ANIRUDDHA BOSE,J. - (1.) THE writ petitioner is the daughter of an erstwhile employee of Eastern Coalfields limited, Naran Mudi, who passed away while in service of the organization on 27th September, 1998. Father of the petitioner was engaged on 1st January, 1969, in Bhamuria unit of Parbelia colliery, at present under the Eastern Coalfields limited, (the company). Said Naran Mudi was survived by his widow and daughter, the latter being the petitioner. At the time of death of father of the petitioner, the National Coal Wage Agreement -VI (NCWA -VI) was in operation. The said agreement provides for appointment of close relatives of an employee who dies while his service, under certain conditions. The said provision is contained, inter alia, in clause 5.9.0 of NCWA -VI, which stipulates: - Employment/Monetary compensation to "9.5.0 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.2000/ - 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 dependant will be paid monetary compensation as per rates at paras (i) and (ii) above. This will be effective from 1.1.2000. iv) Monetary compensation, wherever applicable, would be paid till the female dependant attains the age of 60 years. v) The existing rate of monetary compensation will continue. The matter will be further discussed in the Standardisation Committee and finalized. NOTE : In the case of TISCO, the matter would be settled at bipartite level."
(2.) SO far as the present case is concerned, originally mother of the petitioner had made an application for employment from the aforesaid category. She was sent for medical examination and her age was found to be between 47 and 52 years. Thus she was outside the ambit of the age -band specified in the NCWA -VI for being considered for employment from the said special category. The mother of the petitioner was informed of the said fact on or about 30th January, 2003. Thereafter, the petitioner made the application for being appointed on compassionate ground, in terms of the said provision of NCWA -VI. Case of the petitioner is that on 24th September, 2003, the Deputy Chief Personnel Manager of Sodepur area had sent a letter to the mother of the petitioner informing her that she was not eligible for being provided employment on the ground of being overage. In the same letter, it has been pleaded, that the mother of the petitioner was advised that if she had any other dependent such dependent could approach for employment on compassionate ground. It appears that the petitioner had submitted her application thereafter on 18th December, 2003. There was medical fitness test of the petitioner and on being declared medically fit, her name was recommended for employment by the Personnel Manager, Perbalia Group. This has been disclosed in annexure 'P4' of the writ petition, in which the recommendation for her employment appears to have been endorsed by the General Manager of the area. Thereafter, the Deputy Chief Personnel Manager of the company had sent the employment file of the petitioner for approval of the employment authority. This appears from the copy of his communication bearing reference no. Pd/c -6/04/empl/2041 dated 30th November/1st December, 2004, addressed to the Personnel Manager (EMPL) (WD), a copy of which has been made Annexure "P5" to the writ petition. There is reference, in this communication, to para 9.3.2 of the NCWA VI. This clause mainly provides for employment and payment of monetary compensation in terms of clause 9.5.0, so far as female dependents of an employee who dies while in service are concerned. The recommendation in favour of the petitioner, however, was rejected on 24th April, 2006, on the ground of her being underage. This has been specified in a note sheet bearing reference no. ECL/CMD/D -6B/EMPL/06/371 dated 20/24th April, 2006 issued by the Personnel Manager (Employment) of the E.C.L (HQ), Sanctoria, the copy of which has been annexed to the writ petition as "P6". The ground for rejection as recorded in the said note sheet, is: - "The female claimant was 16 years, 5 months and 9 days on date of death of the ex.employee and there is no provision to keep the name of the female dependent in Live Roster as per provision of NCWA. On date of claim also underage. In view of the above, the employment proposal of the aforesaid dependent has been submitted for perusal and approval of the Competent Authority to regret the claim for employment." On the same note sheet, the agreement of the Committee with this rejection proposal has been endorsed.
(3.) AS has been referred to in the said provision of the NCWA VI, a male dependent of a deceased workman is required to be kept on the live roster, if he is above 12 years in age, in case where a female dependant is not offered employment. Such male dependant is to be given employment on attaining the age of 18 years. But there is no such provision for a female dependent being kept on live register. In MAT No. 1298 of 2009 (Smt. Santi Rui Das Vs. Coal India Ltd. & Ors.) decided on 25th February, 2010, an Hon'ble Division Bench of this Court examined a similar provision contained in NCWA -V, on the complaint of a female dependent, whose claim for employment was rejected on the ground of being underage. In that case, age of the dependant female employee was 17 years, 11 months and 17 days on the date of death of her father. The Hon'ble Division Bench found the provision in the coal wage agreement under which a male dependent could be kept on the live roster from the age of 15 (in NCWA V) but a female dependent would lose her opportunity of employment unless she was 18 years of age on the date of death of the concerned workman to be discriminatory. The Hon'ble Division Bench held: - "13. Having considered the relevant clauses of the National Coal Wage Agreement ­V in the light of Articles 14 and 16 of the Constitution of India as well as the above provisions of the Protection of Human Rights Act, 1993 and CEDAW and the aforesaid decisions of the Apex Court and this Court, we have no hesitation in holding that the writ petitioner who had completed 15 years of age but not 18 years of age on the death of her mother who was an employee of the appellant authority, was entitled to have her name kept on the live Register for employment upon completion of 18 years of age. 14. In light of the above discussion, we allow this appeal. The order of the Learned Single Judge is set aside and the respondents are directed to consider the appellant's case for compassionate appointment without treating the appellant as disqualified on the ground that she was a female dependent and, therefore, having not completed 18 years of age on the date of death of her father, the appellant was not eligible for compassionate appointment upon completion of 18 years of age. The appellant's case shall be considered within two months from today." Though the decision in the case of Santi Ruidas (supra) was delivered while construing the provisions of clause 9.5.0 of the NCWA V, the said ratio would cover the same provision of NCWA VI as well, as I find the content of the same clause in both the coal wage agreements to be substantially same. There has been some minor alterations so far as clause 9.5.0 of NCWA VI is concerned, vis -à -vis the same clause of NCWA V, but there is no fundamental difference in the provisions of both these clauses in the two coal wage agreements.;