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2020 DIGILAW 740 (GAU)

Oriental Insurance Company Ltd v. Jon Mahanta

2020-11-05

MANOJIT BHUYAN, SOUMITRA SAIKIA

body2020
JUDGMENT Manojit Bhuyan, J. - The sole respondent/writ petitioner Ms. Jon Mahanta had claimed appointment on compassionate grounds consequent upon the demise of her eldest sister Grizelva Mahanta, who at the relevant tome was employed as a Stenographer Grade-III in the Office of the Chief Regional Manager, Oriental Insurance Company Limited, Ulubari, Guwahati. Rejection of the claim led to institution of WP(C) 8875/2018, which was allowed vide judgment and order dated 29.11.2019, with direction to the appellant to accept the application of the petitioner for appointment under the die-in-harness scheme by treating her to be eligible for applying for compassionate appointment and by considering the claim in terms of the observations and directions made in the said judgment and order within a period of 2 (two) months. Aggrieved, the present writ appeal is laid by the appellant i.e. the Oriental Insurance Company Limited (hereinafter referred to as the 'Insurance Company'). 2. Facts not in dispute are : (i) Grizelva Mahanta had joined the Insurance Company as a Stenographer on 19.08.1987 and got married to one Arun Chandra Sarmah on 03.10.1987. Grizelva Mahanta became a widow on 04.07.1998 without begetting any children. According to the respondent/writ petitioner, said Grizelva Mahanta, who was her eldest sister, moved in soon after the death of their father as there was no other service holder and stayed with them during the last 17 years of her life, that is, until her passing away on 14.12.2016. Upon the demise of the father, the family members consisted of Pratima Mahanta (mother), Grizelva Mahanta (eldest sister since deceased), Ms. Munmun Mahanta (elder sister stated to be abnormal since birth) and Ms. Jon Mahanta (respondent/writ petitioner). In the office records, the mother Pratima Mahanta was recorded as the nominee of Grizelva Mahanta. As regards the respondent/writ petitioner, she claimed to be unemployed and having educational qualification of M.A. (English), MBA(HRD & Marketing), Two Years Diploma in Computer Engineering and Ecommerce as well as Diploma in Typing and Stenography. (ii) Upon the demise of Grizelva Mahanta on 14.12.2016, the respondent/writ petitioner made application on 05.01.2017, addressed to the Chief Regional Manager, Oriental Insurance Company Limited, Ulubari, Guwahati, for appointment on compassionate grounds. (ii) Upon the demise of Grizelva Mahanta on 14.12.2016, the respondent/writ petitioner made application on 05.01.2017, addressed to the Chief Regional Manager, Oriental Insurance Company Limited, Ulubari, Guwahati, for appointment on compassionate grounds. Espousing the cause of the respondent/writ petitioner, another application was made by the mother Pratima Mahanta on 31.01.2017 by stating that her youngest daughter Jon Mahanta is educated but unemployed and Grizelva Mahanta did not have any children nor she herself has any son too. (iii) Sequentially and from records, the mother Pratima Mahanta, being the recorded nominee, received from the Insurance Company on 06.07.2017 an amount of Rs.19,24,445/- by way of Provident Fund due to Grizelva Mahanata and on 17.07.2017 received from the Insurance Company further sums of Rs.10,53,920/- as Gratuity, Rs.5,82,234/- as Leave Encashment benefit and Rs.1,00,000/- receivable under Group Insurance Scheme. The total monetary benefits received by the nominee Pratima Mahanta until 17.07.2017 stood at Rs.36,60,599/- (Rupees Thirty Six Lakhs Sixty Thousand Five Hundred Ninety Nine). More than a month later the claim for appointment on compassionate ground was rejected, which fact was communicated to the mother Pratima Mahanta vide letter dated 30.08.2017 and subsequently to the respondent/writ petitioner Ms. Jon Mahanta vide letter dated 22.03.2018. The rejection of the claim was on the ground that the scheme for compassionate appointment holding the field and governing the norms for making such appointment in the Insurance Company, do not cover the claim of the respondent/writ petitioner. As per the scheme, a dependent family member, amongst others, means a "wholly dependent brother or sister in case of an unmarried employee", but Grizelva Mahanta was not an "unmarried employee" but was married to one Arun Chandra Sarmah solemnised on 03.10.1987. On record and prior to the filing of the writ petition [WP(C) 8875/2018] on 15.12.2018, the appellant Insurance Company paid to the nominee Pratima Mahanta on 22.05.2018 a further sum of Rs.7,33,951/- as benefit due to Grizelva Mahanta under the Group Saving Linked Insurance Scheme, bringing the grand total sum received by the nominee mother Pratima Mahanta to Rs.43,94,550/- (Rupees Forty Three Lakhs Ninety Four Thousand Five Hundred Fifty). (iv) The norms applicable in the present case for entertaining and making appointment on compassionate grounds is governed and regulated by a scheme called the Scheme for Compassionate Appointment in Public Sector General Insurance Companies, which was brought into force prospectively from 01.11.2014. (iv) The norms applicable in the present case for entertaining and making appointment on compassionate grounds is governed and regulated by a scheme called the Scheme for Compassionate Appointment in Public Sector General Insurance Companies, which was brought into force prospectively from 01.11.2014. In so far as "DEPENDENT FAMILY MEMBER" at Clause 2 of the Scheme is concerned, it means the following: "2.1 Spouse 2.2 Wholly dependent son (including legally adopted son); or 2.3 Wholly dependent daughter (including legally adopted daughter); or 2.4 Wholly dependent brother or sister in the case of unmarried employee." At Clause 5 of the Scheme under the heading "ELIGIBILITY", it is provided as under: "5.1 The family is indigent and deserves immediate assistance for relief from financial destitution; and 5.2 Applicant for compassionate appointment should be eligible and suitable for the post in all respect under the provisions of the relevant Recruitment Rules." 