CGIT, Asansol award dated 30-12-2024 in Ref. No. 48 of 2023 between Management of Madhujor Colliery , Kajora Area of ECL and Sunil Roy on 30 December 2024

1. On receiving Order No. L-22012/14/2020-IR(CM-II) dated 09/06/2020 from the Government of India, Ministry of Labour, New Delhi for adjudication of the dispute, a Reference case No. 48 of 2023 was registered on 25/09/2023 and an order was passed for issuing notice to the parties through registered post, directing them to appear and submit their written statements along with relevant documents in support of their claims and a list of witnesses.

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2. Sunil Roy, petitioner claiming employment and the Agent, Madhujore colliery filed their respective written statements on 01/11/2023. In brief, fact of the case disclosed in the written statement of the union is that Jagdish Roy, the father of Sunil Roy was a General Mazdoor at Madhujore colliery under ECL and he died in harness on 23/10/2014. According to the provision under clause 9.3.0 of NCWA-VI, it was agreed that employment would be provided to one dependent of workers who are disabled permanently and also who died while in service of the company. Sunil Roy, dependent son of Late Jagdish Roy submitted an application before the management on 29/12/2014 claiming employment under the provision of NCWA. After proper screening at the colliery level and holding medical examination by Initial Medical Examination Board, Sunil Roy was declared medically fit for employment and the General Manager of the Area recommended the proposal for providing employment, forwarded the file to ECL Head Quarters. Management of ECL issued a letter dated 03/08/2018 whereby proposal for employment was regretted on the ground that the age of dependent son was found different in his educational certificates and the one recorded in the service record of the deceased employee. According to the union, age of Sunil Roy in service record of the employee was recorded by the dealing clerk of the colliery and date of birth in his matriculation certificate was recorded on the basis of declaration of parents/guardians at the time of admission. It is contended that management cannot raise dispute regarding relationship of Sunil Roy with Late Jagdish Roy without verifying their relationship and question regarding age of the person should be decided on the basis of guidelines issued by Coal India Limited in Implementation Instruction No. 76. It is further contended that if the management had problem in accepting the date of birth recorded in matriculation certificate, then his age can be assed by the medical board/Initial Medical Examination Board of the company. It is inter alia submitted that during lifetime of the employee,

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management provided LLTC and LTC benefit to the employee in name of Sunil Roy and treated him as son of Late Jagdish Roy. It is further submitted that if management is bearing any doubt about genuinety of his age in the educational certificate of Sunil Roy, then the same can be verified and dependent can also withdraw his educational certificates as he will not have any extra benefit in the post of General Mazdoor (UG) Category-I. It is urged that Sunil Roy is entitled to get employment as dependent at the earliest and the wife of the deceased employee should be paid monetary compensation as per the provisions NCWA from the date of death of employee till employment is provided to her dependent son.

3. Management has contested the claim raised through union by filing their written statement. The counter case of the management is that Sunil Roy, alleged son of Late Jagdish Roy, claimed employment against death of his father and application was received at the office of the Agent, Madhujore Colliery on 29/12/2014. Proposal was processed at the colliery level and screening was held on 04/07/2015 for providing employment. The employment proposal was forwarded to the Area authority on 29/09/2015. Medical Examination of Sunil Roy was held by the Initial Medical Examination Board on 15/10/2015. Area level screening committee for employment verified the details on 16/11/2015 and proposal was forwarded to ECL Head Quarters for further necessary action in the matter. It is submitted that the Competent Authority of ECL Head Quarters examined the proposal and regretted prayer by issuing a letter bearing No. ECL/CMD/C- 6B/EMPL/ED-3450/18/369 dated 03/08/2018 with following observation “The case file lacks clarity. The name of the claimant got entered in the service record by his deceased father in the year 1987 and year of birth of the claimant is mentioned as 1981. But, the

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claimant’s date of birth appears to be 20.05.1990 as per his educational documents. If he has taken birth in 1990 then how could it be foreseen in 1987? This indicates that the relationship between the claimant and the ex-employee is doubtful. Hence the employment proposal of the so-called son is regretted and Monthly Monetary Cash Compensation to the widow sanctioned subject to her eligibility as per NCWA.” Said decision of the Competent Authority was communicated to Sunil Roy through letter dated 27/08/2018. It is the case of ECL management that compassionate appointment is not a vested right and it cannot be agitated at any point of time. It is urged that the Industrial Dispute is misconceived one and it is not maintainable in the eyes of law and is liable to be dismissed. It is claimed that action of the management is justified and petitioner is not entitled to any relief or reliefs.

