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RAN VIJAY SINGH versus UNION BANK OF INDIA AND OTHERS

High Court of Judicature at Allahabad

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Ran Vijay Singh v. Union Bank Of India And Others - WRIT - A No. 3876 of 2004 [2006] RD-AH 14391 (25 August 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

 RESERVED ON 04.08.2006

DELIVERD ON  25.08.2006

Civil Misc. Writ Petition No. 3876 of   2004

Ran Vijay Singh & another............................................   Petitioners

Versus

Union Bank of India & others  .............................       Respondents

.............................

Hon'ble Ashok Bhushan, J.

Heard Sri J. P. Singh, learned 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 judgements of the apex Court namely, 2000 (3) E.S.C. 1618 (S.C.)   Balbir Kaur and another, etc.    Versus  Steel Authority of India Ltd. And others;   (2005) 10 Supreme  Court Cases 289  Govind Prakash Verma    Versus  Life Insurance Corporation of India and others.  Reliance has also been placed  on judgements of this Court reported in 2001 (2)  E.S.C. (All.) 876  State Bank of India and others   Versus   Ram Piyarey;   2003 (2) E.S.C. (All.)960   Smt. Padma Pathak   Versus   Managing  Director, Pubjab National Bank, New Delhi and another  ;  2004 (4) E.S.C. (All.)2358   Chief General Manager, State  Bank  of India and others  Versus Durgesh Kumar Tiwari;  2004 (3) E.S.C. (All.)1642  Ashutosh Mishra   Versus  Union  Bank  of India and others  and a judgment of this Court reported in 2005 (1) E.S.C. (All.)  134   Mritunjay Mishra  Versus   Chief General Manager, State  Bank  of India, Lucknow and another.

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  2004 -III LLJ  SC page 1136   General Manager ( D & PB) and others  Versus   Kunti Tiwary and another;  2004 (102) F.L.R. (SC)  1023  Punjab National Bank and others  Versus   Ashwini Kuamr Taneja and others  and three judgements of this Court reported in 2005 (107) F.L.R. 891 Rajeev Kumar Khanna  Versus   Chief  Manager (Karmik), Union  Bank  of India and others;   2004 (100) F.L.R. 72  Anil Kumar Yadav  Versus  Union Bank of India and others and 2005 (104) F.KL.R.1146   Siddharth Arya  Versus   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.  ........................................................................................

4.  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 A.I.R. 2005 Supreme Court 2731  Pratap Singh  Versus   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 :-

" 107. Interpretation of a statute depends upon the text and context thereof and having regard and object with which the same was made.

108. 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.

   109.  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 another, etc.    Versus  Steel Authority of India Ltd. And others   (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 :-

"17.  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.

               18.   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    Versus  Life Insurance Corporation of India and others (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.  

"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 judgements 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.

Judgement 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 others  Versus   Kunti Tiwary and another (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.

          "7. 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.

8.  This recommendation of the Indian Banks' Association was accepted in the Scheme which was finally formulated on January l, 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."

9.  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 others  Versus  Ashwini Kumar Taneja (supra ) also supports the submission of the learned counsel for the respondents.  Following was laid down in paragraph 7:-

"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 others  Versus  Kunti Tiwary and another, 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   Versus  State of Haryana and others' .  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 Judgement of this Court reported in 2004 (4) E.S.C. (All.)2358  Chief General Manager, State  Bank of India  and others  Versus  Durgesh Kumar Tiwari  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 Special Leave Petition in the apex Court and the apex Court vide its judgement an order dated 6.2.2006 reversed the Division Bench judgement  of this Court. In   Chief General Manager, State  Bank of India  and others  Versus  Durgesh Kumar Tiwari  (supra) the apex Court in the aforesaid judgement  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.3,09,000/- 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.

D/-25.8.2006

SCS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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