IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE Present : THE HON’BLE JUSTICE ARINDAM MUKHERJEE WPO NO. 316 of 2024 TULUSHI @ TULSI @ TULASHI BOURI AND ANR. VS M/S. EASTERN COALFIELDS LTD. AND ORS. For the Plaintiffs : Mr. Partha Ghosh, Adv. Ms. Simran Sureka, Adv. Mr. Debashis Das, Adv. Mr. Bratin Suin, Adv ....... Advocates For the Respondents : Mr. Manik Das, Adv. …… Advocate Heard on : 22.05.2025 Judgment on : 1 18th July, 2025 Arindam Mukherjee, J: In the writ petition, the petitioner no. 1 being the widow of Kisun @ Kishun Bouri has claimed Monthly Monetary Cash Compensation (in short “MMCC”) under the provisions of the National Coal Wages Agreement (in short “NCWA”). The petitioner no. 2 is the son of the said Kishun Bouri. Petitioners’ case 1. It is the case of the petitioner no. 1 that her husband, Kishun Bouri died in harness on 12th September, 2013 while serving Eastern Coalfields Limited (in short “ECL”). The death of Kishun Bouri was informed to the agent/manager, Madhavpur Colliery of ECL by a letter dated 21st October, 2013 which was duly received by ECL on 24th October, 2013. A photocopy of the said letter with the receipt stamps of ECL affixed thereto is annexed at page 34 of the writ petition. 2. The petitioner no.1’s husband prior to his death had given a declaration as to the particulars of his family in Form PS-3 with his employer, the ECL wherein he had declared Tulsi Bouri as his wife. The declaration also provides that the said Kishun Bouri had a daughter. It will also appear from Form PS-4 being a declaration given by Kishun Bouri that the age of Tulsi Bouri (petitioner no. 1) was 18 years as on 1st April, 1987. Kumari Mongola Bouri, the daughter now married was of the age of three years as on 1st April, 1987. The Form PS-3 and PS-4 are annexed at Page 35 to 38 of the writ petition and contains the seal and signature of the authorized person of ECL. The petitioners have also annexed a copy of a letter dated 5th June, 1987 being important excerpts from the service record card of Kishun Bouri, wherefrom it will appear that Kishun Bouri was appointed on 27th January, 1983 and he was married to Tulsi Bouri. It is also the case of the petitioners that Debu Bauri (petitioner no. 2) was born on 10th January, 2000 which fact, however, does not appear from the service book or declaration of Kishun Bouri. 3. The petitioners say that though the petitioners have been paid the terminal benefits on the death of her husband but she has not been paid the MMCC which was required to be paid as she did not claim any employment for herself or for her children. Since ECL has not provided compassionate appointment to any of the daughters of Kishun Bouri, the petitioner no.1 is entitled to receive MMCC with effect from 22nd October, 2013 being the date immediately succeeding the death of her husband Kishun Bouri. The petitioners have produced relationship certificate being issued by member of the legislative assembly wherein she petitioner no. 1 resides along with the particulars of heir and heiress. Despite thereof, no payment for MMCC has been made to the petitioners. Respondent’s case A. Respondent has objected to the claim made by the petitioners on the ground that the same was not claimed immediately after the death of the husband of the petitioner no. 1. The intimation of death of the employee was given at a belated stage and as such MMCC cannot be also claimed from the date of death of the employee. The petitioner no. 1 is also not entitled to MMCC in view of the provisions of NCWA applicable at the time of death of the employee. Moreover, MMCC is provided in lieu of employment and as such they stand on the same footing so far as the delay in making the claim are concerned. Compassionate appointment being a departure from the normal rule of appointment is provided to a dependant of a deceased employee to tide over the immediate financial crisis arising out of the loss of the sole bread earner. Delay, therefore, defeats such claim. B. The object of MMCC is also same as it is given in lieu of employment. The claim for compassionate appointment does not survive after lapse of over 10 years from the date of death of the employee and on the same reasoning MMCC is also not required to be provided to the petitioner no. 1 in the instant case. Furthermore, the petitioner no. 1 has been paid the terminal benefits and is also receiving the pension and as such is also not entitled to MMCC. The writ petition therefor, according to the respondents should be dismissed. Analysis and conclusion. 1. It is not in dispute that the husband of the petitioner no. 1 and the father of the petitioner 2 died in harness on 21st October, 2013 while serving ECL. It is also apparent from the seal and signature in the letter dated 21st October, 2013 that the death of the employee was intimated to the ECL. Even assuming without admitting that the intimation of death was not provided by the family members of the deceased employee then also it is unbelievable that the death of the employee remained unknown or undetected by the employer (ECL) for over 10 years. If the employee was absent for over 10 years the employer ought to have proceeded against the said employee for unauthorized absence and had taken necessary steps which are also absent in the instant case. 2. The documents disclosed by the petitioners clearly demonstrate that Kishun Bouri, the employee during his lifetime has declared that the petitioner no. 1 was his wife and Kumari Mongola Bouri is his daughter. Assuming that the declaration of birth of the son being the petitioner no. 2 had not been provided in the service records then also it is not a material issue when compassionate appointment has not been sought for by said petitioner no. 1 or had been given to petitioner no. 2. The petitioner no. 2 was not only a minor at the time of the death of his father but also about 13 years of age going by his date of birth as provided by the petitioner of and as such, he could neither claim compassionate appointment nor can he be given compassionate appointment. At the highest if a claim had been made by the petitioner, his name was to be included in a live roster for being considered for appointment on his reaching the age of 18 years. No such thing has also happened in the instant case. 3. NCWA which was prevalent at the time of death of the employee concerned clearly stipulated that in case of widow MMCC will be provided in lieu of employment if the widow is below 45 years and if the widow is over 45 years then only MMCC will be provided. It is not in dispute that NCWA is a binding agreement between an employee and ECI with statutory flavour on ECL after pronouncement of the judgment reported in 2007(8) SCC 549 [Mohan Mahto v. Central Coal Field Ltd.