Sanjay K. Agrawal, J
1. This writ appeal is directed against the impugned order dated 6-4-2021 by which the learned Single Judge has partly granted the writ petition filed
by the writ petitioners / respondents herein and directed the writ appellants herein to consider the case of Kishore Kumar Jha / respondent No.1
herein for dependent employment in accordance with the provisions contained in clause 9.4.0 of the National Coal Wage Agreement (NCWA) and
made the appointment subject to the outcome of the second appeal preferred by the writ appellants herein being S.A. No.382/2020 titled as Regional
Director, CMPDI v. Padmakar Jha and others.
2. Respondent No.2 herein was working in South Eastern Coalfields Limited (SECL) as Security Guard and on account of medical unfitness, he was
declared medically unfit with effect from 12-10-2015 under the provisions of the NCWA governing the service conditions and benefits provided to the
employees working in Coal India Limited and its subsidiary companies. Clause 9.4.0 under Chapter 9 of the NCWA provides for grant of dependent
employment to the dependent of the employee who suffers permanent disability while in service. Since respondent No.2 herein was declared
medically unfit and he was retired from service, he made an application for providing dependent employment in favour of his son respondent No.1
herein namely, Kishore Kumar Jha which has been rejected by the appellant CMPDI and its authorities vide order dated 19-11-2015 on the ground
that the name of Kishore Kumar Jha was not entered by respondent No.2 in his service record as dependent and secondly, he is not entitled for the
benefit of dependent employment in terms of clause 9.4.0 of the NCWA. Being aggrieved and dissatisfied with the order passed by the appellant
CMPDI, the respondents herein filed writ petition before this Court praying therein that the writ appellants herein be directed to consider the case of
the writ petitioners for employment to one of the dependents of the worker as per clause 9.4.0 of the NCWA stating inter alia that the name of the
worker’s son Kishore Kumar Jha has wrongly been mentioned as Krishna Kumar Jha for which he had already filed a civil suit for declaration
and though initially, the civil suit was dismissed, but thereafter, the first appellate Court in Civil Appeal No.152-A/2019 had already granted decree for
declaration declaring that Krishna Kumar Jha and Kishore Kumar Jha, both, are one and same person and therefore the writ petitioners are entitled to
be considered for dependent employment in terms of clause 9.4.0 of the NCWA. Return was filed by the writ appellants / employer denying the
allegations made in the writ petition stating inter alia that the writ petition suffers from delay and laches and furthermore, judgment & decree of the
first appellate Court is under challenge before the second appellate court (this Court) which is the subject matter of S.A.No.382/2020, as such, the
writ petition deserves to be dismissed.
3. The learned Single Judge after appreciating the pleadings of parties and submissions made on behalf of parties, by the impugned order partly
allowed the writ petition holding that since the first appellate Court had already declared by decree of declaration that Krishna Kumar Jha and Kishore
Kumar Jha are one and same and therefore writ petitioner No.1 is entitled to be considered for dependent employment, but that will be subject to the
outcome of second appeal and subject to verification of records. Questioning legality and correctness of the aforesaid order, this writ appeal has
preferred by the employer / writ appellants.
4. Mr. Vaibhav Shukla, learned counsel appearing for the writ appellants, would submit that there is five years’ delay in filing the writ petition
which has not been taken cognizance of though respondent No.2 herein stood retired on medical ground with effect from 12-10-2015 and the name of
respondent No.1 Kishore Kumar Jha was not entered in the service record, respondent No.1 is not entitled for the benefit of dependent employment in
terms of clause 9.4.0 of the NCWA and the learned Single Judge ought to have dismissed the writ petition, as S.A.No.382/2020 filed by the writ
appellants herein is still pending consideration before this Court. As such, the impugned order is liable to be set aside and the writ appeal deserves to
be allowed and the writ petition be dismissed.
5. Mr. Umakant Singh Chandel, learned counsel appearing for the respondents herein, would submit that the learned Single Judge is absolutely justified
in granting the writ petition in part directing the consideration of the case of respondent No.1 herein (son of respondent No.2 herein / ex-employee) for
dependent employment in terms of clause 9.4.0 of the NCWA and the impugned order being unexceptionable, this writ appeal deserves to be
dismissed.
6. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with
utmost circumspection.
7. Respondent No.2 herein Padmakar Jha, who was working as Security Guard under the appellant CMPDI, was admittedly retired from service on
the ground of medical unfitness with effect from 12-10-2015 under the provisions of the NCWA. Clause 9.4.0 of the NCWA provides for grant of
dependent employment to the dependent of the employee who has retired from service on the ground of permanent disability while in service and that
provision was invoked into by respondent No.2 seeking appointment for his son Kishore Kumar Jha / respondent No.1 herein which has been rejected
solely on the ground that the name of Kishore Kumar Jha was not entered in the service record maintained in the office of the appellants CMPDI, by
respondent No.2. In the writ petition filed by the respondents herein questioning that order, the learned Single Judge by his order, relying upon
judgment & decree of the first appellate Court declaring respondent No.1 herein to be son of respondent No.2 herein, directed for consideration of the
case of respondent No.1 for dependent employment holding that Krishna Kumar Jha and Kishore Kumar Jha, both, are one and same and further held
that the order of dependent employment to be passed by the CMPDI will be subject to the outcome of S.A.No.382/2000 which has been sought to be
challenged in the writ petition.