3. To justify the rejection, the appellant Insurance Company had raised two primary issues before the learned Single Judge. Firstly, the respondent/writ petitioner was not eligible under the Scheme for the reason that her deceased elder sister was a married employee and not an "unmarried employee", thus disentitling her to claim appointment and, secondly, considering the large financial benefits already received by the mother Pratima Mahanta, the benefit of appointment under the Scheme cannot be extended to the respondent/writ petitioner. Disagreeing with the contentions so raised, the learned Single Judge observed that though the benefit extended to a dependent brother or sister of an unmarried employee appears to be reasonable and justifiable, the denial of such benefit to a brother or sister of a married employee, who is divorced and did not leave behind any issue may, however, cause injustice as in the present case. It was observed that the husband of Grizelva Mahanta predeceased her about two decades ago without leaving any issue and, after the death of the husband, Grizelva Mahanta was staying with her mother and sisters, including the respondent/writ petitioner, and was looking after them. It was observed that the husband of Grizelva Mahanta predeceased her about two decades ago without leaving any issue and, after the death of the husband, Grizelva Mahanta was staying with her mother and sisters, including the respondent/writ petitioner, and was looking after them. Under these circumstances the learned Single Judge held that the position of Grizelva Mahanta, though was married, but after becoming a widow and in the absence of any issue, was no different from the position of an unmarried woman and, therefore, for all practical purposes, the condition of Grizelva Mahanta as a married employee did not materially differ from the position of an "unmarried employee". Interpreting the expression "unmarried employee", the learned Single Judge observed that it can also be interpreted to mean any employee, who though might have been married but did not leave any living spouse or son or daughter at the time of death, such widowed and issueless employee, for all practical purposes, be deemed to be unmarried for the purpose of granting benefit to his/her dependent brother or sister under the beneficial scheme of compassionate appointment. Taking it further, the learned Single Judge observed that the Scheme under consideration has created two categories of brothers and sisters of a deceased employee one category being the brother and sister of a deceased unmarried employee, the other being the brother and sister of a deceased married employee, with both categories being treated differently. Whereas the former category is permitted to apply for appointment under the die-in-harness scheme, the latter is disallowed from doing so. Thus, tested on the touchtone of Article 14 of the Constitution as to whether the classification of brothers and sisters in the two categories is permissible or not, the learned Single Judge held that the classification cannot be said to satisfy the test of reasonable classification having intelligible differentia and reasonable nexus to the purpose of the Scheme and, therefore, such classification is violative of Article 14 of the Constitution. Having regard to the objective for offering appointment under the Scheme, which is to provide financial stability to the immediate bereaved and dependent members of the deceased employee, the learned Single Judge held that notwithstanding the fact that the immediate family members would normally consist of the spouse and children, but since brother and sister as a category have been accepted to be eligible claimants for appointment under the Scheme, it would be unreasonable to deny such benefit to a brother and sister of a deceased employee merely because the deceased employee happened to be married though, in fact, the deceased married employee did not have any surviving spouse or son or daughter but only brother and sister who were dependent upon the deceased employee. In the premises, the learned Single Judge held that the definition of dependent family member, as provided under sub-clause 4 of Clause 2 of the Scheme, by wholly excluding dependent brother or sister in the case of married employee, would be illegal, void and unconstitutional, which vice can be cured if the interpretation given by the Court is accepted by reading into the expression "unmarried employee" to also mean "an employee though married but did not leave behind any spouse or son or daughter at the time of death". It was held that for securing social justice, as enshrined in the Preamble to the Constitution, interpreting the expression "unmarried employee" to include "an employee, though was married, but was widowed and issueless at the time of death", such an interpretation would conform to the core constitutional values and principles and help to secure social justice. In conclusion, the learned Single Judge declared that the respondent/writ petitioner was eligible for appointment under the die-in-harness scheme by enlarging the scope of sub-clause 4 of Clause 