Indian Bank vs Promila . on 8 January, 2020


Supreme Court of India

Indian Bank vs Promila . on 8 January, 2020

Author: Sanjay Kishan Kaul

Bench: Sanjay Kishan Kaul, K.M. Joseph

                                                                               REPORTABLE

                                        IN THE SUPREME COURT OF INDIA
                                         CIVILAPPELLATE JURISDICTION


                                            CIVIL APPEAL NO.2798 OF 2010



                         INDIAN BANK & ORS.                                     … Appellants


                                                         VERSUS


                         PROMILA & ANR.                                         …Respondents


                                                   JUDGMENT

SANJAY KISHAN KAUL, J.

1. One Jagdish Raj, husband of respondent No.1 and father of

respondent No.2, was appointed as a Clerk-cum-Shroff in the appellant-

Bank, where he continued to work till his unfortunate demise on 15.1.2004.

He was drawing a gross monthly salary of Rs.16,486.60 at the time of his

demise. Consequent to his death, the benefits available for the family of
Signature Not Verified

Digitally signed by
ASHA SUNDRIYAL
Date: 2020.01.08
Jagdish Raj were calculated and sanctioned to the tune of Rs.5,45,872, but
16:11:40 IST
Reason:

on account of deductions for staff housing and vehicle loans, post

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adjustment, a net payment of Rs.2,99,672 was made to the family, apart

from the grant of a monthly pension of Rs.5,574.12. An issue has been

raised about the amount being paid less to the family of Jagdish Raj, but that

has really not been debated before us.

2. Late Shri Jagdish Raj was survived by his wife and three minor

children. As it transpires, respondent No.1 was already employed and

earning a salary at the time of the demise of her husband, which information

came to the knowledge of the appellant-Bank, later. The cause for the

present dispute arises from an application made on behalf of the son

(respondent No.2 herein) seeking compassionate employment on account of

demise of Shri Jagdish Raj. We may add at the threshold that this

application was made on 24.1.2004, on which date the son was a minor.

Needless to say that any such request for compassionate employment had to

be in terms of the prevalent scheme at that time. There has been some

confusion as to the scheme applicable and, thus, this Court directed the

scheme prevalent, on the date of the death, to be placed before this Court for

consideration, as the High Court appears to have dealt with a scheme which

was of a subsequent date. The need for this also arose on account of the

legal position being settled by the judgment of this Court in Canara Bank

2
& Anr. v. M. Mahesh Kumar
,1qua what would be the cut-off date for

application of such scheme. It is trite to emphasise, based on numerous

judicial pronouncements of this Court, that compassionate appointment is

not an alternative to the normal course of appointment, and that there is no

inherent right to seek compassionate appointment. The objective is only to

provide solace and succour to the family in difficult times and, thus, the

relevancy is at that stage of time when the employee passes away. An

aspect examined by this judgment is as to whether a claim for

compassionate employment under a scheme of a particular year could be

decided based on a subsequent scheme that came into force much after the

claim. The answer to this has been emphatically in the negative. It has also

been observed that the grant of family pension and payment of terminal

benefits cannot be treated as a substitute for providing employment

assistance. The crucial aspect is to turn to the scheme itself to consider as to

what are the provisions made in the scheme for such compassionate

appointment.

3. On the relevant scheme being placed before us, what emerges is that

vide Circular No.56/79, a scheme was brought into force for compassionate

appointment on 4.4.1979. This is the scheme which was applicable on
1(2015) 7 SCC 412

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15.1.2004, i.e. on the date of the death of Shri Jagdish Raj. A provision was

made for compassionate appointment, but subject to the terms & conditions

of the scheme. Para 7 of the scheme reads as under:

“7. According to an agreement with the Union, the dependant will
either be paid gratuity as if the deceased employee has served the full
term of service, which will be calculated as per gratuity rules on the
basis of his/her last drawn pay at the time of his/her death or given
the option for appropriate employment for one dependent subject to
the rules framed for appointment under compassionate grounds. It is
therefore, obvious that appointments under compassionate grounds
will be open only to dependents who do not opt for payment of
gratuity for the full term of service of the employee who died while
in service.”

The aforesaid paragraph, thus, makes it clear that either gratuity or

compassionate appointment can be availed of by the dependents. The result

is that if the dependents opted for payment of gratuity for the term of service

of the employee who died while in service, no compassionate appointment

could be granted. The admitted position is that the benefit of gratuity was

availed of by the dependents in the present case.

4. Another relevant paragraph of the scheme is para 8, which reads as

under:

“8. No person or dependent can claim, as a matter of right,

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employment in the Bank under this Scheme and appointments will be
considered purely at the sole discretion of the Bank. The Bank
reserves to itself the right to modify, suspend, or withdraw the
scheme at any time at its sole discretion and the Bank’s decision in
this regard will be final and cannot be called in question.”

The aforesaid paragraph makes the consideration for appointment on

compassionate grounds at the discretion of the Bank, and not as a matter of

right. This really only emphasizes the settled position of law, discussed

aforesaid.

5. A new Scheme was promulgated on 5.11.1985, but para 4 of the

Scheme clarifies as under:

“the norms prescribed under scheme for appointment in the Bank of a
dependent of a confirmed employee who dies while in service
remains unchanged.”

Thus, though this may be a new Scheme, it, in effect, continued the

older Scheme, and that is the reason the terms of that Scheme applied on the

date of death of Shri Jagdish Raj, on 15.1.2004.

6. The first communication was addressed by respondent No.1, on

24.1.2004, to the CMD of the appellant-Bank, seeking compassionate

appointment for her son, respondent No.2. The aforesaid arrangement, thus

being applicable even at that time.

