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Judgment
Ashok Bhushan, J.—Heard Sri J.P. Singh, framed counsel for the petitioners and Sri Vivek Ratan, learned Counsel appearing for the respondents Bank.
By this writ petition the petitioner have prayed for quashing the orders dated 15.9.2003 and 16.10.2003 Annexures V and VI to the writ petition communicating the petitioner No. 2 that the application of the petitioner for compassionate appointment has not been accepted and the Bank has decided to give a lump sum amount of Rs. 3,09,000/- in lieu thereof. A mandamus has also been sought directing the respondents to consider the claim of the petitioner No. 1 for compassionate appointment in the light of earlier scheme regarding compassionate appointment.
The facts of the case for deciding this writ petition briefly stated are:
The father of petitioner No. 1 and husband of petitioner No. 2 late Sri Thakur Prasad Singh was serving as Arm guard in Union Bank of India, Branch Ahiraula district Azamgarh. The said Shri Singh an ex-army man, was engaged by the Bank as Security guard. Thakur Prasad Singh died on 10th of May, 2001 leaving behind the petitioners as well as two minor daughters and a minor son as dependants. An application for compassionate appointment was submitted on prescribed proforma praying for appointment of the petitioner No. 1 on compassionate appointment. Union Bank of India issued a staff circular dated 22.7.2003 intimating about the modified scheme for appointment of the dependent of deceased employee. New scheme having been approved by the Board of Directors in its meeting dated 30.5.2003. The new scheme further stipulated that the pending cases are to be disposed of as per modality approved by the Board. The revised scheme provided a scheme for lump sum financial relief. An income certificate obtained from the Tahsildar has also been annexed with the writ petition to the effect that the monthly income of the petitioners'' family is Rs. 2100/- per month. A communication letter dated 15.9.2003 was issued to the petitioner No. 2 that the application for compassionate appointment has not been approved and a lump sum amount of Rs. 3,09,000/- has been granted to the petitioner. After the order the petitioner again represented to the Bank praying for his compassionate appointment.
Sri J.P. Singh learned Counsel for the petitioners challenging the decision of the Bank submitted that the petitioner No. 1 was fully entitled for compassionate appointment. He submits that the petitioner''s father having died much before implementation of new scheme dated 30.5.2003, petitioner''s case was liable to be considered on the basis of earlier scheme dated 17.2.1997 and new scheme was not required to be applied in petitioner''s case. He further submits that while rejecting the claim of the petitioner for compassionate appointment the Bank has relied on the terminal benefits consequent to the death of the petitioner''s father which is not permissible. Reliance has been placed by the learned Counsel for the petitioners on two judgments of the apex Court namely, 2000 (3) E.S.C. 1618 (S.C.) Balbir Kaur and Anr., etc. v. Steel Authority of India Ltd. and Ors.; (2005) 10 SCC 289 Govlnd Prakash Verma v. Life Insurance Corporation of India and Ors.. Reliance has also been placed on judgments of this Court reported in 2001 (2) E.S.C. 876 State Bank of India and Ors. v. Ram Plyarey; 2003 (2) E.S.C. (AII.)960 Smt. Padma Pathak v. Managing Director. Pubjab National Bank. New Delhi and Anr.; 2004 (4) E.S.C.2358 Chief General Manager, State Bank of India and Ors. v. Duraesh Kumar Tlwari; 2004 (3) E.S.C. 1642 Ashutosh Mishra v. Union Bank of India and Ors. and a judgment of this Court reported in 2005 (1) E.S.C. 134 Mritunjay Mishra v. Chief General Manager, State Bank of India. Lucknow and Anr..
Sri Vivek Ratan, learned Counsel for the respondents refuting the submissions of learned Counsel for the petitioners contended that no error has been committed by the Bank in considering the case of the petitioner in the light of new scheme dated 30.5.2003. He submits that the Bank has also not committed an error in relying on terminal benefits received by the petitioners after death of petitioner''s father for deciding the claim of the petitioner. Reliance has been placed on the judgment of the apex Court General Manager (D and PB) and Others Vs. Kunti Tiwary and Another, Punjab National Bank and Others Vs. Ashwini Kumar Taneja, and three judgments of this Court reported in Rajeev Kumar Khanna Vs. Chief Manager (Karmik) Union Bank of India and Others, 2004 (100) F.L.R. 72 Anil Kumar Yadav v. Union Bank of India and Ors. and Siddharth Arya Vs. Union Bank of India and Others,
I have considered the submissions of counsel for the parties and perused the record.