2 of the Scheme, notwithstanding the fact that her elder deceased sister was legally and technically "married" but, for all practical purposes, was as good as "unmarried". As regards the second contention that the mother Pratima Mahanta having received substantial financial benefits the family cannot be seen to be in a state of penury following the demise of Grizelva Mahanta, the learned Single Judge noted the contention only to be rejected. It was held that receipt of the amount by the mother cannot be a reason for denying appointment to the respondent/writ petitioner under the die-in-harness scheme. It was held that receipt of the amount by the mother cannot be a reason for denying appointment to the respondent/writ petitioner under the die-in-harness scheme. The writ petition was allowed with the following directions: "The respondent authorities will accept the application of the petitioner for appointment under the die in harness scheme submitted by the petitioner on 05.01.2017 by treating her to be eligible for applying for compassionate appointment and her claim shall be considered in accordance with law. Her case also shall not be rejected merely on the ground that the mother of the petitioner had received a sum of Rs.45 lakhs. Her case also cannot be rejected on the ground of delay or being overaged as the petitioner had submitted her application within time on 05.01.2017. The respondent authorities will accordingly consider the claim of the petitioner in terms of the observations and directions referred to above, which exercise shall be completed by the respondent authorities within a period of two months from the date of receipt of a certified copy of this order, by intimating the result of the claim of the petitioner for compassionate appointment. In order to facilitate expeditious consideration of the claim of the petitioner, the petitioner would be at liberty to submit a fresh application in the prescribed form, if any, with the supporting documents along with a certified copy of this order". 4. Heard Mr. S. Dutta, learned senior counsel representing the appellant Insurance Company as well as Ms. Jon Mahanta, the respondent/writ petitioner-in-person. The question as to whether the respondent/writ petitioner is entitled to the benefit of compassionate appointment, having regard to the provisions under sub-clause 4 of Clause 2 read with subclause 1 of Clause 5 of the Scheme for Compassionate Appointment in Public Sector General Insurance Companies and also as to whether the directions made by the learned Single Judge can stand the scrutiny of law warranting interference, having regard to settled law governing matters relating to compassionate appointment, are primarily the points for determination in the instant case. There is no gainsaying that the normal rule of appointments to public service is on the basis of merit and through open invitations. One of the exceptions evolved to meet certain contingencies is by way of providing relief to the bereaved family of a deceased employee by accommodating one of the dependents in a vacancy. There is no gainsaying that the normal rule of appointments to public service is on the basis of merit and through open invitations. One of the exceptions evolved to meet certain contingencies is by way of providing relief to the bereaved family of a deceased employee by accommodating one of the dependents in a vacancy. For doing this, the paramount consideration and object is to give succour to the family which has been suddenly plunged into penury and indigent state due to the untimely death of its sole breadwinner. The exception is an ameliorating relief and cannot be construed as opening an alternative mode of recruitment to public employment. Thus, the whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis - the immediate financial disruption being the dominant consideration. The test of eligibility is whether the deceased left the family in penury. The favourable treatment given to a dependent of the deceased employee has a rational nexus with the object sought to be achieved, namely, relief against destitution. Claim for such appointment is neither a vested right nor a hereditary right nor can it be bequeathed. If rules or guidelines have been framed regarding compassionate appointment, it can only be given consistent with such rules. Compassionate appointment being a matter of policy, an employer cannot be compelled to make such appointment contrary to its policy. It is well settled that denial of compassionate appointment cannot be considered as arbitrary where the dependents received total retiral benefits and was not left ignored in indigent circumstances. Law relating to compassionate appointment also forbids the Courts to supply omissions or to add, subtract, substitute a Scheme in exercise of powers of judicial review. 