8. The only submission which has been raised vehemently before this Court on behalf of learned counsel for the appellant CMPDI is that the name of
Kishore Kumar Jha was not entered in the service record and one Krishna Kumar Jha is on record, therefore, the learned Single Judge could not have
directed for consideration of the case of respondent No.1 herein for dependent employment, once the second appeal is pending against judgment &
decree passed by the first appellate Court.
9. Respondent No.2 was admittedly declared medically unfit and he retired from service. He made application that his son Kishore Kumar Jha be
given the benefit of dependent employment in terms of clause 9.4.0 of the NCWA and furthermore, the competent civil court (first appellate Court)
had already declared by its decree dated 11-2-2020 that Krishna Kumar Jha and Kishore Kumar Jha, S/o Padmakar Jha, both, are one and same. The
civil suit of respondent No.2 herein for declaration was dismissed by the trial Court, but it was granted by the first appellate Court by decree dated 11-
2-2020 passed in Civil Appeal No.152-A/2019 which states as under: -
DECREE IN APPEAL FROM ORIGINAL DECREE (Civil Procedure Code 1908, Order XLI, Rules 35)
THE COURT OF-6TH ADDITIONAL DISTRICT JUDGE,
BILASPUR (C.G.)
Civil Appeal 152-A/2019
10. As such, the civil suit of respondent No.2 herein for declaration instituted under Section 34 of the Specific Relief Act, 1963 (for short, the Act of
1963’) claiming that Krishna Kumar Jha and Kishore Kumar Jha are one and same being son of Padmakar Jha â€" respondent No.2 herein, was
decreed by the first appellate Court and by virtue of Section 35 of the Act of 1963, decree for declaration granted under Section 34 of the Act of 1963
is binding on the writ appellants herein as they were party to the suit.
11. At this stage, it would be appropriate to notice Section 35 of the Act of 1963 which states as under: -
“35. Effect of declaration.â€"A declaration made under this chapter is binding only on the parties to the suit, persons claiming through them
respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be
trustees.â€
12. A careful perusal of the aforesaid provision would show that a declaration made under Section 34 of the Act of 1963 does not operate as a
judgment in rem, it operates as a judgment in personam. A declaratory decree does bind the parties to the suit; person claiming through parties to the
suit; and where any of the parties are trustees, on the person for whom, if in existence at the date of the declaration, such parties will be trustees. As
such, by virtue of Section 35 of the Act of 1963, a decree for declaration is binding on parties to suit.
13. Reverting to the facts of the case in the light of the aforesaid legal position, it is quite vivid that father of respondent No.1 herein i.e. respondent
No.2 Padmakar Jha retired from service on medical ground on 12-10-2015 and clause 9.4.0 of the NCWA is a piece of social and beneficial provision.
One of the dependents of the employee is entitled for dependent employment in terms of the aforesaid provision. Padmakar Jha â€" respondent No.2
herein having applied for his son’s employment i.e. for respondent No.1 herein, the writ appellants â€" a public sector undertaking being State
within the meaning of Article 12 of the Constitution of India, ought to have acted fairly and reasonably as well, and extended the benefit of dependent
employment to respondent No.1 herein, particularly when the doubt as to whether respondent No.1 herein is son of respondent No.2 herein has clearly
been dispelled by decree of declaration granted by the competent civil court under Section 34 of the Act of 1963 holding that Kishore Kumar Jha and
Krishna Kumar Jha, both, are one and same person and he is son of respondent No.2 Padmakar Jha, which is binding upon the writ appellants herein
who were party to the said civil suit by virtue of Section 35 of the Act of 1963 and decree of declaration so granted has not been reversed or set-aside
till this date. As such, the writ appellants have no option except to extend the benefit of dependent employment to respondent No.1 herein and the
finding recorded by the learned Single Judge holding that respondent No.1 herein is entitled to be considered for dependent employment in terms of
clause 9.4.0 of the NCWA, is strictly in accordance with law. Even otherwise, once the father i.e. respondent No.2 herein has made statement that
respondent No.1 is his son and the civil court has declared the status of respondent No.1 to be the son of respondent No.2, the writ appellants are
under legal obligation to provide dependent employment to respondent No.1.
14. As a fallout and consequence of the aforesaid legal analysis, we do not find any merit in the writ appeal, it deserves to be and is accordingly
dismissed leaving the parties to bear their own cost(s).
