M.Y.EQBAL, J. - (1.) SINCE common questions of law and facts are involved in these appeals, they have been heard together and are disposed of by this common judgment.
(2.) THESE appeals are directed against the judgment dated 4th October, 2002 passed in CWJC No. 2862/94 and CWJC No. 2863/94, whereby the learned Single Judge dismissed the writ petitions and refused to interfere with the award passed by the Central Government, Industrial Tribunal, Dhanbad. The facts of the case lie in a narrow compass. The concerned workmen Sri M. Pramanik and A. B. Goswami were previously employed in the colliery of the appellant -Central Coalfields Ltd. as senior overman. The age of superannuation of the workmen was 60 years and after serving full term of employment, they superannuated w.e.f. 5.11.1984 and 20.11.1984 respectively. However, before retirement, the workmen applied for retirement from service on medical ground and expressed their desire for providing employment to their dependants. They were accordingly medically examined on 25.8.1984 and their cases were submitted to the Head Office for consideration. Before any decision was taken, the workmen continuously served the company and superannuated on 5.11.1984 and 20.11.1984. After retirement the workmen got industrial disputes raised and the appropriate Government, referred the disputes for adjudication to the Tribunal "as to whether the action of the Central Coalfields management not retiring the workmen immediately after they were declared unfit by the Medical Board held on 25.8.84 and employing them till the date of their retirement and not giving employment to their dependants as provided under para 9.4.3 of NCWA -III is justified? If not, to what relief the workmen are entitled - 4 The Tribunal recorded a finding that alter the workmen were found medically unfit, repeated demands were made for employment of their dependants. The workmen contended before the Tribunal that their dependants were interviewed but the same was denied by the management. The Tribunal, however, held that although the workmen requested the management for their medical examination in 1983 but their case was referred in 1984 and this delay was solely on account of laches on the part of the management. Hence the Tribunal answered the reference in favour of the workmen and directed to give employment to their dependants. The appellant - management challenged the said award by filing writ petitions being CWJC No. 2862/94(R) and CWJC No. 2863/94(R) and the learned Single Judge, after hearing the parties, dismissed the writ petitions on 4.10.2002 by passing the following orders: '' "Heard the parties. The admitted case of the parties is that the concerned workmen applied for medical examination in the year 1983. It took the management almost one year to declarethem medically unfit on 25.8.1984. The Management should immediately have acted after that but instead of doing so they allowed the concerned workmen to continue to work till 5.11.1984 and 20.11.1984 thereby depriving them from the benefit of the National Coal Wage Agreement -Ill (NCWA) 9.4.3. If the Management had acted on time, then on 25.8.1984, the concerned workmen should have been allowed to go out of job. The delay, therefore, was not attributable to the concerned workmen. Additionally, it is also the admitted case of the parties that the son of the concerned workmen was called for interview as would be apparent from paragraphs 17 and 18 of the Award and paragraph 12 of the award respectively. In view of the aforementioned reasonings, this Court is not inclined to interfere with the Award. The writ petitions are, accordingly, dismissed." 5 We have heard Mr. Ananda Sen, learned counsel appearing for the appellant and Mr. M.K. Laik, learned counsel appearing for the concerned workmen. 6 As noticed above, the concerned workmen of the respondent Union were employed in the appellant -company and their date of superannuation was 5.11.84 and 20.11.84. Because of the fact that the workmen were suffering from the disease, they expressed their desire to retire on account of employment of their dependants. It is also admitted fact that the workmen were declared medically unfit for the job on 25.8.84 and their cases were referred to the higher authority for decision. However, in spite of the workmen were medically declared unfit, they continued in the employment and after completing 60 years of age retired on 5.11.84 and 20.11.84 respectively. Much after superannuation from service they demanded employment of their dependants and ultimately they succeeded in raising an industrial disputes claiming employment on the basis of the provision of Clause 9.4.0 of the National Coal Wage Agreement. Clause 9.4.0 of NCWA reads as under: '' "9.4.0: Employment to one dependant of a worker who is permanently disabled in his place. (i) The disablement of the worker concerned should arise from injury or disease be of a permanent nature resulting into loss of employment and it should be so certified by the Coal Company concerned. (ii) In case of disablement arising out of general physical debility so certified by the Coal Company, the employee concerned will be eligible