1. With the consent, the petition is heard finally. Grievance put-forth by the petitioner in this Writ Petition under Article 226 of the Constitution of India is against the order dated 15.1.2004; whereby, the claim of the petitioner for grant of compassionate appointment in lieu of the death of her husband has been negatived on the ground that the petitioner is sanctioned monetary compensation.
2. Husband of the petitioner was employed as Tub-loader in Nandan Mine No. 1, Western Coal Fields Ltd. He died on 20.10.1997 leaving behind the petitioner and a son and two daughters.
3. That, in pursuance to National Coal Wage Agreement V, an advise was tendered to the petitioner that, her son who was aged 16 years will be placed in live roaster and on completion of 18 years, he will be given the compassionate appointment, till then the petitioner was offered Rs.2000/- per month as monetary compensation. The advise was tendered on the basis of the letter No. 22/98/594 dt. 11.5.1996, which was in pursuance to the application by the petitioner for appointment on compassionate ground. The petitioner declined the offer vide her letter dt. 20.5.1998 (Annexure R/2) whereby the petitioner stated that she wants to educate her son. The petitioner; however, expressed that she is interested in the appointment on compassionate ground. The respondents though did not offer any job to the petitioner but as evident from the averment in the return, the petitioner was paid monetary compensation w.e.f. 10.5.1998 to 9.5.2004 @ Rs.2500/- from 10.5.1998 to 9.11.1999 and Rs.3000/- from 12.11.99 to 9.5.04. This monetary compensation was accorded vide order dated 11.5.1998. Later on the son of the petitioner when crossed 18 years of age the petitioner reminded her request for compassionate appointment. The same was, however, turned down on the ground that it is not permissible when the petitioner has once declined to accept, the offer of appointment to her son and having been granted the monetary compensation. The petitioner is aggrieved of the denial of the claim for compassionate appointment.
4. It is urged that, the authorities concerned have misguided themselves by holding that the petitioner declined to accept the offer. It is contended that the petitioner was never given an offer of appointment. Instead, on an application by the petitioner, the offer was made for appointment of the son and the petitioner since wanted to educate her son, offered herself for appointment. It is further contended that the respondents are not justified in rejecting the claim of the petitioner. The respondents on the other hand have justified their action in rejecting the request of the petitioner for employment on compassionate ground. It is urged that the petitioner was granted monetary compensation and, therefore, she was not provided the compassionate appointment.
5. The Scheme of Compassionate appointment is contained in clause 9.5.0 of the NCWA V, which provides for:
"9.5.0: Employment/monetary compensation to female dependant. Provision of employment/monetary compensation to female dependants of workmen who die while in service and who are declared medically unfit as per Clause 9.4.0 above would be regulated as under:
(i) In case of death due to mine accident, the female dependant would have the option to either accept the monetary compensation of Rs.3,000/- per month or employment irrespective of her age.
(ii) In case of death/total permanent disablement due to causes other than mine accident and medical unfitness under Clause 9.4.0., if the female dependant is below the age of 45 years she will have the option either to accept the monetary compensation of Rs.2,000/- per month or employment. In case the female dependant is above 45 years of age she will be entitled only to monetary compensation and not to employment.
(iii) In case of death either in mine accident or for other reasons or medical unfitness under Clause 9.4.0, if no employment has been offered and the male dependant of the concerned worker is 15 years and above in age, he will be kept on a live roster and would be provided employment commensurate with his skill and qualifications when he attains the age of 18 years. During the period the male dependant is on live roster, the female dependant will be paid monetary compensation as per rates at paras (i) and (ii) above. (iv) Monetary compensation wherever applicable, would be paid till the female dependant attains the age of 60 years.
(v) the rate of monetary compensation which stands at Rs.2000/- and Rs.3000/- per month as mentioned above would be reviewed w.e.f. 01.07.1996.
(vi) The rate of monetary compensation will be reviewed as and when new wage agreements are finalized.
Note. In the case of TISCO, the matter would be settled at bipartite level.
This would supersede all past agreements, circulars and instructions issued on the subject in so far as the issues are covered by the provisions, herein above."
