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Allahabad High Court · body

2018 DIGILAW 349 (ALL)

SUMITRA DEVI v. PRATHMA BANK

2018-02-08

VIVEK KUMAR BIRLA

body2018
JUDGMENT Hon’ble Vivek Kumar Birla, J.—Heard Sri Siddharth Khare, learned counsel for the petitioners as well as Sri P.K. Singh, learned counsel for the contesting respondents-Prathma Bank and perused the record. 2. Pleading between the parties have been exchanged and with their consent, the present petition is being decided finally at the admission stage itself. 3. Present petition has been filed challenging the orders dated 5.3.2013 passed by the Chairman, Prathma Bank, Moradabad filed as Annexures 8A, 8B, 8C, 8D and 8E. A further prayer in the nature of mandamus has been made to direct the respondents to forthwith sanction ex-gratia payment to each of the petitioners in terms of the scheme notified by circular letter dated 22.11.2006 so sanctioned forthwith with a period to be specified by this Hon’ble Court. 4. The petitioners, who are four in number, are widows of deceased employees of the respondent-Prathma Bank, Moradabad (hereinafter referred to as the ‘Bank’). One member of the family of the deceased employee moved an application seeking appointment on compassionate ground in the Bank. Their applications were rejected on the ground that monthly income of the family was more than the ceiling of Rs. 5,000/- or Rs. 3,500/- or Rs. 2,500/- per month as the case may be and therefore, their family condition was not penurious. The individual orders were challenged by the dependents of the deceased employee, who were seeking compassionate appointment questioning the rejection of their claim by filing seven writ petitions, which were disposed of collectively by a common judgement treating Writ Petition No. 2739 of 2005 (Pankaj Kumar v. Prathma Bank, Moradabad through its Chairman and another) alongwith six other connected writ petitions vide judgement and order dated 18.4.2016. Relevant paragraphs of the aforesaid judgement are quoted as under: “In the present case, the scheme framed by the Bank contemplates taking into consideration the terminal benefits and, after calculating the net income of the family, an appointment on compassionate ground could be given, if the bank finds, that the family was living in a penurious condition. If the financial condition was sound and was not penurious, the Bank in its discretion, would not be obliged to grant an appointment on compassionate ground. If the financial condition was sound and was not penurious, the Bank in its discretion, would not be obliged to grant an appointment on compassionate ground. In Regional Manager, A.P. SRTC, Nellore and another v. C.M. Pavana Kumari, 2001 (10) SCC 585 , the Supreme Court held that no direction can be issued to appoint a person on compassionate ground dehors the scheme framed by the employer, nor the Court had a power to modify the scheme or rules framed in this regard. In view of the aforesaid, I do not find any illegality in the impugned order, as the same was passed in terms of the scheme framed by the Bank. The respondents found that the financial condition of the family was sound and was not in a penurious condition. The Bank rightly exercised its discretion in not giving an appointment to the petitioner on compassionate ground. In view of the aforesaid, the petitioners are not entitled for any relief. The writ petitions are dismissed. However, in the circumstances of the case, there shall be no order as to cost.” (Emphasis supplied) 5. The aforesaid judgement was passed by Hon’ble Single Judge after considering the entire law on the issue as laid down by the Hon’ble Apex Court. Against the aforesaid judgement, special appeals were filed. Treating Special Appeal No. 722 of 2006 (Ramesh Chandra v. Bank, Moradabad and others) as a leading appeal, the same were dismissed by a common judgement dated 3.9.2011. Taking into the provisions of the scheme 2003 that was prevailing at the time of consideration of claim of the dependents, the special appeals were dismissed. However, since new scheme for ex-gratia payment in 2006 has come into force, therefore, it was left open to the appellants to file representation claiming benefits under the new scheme 2006. Relevant paragraphs of the aforesaid judgement dated 3.9.2011 passed in special appeal are quoted as under : “4. The Bank in his Board meeting dated 28.12.2008 had framed a scheme for compassionate appointment. This scheme was circulated by letter dated 10.1.2003 (the 2003 Scheme). Under the scheme, the compassionate appointment is to be given if the condition of the family members of the deceased was penurious. 5.The 2003 Scheme also defines the word ‘penurious’. The Bank in his Board meeting dated 28.12.2008 had framed a scheme for compassionate appointment. This scheme was circulated by letter dated 10.1.2003 (the 2003 Scheme). Under the scheme, the compassionate appointment is to be given if the condition of the family members of the deceased was penurious. 