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2018 DIGILAW 344 (ORI)

Abdul Ahad v. Chairman, Cuttack Gramya Bank

2018-04-03

BISWANATH RATH

body2018
JUDGMENT : Biswanath Rath, J. Short background involved in this case is that the father of the petitioner namely Abdul Rajak was a driver in “Cuttack Gramya Bank” presently nomenclated as “Odisha Gramya Bank”. Father of the petitioner while was in service, at the age of 49 years suffered a massive heart attack on 26.4.2001 and died on that day itself. Father of the petitioner left behind his widow mother namely Rahemtum Nisha, a son i.e. the present petitioner, one married daughter and three unmarried daughters involving two minors. Since the petitioner was the sole bread earner and having a destitute family, the petitioner who was 21 years at the relevant point of time made an application to the Chairman of the “Cuttack Gramya Bank” for providing him an appointment under the compassionate ground. The petitioner’s further case is that on 29.9.2001 a scheme for recruitment of the dependants of the deceased employee on compassionate ground was floated by the “Cuttack Gramya Bank” superseding the existing scheme for the said purpose. Taking help of the provision at Clause 5 of the new scheme the petitioner started his claim. It is also the case of the petitioner that the new scheme introduced had the effect on the case of deaths after 1st May of 1996. The application of the petitioner was considered and in the particular the Chairman vide his letter dated 8.5.2001 asked the Deputy General Manager Planning and Development Department (R.R.B Cell), UCO Bank for clarification on the issue indicated therein. The letter also indicated that the family of the petitioner was in dire financial distress. Nothing was communicated to the petitioner. As a consequence, the petitioner was constrained to submit a fresh representation on 4.2.2001. In the meantime, the Chairman vide his letter dated 5.1.2002 intimated the petitioner that there is no vacancy in their Bank and thus the case of the petitioner for compassionate appointment cannot be considered. On 16.8.2002 the mother of the petitioner made another representation to the Chairman for kind consideration of their claim for compassionate appointment. Finding no response, the petitioner again made representations on 29.11.2003 and 22.6.2004 bringing to the notice of the authority that he has passed +3 Arts in the meantime and he is willing to accept any post in the Bank. Finding no response, the petitioner again made representations on 29.11.2003 and 22.6.2004 bringing to the notice of the authority that he has passed +3 Arts in the meantime and he is willing to accept any post in the Bank. Finding no response from the employer the petitioner is constrained to file the writ petition seeking a direction from this Court against the opposite parties involved herein to provide him appointment as Jr. Clerk or Messenger or any other post in the Bank applying the scheme for compassionate appointment. 3. Learned counsel for the petitioner reiterating his stand taken in the writ petition and taking this Court to the scheme available for the purpose particularly placing reliance of the provisions contained in paragraph nos.3, 5 & 7 contended that the scheme has ample scope for providing compassionate appointment. Referring to the case of the petitioner Shri Mohanty, further submitted that the employer though bound by the provisions under the scheme but it grossly neglected the case of the petitioner. Taking support of the decisions in the case of Canara bank & Anr. versus M. Mahesh Kumar as reported in (1) AIR 2015(SC) 2411 (2) in the case of Smt. Phoolwati versus Union of India & Ors., as reported in AIR 1991 (SC) 469 (3) in the case of Smt. Sushma Gosain and others versus Union of India and others as reported in (1989) 4 SCC 468 (4) in the case of Mohini Kumar Naik versus Orissa State Electricity Board and others as reported in 1992 (1) OLR 173, Shri Mohanty, learned counsel for the petitioner submitted that the petitioner has direct support of the aforesaid rulings and thus, the writ petition should be allowed with a positive direction to the employer for providing a suitable employment to the petitioner in the Bank. 4. In his opposition, Shri Panda learned counsel for the Bank taking this Court to the counter affidavit contended that providing employment under the compassionate ground is not a matter of right. It is also contended that the petitioner could not be accommodated for non-availability of vacancy at the relevant point of time. Shri Panda, learned counsel for the opposite parties further contended that the guidelines applicable at the relevant point of time for compassionate appointment was subject to availability of vacancies in the Bank. It is also contended that the petitioner could not be accommodated for non-availability of vacancy at the relevant point of time. Shri Panda, learned counsel for the opposite parties further contended that the guidelines applicable at the relevant point of time for compassionate appointment was subject to availability of vacancies in the Bank. Shri Mohanty, contended that even though a clarification was sought for from the sponsored Bank, the UCO Bank vide its communication dated 31.5.2001 intimated the employer that the compassionate appointment may be considered subject to availability of vacancies and as there was no vacancies at that relevant point of time, the claim of the petitioner could not be considered. There has been sufficient communication in this regard to both the petitioner as well as his mother. The employer also objected the claim of the petitioner on the ground that the employer Bank is sustaining financial loss. 5. Learned counsel for the Odisha Gramya Bank-the employer referring