for the benefit under this clause if he/she is upto the age of 58 years. The term 'general physical disability' would mean deficiency of a workmen due to any disease or other health reason leading to his/her disablement to perform his/her duties regularly and/ or efficiently. (iii) The dependant for this purpose means the wife/husband as the case may be, unmarried daughter, son and legally adopted son. If no such direct dependant is available for employment, brother widowed daughter/widowed daughter -in -law or son -in - law residing with the employee and almost wholly defendant on the earning of the employee may be considered. In so far as female dependants are concerned, their employment would be governed by the provisions of Clause 9.5.0. (iv) The dependants to be considered for employment should be physically fit and suitable for employment and aged not more than 35 years provided that the age limit in case of employment of female spouse would be 45 years as given in Clause 9.5.0. In so far as male spouse is concerned, there would be no age limit regarding provision of employment." 7 The aforesaid clause of NCWA was considered by a Bench of this Court in similar facts of the case in WPS No. 3341/2001 and held as under: '' "5. From perusal of the aforesaid provisions, it appears that one of the conditions for getting benefit of the aforesaid clause is that the employee must be below 58 years of age and the accident must be resulted into the loss of employment. In other words if an employee before attaining 58 years of age met with an accident and the injuries are such that he became totally unfit to continue his employment then one of the dependant should be given employment so that loss of employment to the injured could be compensated. The object and purpose of this clause is that the employee after losing employment, because of disablement, should not come in the street and his life should be made liveable by giving employment to his defendant. 6. Applying the said provision here in the instant case, I find that although petitioner met with an accident on 26.10.1996 but he did not loss employment for the reason that he was continuously paid full wages and other benefits till the age of retirement, besides payment of compensation. Moreover, the petitioner for the first time made representation on 7.7.2001 after a notice dated 24.5.2000 was served upon him informing him that he will attain 60 years on 15.10.2001 i.e. the age of superannuation. In spite of his disablement he received all the benefits of employment till superannuation as if he did not suffer any injury. In my opinion, therefore, the provision of Clause 9.4.0. cannot be made available to those employees who in spite of injury, continuously received wages and other benefits of employment till the date of his superannuation. The case of the petitioner is therefore not covered by the provisions of the National Coal Wage Agreement quoted hereinabove." 8 A Division Bench of this Court has also taken a similar view in L.P.A. No. 161 of 2002. Their Lordships held: '' "The only claim of the appellant for the employment of his son was based on Clause 9.4.0 of N.C.W.A. This Clause reads thus: '' "Employment to one dependant of a worker who is permanently disabled in his place. (1) The disablement of the worker concerned should arise from injury or disease be of a permanent nature resulting into loss of employment and it should be so certified by the Coal Company concerned......" It is the admitted case of the respondent that even though he met with an accident during the course of employment and received permanent injuries, but it not his case that this resulted in any loss of employment. In fact, the admitted case is that he continued serving till the last date of his superannuation. Of course, during the period that he remained in permanent disablement before the date of superannuation, he was bed ridden and, therefore, was on special leave relating to his injuries. The fact remains that there was no loss of employment at all and, therefore, the respondent did not have any claim for the employment of his son. The learned Single Judge, therefore, fell in error in allowing the writ application. This appeal is allowed and the judgment of the learned Single Judge is set aside. No order as to costs." 9 As noticed above, the concerned workmen continued in service till the date of their superannuation and there has not been any loss of employment. It was only much after retirement, the workmen raised industrial disputes for getting their dependants employed on the basis of Clause 9.4.0. In our considered opinion, Clause 9.4.0 cannot be invoked as it does not confer any right in the facts and circumstances of the present case. The learned Single Judge is not correct in law in holding that because of the delay caused in considering their applications, the dependants became entitled to get employment. The impugned judgment passed by the learned Single Judge, therefore, cannot be sustained in law. 10 For the reasons aforesaid, these appeals are allowed and the impugned judgments passed by the learned Single Judge and also the award passed by the Tribunal are set aside.;