The first submission raised by the counsel for the petitioners is that the petitioner''s father having died on 10.5.2001, the Scheme approved by the Board of Directors on 30.5.2003, was not applicable in the petitioners'' case and the petitioner''s case for compassionate appointment was not liable to be considered on the new scheme. He submits that the new scheme cannot be held to be retrospective in operation.
The Bank has filed a counter affidavit and the supplementary counter affidavit bringing on record the earlier scheme framed by the Bank for appointment of dependants of deceased employees as well as the new scheme approved on 30.5.2003. It is relevant to note the necessary features of both the scheme for answering the question. The scheme for appointment of dependants of deceased employees on compassionate ground dated 19.2.1997 provided as follows:
WHEREAS it is deemed expedient and necessary to provide for appointment of dependants of deceased employees dying in harness and leaving his/her family in penury and without any means of livelihood the Bank hereby frames the following scheme providing for and regulating the method of appointment in the clerical/subordinate cadre on compassionate grounds of widow, widowers and children/dependants of its employees who died while in service.
SANCTION FOR APPOINTMENT
Appointments under the scheme will be made by the Competent Authority. The object of granting compassionate appointment to the dependent of deceased employee is to enable the family to tide over the sudden crisis. Compassionate appointment will be offered by the Bank only in the case where the bank is satisfied that the financial condition of family is such that but for the provision of employment, the family will not be able to meet the crisis. While considering such appointment the competent authority will take into account the following to determine the financial condition of the family.
(a) Family pension
(b) Gratuity,
(c) Employee''s/Employer''s contribution to the Provident Fund
(d) Any compensation paid by the Bank or its Welfare Fund
(e) Proceeds of LTC policy & other investments of the deceased employee.
(f) Income of family from other sources
(g) Employment of other family members
(h) Size of the family and liabilities, if any, etc.
A perusal of above indicates that the appointment of dependent of deceased employee dying in harness is provided when the employee dies leaving his/her family in penury and without any means of livelihood. Paragraph 4 provides for factors to be taken into consideration by the Bank to assess the financial condition of the family. Thus the right given under the earlier Scheme was right of consideration for appointment on the criteria as mentioned in the said Scheme. The right of appointment as dependent of deceased employee is not akin to right of succession on sanction to the properties of the deceased inherited by the heirs of deceased by operation of law. The right which is acquired by the dependent of deceased is right of consideration in the light of scheme as applicable. The provision for compassionate appointment is an enabling provision which is provided for by an employer as a measure of social welfare provision. In the present case although the death occurred on 10.5.2001 but the application remained pending till September, 2003. The application pending was not only of petitioner but from the materials brought on record it is clear that 118 applications for compassionate appointment were pending since 1.4.1999. It has further been stated in paragraph 4 of the supplementary counter affidavit that there being no recruitment of subordinate cadre of Union Bank of India the above applications were pending for disposal since 1.4.1999. A committee of Board of Directors was constituted to scrutinise the pending applications and propose a suitable scheme. The Board of Directors submitted its recommendations which was approved by the Board of the Bank on 30.5.2003. It was resolved by the Board that the pending appointment cases since 1.4.1999 be disposed of on the lines of recommendations made by the Committee of Directors. Thus modality for consideration of the applications was provided for in the Scheme as approved on 30.5.2003 The present is a case of framing scheme for pending applications as well as for prospective operation. Merely because the scheme approved on 30.5.2003 also provide for consideration for pending applications, it cannot be said that the scheme is of retrospective effect. Whenever a new scheme is framed or a legislation, is enacted there are provisions for dealing with pending cases and merely because pending matters are to be dealt with in accordance with new scheme of the legislation it cannot be said that the statute or scheme is of retrospective operation. The application for compassionate appointment of the petitioner was pending and was not considered till September, 2003 on the reasons as mentioned in the supplementary counter affidavit of the Bank. Admittedly the consideration is being taken place in September, 2003 after the scheme is framed. No error can be found in applying the scheme in dealing with the pending applications.