4. In order to substantiate their case, union has examined Sunil Roy as workman witness No. 1 who filed his affidavit-in-chief stating that Late Jagdish Roy, his father was a General Mazdoor at Madhujore colliery. He was a permanent employee of ECL having UM No. 677481 and died on 23/10/2014. He has also stated that he applied for employment and submitted necessary documents in support of his claim. Screening and Initial Medical Examination were held at the instance of management of ECL. Proposal was sent to ECL Head Quarters for approval but due to mismatch of his age recorded in service record of Late Jagdish Roy and in his educational certificate, management expressed its doubt regarding relationship between Sunil Roy and Late Jagdish Roy. It is assured that reason for regretting employment on such ground is not justified. It is stated that age can appear different in different records and that his age in service record of the employee was recorded by the dealing clerk of the colliery on their own but age in admit card and

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educational certificates were recorded on the basis of declaration of parents/guardians and the date of birth recorded at the time of admission and age mentioned at the time of filling the form for matriculation examination. It is stated that if there is any doubt regarding relationship, the management has liberty to verify relationship through any source/police authority and also difference of age of candidate appearing in two records can be settled by the determination of age by the Initial Medical Examination Board or by independent Medical Board which will be accepted for all purposes. It is stated that no objection was raised by the management regarding genuinety of relationship with his father, therefore question of genuinety should not arise. It is stated that other family members have expressed their No Objection in favour of the claimant and appeared before screening committee at the colliery level and area level for making their statements. It is stated in the affidavit that at the time of death of Jagdish Roy, age of Sunil Roy was thirty three years as per age recorded in PS-III and service record of the deceased employee and as per educational certificate he was twenty five years of age at the time of death of his father. Considering any of the two ages recorded in two different documents he is entitled to get employment as per NCWA. Witness claimed that he should be provided employment as a non-matric candidate by assessment of age by the Medical Board as per Coal India Limited’s Implementation Instruction No. 76. Witness contended that according to the age recorded in two different documents he was below thirty five years of age on the date of death of his father and is therefore entitled to get employment. His mother has not been paid monthly monetary cash compensation. Both reliefs of employment to son as well as monetary compensation to his mother should be granted till employment is provided to him. In course of evidence, witness produced the following documents in order to support his claim:-

(i) copy of service excerpt of Late Jadgish Roy is produced as Exhibit W-1.

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(ii) copy of form PS-3 of Late Jagdish Roy is produced as Exhibit W-2.

(iii) copy of form PS-4 of Late Jagdish Roy is produced as Exhibit W-3.

(iv) copy of death certificate of the employee is produced as Exhibit W-4.

(v) copy of relationship certificate of the family members issued by Prodhan is produced as Exhibit W-5.

(vi) copy of No Objection Certificate issued in his favour is produced as Exhibit W-6.

(vii) copy of another relationship certificate issued by MLA is produced as Exhibit W-7.

(viii) copy of Madhyamik Examination certificate is produced as Exhibit W-8.

(ix) copy of school leaving certificate is produced as Exhibit W-9.

(x) copy of birth certificate is produced as Exhibit W-10.

(xi) copy of internal correspondence issued by the management dated 29/04/2017 relating to recovery of LTC amount availed by his father is produced as Exhibit W-11.

(xii) copy of letter dated 03/08/2018 by which employment proposal was regretted is produced as Exhibit W-12. In course of cross-examination, WW-I stated that he passed his matriculation examination from BSEB, Patna and his father admitted him in the primary school. He has also stated that his father never submitted application for correction of his age in the service record according to his matriculation certificate. It transpires from evidence that only at the time of screening test held after death of his father, he came to know his age recorded in service record of his father. He also denied the suggestion that ground for regretting prayer for employment was correct and lawful.