5.The 2003 Scheme also defines the word ‘penurious’. It means that in case the net income of the family of the deceased employee was less than the following amount then the condition would be penurious (i) Below Rs. 5000/- per month, where the deceased employee is an officer. (ii) Below Rs. 3500/- where the deceased employee was a clerical staff. (iii) Below Rs. 2500/- where the deceased was a subordinate staff. 6. The 2003 Scheme also provides how the income is to be calculated. It provides for calculation of the net assets, namely, gross assets (including the post retiral benefits) minus the liabilities. Thereafter the net monthly income is calculated @ 8.5% per annum on the net assets. This is also explained as an example in the 2003 Scheme. 7. It is not disputed that in the Appellant’s case, net monthly income of the families is more that to one prescribed in the 2003 Scheme and the appellant cannot get compassionate appointment. However, they have challenged the validity of the provisions explaining penurious condition. 8. The counsel for the appellants submits that- (i) The scheme takes into account the post retirement benefit for calculating the net monthly income and this is not permissible under the law; (ii) The net monthly income is not related to the poverty and this is not in consonance with the objective sought to be achieved; (iii) The categorisation of the net income in the three classes is illegal. 9. It is not disputed that there is no statutory provisions for compassionate appointment. The compassionate appointment is not statutory right of any one. It is the privilege granted by different organisations to their employees to attract the best talent for their organisation. It is in this light that the Bank has also framed the 2003 Scheme. 10. In the 2003 scheme, the Bank has considered the post retirement benefits for calculating the net monthly income. It is relevant factor for considering whether the family is in financial need or not. It is in this light that the Bank has also framed the 2003 Scheme. 10. In the 2003 scheme, the Bank has considered the post retirement benefits for calculating the net monthly income. It is relevant factor for considering whether the family is in financial need or not. In case this factor is taken into account for the net family income then it cannot be termed as illegal. 11. The Bank has merely compared in poverty line in order to show that its fixation of net income is higher than the poverty line fixed by the Government. It is not against the objective sought to be achieved rather in line of it. 12. The standard of living of an employee in an Officer Class, or Class-III, or Class-IV is different. It is in consideration of the same that the Bank had fixed a different limits for them. In view of this it cannot be said that this is discriminatory or illegal. 13. In our opinion, the scheme is not illegal and is valid. 14. The learned counsel for the appellants submits that: The Bank has came out with another scheme for ex-gratia payment in 2006 (the 2006 Scheme); The benefit of this scheme has been given to the person irrespective of the date of death of the employees; In case the appellant cannot be given compassionate appointment, they should be given ex-gratia payment. 15. We do not wish to say anything so far as the 2006 Scheme is concerned. This question was not raised in the writ petition or before the single judge. It is open to the Appellants to file the representation claiming the benefit under 2006 Scheme. In case the representations are filed that will be decided in accordance with law by the Bank at an early date, if possible within six months from the date of production of a certified copy of this order. The Appellants will file a certified copy of this order necessary documents and duly stamped self address envelop alongwith their representation. The concerned respondent will communicate their decision to the Appellants. 16. With the aforesaid observations, these special appeals are disposed off.” (Emphasis supplied) 6. In the light of the observations made in the judgement passed in special appeal, claim for ex-gratia payment was made in terms of the scheme 2006. The concerned respondent will communicate their decision to the Appellants. 16. With the aforesaid observations, these special appeals are disposed off.” (Emphasis supplied) 6. In the light of the observations made in the judgement passed in special appeal, claim for ex-gratia payment was made in terms of the scheme 2006. It may be noticed that under the old scheme 2003, it was provided that claim for appointment on compassionate ground or lump sum compensation/relief in lieu of compassionate appointment in RRBs shall be considered. The dependents of the deceased employees applied for compassionate appointment. In the scheme 2006, earlier scheme for compassionate appointment was done away and only option left open with the dependents of the deceased employee is to file a representation for ex-gratia payment, which is to be considered on its own merit. Now the claims by the impugned orders in respect of all the petitioners individually on the same date i.e. 5.3.2013 were rejected on identical ground, which are under challenge. 