The constitution Bench of the apex Court in Pratap Singh Vs. State of Jharkhand and Another, had held that making of statute applications to the pending proceedings would not mean that thereby a retrospective effect and retroactive operation is being given thereto. Following was laid down in paragraphs 107, 108 and 109:
Interpretation of a statute depends upon the text and context thereof and having regard and object with which the same was made.
The aforementioned provision of the 2000 Act is furthermore a remedial statute, (See discussions of G.P. Singh''s Principles of Statutory Interpretation, Ninth Edition, 2004, page 733). They are, thus, required to be given liberal construction.
A remedial statute applied in a pending proceeding would not mean that thereby a retrospective effect and retroactive operation is being given thereto.
Thus it is held that there was no illegality in consideration of petitioner''s case on the basis of Scheme approved on 30th May, 2003 and applied to the pending applications also.
Now comes the second submission of the petitioners'' counsel that the Bank committed error in taking into consideration the terminal benefits which were received after the death of petitioner''s father. He submits that the entitlement of compassionate appointment follows from the death of employee and the facts that on account of death of Thakur Prasad Singh pension and other terminal benefits were given to the family is not relevant for denying the compassionate appointment. In support of the said submission the judgment of Balbir Kaur and Anr., etc. v. Steel Authority of India Ltd. and Ors. (supra) has been relied. The apex Court had considered the terms of NJCS Tripartite Agreement of 1989. In the said case the Supreme Court held that by reason of introduction of Family Benefit Scheme in terms of NJCS Tripartite Agreement in 1989, question of compassionate appointment would not be affected. The submission made before the apex Court was that by reason of Clause 8.14,1 in the 1989 Agreement; the requirement of compassionate appointment cannot possibly be given a go bye. The apex Court held in the said case that NJCS Agreement expressly preserves the 1982 circular to the effect that any benefit conferred by the earlier circular shall continue to be effective. On that basis the apex Court held that an option should have been made available either to have a compassionate appointment provided, however, the deceased employee''s representative is otherwise competent to hold the post or the adaption of the family pension fund by way of deposit of provident fund and gratuity amounts. Following was held in paragraphs 17 and 18:
In any event as appears in the contextual facts, the NJCS Agreement being a Tripartite Agreement expressly preserves the 1982 circular to the effect that any benefit conferred by the earlier circular shall continue to be effective and on the wake of the same we do not see any reason to deny the petitioner the relief sought for in the writ petition.
On the wake of aforesaid, we do feel it convenient to record that the option should have been made available either to have a compassionate appointment provided, however, the deceased employee''s representative is otherwise competent to hold the post or the adaption of the family pension fund by way of deposit of provident fund and gratuity amounts. In fact, however, there was no option taken from the employee, at least no records have been produced therefor, neither any submissions made in that regard. Mr. Bhasme further pointed out that though the present appeals related to two individual cases but any interpretation contrary to the one canvassed by the respondent "is likely to open a pandora''s box", since in the huge "empire" of the respondent, several such cases would be existing which would have to be reconsidered.
The above judgment was based on interpretation of particular scheme applicable to the Steel Authority of India Ltd. The right of compassionate appointment found from the NJCS agreement. The apex Court in that context held that the payment of pension, gratuity, provident fund had no bearing on the entitlement to seek compassionate appointment. In the present case we have to consider specific particular scheme applicable to the Union Bank of India as noted above.
The next judgment relied by the counsel for the petitioner is Govind Prakash Verma v. Life Insurance Corporation of India and Ors. (supra). In the said judgment the apex Court was considering a case where compassionate appointment was refused by the Life Insurance Corporation of India on the ground that widow of deceased gets monthly pension apart from the terminal benefits. Following was held by the apex Court in paragraph 6.