to the scheme referred to by the petitioner submitted that the scheme was not invoked at the time of submission of the application by the petitioner as well as at the time of death of the father of the petitioner. Learned counsel for the opposite parties also taking help of the decisions of the Hon’ble Apex Court as reported in (1) in the case of Union of India versus R. Padmanabhan as reported in 2003 (Vol.7) SCC 270 (2) in the case of Kuldeep Singh versus Govt. of NCT of Delhi as reported in 2006 (Vol.5) SCC 702 (3) in the case of State Bank of India versus Jaspal Kaur as reported in 2007 (Vol.9) SCC 571 and an unreported decision in the case of Union of India & Anr. versus Shashank Goswami & Anr. in Civil Appeal No.6224 of 2008 contended that the employer has the support of the above decisions and it is under the circumstance, learned counsel for the opposite parties submitted that the writ petition should be dismissed. Counsel for the opposite parties though did not deny the existence of such scheme, application of such scheme in its organisation and extension of Rehabilitation appointment to other similarly situated person in future but on the premises that there was no vacancy at the relevant point of time, supported the action of the opposite parties. 6. Counsel for the opposite parties though did not deny the existence of such scheme, application of such scheme in its organisation and extension of Rehabilitation appointment to other similarly situated person in future but on the premises that there was no vacancy at the relevant point of time, supported the action of the opposite parties. 6. Considering the rival contentions of the parties, this Court finds, the undisputed fact remains here is that the father of the petitioner was working as a driver in the establishment the “Cuttack Gramya Bank” presently nomenclated as “Odisha Gramya Bank” and he died on 26.4.2001 after suffering from a massive cardiac arrest at the age of 48 years. Even though the petitioner submitted that such a scheme was very much available at that point of time but this fact has been denied by the opposite parties and there is no materials available establishing the claim of the petitioners. But however, considering the further materials available, this Court finds, the employer of the petitioner Cuttack Gramya Bank brought a scheme called as “Scheme for recruitment of the dependants of the deceased employees on Compassionate ground” covering the cases of death since 1st May, 1996. 7. Provision contained in the scheme at Clauses 2, 3, 5(a) & 7 since relevant for the purpose, this Court takes note of the same, which reads as hereunder: “(2) OBJECT:-The object of the Scheme is to offer Compassionate appointment/payment of lumpsum incase where the Bank is satisfied that the financial condition of the family is penurious and such that but for the provisions of employment, the family will not be able to meet the crisis. (3) APPOINTMENT UNDER THE SCHEME :- (Scope) (a) Employment is to be offered to the Spouse or a Son or a Daughter, who is major i.e. 18 years of age or more to a dependant unmarried Brother or dependant unmarried Sister subject to his/her giving undertaking that he/she would look after the family of the deceased employee. The reason for giving employment is to enable the family to tide over sudden crisis. (b) The appointment under the Scheme shall only be made in: (i) Clerical Cadre such as: Clerk, Telephone operator, Stenographer, Clerk-cum-Typist and such other posts in Clerical Cadre. (ii) Sub-ordinate Cadre such as: Messenger, Messenger-cum-Sweeper, any other post in Sub-ordinate cadre. The reason for giving employment is to enable the family to tide over sudden crisis. (b) The appointment under the Scheme shall only be made in: (i) Clerical Cadre such as: Clerk, Telephone operator, Stenographer, Clerk-cum-Typist and such other posts in Clerical Cadre. (ii) Sub-ordinate Cadre such as: Messenger, Messenger-cum-Sweeper, any other post in Sub-ordinate cadre. (c) SANCTION OF APPOINTMENT:-Appointment under this Scheme shall not be made without prior sanction of the Chairman. (5) METHOD OF APPOINTMENT:- (a) Time–Limit : (i) Request for Appointment under the Scheme should be received by the Bank within ONE YEAR from the date of death of the Employee. However, occurred on or after 1st May, 1996 and if they have not submitted their request for compassionate appointment they can do so now within three months from the date of Circular of the revised scheme. The applications which are lying pending with us where death has occurred on or after 1st May, 1996 or where death has occurred earlier to 1st May 1996 but the dependant was a Minor or did not possess suitable minimum qualification at that time and lien has been noted as per the provisions of the Scheme and he/she has qualified in terms of age and/or qualification after 1st May, 1996 will be considered under the provisions of the Scheme. ii) Where the dependant is a Minor or does not possess suitable minimum qualification his/her case can be considered at the discretion of the Bank within four years of the death of the employee to enable him/her to qualify in terms of age and/or qualification provided that the nomination has been received by the Bank within one year from the date of death of the employee and the documentary evidence of date of Birth of the Minor is submitted. (7) ELIGIBILITY FOR CONSIDERATION OF COMPASSIONATE APPOINTMENT/PAYMENT OF – LUMPSUM: (a) Dependants of the Employees who die after attaining the age of 55 years are not eligible for Compassionate Appointment/Payment of Lumpsum. (b) If the Monthly Income of the bereaved family (calculated as per Clause-8-below) is 60% or more of the gross salary which the deceased employee was drawing at the time of his death, such cases will not be considered for Compassionate Appointment/Payment of lumpsum. (b) If the Monthly Income of the bereaved family (calculated as per Clause-8-below) is 60% or more of the gross salary which the deceased employee was drawing at the time of his death, such cases will not be considered for Compassionate Appointment/Payment of lumpsum. (c) If the monthly income of the bereaved family (calculated as per Clause-8-below) is less than 60 percent of the gross salary which the deceased employee was drawing at the time of his death, such cases will be initially considered for payment of lumpsum : as under (i) Officer Employee Rs.2 Lakhs (ii) Clerical Staff Rs.1. 