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NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 830 OF 2018

[@ SPECIAL LEAVE PETITION (C) NOS. 28172 OF 2015] SMT.SUBHADRA                                APPELLANT (S)

                               VERSUS

THE MINISTRY OF COAL AND ANR.               RESPONDENT(S) J U D G M E N T

KURIAN, J. 1. Leave granted. 2. The  appellant  is  before  this  Court  since  her claim for compassionate appointment under Respondent No. 2 was declined.  Her husband died on 06.07.2003. It is not in dispute that as on the date of death of the husband, she was around 35 years of age.  It is also not in dispute that as on the date of death of the  husband,  they  had  a  minor  son  aged  around  13 years. 3. The compassionate appointment is governed by a Bipartite  Agreement,  signed  on  23.12.2000.   The provisions read as follows:-

“9.3.0   Provision  of  Employment  to Dependants  9.3.1  Employment would be provided to one  dependant  of  workers  who  are disabled permanently and also those who died while in service.  The provision will be implemented as follows :

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9.3.2  Employment to one dependant of the worker who dies while in service. In  so  far  as  female  dependants  are

concerned,  their  employment/payment  of monetary compensation would be governed by para 9.5.0.   9.4.0  Employment to one dependant of a worker  who  is  permanently  disabled  in his place. …. …. ….    9.5.0 Employment/Monetary  compensation to 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. 4,000/- 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 dependants is below the age of 45 years, she  will  have  the  option  either  to accept the monetary compensation of Rs. 3,000/- 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

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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 as paras (i) & (ii) above.  This will be effective from 1.1.2000.” (Emphasis supplied)   

4. It is the stand of the respondent-Organisation that  they  were  prepared  to  grant  the  monetary compensation  of  Rs.  3,000/-  per  month  to  the appellant, whereas it was the appellant who insisted for employment.  The learned counsel has also pointed out that the second respondent is prepared to put one of the sons of the appellant on live roster in terms of  the  Agreement.   The  stand  is  reflected  at Paragraphs 5 to 10 of the Counter Affidavit, which reads as follows :-

“5. It is submitted that Petitioner on  21.10.2004  submitted  an application  to  Respondent,  refusing to  accept  the  monetary  compensation granted in favour of the petitioner,

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by  the  Respondent  on  compassionate ground.   Instead,  Petitioner requested again to the Respondent to give  her  employment  for  herself, which  was  again  submitted  to  the competent authority.  6.   That  Respondent  replied  to Petitioner's  application  dated 21.10.2004  via  letter  dated 12.01.2005, whereby, the Respondent's competent  authority  intimated Petitioner that as per the provisions applicable,  Petitioner's  son (dependant  of  deceased)  was  for keeping on the Live Roster.  It is submitted  that  as  per  9.3.0  Clause (iii)  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 in live roster  and  would  be  provided employment  commensurate  with  his skill  and  qualifications  when  he attains  the  age  of  18  years. Therefore, Respondent could not give employment  to  the  Petitioner,  can only offer monetary compensation till the time her son attains majority.   7. That  petitioner  once  again refused to take monetary compensation that  was  granted  in  her  favour, instead sent another application to Respondent dated 20.02.2005 to apply for employment for herself.

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8. That  the  Respondent  again  vide letter  dated  7/3/2005  rejected  the claim of Petitioner for employment as there was a minor son of ex-employee who at that time was eligible to be kept  in  live  roster  and  was  to  be given  employment  at  the  time  of majority. 9. That  vide  application  dated 26.09.2005 Petitioner again demanded employment from the Respondent.  It is to be submitted that Petitioner in her  application  dated  26.09.2005 stated  that  she  is  not  willing  to keep  the  name  of  her  son  on  live roster  and  demanded  employment  for herself  on  the  ground  that  other ladies have also been provided with employment as the dependant of their husbands. 10. It is submitted that Respondent again  investigated  the  matter,  and examined the documents in relation to the  deceased  ex-employee  and  his dependants and came to the conclusion that employment to Petitioner cannot be  granted  as  there  was  already existing  minor  son  of  the  deceased who was kept in the live roster for employment.”      

