Differentiating Between Married And Unmarried Daughter In Compassionate Employment "Sexist": Calcutta High Court

The Calcutta High Court has found that the distinction between ‘married’ and ‘unmarried’ daughters for the purpose of compassionate appointment, as per Clause 9.3.3 of the National Coal Wages Agreement-VI is ultra vires and in violation of Article 14 and 15 of the Constitution.

In dismissing the plea of the petitioners for compassionate appointment upon noting that the most important factor for seeking the same was dependency on the deceased employee, and financial exigency, a single-bench of Justice Shekhar B Saraf held:

...addition of the word ‘unmarried’ before daughter is an arbitrary and sexist distinction under Clause 9.3.3 of NCWA-VI which is in violation of Article 14 and 15 of the Constitution of India...No application for compassionate appointment can be rejected solely on the ground of marital status of a daughter and the married daughter must be included within the category of direct dependents.

Court said the primary condition for consideration of application seeking compassionate appointment is to show dependency upon the deceased employee and financial exigency. It held assumption that marital status of a daughter changes her dependency from her father/mother to her husband is "misogynist".

Court requested the Government to look into such "archaic laws/policies" that adhere to the misogynistic “natural” order of things, and amend the same in accordance with the equal gender principles in Article 14 of the Constitution.

Brief Facts

The present writ petition was a plea for compassionate appointment in favour of a son-in-law or married daughter under Clause 9.3.3 of the National Coal Wages Agreement-VI (NCWA-VI) by the petitioners, who were related to the deceased Shibdas Mitra, who was an employee of Eastern Coalfields Limited, Kolkata (”ECL”).

Petitioner no. 1, wife of the deceased had applied for compassionate appointment for petitioner no.2 who was her son-in-law (“indirect dependant”) on the ground that the deceased employee was the sole earning member of the family, and that their son, a direct dependant was residing in Sweden.

ECL had rejected the claim of the son-in-law for compassionate appointment on the ground that the deceased’s son, who was a direct descendant existed, but did not consider the case of the deceased employee’s married daughter.

Petitioner no. 1 subsequently applied for compassionate appointment herself, which was rejected on the grounds that she had exceeded the age limit of 45 years as required for employment of a female dependant.

Petitioner no 1 subsequently applied for compassionate appointment for her married daughter, which was rejected on the grounds that the NCWA- VI contained no grounds for affording compassionate appointment to a married daughter.

Aggrieved by the same, the petitioners approached the High Court, which was disposed of by directing the respondents to pass a reasoned order for or against the petitioners, which was complied with by passing a reasoned order of rejection of compassionate employment for the deceased’s married daughter.

Petitioners appealed against the impugned order before the ECL, but due to no response, approached the High Court under Article 226 in the present application.

Proceedings before the High Court

Petitioners, the married daughter, and son-in-law, prayed for compassionate appointment for either of them, and for a declaration that Clause 9.3.3 of the NCWA-VI was discriminatory, and needed to mention the word “daughter” instead of “unmarried daughter.”

The petitioners challenged the constitutionality of Clause 9.3.3, stating that the clause only specifies an “unmarried daughter" as a dependent and such distinction is in violation of Article 14& 15 of the Constitution.

The petitioners submitted that direct dependents did not have to prove residential status or that they were wholly dependent upon the deceased employee.

It was submitted that the son-in-law had no income except LIC commission, and that his CMS club membership or family property income was not significant, or even “income in reality.”

Finally it was argued that Clause 9.3.3 created two categories of dependents including direct dependents (including an unmarried daughter) and indirect dependents (son-in-law etc.) and that a married daughter must also be considered within the scope of a direct dependent such as a wife, unmarried daughter, son, and legally adopted son.

Respondents argued that the NCWA was prepared by a coalition of organisations who had not been arrayed as parties by the petitioners, leading to the writ petition being non-maintainable.

It was argued that the petitioner no 1 had supressed her real age and dated that she was 53 years old and 45 years old in the span of 2011-12.

Respondents argued that the petitioners had falsified their ages in the dependant certificates submitted by them and that the NOC given by the non-resident son of the deceased employee was only for petitioner no 1 and not petitioners no 2 and 3.

It was submitted that the petitioner no 1 had attempted to deceive the authorities by falsifying her age, not disclosing that the petitioner no 2 was earning Rs 50,000 a month, and that the petitioners no 2 and 3 did not reside with the deceased employee.

Respondents argued that they could not deviate from the NCWA clauses, and that compassionate appointment was neither a right, nor a source of recruitment.

It was submitted that while the son of the deceased who was entitled to compassionate employment did not want it, the same could not automatically accrue to the petitioner no 2 since it was not a hereditary right.

It was finally submitted that while there was no provision for the married daughter to be given employment, not only was her husband’s income sufficient for the both of them, compassionate employment was also being rejected due to their conduct, since they did not approach court with clean hands, but only out of greed.

Court’s Observations

In dealing with the contention on compassionate appointment accruing to the petitioner no 2, the Court noted that the same was not a vested or hereditary right, but rather an exception ‘carved out against the general rule of merit-based recruitment.’

On the issue of the distinction between married and unmarried daughter under the NCWA being ultra vires Article 14 and 15 of the Constitution, the Court held that there was no reasonable classification or rational nexus which could be seen in such a distinction. It held:

The distinction in question is the use of the term ‘unmarried’ before daughter which categorically excludes married daughters. The only intelligible differentia that can be conceived by this Court for such distinction is the assumption that daughters once married can no longer be dependent on their fathers/mothers. The apparent “intelligible differentia” that a married daughter is not an immediate family member does not have a rational nexus to the objective of Clause 9.3.3 of NCWA-VI, that is, compassionate appointment to family members in dire financial condition due to the death of the sole-breadwinner.

Finally, the Court held that the petitioner’s writ petition ought to be dismissed, since they had not approached the Court with clean hands, and sine the son-in-law was earning, and was living independently from the deceased employee, while the married daughter was living with the husband, and never proved how she was dependent upon the deceased employee.

Court found that the petitioners had also submitted wrong ages, false affidavits and only sought compassionate appointment for married daughter, after 4 years of the death of the deceased.

In an afterword, the Bench further offered its insight into the ‘arbitrary distinction’ between married and unmarried daughters, and opined:

The inherent belief is that women are objects where their identity (such as a married/unmarried) in society must be constructed and construed around the men in their lives, which is of course preposterous. Women, simply by virtue of being women, are not “naturally” deficient in any form, but this inequality between genders is created and promoted because patriarchy is entrenched in institutions. I would reiterate that patriarchy does not exist solely in the mindset of an individual, rather it is taught since birth and rots in the existing structures of every country.

Justice Saraf further expressed appreciation for the respective Counsels, and Judicial-Clerk-cum-Research Assistant Aarya Srivastava in researching on the matter.

Citation: 2023 LiveLaw (Cal) 321

Case: Dipali Mitra & Ors. V Coal India Limited & Ors.

Case No: WPA 14349/2018

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