& Ors.] which still holds the field. 4. In the view of the provisions contained in NCWA, ECL as the employer, was to offer MMCC irrespective of the claim for the same if compassionate appointment was not claimed by the widow either for herself or for any male or female dependent of the employee. There is no provision in the NCWA for claiming MMCC if no compassionate appointment is claimed for as contended by ECL. Since NCWA is a binding agreement and ECL being bound to the same as an employer is obligatory on the part of ECL who being a Public Section Undertaking (PSU) and to act as a model employer to offer MMCC to the widow of the deceased employee. Ecl on doing so will discharge its primary obligation when the burden will shift on to the widow. The widow can either accept the same or seek compassionate appointment. Unless this procedure is followed the acceptance of the terms of NCWA by ECL the employer and the promise made thereunder will stand breached at the instance of ECL. It was, therefor, incumbent upon ECL to offer MMCC to the widow irrespective of a claim for the same being made. Admittedly there was no prayer for compassionate appointment form the side of the widow. The payment of MMCC to a widow of the deceased employee is automatic upon death of an employee subject to fulfilment of the relevant clause in NCWA even no application is required to be made as held by the Special Bench in [2017(6) West Bengal Law Reporter (Cal) 255] (Putul Rabidas vs. Easter Coalfield Ltd & Ors.) and not interfered by the Hon’ble Supreme Court. The terminal benefit receivable by the legal heirs of the deceased employee is the entitlement of the employee concerned and has been held by the Hon’ble Supreme Court to be not a bounty. The Hon’ble Supreme Court in H.K Dua vs. Union of India [S.K. Dua v. State of Haryana & Anr] reported in (2008) 3 SCC 44 has clearly held that if the statutory rules do not provide for a mechanism to claim pension or the retiral benefits which also applies in case of terminal benefit then an employee or his heirs are entitled to claim the same by invoking writ jurisdiction taking aid of Article 14 of the Constitution of India. Pension payable to a retired employee or the family pension to the widow or the dependent of the deceased employee is also treated in the same footing and can be claimed by the widow of the dependent as the case may be under the relevant service rules or by invoking the writ jurisdiction. Even otherwise as held in Putul Rabidas (supra) that the quantum of terminal benefits has no impact on MMCC or compassionate appointment in view of the provisions and nature of the NCWA. 5. MMCC on the other hand is in the nature of compensation which is provided to the widow only in lieu of compassionate appointment and depending upon the age of the widow. Pension and MMCC therefor, cannot be equated as has been contended by ECL. It is, therefore, explicit that MMCC is receivable even if terminal benefit and pension is provided to the widow of the legal heirs of the deceased employee. 6. The delay in claiming MMCC as contended by ECL cannot also be a ground to reject MMCC either from the date of death of the employee or is restricted to a period of three years prior to filing of the writ petition. Even going by the principles of 2008 (8) SCC 648 (Union of India vs. Tarsem Singh) and 2016(13) SCC 797 [Asger Ibrahim Amin v. Life Insurance Corporation of India] non payment of MMCC in a case governed by NCWA is a continuous cause as the damage inflicted by such non-pay is not an one time effect or ceases to continue on it being declined at the first instance. It continues month to month till the widow reaches the age of 60 years. 7. In the instant case as compassionate appointment was not provided either to the widow or to any dependent of the deceased employee. The petitioner no. 1 being a widow is a dependent under Clause 9.5.0 of NCWA and her name, status, relationship and age has been provided in the declaration given by the employee in his service book during his lifetime. The petitioner no. 1, therefore, automatically entitled to MMCC irrespective of any application from the date of death of the deceased employee. The age of the petitioner no. 1 as declared in the serviced book was 18 years as on 1st April, 1987. The petitioner. 1 is presently aged about 55 years which is also evident from the affidavit appended the writ petition. There is also as such no scope of giving compassionate employment to the petitioner no. 1 in lieu of MMCC as she has surpassed the age of 45 years. 8. In the aforesaid facts and circumstances, I direct the ECL to pay MMCC to the petitioner no. 1 at the applicable rate prevalent from time to time from 22nd October, 2013 till the petitioner no. 1 reaches the age of 60 years. The current MMCC shall be paid from the month of November, 2025 which will be for the month of October, 2025. The arrears’ of MMCC for the period between 22nd October, 2013 till 30th September, 2025 with accrued interest at the rate of 8 per cent per annum shall be paid within a period of four months from 1st November, 2025. The interest is payable since ECL was liable to pay the MMCC from date of death of the employee but have failed to do so and thereby derived benefit out of the money payable on account of MMCC and depriving the writ petitioners from the benefit thereof. The ECL authorities shall act on a server copy of this order without insisting upon production of a certified copy thereof. The writ petition being WPO No. 316 of 2024 is accordingly disposed of. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis after compliance with all necessary formalities. Arindam Mukherjee, J.