5. Since the request for employment was rejected, the appellant approached the High Court and as per the  impugned Judgment,  the High  Court has  taken a

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view that the appellant was only entitled to monetary compensation @ Rs. 3,000/- per month from 01.02.2004 till  she  attains  the  age  of  60  years.   Thus aggrieved, the appellant is before us. 6. The  learned  counsel  for  Respondent  No.  2  – Organisation  has  invited  our  attention  to  the decision of this Court in Canara Bank & Anr. vs. M. Mahesh  Kumar,  reported  in  (2015)  7  SCC  412  and submitted  that  compassionate  appointment  is  not  a matter of right and there is a discretion available to the employer.  We have no quarrel with the settled position,  but  the  instant  case  is  not  a  case  of discretionary  compassionate  appointment  governed  by any  statutory  guidelines.   It  is  governed  by  a Scheme, as agreed to by the parties and which has become part of the Bipartite Agreement.  The terms of the Agreement are very specific and give no room for any discretion.    7. In paragraph 9.5.0(ii) of the Agreement, it is very clearly and specifically mentioned that a female dependant, if below 45 years of age, has an option either  to  accept  the  monetary  compensation  or employment.   It  is  not  an  option  reserved  to  the employer, but an option given to the employee.  It was in terms of the Agreement only that the appellant had  been  insisting  that  she  should  be  given employment, if she is otherwise eligible in terms of

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the Bipartite Agreement.  But the second respondent kept on insisting that the son, being above the age of 12 years, would be kept on live roster until he attains the age of 18 years and till such time, the appellant would be given compensation @ Rs. 3,000/- per  month in  terms of  Paragraph 9.5.0(iii)  of the Agreement. 8. Paragraph 9.5.0(iii) would come into play only in case  paragraph  9.5.0(ii)  does  not  operate. Employment is assured to the dependant in terms of the  Bipartite  Agreement.   If  the  female  dependant opts for employment, there is no further discretion left  to  the  employer,  unless  she  is  otherwise ineligible.  There is no such contention raised by anybody.   9. In the above facts and circumstances of the case, we have no other option but to set aside the Judgment of the High Court and dispose of the appeal in the proper perspective of the Bipartite Agreement. 10.  The learned counsel for the respondents points out  that  the  employment  to  the  appellant  at  this stage and age may not be a workable relief since the appellant herself has later requested for employment to her son.  But the question is how to compensate the appellant for the period from 2004 to 2018. 11. Having  regard  to  the  entire  facts  and circumstances of the case, we are of the view that

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the interests of justice would be met and complete justice to the appellant will be rendered in case the appeal is disposed of as follows:- I) The second respondent is directed to appoint one son of the appellant, who has otherwise become major as of now, as per the choice of the appellant, within two  months  from  today.   Needless  to  say  that  the appointment  will  be  commensurate  with  the qualification and entitlement of the incumbent. II) From 01.02.2004, as ordered by the High Court, the  appellant shall  be paid  Rs. 3,000/-  per month along  with  interest  at  the  rate  of  7.5%  from  the respective dates when the amount became due. III)  Towards all other claims on account of loss of employment  for  the  last  13  years,  as  far  as  the appellant is concerned, it would be just, fair and reasonable  that  a  lumpsum  amount  is  paid  to  the appellant,  which  we  fix  as  Rs.  5,00,000/-  (Rupees Five Lakhs).  This amount shall also be paid to the appellant within two months from today.

Ordered accordingly.   .......................J.

             [ KURIAN JOSEPH ]  

.......................J.               [ MOHAN M. SHANTANAGOUDAR ]  

New Delhi; January 23, 2018.

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ITEM NO.1               COURT NO.5               SECTION IX                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C)  No(s).  28172/2015 (Arising out of impugned final judgment and order dated  21-10-2013 in WP No. 5491/2010 passed by the High Court Of Judicature At Bombay At Nagpur) SMT.SUBHADRA                                       Petitioner(s)                                 VERSUS THE MINISTRY OF COAL AND ANR.                      Respondent(s) Date : 23-01-2018 This petition was called on for hearing today. CORAM :  HON'BLE MR. JUSTICE KURIAN JOSEPH          HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR For Petitioner(s)  Mr. Radhakanta Tripathy, Adv.                       Ms. Chandan Ramamurthi, AOR                     For Respondent(s)  Mr. Vivek Narayan Sharma, AOR

Mr. Sidharth Mahajan, Adv.   Mr. Ajay Singh, Adv.   Mr. Manieesh Pathka, Adv.   Ms. Arunima Dwivedi, Adv.  

                    Mr. Gurmeet Singh Makker, AOR                          UPON hearing the counsel the Court made the following                              O R D E R

Leave granted.  The  civil  appeal  is  disposed  of  in  terms  of  the  signed

non-reportable Judgment.   Pending Interlocutory Applications, if any, stand disposed of.

(JAYANT KUMAR ARORA)                              (RENU DIWAN)    COURT MASTER                                ASSISTANT REGISTRAR

(Signed non-reportable Judgment is placed on the file)