Smt. Sumarwati Bai. Vs. the Mines Manager. - Court Judgment

Excerpt:

ection 11 (2): [b.n. agrawal, g.s. singhvi & aftab alam, jj] contribution due from employer payment priority given by section 11(2) held, the priority given to the dues of provident fund etc., in section 11 is not hedged with any limitation or condition. rather, a bare reading of the section makes it clear that the amount due is required to be paid in priority to all other debts. any doubt on the width and scope of section 11 qua other debts is removed by the use of expression all other debts in both the sub-sections. this would mean that the priority clause enshrined in section 11 will operate against statutory as well as non-statutory and secured as well as unsecured debts including a mortgage or pledge. sub-section (2) was designedly inserted in the act for ensuring that the provident fund dues of the workers are not defeated by prior claims of secured or unsecured creditors. this is the reasons why the legislature took care to declare that irrespective of time when a debt is created in respect of the assets of the establishment, the dues payable under the act would always remain first charge and shall be paid first out of the assets of the establishment notwithstanding anyth.....for condonation of delay is made out. accordingly, the delay in filing the appeal is condoned and the i.a. stands allowed. with the consent of the learned counsel for the appellant, the writ appeal is taken up for hearing on the question of admission.4. this intra-court appeal arises from the order of the learned single judge dated 3-5-2010 passed in w.p. no.5233/2010 (s) whereby the writ petition preferred by the appellant has been dismissed.5. learned counsel for the appellant has contended that appellant's husband died in harness on 13-11-1999. however, the appellant was belatedly granted appointment on compassionate basis in the year 2007 and, therefore, the appellant is entitled to get compensation at the rate of rs.3000/- per month for the period commencing from 13-11-1999 to 6-6-2007. when the amount of compensation for the aforesaid period was not given the appellant approached this court by filing writ petition no.5233/2010(s), inter alia, claiming compensation for the aforesaid period in terms of clause 9.5.0 of national coal wages agreement v (for short `ncwa- v').6. the learned single judge having heard the learned counsel appearing for the parties dismissed the.....

Judgment:

1. Learned counsel for the appellant submitted that the appellant is an illiterate widow. Her counsel did not advise her that an appeal can be filed before the Division Bench against the order passed by the learned Single Judge. However, when the appellant came to Jabalpur and met another counsel, he advised her to file the appeal. Thereafter, the instant appeal has been filed without any undue delay. The application for condonation of delay is duly supported by an affidavit.

2. It is well-settled in law that for the fault on the part of counsel, a litigant should not suffer [See: Rafiq and another vs. Munshilal and another, AIR 1981 SC 1400].

3. Thus, we find that sufficient cause for condonation of delay is made out. Accordingly, the delay in filing the appeal is condoned and the I.A. stands allowed. With the consent of the learned counsel for the appellant, the writ appeal is taken up for hearing on the question of admission.

4. This intra-court appeal arises from the order of the learned Single Judge dated 3-5-2010 passed in W.P. No.5233/2010 (S) whereby the writ petition preferred by the appellant has been dismissed.

5. Learned counsel for the appellant has contended that appellant's husband died in harness on 13-11-1999. However, the appellant was belatedly granted appointment on compassionate basis in the year 2007 and, therefore, the appellant is entitled to get compensation at the rate of Rs.3000/- per month for the period commencing from 13-11-1999 to 6-6-2007. When the amount of compensation for the aforesaid period was not given the appellant approached this Court by filing Writ Petition No.5233/2010(s), inter alia, claiming compensation for the aforesaid period in terms of Clause 9.5.0 of National Coal Wages Agreement V (for short `NCWA- V').