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7. A development post the demise, and this application, was a new

Scheme being brought into force through a Board meeting of the appellant-

Bank w.e.f. 27.4.2004, by way of Circular No. PRNL/09/2004-05, in

supersession of the previous Scheme. However, the qualification for such

Scheme was the death of an employee on account of injury sustained while

performing official duty, with a second condition that the monthly income

of the family (including terminal benefits, insurance claims, investments,

etc. as well as pension and spousal income) was less than 60% of the last

drawn gross salary, net of taxes, of the deceased employee and that the

application for such compassionate appointment had to be submitted within

three (3) months from the demise of such deceased employee. There was

also an option to provide ex gratia compensation with the same second

qualification as aforesaid, if such application is made within three (3)

months from the demise of the deceased employee. The Scheme also refers

to a lumpsum compensation, even where this 60% bar is crossed, and for

Clerks like Shri Jagdish Raj, the amount specified is Rs.2 lakh.

8. The appellant-Bank, thus, in response to the application for

compassionate appointment, sent a communication to respondent No.1,

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asking her to submit a fresh application under the new Scheme within a

month, i.e., by 9.8.2004. The intent, really, was that only cash

compensation could be made available. This period, for tendering an

application seeking cash compensation, was further extended repeatedly, but

it appears that the respondents did not apply for the same as they appeared

to be only interested in compassionate appointment.

9. A Circular No. PRNL/72/2005-06 dated 30.8.2005 was issued

whereby the benefit of compassionate appointment was denied to a

dependent of an employee who died in harness. Thus, only cash

compensation was the benefit which would accrue. The norm of 60%

eligibility criterion was still made applicable and the application had to be

preferred within six (6) months from demise. This Scheme came into force

from 10.8.2005.

10. Respondent No.1 made available her gross salary declaration of

Rs.15,912 only on 17.2.2006, which crossed the benchmark of 60% and,

thus, the respondents were informed vide letters dated 10.5.2006 and

30.6.2006 that even cash compensation was not available to the family, and

that there could be no question of compassionate appointment.

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11. It is in the aforesaid circumstances that the respondents filed CWP

No.17105/2006 on 27.10.2006, seeking consideration of compassionate

appointment under the 2004 Scheme, upon respondent No.2 attaining age of

majority. Ex gratia benefits, which were held back, were also sought, along

with interest.

12. The High Court of Punjab & Haryana vide impugned order dated

11.8.2008, granted Rs.2 lakh ex gratia payment, while leaving it open to the

respondents to make an appropriate application regarding any terminal

benefits, if not paid. This Rs.2 lakh benefit is in consonance with the

subsequent Schemes of 2004 and 2005 which had come into force, and

appears to have been so done more out of sympathy than any other factor.

13. The appellant-Bank aggrieved by this order filed a Special Leave

Petition and interim order of stay was granted on 16.1.2009. Leave was

granted subsequently and the interim order was made absolute.

14. We have examined the aforesaid factual matrix and the contentions

raised by learned counsel for the parties.

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15. The question of applicability of any subsequent Scheme really does

not apply in view of the judgment of this Court in Canara Bank2. Thus, it

would not be appropriate to examine the case of the respondents in the

context of subsequent Schemes, but only in the context of the Scheme of

4.4.1979, the terms of which continued to be applicable even as per the new

Scheme of 5.11.1985, i.e. the Scheme applicable to the respondents. There

is no provision in this Scheme for any ex gratia payment. The option of

compassionate appointment was available only if the full amount of gratuity

was not taken, something which was done. Thus, having taken the full

amount of gratuity, the option of compassionate appointment really was not

available to the respondents.

16. We may also notice that though the subsequent Schemes were not

applicable, even if benefit was sought to be given of those Schemes, initial

non-disclosure and subsequent disclosure by respondent No.1, of her

employment and her emoluments would disentitle her under those Schemes,

too. Thus, when the appellant was calling upon the respondents to apply

under the subsequent Schemes, that could have been beneficial to the

2(supra)

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respondents only if they were entitled to any of the benefits under that

Scheme. That could not happen because the benchmark provided in those

subsequent Schemes took the emoluments of respondents beyond the

prescribed limit, so as to disentitle them from both, compassionate

employment and ex gratia payment.

17. We have to keep in mind the basic principles applicable to the cases

of compassionate employment, i.e., succor being provided at the stage of

unfortunate demise, coupled with compassionate employment not being an

alternate method of public employment. If these factors are kept in mind, it

would be noticed that the respondents had the wherewithal at the relevant

stage of time, as per the norms, to deal with the unfortunate situation which

they were faced with. Thus, looked under any Schemes, the respondents

cannot claim benefit, though, as clarified aforesaid, it is only the relevant

Scheme prevalent on the date of demise of the employee, which could have

been considered to be applicable, in view of the judgment of this Court in

Canara Bank3. It is not for the Courts to substitute a Scheme or add or

subtract from the terms thereof in judicial review, as has been recently

emphasized by this Court in State of Himachal Pradesh & Anr. v. Parkash

3(supra)

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Chand4.

18. We may have sympathy with the respondents about the predicament

they faced on the demise of Shri Jagdish Raj, but then sympathy alone

cannot give remedy to the respondents, more so when the relevant benefits

available to the respondents have been granted by the appellant-Bank and

when respondent No.1, herself, was in employment having monthly income

above the benchmark.

19. We have, thus, no option but to reluctantly set aside the impugned

order and dismiss the writ petition originally filed by the respondents.

20. The appeal is accordingly allowed, leaving the parties to bear their

own costs.

………………………………J.

[Sanjay Kishan Kaul]

………………………………J.

[K.M. Joseph]
New Delhi.

January 8, 2020.

4(2019) 4 SCC 285

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