6. Letter dated 11.5.1998 on the basis whereof the proposal dated 19.5.1998 communicated to the petitioner, it was stated in clear terms that as per the stipulation in clause 9.5.0 (iii) NCWA-V the name of the petitioner's son would be kept on live roster till 18 years and till then the petitioner would be given Rs.2000/- towards monetary compensation and proposal for employment of petitioner's son would be sent to headquarters once he completes 18 years of age. It was said : vr% ,u-lh-MCY;w-&5 dh /kkjk 9-5-0&III; ds vuqlkj muds 18 o"kZ dh vk;q ds gksus rd e`rd dh vkfJrk ifRu Jherh dkS'kY;k dks 2]000@& :I;s ekWusVjh dEiUls'ku ysus gsrq le>k;k tk, muls fyf[kr lgefr izkIr dh tk;s] e`rd ds iq= 'ke'ksj dh vk;q 18 o"kZ gksus ij mDr jkstxkj iznku djus gsrq izLrko daiuh eq[;ky; Hkstk tk;sA" The aforesaid decision was thus in consonance with the provision 9.5.0 (iii) which aims at preserving right of male dependent for an employment on a compassionate ground and a monetary compensation to female dependant will not hamper such a right. Having taken such decision it was incumbent upon the respondents to have offered an employment in terms of letter dated 11.5.1998 to the petitioner's son on his attaining the age of 18 years.
7. The stand of the respondents as is reflected vide communication dated 15.1.2004 that because the petitioner has accepted the monetary compensation and, therefore, the male dependent will not be entitled for compassionate appointment, besides being contrary to the decision dt. 11.5.1998, is also not in commensurate with the NCWA-IV
8. The effect of clause 9.5.0 of NCWA V was noted in the following terms in Mohan Mahto v. Central Coal Fields Ltd. (2007) 8 SCC 549 wherein it was observed by their Lordships: "17. It is neither in doubt nor in dispute that the case for grant of compassionate appointment of a minor was required to be considered in terms of sub-clause (iii) of Clause 9.5.0 of the N.C.W.A.V. In terms of the said provision, the name of the appellant was to be kept on a live roster. He was to remain on the live roster till he attained the age of 18 years. Respondents did not perform their duties cast on them thereunder. It took an unilateral stand that an application has been filed in the year 1999 in the prescribed form. For complying with the provisions of a settlement which is binding on the parties, bona fide or otherwise of the respondent must be judged from the fact as to whether it had discharged his duties thereunder or not. In this case, not only it failed and/or neglected to do so, but as indicated hereinbefore it took an unholy stand that the elder brother of the appellant being employed, he was not entitled to appointment on the compassionate ground. Thus, what really impelled the respondent in denying the benefit of compassionate appointment to the appellant is, therefore, open to guess. We expect a public sector undertaking which is a 'State' within the meaning of Article 12 of the Constitution of India not only to act fairly but also reasonably and bona fide. In this case, we are satisfied that the action of the respondent is neither fair nor reasonable nor bona fide.
18. We have indicated hereinbefore, that it is not necessary for us to go into the question as to whether on the teeth of the provision of N.C.W.A.V., the 6
respondent at all had any power to fix a time limit and thereby curtailing the right of the workman concerned. We would assume that even in such a matter, it had a right. But, even for the said purpose, keeping in view the fact that a beneficial provision is made under a settlement, the 'State' was expected to act reasonably. While so acting, it must provide for a period of limitation which is reasonable. Apart from the fact that the period of limitation provided for in the circular letter with a power of relaxation can never be held to be imperative in character, the matter should also be considered from the subsequent conduct of the respondent insofar as it had issued another circular letter in the year 2000 providing for filing of an application for appointment on compassionate ground within a period of one year. It may be that the said circular letter has prospective operation but even in relation thereto we may notice that whereas the said circular letter was issued upon holding discussion with the Unions, the circular letter of the year 1995 was an unilateral one. Furthermore, in its letter dated 2/3.08.2000, it will bear repetition to state, expiry of the period of limitation was not taken as a ground for rejecting his application. Under-age and non- placement of his name in live roster are stated to be the reasons. It is, therefore, unfair on the part of the respondent to raise such a plea for the first time in its counter-affidavit to the writ petition. If he was under- age, definitely, it was obligatory on the part of the respondent to keep his name in the live roster. It was not done."
9. The contention put forth by the respondents that since the petitioner accepted monetary compensation in lieu of employment when adjudged on the touchstone of provisions contained in clause 9.5.0 of NCWA V and letter dated 11.5.1998 leaves no iota of doubt that the monetary compensation to the petitioner was as per the terms and condition of NCWA V and not at the mercy of the respondents. And since the decision was taken by the respondent in consonance with clause 9.5.0
(iii) incumbent it was upon them to have offered the job to male dependant, i.e., son of the petitioner on his attaining 18 years. The respondents are thus not justified in acting in contravention to the stipulations of NCWA V and to the detriment of the welfare of the petitioner.
10. In view of above decision, not granting employment to the petitioner's son is not sustainable. The respondents within two months from the date of communication of this order shall provide the benefit of appointment on compassionate ground to the petitioner's son as per the NCWA V.
11. In the result the petition is allowed to the extent above. However no costs.