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Karnataka High Court · body

2006 DIGILAW 307 (KAR)

MALATHI MOHAN RAMAN v. SYNDICATE BANK, MANIPAL

2006-03-22

D.V.SHYLENDRA KUMAR

body2006
ORDER Compassionate appointment to the dependent of a deceased employee has been the bone of contention in unending litigations before the Courts, particularly in writ jurisdiction, with the number of employers having the status of 'State' having proliferated, inclusive of banks, public sector undertakings owned by the State or Central Government, Government companies, organisations where the Government has direct or indirect control and anything and everything being roped into the concept of 'State' within the meaning of Article 12 of the Constitution of India, for the purpose of Part III of the Constitution, 2. One such litigation is in the third round before this Court and refuses to see the end. 3. Brief facts are: Petitioner is the widow of late Mohan Raman, who died while working as Assistant Manager in the services of the respondent-Bank, a nationalised Bank. That happened on 27-5-1998, It is thereafter the petitioner has been pursuing her efforts for seeking employment on compassionate basis, inter alia, urging that the untimely death of her husband was a rude shock to her family; that the breadwinner of the family is lost; that the petitioner is left with two minor daughters, who have to be taken care of, their education and later their settlement in life; that for all these things petitioner needs money and a steady income; that the petitioner's case was a fit case for providing employment on compassionate basis in the respondent-Bank. 4. Unfortunately to the petitioner, the Bank has been of the consistent view that the petitioner does not qualify for employment on compassionate basis, particularly having regard to the plentiful terminal benefits which are now in the hands of the petitioner, as a result of the death of her husband, including payment of a family pension, which in terms of the latest order, impugned in this writ petition, works out to a sum of Rs. 5,606/- per month. 5. What has been very vehemently contended by Sri G.R. Mohan, learned Counsel for the petitioner is that the respondent is not justified in passing the order dated 26-3-2003, denying the benefit of employment on compassionate basis to the petitioner, notwithstanding the very emphatic conclusive observation made by this Court in the earlier round of litigation i.e., in W.P. No. 29129 of 2002, which was the second round of litigation before this Court, and disposed of in terms order dated 10-12-2002 (copy at Annexure-A). Strong reliance is placed on the observations made by this Court that the rejection of the petitioner's claim for employment on compassionate basis was clearly wrong; that such endorsement has been specifically quashed by this Court and the matter had been remanded for reconsideration of the claim of the petitioner and if one were to take cue from the strong and conclusive observations made by this Court, particularly as in para 7, which is as under: "7. In the light of the rival contentions advanced by the learned Counsel appearing for the parties, the question that would arise for consideration in this petition is as to whether the impugned order Annexure-H is liable to quashed and the respondent-Bank should be directed to reconsider the claim of the petitioner for appointment on compassionate ground. The reason assigned by the respondent-Bank to reject the claim of the petitioner for compassionate appointment as contended by the learned Counsel appearing for the respondent is that the total monthly income comprising of notional interest on net assets and the present monthly family pension would be Rs. 5,410/- and the said amount is considered to be sufficient for the livelihood of the family of the petitioner. The said reasoning assigned by the respondent-Bank to reject the claim of the petitioner, in my view, is totally erroneous in law. The facts of the case indicates that deceased husband of the petitioner at the time of his death had left behind him the petitioner and two minor daughters aged 11 and 7 years. The retirement benefits as set out in the order impugned indicates the total sum payable to the family of the petitioner was in a sum of Rs. 4,98,442/- and the liability assessed by the Bank was in a sum of Rs. 95,923/- and the net liquid assets available with the petitioner and her minor children as assessed by the Bank itself was in a sum of Rs. 4,02,519/-. This sum of Rs. 4,02,519/-, in my view, keeping in mind that he has left behind him his widow and two minor daughters cannot be considered as sufficient funds available in the hands of the family of the petitioner and two daughters to relieve them of the hardship on account of his untimely death. 