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5. In order to demolish the claim of the union, management has examined Mr. Proloy Dasgupta, Manager (Personnel), Madhujore colliery as MW-I. In support of the management’s case, Mr. Proloy Dasgupta filed his affidavit-in-chief, reiterating facts stated in the written statement and further contended that in service record of the deceased employee, year of birth of the claimant is mentioned as 1981 but date of birth of claimant appears as 20/05/1990 in his educational certificates. Since the age recorded in two documents are different, management expressed its doubt regarding relationship between Sunil Roy and the deceased employee and the company decided to sanction Monthly Monetary Cash Compensation to the widow of the deceased subject to her eligibility as per NCWA. It is stated that decision of the Competent Authority was communicated to Kamali Devi which was received by her son on 27/08/2018. It is further averred that female dependent of the deceased never submitted any application praying for Monthly Monetary Cash Compensation along with necessary documents for processing the same. It is finally contended that matter was referred to this Tribunal in the year 2023, after nine years since death of the employee rendering it a stale claim which is liable to be dismissed. Witness asserted that action of the management in denying employment to the claimant is justified and petitioner is not entitled to any relief. At the time of his examination, witness produced the following documents in support of the management’s case:-

(i) copy of Identity Card of the employee is produced as Exhibit M-1.

(ii) copy of death certificate of Jagdish Roy is produced as Exhibit M-2.

(iii) copy of birth certificate of Sunil Roy is produced as Exhibits M-3 and M-12.

(iv) copy of application submitted by Sunil Roy praying for his employment is produced as Exhibit M-4.

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(v) copy of letter dated 29/12/2014 submitted by the wife of Jagdish Roy claiming employment for her son is produced as Exhibit M-5.

(vi) copy of screening committee’s report of Kajora Area in five pages is collectively produced as Exhibit M-6.

(vii) copy of IME report in two pages is collectively produced as Exhibit M-7.

(viii) copy of screening report of Sunil Roy in four pages is collectively produced as Exhibit M-8.

(ix) copy of letter dated 03/08/2018 issued by Sr. Manager (Personnel) Empl/ED addressed to Sr. Manager (Personnel), Kajora Area regretting claim of employment to the dependent is produced as Exhibit M-9.

(x) copy of letter dated 27/08/2018 addressed to Smt. Kamali Devi, wife of deceased employee regretting claim for employment of Sunil Roy is produced as Exhibit M-10.

(xi) copy of Service Record Excerpt of Jagdish Roy in two pages is collectively produced as Exhibit M-11.

(xii) copy of secondary examination certificate of Sunil Roy issued from BSEB, Patna is produced as Exhibit M-13.

(xiii) copy of marksheet of secondary school examination, 2015 of Sunil Roy is produced as Exhibit M-14. During cross-examination, MW-I deposed that if a person is a matriculate, his date of birth appearing in certificate/admit card is considered by IME and in the case of non- matriculate person, the age is determined by IME. It is also deposed that IME does not consider the age of dependents recorded in service record of deceased workman at the

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time of providing employment. It transpires from testimony of MW-I that screening committee at colliery and area level had recommended employment of Sunil Roy and no compliant or dispute was received regarding relationship of Sunil Roy with the deceased employee. It also appears that management of the company did not initiate any verification process to ascertain relationship of Sunil Roy with Jagdish Roy. With reference to copy of Service Record Excerpt of Jagdish Roy produced as Exhibit M-11, witness deposed that it is nowhere mentioned that it was prepared in the year 1987 and that no date has been mentioned in the document at the time of putting signatures.