5. In the case in hand, the guidelines permitting the appellant to make appointment on compassionate grounds are clearly discernible from the scheme called 'Scheme for Compassionate Appointment in Public Sector General Insurance Companies'. Clause 2 of the Scheme, particularly sub-clause 4thereof, which assumes relevance in the instant case, defines "DEPENDENT FAMILY MEMBER" to also include "Wholly dependent brother or sister in the case of unmarried employee". There is no dispute to the fact that the deceased employee Grizelva Mahanta was not an unmarried employee. Clause 2 of the Scheme, particularly sub-clause 4thereof, which assumes relevance in the instant case, defines "DEPENDENT FAMILY MEMBER" to also include "Wholly dependent brother or sister in the case of unmarried employee". There is no dispute to the fact that the deceased employee Grizelva Mahanta was not an unmarried employee. In that regard, the respondent/writ petitioner cannot be seen to be eligible to make application by claiming herself to be a dependent family member consistent with the criteria laid down in sub-clause 4 of Clause 2 of the Scheme. However, it is seen that relief that had been granted to the respondent/writ petitioner in the writ proceedings was only by way of enlarging the scope of sub-clause 4 of Clause 2 by supplying an extended definition and meaning to the expression "unmarried employee", over and above what is generally and literally understood, to also include "an employee, though was married but was widowed and issueless at the time of death". This extended definition was applied to support a finding that although the deceased eldest sister of the respondent/writ petitioner was legally and technically "married", but for all practical purposes was as good as "unmarried". 6. Whether enlargement of the ambit of sub-clause 4 of Clause 2 of the Scheme, by supplying an extended definition and meaning to the expression "unmarried employee", can have legal support and sanctity, the pin-pointed answer can be had from a recent decision of the Hon'ble Supreme Court in Indian Bank and Others vs. Promila and Another, (2020) 2 SCC 729 . To reproduce the relevant extract from paragraph 20 of the reported judgment, the same reads as follows : "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 H.P. v. Parkash Chand." 7. As observed above and consistent with numerous judicial pronouncements of the Hon'ble Supreme Court, compassionate appointment cannot be an alternative to the normal course of public employment. There is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family which may have plunged itself into difficult financial times and left in indigent state due to the unfortunate demise of the bread winner. Thus, the relevancy is at the stage when the employee passes away. There is no inherent right to seek compassionate appointment. The objective is only to provide solace and succour to the family which may have plunged itself into difficult financial times and left in indigent state due to the unfortunate demise of the bread winner. Thus, the relevancy is at the stage when the employee passes away. Bearing in mind this aspect of the matter, one cannot help but appreciate the fact that solace and succour was indeed provided by the Insurance Company to the head of the family and nominee i.e. Pratima Mahanta after the demise of Grizelva Mahanta without brooking any delay. Without dispute, part of the retiral benefits that was due to the deceased employee to the tune of Rs.36,60,599/- (Rupees Thirty Six Lakhs Sixty Thousand Five Hundred Ninety Nine) was credited into the account of Pratima Mahanta well before the application seeking compassionate appointment stood considered and rejected, with the balance retiral benefits to the tune of Rs.7,33,951/- paid well before institution of the writ petition. Thus, the total retiral benefits due to Grizelva Mahanta to the sum of Rs.43,94,550/- (Rupees Forty Three Lakhs Ninety Four Thousand Five Hundred Fifty) was duly made over to the nominee mother Pratima Mahanta. In this respect, we may take note of one of the provisions of the Scheme in question at sub-clause 1 of Clause 5 under the heading "ELIGIBILITY". It is seen that making of compassionate appointment under the Scheme must also pass the eligibility test, in that, that the family is indigent and deserve immediate assistance for relief from financial destitution. In the facts of the case with regard to the financial benefits extended, as indicated above, can it be said that consequent upon the demise of Grizelva Mahanta inharness, the family was left in an indigent state without any ameliorating relief being provided by the Insurance Company, driving the family to near financial destitution. The answer must predominantly stand in the negative. 8. Compassionate appointment is a matter of policy of the employer and such employer cannot be compelled to make compassionate appointment contrary to its policy. Apparently, the vires or legality of the Scheme is not under challenge. The answer must predominantly stand in the negative. 8. Compassionate appointment is a matter of policy of the employer and such employer cannot be compelled to make compassionate appointment contrary to its policy. Apparently, the vires or legality of the Scheme is not under challenge. The sub-clause 4 of Clause 2 of the Scheme, which brings within the fold of "DEPENDENT FAMILY MEMBER" a dependent brother or sister in the case of unmarried employee and sub-clause 1 of Clause 5, which provides one of the eligibility of the family being in indigent state, such matters of policy can neither be open to extended interpretations nor merely be wished away, inasmuch as, it would tantamount to substituting the Scheme itself by supplying or subtracting words and meanings therefrom. We may add here that in the absence of any successful challenge to the Scheme in general or any of its provisions in particular, such Scheme or policy guidelines of the Insurance Company cannot suffer itself as being arbitrary, discriminatory or as an anathema to. 9. For all the reasons above, we are in respectful disagreement with the findings and decision of the learned Single Judge. We find ourselves unable to give any relief to the respondent/writ petitioner as we are constrained by settled legal position in matters relating to compassionate appointments. The writ appeal is accordingly allowed and the judgment under appeal stands set aside. Parties are left to bear their own cost.