4,02,519/-. This sum of Rs. 4,02,519/-, in my view, keeping in mind that he has left behind him his widow and two minor daughters cannot be considered as sufficient funds available in the hands of the family of the petitioner and two daughters to relieve them of the hardship on account of his untimely death. It cannot be disputed that experience shows that these two minor daughters have to be educated and the petitioner has to organise for their marriage. All these requires substantial cash assets and also regular income for their day-to-day livelihood and to keep the family moving. Under these circumstances, the monthly income comprising of notional interest on net assets payable to the petitioner which according to the respondent-Bank would be in a sum of Rs. 5,410/- cannot be considered to be sufficient to meet the demands of the family of the petitioner. Therefore, the reason assigned by the respondent-Bank to reject the claim of the petitioner for compassionate appointment is totally unsustainable. Further, in the case of Premalatha Shetty, fairly under similar circumstances, I have followed the decision of this Court in the case of Padmanabha Nayak and also the judgment of the Supreme Court in the case of Balbir Kaur v. Steel Authority of India Limited, AIR 2000 SC 1596 : (2000)6 SCC 493 . In my view, the principle laid down in the decision would fully apply to the facts of the present case also. In the said decision at paragraphs 5 and 6 of the judgment it is observed as follows: "5. I am in respectful agreement with the view expressed by this Court in the case of Padmanabha Nayak. The facts of this case indicate that late Shambu Shetty was only a clerk in the establishment of the respondent-Bank and the entire terminal benefits payable to the members of the family of said Shambu Shetty was in a sum of Rs. 5,07,000/- which includes provident fund, gratuity and pension. The terminal benefits are generally earned by an employee as a retirement benefit. Therefore, the said terminal benefits cannot be taken into consideration to decide the financial capacity of the family of the deceased employee of the respondent-Bank. 5,07,000/- which includes provident fund, gratuity and pension. The terminal benefits are generally earned by an employee as a retirement benefit. Therefore, the said terminal benefits cannot be taken into consideration to decide the financial capacity of the family of the deceased employee of the respondent-Bank. It is common knowledge that on account of various circumstances people while they are in service would raise loan with a hope that they will be able to discharge their liability on receipt of terminal benefits. Further, the facts of this case also indicates that in addition to the 2nd petitioner who is the son the said Shambu Shetty, he has left behind him two unmarried daughters. Further, the materials on record also shows that the deceased had taken a loan in a sum of Rs. 1,40,000/-. The untimely death of breadwinner of the employee has observed by the Hon'ble Supreme Court will be a serious set back to the family. One cannot ignore the fact that the death of a father would have a telling effect in organising the marriage of the unmarried daughters. It is also cannot be disputed that substantial money will be required for the purpose of celebrating marriage of two unmarried daughters and the 2nd petitioner. Therefore, as noticed by me earlier, merely because, certain amount was payable to the members of the family of late Shambu Shetty is not a ground to reject the claim of the 2nd petitioner for appointment on compassionate ground. 6. In the light of the discussion made above, Order Annexure-L is liable to be quashed and accordingly, it is quashed. A direction is given to the respondent-Bank to consider the claim of the 2nd petitioner for appointment on compassionate ground in the light of the observation made above, if he is otherwise eligible"". The respondent should have only allowed the claim of the petitioner and could not have rejected. 6. A direction is given to the respondent-Bank to consider the claim of the 2nd petitioner for appointment on compassionate ground in the light of the observation made above, if he is otherwise eligible"". The respondent should have only allowed the claim of the petitioner and could not have rejected. 6. Learned Counsel for the petitioner, in addition to placing reliance on the decision rendered by this Court in the very order also seeks to strong sustenance from the decision of the Supreme Court in the case of Umesh Kumar Nagpal v. State of Haryana and Others, which according to the learned Counsel for the petitioner paved the way for nationalised Banks and others to formulate uniform schemes for employment on compassionate basis and in terms of certain guidelines issued by the Supreme Court, as on also the Single Bench decision of the Kerala High Court in the case of Suman Mohan v. Union Bank of India. Submission of the learned Counsel for the petitioner is that the learned Single Judge of the Kerala High Court had occasion to follow the decision rendered by the Supreme Court in the case of Umesh Kumar Nagpal and the facts are more or less similar to the present set of facts. 7. Submission of the learned Counsel for the petitioner is that the learned Single Judge of the Kerala High Court had occasion to follow the decision rendered by the Supreme Court in the case of Umesh Kumar Nagpal and the facts are more or less similar to the present set of facts. 