6. Mr. Rakesh Kumar, union representative advancing argument in support of the claim for employment and monetary compensation in favour of the dependents, submitted that Jagdish Roy, workman was suffering from cancer and he died on 23/10/2014 in harness. Soon after his death, dependents of the deceased submitted two applications separately on 29/12/2014 (Exhibits M-4 and M-5 respectively) stating that Jagdish Roy died at Tata Memorial Hospital, Mumbai and they are facing hardship after his death and for their sustenance, prayed for employment to Sunil Roy, youngest son against death of his father. Employment process was initiated and screening test was held on 04/07/2015 (Exhibit M-6) and medical test was held by the Initial Medical Examination Board on 15/10/2015 (Exhibit M-7). It is argued that in the Initial Medical Examination Report, the IME Board recorded his date of birth as 20/05/1990 according to admit card of the candidate issued from BSEB, Patna and declared him fit for job. Union representative argued that screening Bio-data & report of employment under death scheme was held at Kajora Area on 16/11/2015, report of which has been produced as Exhibit M-8. No Objection Certificate was also issued by other family members of Jagdish

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Roy for providing employment to Sunil Roy. Proposal for providing employment to Sunil Roy was forwarded to ECL Head Quarters but the management by issuing letter No. ECL/CMD/C-6B/EMPL/ED-3450/18/369 dated 03/08/2018 expressed their doubt over relationship between the claimant and ex-employee on frivolous grounds that age of claimant was entered in service record prepared in the year 1987 as 1981 and date of birth of the claimant as per his educational certificates appeared as 20/05/1990. It is argued that copy of service record of Jagdish Roy (Exhibit M-11) does not bear any testimony that such entry was made in the year 1987 and that no date was affixed by any of the signatories. To demolish the counter claim of the management that on date of recording age of Sunil Roy in service record he was six years, Mr. Rakesh Kumar argued that ages of dependents are recorded by dealing clerks without any supportive documents and there is every possibility of committing mistakes at the time of recording age of such persons. It is vehemently argued that according to provisions of Implementation Instruction No. 76, in case of a matriculate candidate, date of birth of the candidate appearing in educational certificates is considered as correct age for providing employment. It is strenuously argued that same procedure should be followed by the IME Board which is required to consider age of person recorded in educational certificates and not the age of person seeking employment according to service record of the deceased employee. Mr. Kumar submitted that at no point of time management had raised objection regarding relationship between Sunil Roy and Jagdish Roy, deceased employee. Screening committee has considered such facts and did not consider it necessary to initiate any police verification. It is argued that in order to frustrate the case of the dependent son of the deceased from getting employment in place of his deceased father, management has raised dispute regarding age and relationship at a later stage without

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any substance. It is urged that Sunil Roy, dependent son should be provided employment according to the provision under clause 9.3.0 of NCWA-VI and Management should pay Monthly Monetary Cash Compensation to the widow of deceased according to the clause 9.5.0 of NCWA-VI till employment is provided to their dependent son.

7. Mr. P. K. Das, learned advocate refuting the claim of the union submitted that according to birth certificate of Sunil Roy (Exhibit M-12) and matriculation certificate (Exhibit M-13), his date of birth is 20/05/1990 but in service record excerpt of Jagdish Roy (Exhibit M-11) it is stated that age of Sunil Roy was six years as on 01/04/1987 which implies that his year of birth is 1981. It is argued that if statements in service record of Jagdish Roy is considered to be correct then the discrepancy of age of Sunil Roy appearing in Service Record Excerpt of the deceased employee and the one recorded in matriculation certificate cannot be reconciled and explained. It is argued that a person cannot have difference of nine years of age between the service record and the date of birth of the petitioner in his matriculation certificate. For such reasons, management of the company is doubtful regarding identity of Sunil Roy, petitioner for his employment. It is further argued that workman died in the year 2014 and industrial dispute was raised after a period of nine years, i.e. in the year 2023 which is liable to be dismissed treating the same as stale.

8. On a conspectus of materials produced before the Tribunal, evidence adduced by parties and on considering arguments advanced by the contending parties, it appears to me that admitted facts of this case is that Jagdish Roy, General Mazdoor working at Madhujore colliery expired on 23/10/2014 while he was in the roll of the company.