In our view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the applicant, has now been reduced to half) and other amounts paid on account of terminal benefits under the Rules. The scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules. So far as the question of gainful employment of the elder brother is concerned, we find that it had been given out that he has been engaged in cultivation. We hardly find that it could be considered as gainful employment if the family owns a piece of land and one of the members of the family cultivates the field. This statement is said to have been contradicted when it is said that the elder brother had stated that he works as a painter. This would not necessarily be a contradiction much less leading to the inference drawn that he was gainfully employed somewhere as a painter. He might be working in his field and might casually be getting work as painter also. Nothing has been indicated in the enquiry report as to where he was employed as a regular painter. The other aspects, on which the officer was required to make enquiries, have been conveniently omitted and not a whisper is found in the report submitted by the officer. In the above circumstances, in our view, the orders passed by the High Court are not sustainable. The respondents have wrongly refused compassionate appointment to the appellant. The inference of gainful employment of the elder brother could not be acted upon. The terminal benefits received by the widow and the family pension could not be taken into account.
In the present case it is to be noted that even in the earlier Scheme dated 19.2.1997 the Bank was entitled to take into consideration the terminal benefits while assessing the financial condition of the family for which the Scheme itself contains specific provision (paragraph 4 of the Scheme of 19.2.1997 as noted above). For consideration of several factors mentioned therein, the Bank) action cannot be impeached on the ground that the bank committed error in taking into consideration the said factors.
It is true that as laid down by the apex Court in the above judgment that mere fact that consequent to death of an employee the dependants are entitled for pension, gratuity and other benefits, cannot itself affect or deny the compassionate appointment. Each case has to be considered on its own facts to assess that the financial condition of the family as such that but for the provision of employment the family will not be able to meet the crises. Each depends on the facts of each case. Thus there cannot be any dispute to the proposition laid down by the apex Court in the above noted case but in the facts of the present case where the Bank is entitled to take into consideration several factors as noted above, the bank''s action cannot be impeached only on the ground that it considered the terminal benefits and other benefits.
Other judgments relied by the counsel for the appellant where the terminal benefits were taken into consideration and this Court found that said ground is insufficient to support the denial hence in that back ground it was held that the payment of family pension and other dues cannot be a ground for rejecting the claim of the petitioner. As observed above there cannot be any dispute to the said proposition but each case has to be considered on its own facts while deciding as to whether the compassionate appointment ought to have been given or not.
Judgment relied by the learned Counsel for the respondents do support the submission that while considering the question of grant of compassionate appointment the Bank is entitled to take into consideration the relevant facts including the terminal benefits. In General Manager (D & PB) and Ors. v. Kuntl Tlwary and Anr. (supra) the apex Court had occasion to consider a scheme framed by State Bank of India. The Criteria for determining the financial condition of the family was also laid down in the said scheme of a similar nature. The decision of the Bank for not extending the compassionate appointment was upheld by the apex Court. The judgment of the Division Bench directing for compassionate appointment was set aside Following was laid down in paragraphs 7,8 and 9.
In adoption of this principle, an office memorandum was circulated to all banks on August 7, 1996 emphasizing that the observations of this Court would have to be complied with. The Indian Banks'' Association also adopted the directive of this Court in Umesh Kumar Nagpal case (supra), in the Scheme which was proposed'' for appointment of heirs of deceased employees. In that proposal it was recommended that in order to determine the financial condition of the family the following amounts would have to be taken into account :
(a) Family pension,
(b) Gratuity amount received,
(c) Employee''s/Employer''s contribution to the Provident Fund
(d) Any compensation paid by the Bank or its Welfare Fund
(e) Proceeds of LTC policy & other investments of the deceased employee.
(f) Income of family from other sources
(g) Employment of other family members
(h) Size of the family and liabilities, if any, etc.
This recommendation of the Indian Banks'' Association was accepted in the Scheme which was finally formulated on January 1, 1998 where the same criteria for determining the financial condition of the family was laid down. It may be noted that the express language for appointment on compassionate grounds reads as follows.
Appointments in the public services are made strictly on the basis of open invitation of applications and merit. However, exceptions are made in favour of dependants of employees dying in harness and leaving their family in penury and without any means of livelihood.