6. The learned Single Judge having heard the learned counsel appearing for the parties dismissed the writ petition by the order under appeal, dated 3-5-2010 on the ground that as per Clause 9.5(ii) of the NCWA-V, if the dependent is below the age of 45 years, she will have the option either to accept monetary compensation of Rs.3000/- per month or employment and, therefore, since the appellant was given employment vide order dated 6-6-2007 contained in Annexure-P/4, now cannot claim monetary compensation for the period commencing from 13-11-1999 to 6-6-2007. Thus, since the appellant has accepted the employment by submitting her joining it would not be open for her to claim monetary compensation as well. The aggrieved appellant, therefore, has preferred the instant writ appeal. Learned counsel for the appellant relying on the Office order dated 22-9-2005 contained in Annexure-P/3, vehemently contended that the respondents have already accepted her claim of monetary compensation with effect from 01-02-2005 to 01-11-2022 till she attains the age of 16 yeas or till she marries or till her death, whichever is earlier and, therefore, now they cannot deny the amount of compensation to the appellant from the date of actual death of her husband till she was given the employment. However, neither this aspect has been appreciated nor the order dated 22-9-2005 passed by the respondents has been taken care of by the learned Single Judge and hence, he has fallen in error. We have considered the submissions advanced by the learned counsel for the appellant. However, we do not find any merit in the same. The National Coal Wages Agreement (NCWA Vth) was introduced to provide employment to the dependents of the employees of the Western Coalfields Ltd.. To appreciate the controversy, let us have a look at the provision contained in Clause 9.5.0 of the NCWA-V. It reads as under:

"9.5.0 - Employment/monetary compensation of 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.4000/- 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.3000/- 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 12 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 dependent will be paid monetary compensation as per rates at paras (i) & (ii) above. This will be effective from 01.01.2000.

(iv) Monetary compensation wherever applicable, would be paid till the female dependant attains the age of 60 yeas.

(v) The Existing rate of monetary compensation will continue. The matter will be further discussed in the Standardisation Committee and finalised."

7. From perusal of the aforesaid provision it is evident that it provides for giving employment/monetary compensation to the female dependants of workmen who die in harness, or who are declared medically unfit as per Clause 9.4.0 of the NCWA-V. Sub- clauses (i) an (ii) of Clause 9.5.0 in an unequivocal term provides that female dependant of such employee who die due to an accident in the mine or otherwise, would have the option either to accept the monetary compensation of Rs.3000/- per month or employment irrespective of her age. It does not provide for grant of compensation in addition to appointment on compassionate basis. Therefore, the appellant had the option either to claim compensation or employment on compassionate ground. In the case in hand, the appellant was given an offer to accept monetary compensation, vide letter dated 22-9-2005 for the period commencing from 01-02-2005 to 01-11-2022, but there is nothing on record to show that the appellant accepted the same. On the contrary, she opted to get employment pursuant to the aforesaid provision of the NCWA-V and gave her joining on 30-7-2007. Therefore, the appellant in fact, opted for her appointment on compassionate basis and hence, now she cannot take U-turn claiming both, compensation as well as appointment. The appellant having opted for appointment, is now estopped from claiming compensation too, in view of the doctrine of election which has been defined in "Advanced Law Lexicon" by P. Ramanatha Aiyar, 3rd Edition, in the following terms:

"Election is the choosing between two rights by a person who derives one of them under an instrument in which a clear intention appears that he should not enjoy both."

8. The NCWA-V under which the appellant has claimed benefit, in clear terms, as noticed above, provides that the claimant could accept either monetary compensation of Rs.3000/- per month or employment irrespective of her age. It does not provide that both, i.e., monetary compensation and employment could be provided. That apart, we are of the view that a person who accepts a benefit under a scheme or an instrument must adopt the whole contents of the scheme or the instrument conforming to all its provisions and renouncing every right inconsistent with it. The scheme, as noticed, does not permit both the benefits, i.e., employment as well as monetary compensation. Since the appellant accepted the employment, therefore, it would amount to renouncing of her right regarding claim of monetary compensation. Both cannot be availed simultaneously, as it would run counter to the scheme and defeat the idea and purpose of launching such a scheme.

9. For the aforementioned reasons, we do not find any ground to differ with the view taken by the learned Single Judge. The writ petition is devoid of any merit. The same deserves to and is hereby dismissed.