7. It is also the submission of the learned Counsel for the petitioner that there was a scheme in vogue in the Bank for the purpose of providing employment on compassionate basis to persons like the petitioner in terms of the scheme which had been made known as per the Circular No. 350/87/BC/HRDD/26/MPRDS, dated 17-10-1987; that to the knowledge of the petitioner, the very scheme was in vogue at the time of the death of the husband of the petitioner; that this scheme came to be replaced by the subsequent scheme, modified in terms of the Circular No. 187/99/BCPD/59/HRDD, dated 27-9-1999, and if at all the petitioner's case should have been considered in consonance with the scheme circulated in the year 1987, it is a foregone conclusion that the petitioner should have been provided employment on compassionate basis; that this Court having understood and interpreted the scheme in the earlier round of litigation and having issued specific directions, the respondent-Bank was required to reconsider the claim of the petitioner in consonance with this scheme, the significance being such consideration should have obviously excluded the liquid assets receivable or was otherwise with the dependent of the deceased employee for the purpose of considering the penury condition or hardship of the claimant in terms of the decision of the Supreme Court in the case of Umesh Kumar Nagpal. 8. 8. It is the further submission of the learned Counsel for the petitioner; that the total emoluments/compensation petitioner is receiving is definitely not sufficient for the purpose of proper upkeeping and maintenance of the family of the petitioner; that the petitioner has an onerous responsibility to take care of two growing daughters; that the petitioner's financial responsibility may increase in the days ahead; that what was sought for not a commensurate employment to the status of the deceased husband of the petitioner but an employment of a lower category like that of a clerk or Class N employee; that there was absolutely no justification for the Bank to have declined to provide even such an employment to the petitioner, particularly having regard to the difficult circumstances in which the petitioner is placed. 9. Notice having been issued to the respondent, the respondent has entered appearance through its Counsel. Statement of objections has also been filed. 9. Notice having been issued to the respondent, the respondent has entered appearance through its Counsel. Statement of objections has also been filed. The respondent has strongly defended its action and the order at Annexure-C, contending that the order is fully in consonance with the scheme that has prevailed at the time of the death of the employee; that the 1987 circular was no more vogue in the Bank; that it has been replaced by the subsequent circular in terms of the resolution of the Board of Directors the Bank passed on 24-12-1996; that the scheme had been modified; that such modified scheme was particularly to bring the scheme in consonance with the guidelines that had been issued by the Government of India following the judgment of the Supreme Court in the case of Umesh Kumar Nagpal and the claim or the case of the petitioner having been considered in the light of the norms as indicated in this scheme, was found to be not one qualifying for providing employment on compassionate basis, as the petitioner was not under any penury condition and it could not be said that the petitioner was without sufficient means of livelihood for taking care of the family; that the overall income as computed under the norms of the scheme was quite adequate to take care of the requirements of the members of the family and therefore it was not possible for the Bank to consider the petitioner as an eligible person for employment on compassionate basis and had expressed its inability to favourably consider the request for such employment in terms of the impugned order, that it is a valid order and does not call for interference. 10. Submission of Sri Anand Ram, learned Counsel appearing for the respondent-Bank is that the consideration of the petitioner's claim while is strictly in consonance with the scheme that prevailed at the relevant point of time; that in fact the scheme has also undergone a further modification in the year 1999 and in terms of the modified scheme of the year 1999, the present attempt is only to ensure that the penury condition is avoided, as under the scheme a total compensation for entitlement or payment which if is less than Rs. 5,000/- in case the deceased employee was an officer, it is considered to be penury condition and even here attempt is to raise the payment to the dependents of the employee to this level to avoid penury condition rather than to provide any employment on compassionate basis; that as it was found in the case of the petitioner that even such a situation was not the factual position, there is no occasion to have considered the case of the petitioner as a penury condition; that it is only in cases where penury condition is coupled with extreme hardship and such difficulties, then alone, the dependent was being provided employment on compassionate basis, in which event, the additional compensation amount will not be provided. 