Judgment:
Tapen Sen, J.
The two Writ Petitioners are the son and mother respectively, and they are both legal heirs of deceased Sitaram Singh, Ex-pump Khalasi, Chapui Khas Colliery, P.O. Kali Pahari, Dist. Burdwan. They have prayed for the issuance of a Writ of Mandamus Commanding upon the Respondents to provide employment to the Petitioner No. 1, Yogendra Singh under the “died-in-harness” Scheme under Clause 9:4:2 of the National Coal Wage Agreement-V or other relevant provisions and to release monetary compensation to the widow (Petitioner No. 2).
2. Let it be recorded that on 14th September 2011, Mr. Alok Banerjee, learned Counsel for the Respondents, had pointed out that the Petitioners had earlier moved this Court, for the self-same reliefs vide W.P. 8437 (W) of 2005 in the Appellate Side and in view of repeated non-appearance, the case was dismissed for default; interim Orders vacated and Rule, if any, discharged by Order dated 10.9.2009 passed by the Hon’ble Mr. Justice Girish Chandra Gupta.
3. As a consequence, and on 14.9.2011, this Court directed that the records of the said Writ Petition being W.P. 8437 (W) of 2005 be put up along with this case. It was subsequently put up and this Court had the occasion to go through the records.
4. It is found that in that Writ Petition, the Petitioner No. 1 was Smt. Meena Devi, wife of Late Sitaram Singh (i.e. the Petitioner No. 2 herein) and the Petitioner No. 2 was Yogendra Singh (i.e. the Petitioner No. 1 herein). In that Writ Petition, the same prayer to give employment to him (Yogendra Singh) was made with a further prayer for quashing a letter dated 10.11.2004 issued by the Manager of Chapui Khas Colliery which was marked as Annexure-P/7 therein. By reason of the said letter, Meena Devi was informed that her proposal to employ her son, Yogendra Singh was sent to the Head Quarters but the competent authority had not agreed on the ground that at the time of death of her husband, Yogendra Singh was 14 years, 8 months and 8 days old which was less than 15 years and therefore his case was not found to be eligible for keeping his name in the live roster. She was further informed that she would be paid monetary compensation of Rs. 2000/- (Rupees Two thousand) per month as usual.
5. It appears that after dismissal of the said Writ Petition for default, it was never restored and in this Writ Petition, no statements have been made with regard to the dismissal of the said Writ Petition for default nor has any statement been made with regard to filing a similar Writ Petition earlier by the two Writ Petitioners as mentioned above.
6. When confronted, Mr. Subrata Ganguly, learned Counsel for the Petitioner drew the attention of this Court to the “Record note of Discussions” brought on record vide Annexure-P/6 at Page 36 dated 14.8.2009. Upon a perusal of the same, it is evident that the said discussion was held when a hunger strike was resorted to by Smt. Meena Devi (Petitioner No. 2 herein) and another at the main gate of the CMD’s Office, ECL, Headquarter Sanatoria. The said records note of discussion reads as follows:-
“Record note of discussion regarding the Huger Strike staged by Smt. Mina Devi and Sri Ayub Khan on 14/8/09 at the Main Gate of the CMD’s Office, ECL, Hq. Sanatoria.
Management Side: Union Side Present:
| 1. GM (P andIR), ECL, Hq. 2. PM (IR), ECL., Hq. | 1. Sri R K Tripathi, Chief Org. Secy. 2. Sri H L Soni, AGS 3. Sri Aparajit Banerjee, Secretary, HQ 4. Sri Chenges Khan, Branch President |
Smt. Mina Debi Singh, wife of Late Sitaram Singh, Ex. Worker of Chapuikhas Kuardih Colliery, Satgram Area sat on Hunger Srike till death on 14/8/09 from 10.00 AMagainst the non providing employment to them.