7. By the impugned orders, the earlier decisions of this Court have been taken into account and it was found that since the scheme 2006 was introduced and was made effective from 14.11.2006 and their earlier representation dated 18.5.2001 was not pending when the scheme 2006 came into effect, the scheme was not applicable as the same was not made it applicable retrospectively. As such, it was found that their claim cannot be considered favourably and hence, stands rejected. 8. Placing reliance on the order of this Court passed in Special Appeal No. 64 of 2009 (Dharmaveer and others v. Prathma Bank, Moradabad and others) dated 7.2.2017, submission of the learned counsel for the petitioners is that under the identical circumstances, ex-gratia compensation has been paid to the claimants and therefore, petitioners are also entitled for the same. 9. Per contra, Sri P.K. Singhal, learned counsel for the Bank by drawing attention to paragraph 13 of the counter-affidavit, submitted that the claims of the dependents of the deceased employee were considered under the prevailing old scheme 2003 and that stood concluded as the petitions filed against the same were dismissed by this Court and the special appeals filed against the same were also dismissed by this Court. Attention was further drawn to annexure 8 to the counter-affidavit to indicate that the Bank has adopted the model scheme for payment of ex-gratia (lump sum amount) in lieu of appointment on compassionate grounds in RRBs. This document is dated 9.6.2006 and as per the impugned order the same was introduced by the Bank and made effective from 14.11.2006 and on that date representations made by the dependents of the deceased employee were not pending and therefore, scheme 2006 is not applicable. Placing reliance on Clause 13 of the model scheme 2006 at page 62 of the counter-affidavit, it was further submitted that the claim, which is pending on the date of commencement of the scheme only, shall be considered under the aforesaid scheme and therefore, claims of the petitioners are not covered under the aforesaid scheme. 10. I have considered the rival submissions and perused the record. 11. At the very outset, it would be appropriate to notice that in the case of Dharamveer (supra), Hon’ble Division Bench of this Court has disposed of the appeals on the ground that counsel for the Bank has agreed for ex-gratia payment also and supplementary counter-affidavit was filed wherein an amount calculated towards ex-gratia payment was indicated. 12. A perusal of the aforesaid judgement clearly indicates that the order was passed on concession. A perusal of the order passed by Hon’ble Single Judge while dismissing the writ petitions filed by the dependents of the deceased employee claiming compassionate appointment, relevant paragraphs whereof have also been quoted above, clearly indicates that a finding has been recorded that the respondents-Bank found that the financial condition of the family was sound and was not in a penurious condition. The Bank rightly exercised its discretion in not giving an appointment to the petitioner on compassionate ground. This finding was affirmed in special appeals in Ramesh Chandra (supra) and the relief was denied on merits, however taking a lenient view it was left open to the appellants to file a representation claiming benefit under the scheme 2006. The Bank rightly exercised its discretion in not giving an appointment to the petitioner on compassionate ground. This finding was affirmed in special appeals in Ramesh Chandra (supra) and the relief was denied on merits, however taking a lenient view it was left open to the appellants to file a representation claiming benefit under the scheme 2006. The representations filed pursuant to the observations made by Hon’ble Division Bench of this Court in the case of Ramesh Chandra (supra) were rejected with a reasoned order that since the claims have already been decided prior to commencement of scheme 2006, therefore, the same were not pending and Clause 13 of the scheme clearly provides that the same will apply to the cases where the claim is still pending on the date effective date. Clause 13 of the Model Scheme 2006 is quoted as under: “13. The Scheme will come into force from the date it is approved by the Board of the bank and all applications for compassionate appointment/grant of lump sum financial relief, if any, pending as on the effective date will be dealt with in accordance with the above Scheme approved by the Board.” (Emphasis supplied) Relevant extract of the Scheme 2003 is quoted as under : “01. SCHEME FOR APPOINTMENT OF DEPENDENTS OF DECEASED EMPLOYEES ON COMPASSIONATE GROUNDS OR PAYMENT OF LUMPSUM COMPENSATION/RELIEF IN LIEU OF COMPASSIONATE APPOINTMENT IN RRBs. The Board deliberated over the