Exclusion Of Female Dependents From Consideration For Compassionate Appointment Violative Of Article 14: Chhattisgarh HC

While fully, finally and firmly endorsing gender equality, the Chhattisgarh High Court recently on January 25 in Mamni Pradhan vs South Eastern Coalfields Ltd & Ors in 2022 LiveLaw (Chh) 8 : Writ Petition (S) No. 4712 of 2018 held that a clause in an agreement under Industrial Disputes Act, 1947, which only entitled a male dependent for compensatory recruitment, should be read in such a manner that it includes female dependents also.

This judgment authored by Chief Justice Arup Kumar Goswami for himself and Justice NK Chandravanshi puts forth in para 3 that, “The petitioner claims to be the daughter of one Late Sudama, who was working on a regular basis as ‘Belt Khalasi’ under the Respondent No. 1. While in service, he died of a snake bite on 08.09.2011. The mother of the petitioner, namely, Smt. Kumari filed a representation dated 22.02.2012 requesting consideration of the case of the petitioner for appointment under the scheme of dependent employment under the NCWA-VI stating that after the death of her son, namely, Ramo, the petitioner could only be considered for dependent employment.”

As we see, para 4 then states that, “The Respondents, by letter dated 11.07.2012, informed that the name of the petitioner was not recorded in service records (Form PS-3, PS-4, LTC Option Form and Gratuity Nomination Form, etc.) and in terms of the rules of the Company, she is not entitled for her name being put in a live roster and therefore, requested to file appropriate application in the prescribed format to receive monetary compensation. The Petitioner filed a civil suit before the learned Family Court, Manendragarh, District Korea, registered as Civil Suit No. 83A/2015, seeking a declaration that she was the daughter of Late Sudama. The suit was decreed by judgment and decree dated 10.11.2016.”

Of course, the Bench points out in para 8 that, “Clause 9.5.0(iii) of NCWA-VI reads as under:

“9.5.0 Employment/Monetary compensation to female dependent. Provision of employment/monetary compensation to female dependents 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 dependent would have the option to either accept the monetary compensation of Rs. 4000/- per month or employment irrespective of her age.

(ii) In case of death/total permanent disablement due to cause other than mine accident and medical unfitness under Clauses 9.4.0, if the female dependent is below the age of 45 years she will have the option either to accept the monetary compensation of Rs. 3000/- per month or 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 dependent 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 dependent is on live roster, the female dependent will be paid monetary compensation as per rates at paras (i) & (ii) above. This will be effective from 1.1.2000.”

Be it noted, the Bench mentions in para 20 that, “Further, the Hon’ble Supreme Court, in the case of Charu Khurana v. Union of India, reported in (2015) 1 SCC 192, while considering the question of gender justice, at paragraphs 33 and 41 observed as under:

“33. … On a condign understanding of clause (e), it is clear as a cloudless sky that all practices derogatory to the dignity of women are to be renounced. Be it stated, dignity is the quintessential quality of a personality and a human frame always desires to live in the mansion of dignity, for it is a highly cherished value. Clause (j) has to be understood in the backdrop that India is a welfare State and, therefore, it is the duty of the State to promote justice, to provide equal opportunity to all citizens and see that they are not deprived of by reasons of economic disparity. It is also the duty of the State to frame policies so that men and women have the right to adequate means of livelihood. It is also the duty of the citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.

xxx xxx xxx

41. The aforesaid pronouncement clearly spells out that there cannot be any discrimination solely on the ground of gender. It is apt to note here that reservation of seats for women in panchayats and municipalities have been provided under Articles 243(d) and 243(t) of the Constitution of India. The purpose of the constitutional amendment is that the women in India are required to participate more in a democratic set-up especially at the grass root level. This is an affirmative step in the realm of women empowerment. The 73rd and 74th Amendments of the Constitution which deal with the reservation of women has the avowed purpose, that is, the women should become parties in the decision-making process in a democracy that is governed by the rule of law. Their active participation in the decision-making process has been accentuated upon and the secondary role which was historically given to women has been sought to be metamorphosed to the primary one. The sustenance of gender justice is the cultivated achievement of intrinsic human rights. Equality cannot be achieved unless there are equal opportunities and if a woman is debarred at the threshold to enter into the sphere of profession for which she is eligible and qualified, it is well-nigh impossible to conceive of equality. It also clips her capacity to earn her livelihood which affects her individual dignity.””

Quite significantly, the Bench then clearly states in para 21 that, “In the matter of National Legal Services Authority v. Union of India, reported in (2014) 5 SCC 438, the Supreme Court recognized that gender identity is an integral part of sex within the meaning of Articles 15 and 16 of the Constitution of India and no citizen can be discriminated on the ground of gender. The Supreme Court observed as follows:

“We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of nullifying or transposing equality by the law or the equal protection of laws guaranteed under our Constitution, and hence we are inclined to give various directions to safeguard the constitutional rights of the members of the TG community.””

It is worth noting that the Bench then envisages in para 23 that, “In Chhattisgarh State Electricity Holding Company & Another v. Chandrani Sinha (WA No. 525 of 2016, decided on 21.11.2016), a Division Bench of this Court held that there was no reason as to why a married daughter should be denied the benefit of compassionate appointment. It is relevant to state that under the scheme of compassionate appointment, married daughter was not considered eligible for being considered for appointment.”

Most significantly, the Bench then enunciates in para 24 that, “The National Coal Wage Agreement is a binding settlement under Section 2(p) of the ID Act having force of law and therefore, the settlement terms should be fair and reasonable and must satisfy the tests of Article 14, 15 and 16 of the Constitution of India as well as Section 23 of the Indian Contract Act, 1872. It is apparent that clause 9.5.0(iii) of the NCWA-IV is clearly violative of Articles 14 and 16 of the Constitution of India because discrimination is made on the basis of gender inasmuch as while the name of a male dependent of the deceased worker who is 12 years and above is kept in a live roster until he attains the age of 18 years when his case would be considered for compassionate appointment commensurate with his skill and qualifications, no such provision is made for a female dependent.”

As a corollary, the Bench then stipulates in para 25 that, “In view of the above discussion, it is provided that clause 9.5.0 (iii) of the NCWA-VI shall be read in a manner to also include a female dependent who is 12 years of age and above for keeping the same in a live roster till she attains the age of 18 years when her case would be considered for compassionate appointment commensurate with her skill and qualifications.”

Of course, the Bench then holds in para 26 that, “The contention of Mr. Agrawal that name of the writ petitioner was not entered in the service records and therefore, it is doubtful as to whether she is the daughter of Late Sudama, is without any substance. The judgment and decree of the Civil Court in Civil Suit No. 83A/2015 set the matter at rest as the Civil Court had given a declaration that the petitioner is the daughter of Late Sudama. That finding, as is noted earlier, has not been assailed and has attained finality.”

Quite forthrightly, the Bench then holds in para 27 that, “In the instant case, though the name of the petitioner was not kept in the live roster, we are of the considered opinion that interest of justice would be sub-served if a direction is issued to the respondents to consider the case of the petitioner for grant of compassionate appointment commensurate with her skill and qualification within a period of two months from the date of receipt of a certified copy of this order. Ordered accordingly.”

No doubt, Chhattisgarh High Court has taken the right stand that exclusion of female dependents from consideration for compassionate appointment is violative of Article 14 of Constitution. So there has to be zero tolerance for such inequality. This is what has been ruled in this leading case also!