Salient poits of discussion:
With directives of the competent authority, discussion held with the Union representatives involved. After prolonged discussion it is amicably agreed by the Management that proposal of employment to Smt. Mina Debi Singh, Wife of Late Sitaram Singh, Ex. Worker of Chapuikhas Colliery will be processed if the dependent is entitled for employment as per the provisions of NCWA. Since the matter is pending before the Hon’ble Court Kolkata, a proposal for out of Court settlement will be moved and after obtaining the approval of competent authority employment will only be provided to Smt. Mina Debi Singh after withdrawing the Court Case pending before the Hon’ble High Court, Kolkata. (Action Dy. P.M (Empl.) WD. ECL. HQ)
Unionpointed out that Sri Ayub Khan son of Late Barati Khan Ex. Security Guard of Kuarkih Colliery, Satgram Area was declared UNFIT in the IME thereafter again declared Medically Unfit by the Apex Board due to Thyroid, to be referred Apex IMEA because his Thyroidetory operation has already been done at BHU and he is now Fit for job as per Doctor’s report submitted by the dependent.
After discussion, it is agreed that the agreed points of the Structural Meeting held after the date of Apex will be explored for implementation Dy. PM (Empl.) WD has been advised to put up Note Sheet accordingly. (Action Dy. P.M (Empl.) WD. ECL. HQ)
Management agreed to process the cases within 15 days. After assurance given by the Management the Hunger Strike called off by the concerned dependent of the deceased employees.
GM (P andIR), ECL, Hq.
Ref: ECL/GMP(IR)/C-6E/KMC/…………..
DATE: 14/08/2009
cc- TS to D(P), for kind information
cc- Dy. CPM, Satgram Area. With a direction to sent the employment file to Hq.
Immediately
cc- Dy. PM (Empl.)/WD, to process the proposal as agreed for.
cc- Representatives of KMC Union …………
cc- Person concerned.” (Quoted)
7. The aforesaid “Salient points of discussions”, establishes that the management conveyed an impression to Meena Devi to understand that if her “Court Case” was withdrawn, then a proposal for an out-of-court settlement would be moved after obtaining the approval of the competent authority.
8. Mr. Ganguly points out that the last paragraph of the said discussions shows that the management agreed to process the matter within 15 days and, after an such assurance was given, the hunger strike was called off by the said dependents including Smt. Meena Devi.
9. Mr. Alok Banerjee, learned Counsel for the Respondents submitted that since the earlier prayer had been rejected, this Writ Petition was barred under the principles of constructive res judicata and therefore, this Court should not entertain the Writ Petition on the aforementioned ground. Learned Counsel submits, with reference to the various paragraphs of the Affidavit-inopposition, that after W.P. 8437 (W) of 2005 was dismissed for default, the competent authority vide their letter dated 1.12.2009 (Annexure-R/9 to the Affidavit-in-opposition) informed the Deputy Chief Personnel Manager, Sanctoria Area about the aforementioned dismissal of the Writ Petition.
10. According to Mr. Ganguly however, this letter itself will go to show that the matter had proceeded after the assurance was given and on the basis of that, the Writ Petition was allowed to be dismissed for default by the Petitioners as they took no steps and thereafter, the Deputy Personnel Manager informed the Deputy Chief Personnel Manager. The letter dated 1.12.2009 reads as follows:-
EASTERN COALFIELDS LIMITED
OFFICE OF THE CMD:SANCTORIA
Ref: ECL/CMD/C-6B/EMPL/09/810 Date:
01/12/2009
To
The Dy. Chief Personnel Manager
Satgram Area
Ref: W.P. No. 8437(W) of 2005
Smt. Meena Devi and Anr.
Vs.
ECL and Ors.
Dear Sir,
It has been brought to the notice of the authority that Ld. Justice Girish Chandra Gupta of Hon’ble High Court, Calcutta passed an order dated 10.9.2009 in connection with above referred W.P. 8437(W) of 2005 which runs as follows:-
“No body appeared for the petitioner. This petition is, as such, dismissed for default. Interim order, if any, stands vacated. Rule, if any, discharged.”
Where upon instant matter has been discussed with Competent authority, ECL when it has been decided to request you to have a fresh application/statement of Smt. Meena Devi, duly witnessed by atleast two permanent employees with regard to continuation of her Monetary Compensation in lieu of employment already approved earlier.
The above statement of claimant be forwarded to this office along with your considered comments for further perusal of the Competent Authority.
Yours faithfully,
Dy. Personnel Manager (Empl)
Copy to: G.M(P andIR):ECL, Hq”
(Quoted)
11. On 26.12.2009, the Deputy Chief Mining Engineer informed Smt. Meena Devi that she was advised to submit a fresh application with regard to monetary compensation in lieu of employment.