note and resolved that the Bank be permitted to adopt the revised scheme for appointment of dependents of deceased employees on compassionate grounds or payment of lumpsum compensation/relief in lieu of compassionate appointment in Bank. However, such appointment or payment of lumpsum compensation will be given as per choice of the dependents of the deceased employee. Scheme for appointment of dependents of Deceased Employees on Compassionate Grounds or payment of lumpsum compensation relief in lieu of compassionate appointment in Regional Rural Banks. (Emphasis supplied) Clause 07 (v), (e) of the Scheme 2003 is quoted as under : “07. In the light of observations of Hon’ble Supreme Court on Compassionate appointment Bank will follow the rules mentioned hereunder : ..... (v) The only ground which can justify compassionate employment is the penurious condition of the deceased’s family. ....... In view of the above guidelines Bank would undertake following procedure for compassionate ground appointments of dependents of deceased employees— (a) ...... (v) The only ground which can justify compassionate employment is the penurious condition of the deceased’s family. ....... In view of the above guidelines Bank would undertake following procedure for compassionate ground appointments of dependents of deceased employees— (a) ...... (e) For deciding the penurious condition, the Net income of the deceased’s family from all sources should be- (i) Below Rs. 5000/= per month where the deceased employee is an officer. (ii) Below Rs. 3500/= where the deceased employee is a clerical staff. (iii) Below Rs. 2500/- where the deceased is a subordinate staff.” (Emphasis supplied) Clause 8 and 8.1 of the Scheme 2003 is quoted as under : “8. The scheme of payment of lumpsum compensation/relief in lieu of compassionate appointment to the employees/officers. 8.1 ELIGIBILITY- The scheme will apply to the family of deceased staff or staff retiring (on medical grounds). A monetary benefit payable either on monthly or in lumpsum basis will be granted to the family of the deceased/retiring employee/officer, provided the net income of the family from all the sources is as prescribed above under the scheme of compassionate appointment.” (Emphasis supplied) 13. A bare perusal of the heading of Clause 01 of the above noted scheme clearly reveals that it is regarding the ‘appointment of dependents of deceased employees on compassionate grounds or payment of lumpsum compensation/relief in lieu of compassionate appointment in RRBs’. Clause 07 (v) of the above noted scheme indicates that only penurious condition of the deceased’s family can justify compassionate employment. Clause 07(e) provides for net income of the deceased’s family from all sources for different categories of officers/employees. Clause 8 provides for the scheme of payment of lump sum compensation/relief in lieu of compassionate appointment and for this purpose as per Clause 8.1 which provides for eligibility clearly indicates that the scheme of lump sum payment would be applicable provided the net income of the family from all the sources is as prescribed above under the scheme of compassionate appointment. In Black’s Law Dictionary, the words ‘in lieu of’ means ‘Instead of or in place of; in exchange or return for’. Thus, the words ‘in lieu of compassionate appointment’ and the eligibility for such appointment regarding net income is the same as in the case of compassionate appointment, which stood rejected in the case of all the family members of the deceased employee/petitioners and affirmed by this Court. Thus, the words ‘in lieu of compassionate appointment’ and the eligibility for such appointment regarding net income is the same as in the case of compassionate appointment, which stood rejected in the case of all the family members of the deceased employee/petitioners and affirmed by this Court. The case for compassionate appointment on the same criteria stood rejected and finalized is not open for re-consideration. The bank did not find the dependents suitable for compassionate ground. Since the Bank did not find their claim for compassionate appointment maintainable, hence question of lump sum payment in lieu thereof did not arise and was not considered. Apparently, it is for this reason the Hon’ble Division Bench did not remit the matter back for re-consideration for payment of lump sum compensation under the old scheme. 14. It would also be relevant to extract the certain Clauses of the new model scheme adopted by the Bank, which are quoted as under: “6. Ex-gratia may be granted to the family of the employee in the manner and subject to the ceiling specified below, if the monthly income of the family from all sources is less than 60% of the last drawn salary (net of taxes) of the employee. 