5 Lakhs (iii) Sub-ordinate Staff Rs.1 Lakh and thereby if the monthly Income reaches/crosses 60 percent of the gross salary which the deceased employee was drawing at the time of his death, such cases will not be considered for compassionate appointment but will be eligible for payment of lumpsum as stipulated above. (d) In case of payment of such lumpsum amount also does not result in increase of monthly income to the level of 60 percent or more gross salary of the deceased employee drawing at the time of his death, there would be no payment of lumpsum but such cases will considered for Compassionate appointment subject to other terms conditions. (e) However, dependants of the bereaved family who are being identified for compassionate appointment as per 7(d) above may opt for lumpsum amount applicable as per Clause 7(c) above in lieu of Compassionate appointment. (f) Relaxation in Norms/Criteria: The Chairman is authorized to consider giving special relaxation in the age and educational criteria laid down in the Scheme for recruitment on compassionate grounds on the merits/circumstances of each case.” Reading of the scheme under Annexure-4 abundantly makes it clear that the scheme for employment of the dependants of the deceased employees on the compassionate ground has been brought following the observations of the Hon’ble Apex Court as well as the Government directives. Keeping in view the judgment of the Hon’ble Apex Court and further reading the definition of the employee as well as the dependants, this Court finds, the petitioner was certainly a dependant of an employee in the establishment. Rational behind the scheme is also to offer compassionate appointment/on payment of lumpsum in case the Bank is satisfied that the financial condition of the family is penurious and the family is not able to meet the crisis. Rational behind the scheme is also to offer compassionate appointment/on payment of lumpsum in case the Bank is satisfied that the financial condition of the family is penurious and the family is not able to meet the crisis. The scheme has also made its applicability to the cases where the death occurred on or after 1st May, 1996. Here also this Court finds, the father of the petitioner having died on 26.4.2001, the petitioner had a sustainable claim. There is a restriction in the scheme for not to provide compassionate appointment/payment of lumpsum only in case the employee died after attaining the age of 55 years. On this score also this Court finds, the father of the petitioner having died at the age of 48 years, the petitioner had a sustainable claim. Further, taking into account the monthly income of the bereaved family, this Court finds, there is also a provision at clause 6 to provide lumpsum compensation. Keeping in view the above provisions and observations of this Court, this Court now considering the letter of the Chairman of the then Cuttack Gramya Bank involving the request of the petitioner while seeking clarification for appointment of the petitioner on compassionate ground finds, there is a clear indication that the petitioner had a fit case for consideration in view of the fact that late Abdul Rajak’s family was in dire financial distress and the deceased employee was the only earning member of the family. 8. Considering the case of the parties and going through the decisions of the Hon’ble Apex Court in such matters, this Court finds the followings:- In the case of Smt. Sushma Gosain vrs. Union of India, AIR 1989 SC 1976 , the Hon’ble Apex Court has held as under (at page 1977 of AIR) :- “It can be stated unequivocally that in all claims for appointment on compassionate grounds, there should not be any delay in appointment. The purpose of providing appointment on compassionate ground is to mitigate the hardship due to death of the bread earner in the family. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.” In Umesh Kumar Nagpal vrs. Such appointment should, therefore, be provided immediately to redeem the family in distress. It is improper to keep such case pending for years. If there is no suitable post for appointment supernumerary post should be created to accommodate the applicant.” In Umesh Kumar Nagpal vrs. State of Haryana, (1994) 4 SCC 138 : (1994 AIR SCW 2305), while emphasizing that a compassionate appointment cannot be claimed as a matter of course or in posts above Classes III and IV, this Court had observed that: (SCC p.140, para 2) “2. ……. The whole object of granting compassionate employment is thus to enable the family to tide over the sudden crisis. The object is not to give a member of such family a post much less a post for post held by the deceased. What is further, mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied, that but for the provision of employment, the family will not be able to meet the crisis that a job is to be offered to the eligible member of the family. The posts in Classes III and IV are the lowest posts in non-manual and manual categories and hence they alone can be offered on compassionate grounds, the object being to relieve the family, of the financial destitution and to help it get over the emergency. The provision of employment in such lowest posts by making an exception to the rule is justifiable and valid since it is not discriminatory. The favourable treatment given to such dependant of the deceased employee in such posts has a rational nexus with the object sought to be achieved viz., relief against destitution. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. No other posts are expected or required to be given by the public authorities for the purpose. It must be remembered in this connection that as against the destitute family of the deceased there are millions of other families which are equally, if not more destitute. The exception to the rule made in favour of the family of the deceased employee is in consideration of the services rendered by him and the legitimate expectations, and the change in the status and affairs, of the family engendered by the erstwhile employment which are suddenly upturned.” Thus, while considering a claim for employment on compassionate ground, the following factors have to be borne in mind. (i) Compassionate employment cannot be made in the absence of rules or regulations issued by the Government or a public authority. The request is to be considered strictly in accordance with the governing scheme, and no discretion as such is left with any authority to make compassionate appointment de hors the scheme. (ii) An application for compassionate employment must be preferred without undue delay and has to be considered within a reasonable period of time. (iii) An appointment on compassionate ground is to meet the sudden crisis occurring in the family on account of the death or medical invalidation of the breadwinner while in service. Therefore, compassionate employment cannot be granted as a matter of course by way of largesse irrespective of the financial condition of the deceased/incapacitated employee’s family at the time of his death or incapacity, as the case may be. (iv) Compassionate employment is permissible only to one of the dependants of the deceased/incapacitated employee viz., parents, spouse, son or daughter and not to all relatives, and such appointments should be only to the lowest category that is Classes III and IV posts.” (Underlining added) In Balbir Kaur & Anr. vrs. Steel Authority of India Ltd. & Ors., (2000) 6 SCC 493 : ( AIR 2000 SC 1596 ), while dealing with the application made by the widow for employment on compassionate ground applicable to the Steel Authority of India, contention raised was that since she is entitled to get the benefit under Family Benefit Scheme assuring monthly payment to the family of the deceased employee, the request for compassionate appointment cannot be accepted to. Rejecting that contention in paragraph (13), the Hon’ble Apex Court held as under :- “13. ……. Rejecting that contention in paragraph (13), the Hon’ble Apex Court held as under :- “13. ……. But in our view this Family Benefit Scheme cannot in any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the bread earner can only be absorbed by some lump-sum amount being made available to the family – this is rather unfortunate but this is a reality. The feeling of security drops to zero on the death of the bread earner and insecurity thereafter reigns and it is at that juncture if some lump-sum amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events. It is not that monetary benefit would be the replacement of the bread earner, but that would undoubtedly bring some solace to the situation.” 9. This Court looking to the entire background indicated hereinabove, and taking into account the judgments taken note of hereinabove, finding that the scheme was very much applicable to the petitioner and the petitioner was very much entitled to a positioning in the opposite parties establishment, even assuming that there was vacancy at the relevant point of time, in the event, there was any difficulties for no vacancies in the suitable position, the petitioner at least could have been provided with lumpsum compensation. This Court, therefore, observes, for no proper and timely consideration of the case of the petitioner in spite of a positive recommendation by the Chairman and clear understanding through the scheme, the petitioner had a sustainable claim and sufferings of the petitioner and his family remained unexplainable, but however, considering that the claim of the petitioner for compassionate appointment was made in the year 2001 following existene of a scheme making it effect from 1st May, 1996, the age of the applicant i.e. the petitioner having reached at 38 years in the meanwhile and the purpose of lifting a family from harness having been lost after so many years, this Court while directing the opposite party no.1 to find out a placement for the petitioner commensurating to his educational qualification in its organisation within two months hence. Finding the delay disposal of the writ petition, taking into account the suffering of such family for all these years, this Court also directs the opposite party no.1 to provide a sum of Rs.1,50,000/- as financial support to the petitioner family to overcome the miseries they suffered in the meantime. In the circumstance, the writ petition succeeds but however, with the direction that the petitioner’s family be provided with a sum of Rs.1,50,000/- as interim compensation within a period of one month and make the petitioner entitled to a suitable post commensurating his education in any of the Branch of the opposite party no.1 in the Cuttack District within a period of two months from the date when the petitioner files an affidavit of his unemployment in the meantime. This however, has nothing to do with the payment of interim compensation. 10. The writ petition succeeds. In the circumstance, there is no order as to cost.