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According to the provision of NCWA, a joint bi-partite agreement, management of Coal India Limited and representing employees agreed upon the term of providing employment to one dependent of the workers who died while in service of the company. In clause 9.3.3 of NCWA, dependent for this purpose has been defined as wife or husband, as the case may be, unmarried daughter, son and legally adopted son. In the instant case, death certificate of the employee has been produced as Exhibit W-4. The family particulars of Jagdish Roy as per form PS-3 produced as Exhibit W-2 reveals that Smt. Kamali Devi is wife of the deceased, aged forty one years and at the relevant time their son, Sunil Roy was (17) seventeen years of age. This family particulars are related to Coal Mines Provident Fund account of the employee and factual details were submitted on 12/05/1998. On the basis of their own document, it can be derived that year of birth of Sunil Roy is actually 1981 which supports the case that his age was six years as on 01/04/1987, recorded in service record excerpt of the company (Exhibit W-1). It is true that the Service Record Excerpt does not bear any date of birth and none of the signatories have put any date indicating when such documents were prepared. Be that as it may. The employment process was initiated on the basis of applications submitted by the wife of deceased and Sunil Roy. At the time of screening test held on 04/07/2015 (copy of report is produced as Exhibit M-6), Sunil Roy and others appeared and put their signatures on screening committee’s Report. No dispute was raised regarding relationship between the claimant and the deceased employee. A pre-employmental medical examination of Sunil Roy was held on 15/10/2015 and from the report it is found that his date of birth is recorded as 20/05/1990 as per his age appearing in the admit card and Madhyamik Examination certificate. Candidate was also found fit for employment. A second screening test was held at the Area level (copy of screening report is produced is Exhibit M-8) where

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claimant in his statement disclosed that he was about twenty five years of age as on 16/11/2015.

9. Management did not initiate police verification to dispel their doubt regarding relationship between claimant and deceased. It is only at the time of regretting the prayer for employment by letter dated 03/08/2018, after lapse of four years, management expressed doubt about relationship only due to difference of age appearing in Service Record Excerpt of his father and his matriculation certificate. Provision under clause 9.3.4 of NCWA lays down that dependent to be considered for employment should be physically fit and suitable and his age should not be more than thirty five years, in case of a male dependent. Whatever age of Sunil Roy is considered, he is less than thirty five years of age at the time of applying for his employment. According to Implementation Instruction No. 76 for the purpose of providing employment, age appearing in matriculation certificate is to be considered and not the probable age recorded in service record excerpt of the deceased employee. In the instant case, Sunil Roy has raised claim for employment immediately after the death of his father and no adverse report is received by the Management to hold his relationship with Jagdish Roy as son doubtful. Screening Committees’ report, No Objection Certificate by other dependents (Exhibit W-6) and Medical Report of Initial Medical Examination are all in favour of the claimant. Only hindrance faced by management in providing employment is due to difference of age of the candidate recorded in two different documents. Service Record Excerpt (Exhibit W-1) does not bear any date of making entries or verification by signatories, therefore the same cannot be the basis for considering the age of a candidate. Union produced copy of Form PS-3 (Exhibit W-2) containing family particulars of Jagdish Roy regarding Coal Mines Provident Fund. The document bears the date 12/05/1998 and L.T.I. of Jagdish Roy. It is also certified by the Manager of Madhujore Colliery on 12/05/1998. According to the