11. The ex-gratia relief under the above Scheme is not an entitlement but may be granted at the sole discretion of the Bank looking into the financial conditions of the family and in deserving and eligible cases only. 13. The Scheme will come into force from the date it is approved by the Board of the bank and all applications for compassionate appointment/grant of lump sum financial relief, if any, pending as on the effective date will be dealt with in accordance with the above Scheme approved by the Board.” (Emphasis supplied) 15. In this new Scheme, clause 6 provides that ex-gratia may be granted to the family of the employee in the manner and subject to the ceiling specified below. As per clause 7, which is not relevant for disposal of the present case, if the total monthly income of the family is less than 60% of the last drawn gross salary of the employee, ex-gratia amount will be payable. 16. It is now well-settled law that scheme prevailing at the time of consideration of application/claim will be applicable in such cases. I need not cite cases for this purpose. 17. 16. It is now well-settled law that scheme prevailing at the time of consideration of application/claim will be applicable in such cases. I need not cite cases for this purpose. 17. It may also be relevant to note that at the best the argument of the petitioners can be that in case the claim of the petitioners for ex-gratia is considered as per scheme 2006, family income would be less than 60%. The argument may appear to be lucrative, however, once it is settled law that the scheme as prevailing on the date of application will be applicable, the question of consideration of ceiling as per new scheme would not arise. Moreover, the case of the petitioners stood already finalized and rejected under the old scheme and attained finality and therefore, the same cannot be considered under the new scheme as their claim is liable to be considered in the light of Clause 13, according to which only such claims which are pending as on the effective date consideration for such claim can be considered under the new scheme. 18. At the cost of repetition, it may be noticed that this Court has directed for consideration of application claiming of benefit under new scheme, which contains clause 13. In Shreyas Gramin Bank and others v. Kasturi Devi, 2016(3) ADJ 741 (paragraph 31), after discussing the law and allowing the special appeal, it was provided that the petitioner may apply for consideration of her case under the new Scheme and the appellants shall consider her case strictly in accordance with Clause 13 of the said new Scheme, which is quoted as under: “31. The respondent-petitioner may apply for consideration of her case under the new Scheme and the appellants shall consider her case strictly in accordance with Clause 13 of the said new Scheme within a period of three months from the date of receiving of application.” 19. In State Bank of India and others v. Jaspal Kaur, (2007) 9 SCC 571 , the contention that now the family income of the deceased employee stood reduced to less than 30% and family income that was found stood less than 60% and therefore, claimants are entitled for benefit, was specifically rejected by Hon’ble Apex Court holding that the old scheme would apply in this case. Relevant paragraphs 14 to 22, 25 and 26 of the aforesaid judgement are quoted as under : “14. The learned Counsel appearing for the respondents submitted that the touchstone of compassionate employment is a stage of penury and destitution to which the family is reduced to as a result of the death of an employee in harness. Late Shri. Sukhbir Inder Singh was drawing a monthly salary of Rs. 15000/- when he died. On his death, besides his widow he left behind three minor children including two 15 years old daughters and a son who was 8 years of age. The respondents contented that the bank has not considered the case of dependent of Sukhbir Inder Singh keeping in view the size of the family and liabilities. 15. Further the respondents relied on para 8 of the Scheme which reads as under: 8) EX-GRATIA: Ex-gratia on compassionate grounds in lieu of compassionate appointment may be granted to the family of the employee and subject to the ceilings specified below, if the monthly income of the family from all sources calculated in the manner shown below in paragraph 9 (B) is less than 60% of the last drawn gross salary (net of taxes) of the employee. The family shall be deemed to be eligible for ex-gratia payment if the income so arrived at is below 60% of the gross salary (net of taxes) last drawn, and ineligible if it is 60% or more of the gross salary (net of taxes). Ex-gratia will be paid to the family of the deceased employee or the employee who has retired due to incapacitation of eligible under the Scheme within three months of the receipt of application, complete in all respect. 