointment. Since the impugned order of dismissal from services dated 19.01.2004 has been declared bad in law, the consequential order of rejection of granting compassionate appointment, is liable to quashed and set aside.
8. In the result, the impugned order dated 19.01.2004, by which, the services of the father of the petitioner has been dismissed and order dated 29/30.04.2010, whereby the compassionate appointment has been refused to the petitioner, are hereby quashed and set aside and the matter is remitted to the respondents-authorities to take a decision afresh on the claim of the petitioner for compassionate appointment, in accordance with law.
9. With the aforesaid observations and directions, the writ petition stands allowed. (Pramath Patnaik, J.) Alankar/-