Indra Prasanna Mukerji, J.@mdashOne, Bakrid Mia was a worker in Dhemomain colliery under Eastern Coalfields Ltd. He had cancer and was declared medically unfit by the Area Medical Board on 12th March, 1991. His services were terminated on 9th April, 1991. Bakrid had nominated his son, Samsul Mia, for employment but he predeceased Bakrid. He died on 22nd January 1992. Bakrid died on 14th December, 1996. Bakrid''s widow is Sakina Bibi. She made her claim for employment but was not considered as she had crossed the age of forty-five years at the time of her husband''s termination of service. Under the applicable terms of employment, a female dependant heir could only get appointment on compassionate grounds upto the age of forty-five years. Now, Bakrid had another son, Ahmed Hussain, who is the writ petitioner before me. After all these relatives were disqualified, he made his claim for employment on 7th March, 1994. He went before the Medical Board. It reckoned that on 11th October, 1996, his age was nineteen years which meant that on the day his father was declared unfit, he was only thirteen years five months and one day old. Hence, he was a minor and could not be considered for applying. There is no dispute that the National Coal Wage Agreement-IV applies to this case. More particularly clause 9.4.3 applies.
9.4.3 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 Coal Company concerned, not arising out of injury or disease as in Para (i) above, the concerned employee will be eligible for the benefit under this Clause if the employee is upto the age of 58 years.
(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, younger brother, widowed daughter/widowed daughter-in-law or son-in-law residing with the employee and almost wholly dependent on the earnings of the employees may be considered.
(iv) The dependant 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 shall not apply in the case of spouse.
2. Mr. Banerjee, learned Advocate for the respondents, argued that at the time when the father of the writ petitioner was declared medically unfit or when he was discharged from service, he was a minor. Any kind of government employment, particularly one related to a coal mine demanded that the employee should be at least eighteen years of age. In this case, on the day the father was declared medically unfit, the writ petitioner was thirteen years five months and one day old. Therefore, he was much below eighteen years of age at the date of termination of the service of his father.
3. According to the National Coal Wage Agreement, the dependant had to be eighteen or above years of age. Therefore, the decision of the General Manager, Sodepur, dated 14th January, 2011 in attempted compliance of the order dated 21st April, 2010 passed by this Court was correct.
4. Mr. Banerjee submitted that suppose a minor was just born at the time of his father''s death, would the employer have to keep a place vacant for eighteen years till the son became a major.
5. I am unable to accept this kind of a submission.
6. Clause 9.4.3 by itself does not fix any minimum age limit for employment. It is true that a minor cannot be employed but then to give purpose to this clause and for its full implementation it does not follow that the right to compassionate employment which has accrued to a person is extinguished because of his minority. I would tend to think that in such a case an under age candidate should be appointed provisionally. He should not be given any work. He should not be paid any wages but he should be kept on the rolls of the organisation. Immediately upon his attaining the age of eighteen years, he should be made a permanent employee. All this should be conditional upon the financial need criterion continuing to exist at that point of time. That is why in the subsequent National Coal Wage Agreement it was provided a minor would be put on the roster "and be appointed as soon as he attained minority".
7. These provisions are inserted to give financial support to a family when the earning member dies. It should not be presumed that after a gap of five years or even eighteen years the financial hardship would be overcome. Sometimes the financial hardship of a member of the deceased''s family continues life long. Whether the financial hardship continues till the minor attains majority, should, if an employer wants, be assessed on a case to case basis.
8. The Supreme Court and our High Court have taken the view that the receipt of terminal benefit has got nothing to do with the consideration of a case for compassionate appointment. Taking into account all these decisions, in the unreported case of WP No. 8260(W) of 2011 Smt. Rupa Modak v. The State of West Bengal & Ors. decided on 2nd July 2013, I had made the following remarks:-
I am afraid that the Director did not take this case of compassionate appointment, as seriously as it ought to have been taken. The Supreme Court and our High Court have repeatedly reminded us that payment of terminal benefit on account of death does not determine making or non-making of compassionate appointment. K.J. Sengupta, J. for a Division Bench of this Court pronounced the following in
9. Besides, the amount of Rs. 4,000/- being the family pension, is conterminous with the life of widow and the moment the widow dies, this benefit stands withdrawn. The sons are unemployed, the daughters are unmarried. Therefore, it is not for the Director to assess the financial need of the family and it is for the family who can feel their own need. Had the son been appointed, he would not have earned the same amount which his father would have earned during his service, however, his earning would have been some amount of financial replenishment. Therefore, the payment of terminal benefit on account of death cannot be equated with the scheme of compassionate appointment and this concept has been laid down by the Supreme Court in a decision rendered in the case of
10. The Director it seems was too much influenced by the monthly pension which was being received by the widow. He ought to have taken into account that the two minor sons of the deceased professor would soon grow up. They needed proper education. Education is very expensive, nowadays and it is difficult to meet such expenses from the pension earned monthly.
11. Next he also ought to have considered the financial implications of the loan taken by the professor and the medical expenses paid by the family during the professor''s illness. He had also to take into account the judgments of the Supreme Court and the High Court including the above judgment of the Division Bench of our Court presided over by K.J. Sengupta, J.
12. Of course, to make this determination the petitioner is required to produce the required documents for which an opportunity of hearing should be given to her.
13. I would like to emphasize that untimely death of a person leaving behind a widow and two minor sons raises a strong presumption of the immediate need for financial assistance by the family, which the Director should bear in mind while making the instant adjudication.
14. In those circumstances, the decision of the Director of Public Instruction, West Bengal dated 9th March, 2011 is set aside with a direction upon him to pass a fresh reasoned order within a period of three months from the date of communication of this order after giving an opportunity of hearing to the writ petitioner and in accordance with the observations made above.
15. This writ application is, accordingly, disposed of.
16. Hence, this case also needs reconsideration. Eastern Coal Fields Ltd. should assess whether financial hardship still exists. They should consider if the father was still alive, would the petitioner have been still dependant on his source of income with Eastern Coalfields Ltd. They should consider the financial condition of the family and the writ petitioner''s ability and willingness to improve it with his earning. Therefore, I direct the respondent No. 3 to reconsider the case of the writ petitioner for compassionate appointment taking into account the above observations within a period of eight weeks from the date of communication of this order. This writ application is allowed to the above extent.
All parties concerned to act on a signed photocopy of this order upon the usual undertakings.