16. It was submitted that the Bank in its policy issued in 2005 laid down criteria for determining penury i.e. the income of the family of the deceased employee/dependents have been reduced to less than 60% of the salary which was drawn by the deceased at the time of death. In the present case, as have been stated above, the income of the family of deceased is Rs. 3000/- only, but even according to the finding given in order dated 3.4.2004, the said income is Rs. 5855/- which is less than 40% of the salary last drawn by Late Shri. Sukhbir Inder Singh. In the present case, as have been stated above, the income of the family of deceased is Rs. 3000/- only, but even according to the finding given in order dated 3.4.2004, the said income is Rs. 5855/- which is less than 40% of the salary last drawn by Late Shri. Sukhbir Inder Singh. The respondents claimed that this scheme formulated on 18.8.2005, was not complied with by the appellant bank while deciding her claim for appointment in the Bank on compassionate ground. 17. Concluding his submissions, Mr. P.N.Puri, submitted that the stage of penury and destitution is to be determined after balancing the assets vis-a-vis liability which was not done in this case by the appellant bank. 18. We heard both the parties in detail. We have also perused through all the documents presented in the Court and both the judgments passed by the High Court of Punjab and Haryana. 19. We are now of the view that, the submissions made by the appellants deserve favourable consideration and merit acceptance. 20. The law with regard to employment on compassionate grounds for dependents of a deceased employee was laid down by this Court in case of Umesh Kumar Nagpal v. State of Haryana and others (supra), where this Court observed that, “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 dependents of employees dying in harness and leaving their family in penury and without any means of livelihood”. 21. This Court has further observed in General Manager (D&PB) and others v. Kunti Tiwary and another (supra), that, “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”. 22. It was again observed in 2005 by this Court in the case of SBI v. Vikas Dubey Civil Appeal No. 7003/05 dated 21.11.2005, also followed the decision in Kunti Tiwary (supra) case. 25. The Division Bench erred in diluting this criteria of penury to one of “not very well to do”. 22. It was again observed in 2005 by this Court in the case of SBI v. Vikas Dubey Civil Appeal No. 7003/05 dated 21.11.2005, also followed the decision in Kunti Tiwary (supra) case. 25. Also we are of the view that the specially constituted authorities in the rules or regulations like the competent authority in this case are better equipped to decide the cases on facts of the case and their objective finding arrived on the appreciation of the full facts should not be disturbed. Both the Benches of the High Court that heard this present matter have erred in entertaining the claim of the respondent and allowing the claim of the respondent. This was the view taken in a recent decision of this Court in Union Bank of India and others v. M.T. Latheesh (supra), where the Court observed that, “Learned Single Judge and the Division Bench by directing appointment has fettered the discretion of the appointing and selecting authorities. The Bank had considered the application of the respondent in terms of the statutory scheme framed by the Bank for such appointment”. 26. Finally in the fact situation of this case, Sri. Sukhbir Inder Singh (late), Record Assistant (Cash & Accounts) on 1.8.1999, in the Dhab Wasti Ram, Amritsar branch, passed away. The respondent, widow of Sri. Sukhbir Inder Singh applied for compassionate appointment in the appellant Bank on 5.2.2000 under the scheme which was formulated in 2005. The High Court also erred in deciding the matter in favour of the respondent applying the scheme formulated on 4.8.2005, when her application was made in 2000. A dispute arising in 2000 cannot be decided on the basis of a scheme that came into place much after the dispute arose, in the present matter in 2005. Therefore, the claim of the respondent that the income of the family of deceased is Rs. 5855/- only, which is less than 40% of the salary last drawn by Late Shri. Sukhbir Inder Singh, in contradiction to the 2005 scheme does not hold water. (Emphasis supplied) 20. Therefore, the claim of the respondent that the income of the family of deceased is Rs. 5855/- only, which is less than 40% of the salary last drawn by Late Shri. Sukhbir Inder Singh, in contradiction to the 2005 scheme does not hold water. (Emphasis supplied) 20. In such view of the matter, it is now clear that the claim regarding compassionate appointment has become final and was decided against the dependents of the deceased employee in the earlier round of litigation upto special appeals and claim of the petitioners regarding ex-gratia compensation in terms of the scheme notified by the circular letter dated 22.11.2006 is not covered under the 2006 scheme as no representation was pending on the date of commencement of the scheme, which was made effective from 14.11.2006. 21. In such view of the matter, I do not find any legal infirmity in the orders impugned here. 22. Present petition lacks merit and is accordingly dismissed. There shall be no order as to costs.