11. It is also the submission of the learned Counsel for the respondent that the order passed by the respondent-Bank is following the decision of the Supreme Court in the case of General Manager (D and PE) v. Kunti Tiwary. The learned Counsel also placed reliance on the decision of the Supreme Court in the case of Punjab National Bank v Ashwini Kumar Taneja and submits that this was a decision almost identical to the facts of the petitioner; that in this decision, the Supreme Court has approved the manner of determination of penury condition that it was justifiable for the employer to take into consideration the aspects such as family pension payable to the dependents, gratuity amount receivable by the dependents, the contribution to the provident fund and the compensation received therefrom and also the compensation paid by the Bank or its welfare fund and the prospective life insurance policy and other investments of the deceased employee, income of the family from other sources, as also the employment of other family members and ultimately the size of the family, its liability vis-a-vis the assets and the current income etc., and the guidelines formulated by the Bank in terms of its 1996 scheme are identical; that it was on such consideration the Bank was of the view that the condition of the petitioner is not penury condition and therefore found the petitioner not eligible for providing employment on compassionate basis. 12. It is in the light of these rival submissions, this Court has to examine the scope for interference with the order passed by the respondent-Bank on 26-3-2003 (copy at Annexure-C). 13. 12. It is in the light of these rival submissions, this Court has to examine the scope for interference with the order passed by the respondent-Bank on 26-3-2003 (copy at Annexure-C). 13. The Supreme Court has, apart from its decision in the cases of Kunti Tiwary and Punjab National Bank, in a recent decision in the case of Commissioner of Public Instructions, Karnataka v. K.R. Vishwanath, a case arising from the State in the context of a rule providing for employment on compassionate basis in vogue and applicable to the employees of the Karnataka Government, had occasion to examine such questions and it has now been emphatically laid down that: (i) employment on compassionate basis is not a matter of right; (ii) that it is an exception to the rule of providing equal opportunity in matters of public employment; and (iii) that the employer is entitled to formulate a scheme, while there is no compulsion for formulating one such, a scheme if formulated, should be worked in a fair and uniform manner; that it is open to the employer to fix norms or standards to assess the situation for the purpose of arriving at the penury condition or situation whether it is justified or not a person may merit consideration for providing employment on compassionate basis. 14. Though the learned Counsel for the petitioner has placed strong reliance on the observation and remarks made by this Court in the earlier round of litigation, viz., in W.P. No. 29129 of 2002, the observations are again based on the earlier decision of the Supreme Court, which in turn was one in the context of interpreting the scheme which was in vogue more or less similar to the scheme that was in vogue in the respondent-Bank in terms of its circular of the year 1987. This scheme itself was not in operation at the time of the death of the husband of the petitioner. As indicated by the respondent-Bank, not only in its order dated 26-3-2003 but also in its counter, that the scheme had to be replaced in view of the scheme that had been formulated and approved by the Board of Directors of the Bank and to have such scheme to be in vogue with the guidelines that have been issued by the Central Government, following the decision of the Supreme Court in the case of Umesh Kumar Nagpal. In terms of this Scheme, the Bank had a method for assessing what is known as penury condition or situation and the assessment as under Annexure-C with reference to such scheme cannot be found fault with assuming that the assessment is not necessarily in consonance with the observations made by this Court while disposing of the petition filed by the very petitioner in the earlier round of litigation. 15. It is to be borne in mind that this Court does not create rights in favour of any persons but examine the available rights for the purpose of proper understanding and if need be for a proper interpretation. The order by itself does not create a right. A fortiori so in case where the very employment on compassionate basis is not a matter of right, it will be a travesty of interpretation and understanding to think an order or observation by this Court in the earlier round of litigation has created such a right if there as no such right at all in the first instance and more so when the matter is not being examined in the context of enforcement or non-enforcement of a right, but only one of judicial review of certain administrative action on the part of the respondent-Bank as an employer, as being a nationalised Bank, Bank is treated as 'State' for entertaining a writ petition against the respondent-Bank. 16. Be that as it may, in the light of the law laid down by the Supreme Court as indicated in the cases of Kunti Tiwary and Punjab National Bank, and now further explained and emphasised in the case of K.R. Vishwanath, there cannot be any more doubt or ambiguity with regard to the nature of examination by Courts in matter of employment on compassionate basis. 17. The matter is never examined as one of a right nor one of denial of a right. It is beyond the pale of any controversy that a person approaching this Court in such matters does not have a right enforceable before this Court in a petition under Articles 226 and 227 of the Constitution of India. 