On the basis of the criteria as recommended by the Indian Banks'' Association and adopted by the appellant Bank, it could not be said that the family of the late K. N. Tiwary had been left in "penury" or "without any means of livelihood". The particulars of their income have been noted in their application and it certainly could not be said on the basis thereof that the respondents were living hand to mouth. The Division Bench erred in diluting this criteria of penury to one of" not very well- to-do.
Another judgment relied by counsel for the respondents in Punjab National Bank and Ors. v. Ashwini Kumar Taneja (supra) also supports the submission of the learned Counsel for the respondents. Following was laid down in paragraph 7:
One other thing which needs to be considered is whether the retiral benefits are to be taken into consideration while dealing with prayer compassionate appointment. The High Court was of the view that the same was not to be taken into consideration. The view is contrary to what has been held recently in General Manager (D & P.B.) and Ors. v. Kunti Tiwary and Anr., Civil Appeal No. 126 of 2004 disposed of on 5.1.2004. It was categorically held that the amounts have to be taken into consideration. In the instant case, there was a scheme called '' Scheme for employment of the Dependants of the Employee who die while in the service of the Bank Service on Compassionate Grounds'' (in short the ''Scheme'') operating in the appellant No. 1-Bank which categorically provides as follows:
FINANCIAL CONDITION OF THE FAMILY.
The dependants of an employee dying in harness may be considered for compassionate appointment provided the family is without sufficient means of livelihood, specifically keeping in view the following :
(a) Family pension,
(b) Gratuity amount received,
(c) Employee''s/Employer''s contribution to the Provident Fund
(d) Any compensation paid by the Bank or its Welfare Fund
(e) Proceeds of LTC policy & other investments of the deceased employee.
(f) Income of family from other sources
(g) Employment of other family members
(h) Size of the family and liabilities, if any, etc.
It is most respectfully submitted that the Board of Directors of the petitioner Bank had approved the above said scheme, which was based upon the guidelines circulated by Indian Bank Association to all the Public Sector Banks which in turn are based upon the law laid down by this Hon''ble Court in the case of ''Umesh Kumar Nagpal v. State of Haryana and Ors.''. The Scheme after approval was circulated vide PDCL 11/99 dated 17.4.1999.
One more recent pronouncement of the apex Court is necessary to be noted. Learned Counsel for the petitioner has placed reliance on a Division Bench Judgment of this Court reported in 2004 (4) E.S.C. (All.)2358 Chief General Manager. State Bank of India and Ors. v. Duraesh Kumar Tlwari wherein the Division Bench held that the payment of family pension and dues to deceased cannot be a ground for rejecting the claim. The Bank filed SLP in the apex Court and the apex Court vide its judgment an order dated 6.2.2006 reversed the Division Bench judgment of this Court. In Chief General Manager. State Bank of India and Ors. v. Durgesh Kumar Tlwari (supra) the apex Court in the aforesaid judgment held that the pensionary benefits can be taken into consideration for determining the claim of compassionate appointment.
Coming to the facts of the present case, in the supplementary counter affidavit it has been stated that the petitioner''s father received the net salary after deduction of Rs. 4637/- per month. The Bank has explained that taking into consideration the interest to be accrued on the financial relief granted in lump sum to the widow and the monthly pension to be paid to the family, the total amount would come to Rs. 4954/-. In the present case the Army pension of Rs. 2077/- was also being drawn by the family of the deceased employee, the father of the petitioner No. 1 being an ex-army man. Thus for argument''s sake even if the old scheme is taken into consideration for examining the claim of the petitioner no error can be found in the decision of the Bank in refusing the compassionate appointment. The Bank has dealt with all pending applications on the same criteria. The decision of the Bank cannot be said to be arbitrary, irrational or capricious. In accordance with new scheme a financial relief of Rs. 3,09,0007- has been sanctioned to the petitioner.
In view of forgoing discussions I do not find any error in the decision of the Bank refusing to give compassionate appointment to petitioner No. 1. The petitioners are not entitled for the relief claimed in the writ petition. The writ petition is dismissed.