EMPLOYERS IN RELATION TO MANAGEMENT OF SWANG WASHERY OF CENTRAL COALFIELDS LIMITED Vs. THEIR WORKMAN PANKAJ KUMAR

JUDGEMENT

(1.) By Court: The present writ petition has been filed for quashing the award dated 12.08.2011 passed by the Presiding Officer, Central Government Industrial Tribunal No. 1, Dhanbad in Ref. Case No. 64 of 2006, whereby the reference has been answered in favour of the respondent by holding that as per Clause 9.3.2 read with Clause 9.5.0 of National Coal Wage Agreement-VI (in short 'NCWA-VI') the respondent is entitled for compassionate appointment and his mother is also entitled for compensation till her death.

(2.) The factual background of the case is that the father of the respondent was an employee of the petitioner-Management who died in harness on 15.03.1999. The second wife of the deceased employee submitted an application for her employment with the consent of the first wife but the same was rejected by the management vide order dated 29/30.09.2000 on the ground that the second wife is not entitled to get employment on compassionate ground while the first wife is alive. When the respondent attained the age of 18 years, his mother Smt. Anjani Devi (first wife of the deceased employee) filed an application dated 08.06.2002 before the Project Officer, Swang Washery for employment of the respondent on compassionate ground. Thereafter, an industrial dispute was raised through the Union before the Assistant Labour Commissioner (C), Hazaribagh and when the conciliation failed, the matter was referred to the Industrial Tribunal vide Ref. No.64 of 2006. In the meantime Smt. Anjani Devi died on 24.05.2008 and she was substituted by the respondent as the "workmen" (Annexure-10 to the writ petition). The Industrial Tribunal, Dhanbad answered the reference in favour of the respondent by holding that the respondent herein is entitled to get appointment on compassionate ground in terms of Clause 9.3.2 of NCWA-VI and the wife of the deceased workman, namely, Smt. Anjani Devi is also entitled for compensation till her death, which gives rise to the filing of the present writ application.

(3.) Learned counsel for the petitioner submits that at the time of the death of the deceased workman, Clause 9.5.0 of NCWA-V was in vogue wherein it was specifically provided that a minor whose age is 15 years and above, will be kept in live roster and as the respondent did not complete the prescribed age limit he was not kept in live roster. On comparative reading of Clause 9.5.0 (iii) of NCWA-V (Annexure-3) and NCWA-VI (Annexure-4), it will appear that the provisions are exactly same, except that the age of the male dependant of the concerned workman for the purpose of keeping him in live roster has been reduced from 15 years to 12 years. Learned counsel further submits that the effective date for applicability of Clause 9.5.0 (iii) of NCWA-VI is 01.01.2000 and as the concerned workman had died on 15.01999 i.e. prior to the effective date of the said Clause, the same will not be applicable to the present respondent. Learned counsel assailed the impugned award on the ground that although before the learned Tribunal there was a contest as to which NCWA would be applicable; yet the said issue was neither framed nor decided. It is further submitted that as per School Leaving Certificate of the respondent, his date of birth is 15.08.1987 and as such at the time of the death of the employee, the respondent was below the prescribed age of 12 years provided under Clause 9.5.0 of NCWA-VI. Thus, even if, it is accepted for the sake of argument that Clause 9.5.0 of NCWA-VI is applicable for consideration of the respondent's case, he had not attained the prescribed age of 12 years under the said clause. Learned counsel also submits that no application for keeping the respondent in live roster and for payment of compensation was filed by the mother of the respondent namely Smt. Anjani Devi. It is further submitted that the provision for providing monetary compensation to the female dependant of the deceased employee comes into effect only when the male dependent is kept in live roster and as the male dependant was not kept in live roster there is no question of payment of compensation. Learned counsel also submits that the Hon'ble Apex Court in a catena of decisions has held that the claim for compassionate appointment cannot be granted belatedly.