17. The matter is never examined as one of a right nor one of denial of a right. It is beyond the pale of any controversy that a person approaching this Court in such matters does not have a right enforceable before this Court in a petition under Articles 226 and 227 of the Constitution of India. The examination is only in the context of certain action taken/order passed by the respondent which is in the position of 'State', as to whether the orders passed by the respondent is one which is fair, non-arbitrary and in consonance with the scheme that is formulated for the precise purpose. If the scheme does not provide for employment on compassionate basis in a situation in which the petitioner may be situated, the rejection per se has to be accepted and cannot be a matter of further scrutiny like an examination in appeal. 18. Examination is more in the context of Courts being satisfied as to whether the action is non-arbitrary, whether it is fair and as to whether it is illegal on any other ground or circumstance. I do not find any such situation in the present case. In fact I may add, I am not even impressed by the submission of the learned Counsel for the petitioner that a person receiving a total emoluments/compensation quantified in terms of the order at Annexure-C to be a sum of Rs. 11,952/- per month is a person suffering from any penury condition, even if the person has to take care of two minor daughters. It is a fact that millions and millions of families in this country do not have even such an income in the normal course, let alone a family having such an income being considered as a family in a penury condition. 19. It is no doubt true that what may be adequate or sufficient in one situation may not be necessarily so in another situation or for another family, but a penury condition cannot be understood to be a situation where all needs and wants of the family are not met, but it is a situation where even the basis needs are not being taken care of and not as to whether the family can continue to live in the standard or comforts to which it had been accustomed to earlier. Examination can never be in the context of status or standard of the family having come down from what it had been accustomed to earlier when there was a breadwinner in the family, who was getting a handsome salary. It is undoubtedly a hard situation. A considerable let down for the family, both emotional and financial and the matter taking quite a considerable length of time to tide over and may be never on the financial front. But such situation itself cannot constitute penury condition and at any rate it cannot be the penury condition either in the perception of a person seeking for relief or even in the perception of the Court itself. It is a penury condition in the perception of an employer in the context of a scheme for such purpose and it cannot be the penury perception of the Court substituting for such perception of the employer. But in this case, even in the perception of the Court, I do not find the condition is a penury condition. 20. This aspect apart, even as the Supreme Court has observed in the case of K.R. Vishwanath, employment on compassionate basis is one provided to meet the immediate difficult situation to members of the family on the death of a breadwinner in the family. It is not one which can be worked out at any point of time as though it was a right, which had accrued and can be enforced at any point of time. Though it is submitted by the learned Counsel for the petitioner that it was only due to the default on the part of the respondent-Bank in not providing employment on compassionate basis immediately on the petitioner seeking the same, which has resulted in delay, the fact is that it is already around eight years since the death of the husband of the petitioner, and even providing employment immediately thereafter it is not a reality as of now and has become an hypothetical past. It is here the provision for such employment being not a matter of right has its significance. It is not as though it is a right, which has accrued, which has been kept in cold storage and can be worked out at any point of time and which is kept alive all these days through litigations before the Court. It is here the provision for such employment being not a matter of right has its significance. It is not as though it is a right, which has accrued, which has been kept in cold storage and can be worked out at any point of time and which is kept alive all these days through litigations before the Court. I am of the view that if it is not worked, at the time when the family was really in need of it, it cannot be worked at a later point of time. It is rather unfortunate though that such matters are brought before Courts time and again as though agitating for a right and creating a false sense of hope and expectation in litigants. Law has been emphatically settled by the Supreme Court, notwithstanding such matters keep cropping up before this Court as though employment on compassionate basis is a matter of right, while it is not one. 21. I do not find any need or scope for interference in the matter in the exercise of writ jurisdiction. Accordingly this writ petition is dismissed.