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entries made in Exhibit W-2, age of Sunil Roy was recorded as (17) seventeen years, which implies that the year of birth of Sunil Roy is 1981. The contents of Exhibit W-2 corroborate the age of Sunil Roy recorded in the service Record Excerpt of his father (Exhibit W-1). The age of Sunil Roy in the subsequently prepared documents like the certificate of Secondary Examination issued by BSEB of the year 2005 (Exhibit M-13) and the Birth Registration Certificate issued from Bihar on 30/05/2013 (Exhibit M-12) is recorded as 20/05/1990. I have no hesitation to hold that the date of birth appearing as 20/05/1990 does not reconcile with Exhibits W-1 and W-2 even by reasonable approximation. By no stretch of imagination, it can be assumed that the date of birth in Exhibit M-12 and Exhibit M-13 are anything near to the truth. Such certificates are prepared to reduce the age of the claimant by nine years and are thoroughly unreliable and need to be discarded for the purpose of granting employment. Notwithstanding the provisions of Implementation Instruction No. 76 laying down procedures for assuming the age of Matriculate candidate, the Management of ECL in exercise of its discretion can accept the age of Sunil Roy recorded in Service Record Excerpt (Exhibit W-1) and Form PS-3 (Exhibit W-2) of the deceased employee for the purpose of employment of the dependent son. The dependent son cannot be permitted to reap undue benefit of extra period of service on the basis of subsequently prepared documents. The dependent son Sunil Roy should be considered for his employment without further delay on the part of the Management of ECL however, he shall not be allowed to claim extended period of service under ECL on the basis of his date of birth recorded as 20/05/1990 which is inconsistent with his age declared by his father in Exhibit W-2. The Management of ECL is vested with the discretion to assess the age of Sunil Roy on the basis of his year of birth recorded in Exhibit W-1 and Exhibit W-2 or by holding ossification test according to established medical practice. The management would not be bound by secondary examination certificate (Exhibit M-13) for

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the purpose of employment at any stage when there is sufficient material to disbelieve the same. The delay in processing the prayer for employment can be attributed to the Management of ECL, therefore the contention that the Industrial Dispute raised after nine years, hence stale cannot be accepted. Management is duty bound and obliged to comply terms of agreement in NCWA for providing employment to the dependent son. In case of Bhawani Prasad Sonkar vs Union of India and Others (2011) 4 SCC 209; the Hon’ble Supreme Court of India has held that “Now, it is well settled that compassionate employment is given solely on humanitarian grounds with the sole object to provide immediate relief to the employee’s family to tide over the sudden financial crisis and cannot be claimed as a matter of right. Appointment based solely on descent is inimical to our Constitutional scheme, and ordinarily public employment must be strictly on the basis of open invitation of applications and comparative merit, in consonance with Articles 14 and 16 of the Constitution of India. No other mode of appointment is permissible. Nevertheless, the concept of compassionate appointment has been recognized as an exception to the general rule, carved out in the interest of justice, in certain exigencies, by way of a policy of an employer, which partakes the character of the service rules. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.” In the present case it is undisputed that employee was suffering from cancer and while under medical treatment he expired at Tata Memorial Hospital, Mumbai. At the relevant time family was facing dearth of sustenance and there is no evidence on record to suggest that till date the dependents of the ex-employee have overcome the crisis. The Hon’ble Court in the above mentioned decision has recognized the exception to the general rule for providing compassionate appointment and observed that scheme/policy as the case may be, is

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binding on both, the employer as well as on the employee and scheme has to be strictly construed and confined. The scheme laid down in clause 9.3.0 of NCWA therefore has to be strictly complied.

10. In the light of my discussion, I find and hold that management by regretting prayer for employment to Sunil Roy, son of the deceased Jagdish Roy is improper, arbitrary and not sustainable under law. Management is duty bound and liable to provide employment to the dependent son of the deceased who complied all relevant conditions and submitted all documents. Management should not cause further delay in processing the prayer and provide employment. Kamali Devi is also entitled to get Monthly monetary cash compensation according to the clause 9.5.0 of NCWA-VI till employment is provided to her son. Management of ECL is directed to complete the process of employment to Sunil Roy, dependent son of the deceased within a period of three months from date of communication of Award. Management shall also pay Monthly Monetary Cash Compensation to Kamali Devi, widow of the deceased from date of death of the employee till employment is provided to their dependent son. Industrial Dispute is therefore allowed on contest.

Hence, O R D E R E D that Industrial Dispute is allowed on contest against the management of Madhujore colliery of ECL. Management of Madhujore colliery of ECL is directed to provide employment to Sunil Roy, son of the deceased employee within three months from date of communication of Award. Management shall also pay monthly monetary cash

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compensation to Kamali Devi, widow of the deceased from the date of death of her husband till employment is provided to their dependent son. Let an Award be drawn up in the light of my above discussion. Let copies of the Award be communicated to the Ministry for information.

sd/- (Ananda Kumar Mukherjee) Presiding Officer CGIT-cum-LC, Asansol