12. On the basis of such subsequent facts, this Writ Petition cannot be held to be barred by res judicata. The Writ Petition was not dismissed on merits but it was dismissed for default and therefore, such a Writ Petition, following the judgment reported in 2008 (3) CHN 602 passed in the case of Rinku Mondal (Biswas) and Anr. Vs. Union of India and ors., would not attract the bar of res judicata. Paras 25 to 27 of the said Judgment passed in Rinku Mondal’s case reads as follows:-
“25. We have no hesitation in summarily rejecting the aforementioned contention and holding that the said judgment has no application in the facts of this case because the first writ petition was never adjudicated on merits and therefore, a second writ petition was certainly maintainable. In this context we refer to the judgments passed by the Hon’ble Suprme Court, as cited by the learned Counsel for the appellants, and the first of these judgments are in the case of Hoshnak Singh Vs. Union of India and Ors. , reported in AIR 1979 SC 1328. Paragraph 10 of the said judgment clearly lays down that it is incontrovertible that where a petition under Article 226 is dismissed in limine without there being a speaking order, such a dismissal would not attract the bar of res judicata to a subsequent writ petition on the same cause of action.
26. The second judgment cited by the learned Counsel is the case of B. Prabhakar Rao vs. State of Andhra Pradesh, reported in Air 1986 SC 210 (Paragraph 23) which corresponds to 1985 (Supp) 432 at page 464 (Paragraph 22). In the said judgment also, the same principle has been reiterated and it lays down that the dismissal in limine of a writ petition cannot possibly be a bar to a subsequent writ petition.
27. For the aforementioned reasons, we are of the view that the case of the appellant, having been dismissed at the threshold for non-appearance and for default, could not possibly have prevented her from filing a second writ petition on the self-same cause of action notwithstanding the dismissal of the restoration application, in the interregnum for the conduct of a Lawyer.”
(Quoted)
13. In view of the aforesaid facts and circumstances and considering the fact that the Writ Petition was dismissed for non-appearance and for default, the same cannot be construed to be a circumstance by which a second Writ Petition can be barred. This Court therefore holds that this second Writ Petition is maintainable.
14. Coming to the merits of the case, we notice that in this Writ Petition also, the Respondents have brought on record the letter dated 10.11.2004 by which the reasons for not granting employment to Yogendra Singh was mentioned and that was, that at the time of death of Sitaram Singh, Yogendra Singh was only 14 years, 8 months and 8 days which was less than 15 years and therefore, his case was not found eligible for being kept in the live roster.
15. This Court is of the view that such an opinion was per se irrational and unreasonable. Considering the fact that he was already 14 years 8 months and 8 days old, the authority should have taken a lenient view but they have not done so. Consequently, this court is of the view that the Respondents should be directed to reconsider the claim of the Petitioners in relation to providing employment to Yogendra Singh under the necessary Rules and Scheme which was in existence at the relevant point of time and also to release such monetary compensation in accordance with law.
This Court however does not appreciate the Act of the Petitioners in suppressing the fact that they had earlier moved this Court through the Writ Petition which was dismissed for default as stated above.Notwithstanding the fact that the statements do point out that there was an implied assurance on the basis of which the Petitioners had acted, but even then, this fact should have been brought to the Notice of the Court. However, for the reasons stated above, this Court takes a lenient view and excuses the Petitioners but this is so done in the peculiar facts and circumstances of this case which should not be treated as a precedent.
The Writ Petition is accordingly disposed of with a Direction upon the Respondents to reconsider the claims of the Petitioners and take a decision thereon in accordance with law and in accordance with the Scheme/Rules referred to above, within a period 6 weeks from the date of receipt of a copy of this Order and communicate the same to the Petitioner within 2 weeks thereafter. No Order as to costs.
Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.
(Tapen Sen, J.)
………May, 2012
S.B. A.F.R./N.A.F.R.
Later:
After delivery of the judgment in Court, prayer was made on behalf of the Respondents for stay. Having considered the facts and circumstances of this case, this Court is not inclined to stay the operative portion of the judgment.
Prayer is refused.