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Supreme Court of India
Indian Bank vs Promila . on 8 January, 2020Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul, K.M. Joseph
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVILAPPELLATE JURISDICTION
CIVIL APPEAL NO.2798 OF 2010
INDIAN BANK & ORS. … Appellants
VERSUS
PROMILA & ANR. …Respondents
JUDGMENT
SANJAY KISHAN KAUL, J.
1. One Jagdish Raj, husband of respondent No.1 and father of
respondent No.2, was appointed as a Clerk-cum-Shroff in the appellant-
Bank, where he continued to work till his unfortunate demise on 15.1.2004.
He was drawing a gross monthly salary of Rs.16,486.60 at the time of his
demise. Consequent to his death, the benefits available for the family of
Signature Not Verified
Digitally signed by
ASHA SUNDRIYAL
Date: 2020.01.08
Jagdish Raj were calculated and sanctioned to the tune of Rs.5,45,872, but
16:11:40 IST
Reason:
on account of deductions for staff housing and vehicle loans, post
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adjustment, a net payment of Rs.2,99,672 was made to the family, apart
from the grant of a monthly pension of Rs.5,574.12. An issue has been
raised about the amount being paid less to the family of Jagdish Raj, but that
has really not been debated before us.
2. Late Shri Jagdish Raj was survived by his wife and three minor
children. As it transpires, respondent No.1 was already employed and
earning a salary at the time of the demise of her husband, which information
came to the knowledge of the appellant-Bank, later. The cause for the
present dispute arises from an application made on behalf of the son
(respondent No.2 herein) seeking compassionate employment on account of
demise of Shri Jagdish Raj. We may add at the threshold that this
application was made on 24.1.2004, on which date the son was a minor.
Needless to say that any such request for compassionate employment had to
be in terms of the prevalent scheme at that time. There has been some
confusion as to the scheme applicable and, thus, this Court directed the
scheme prevalent, on the date of the death, to be placed before this Court for
consideration, as the High Court appears to have dealt with a scheme which
was of a subsequent date. The need for this also arose on account of the
legal position being settled by the judgment of this Court in Canara Bank
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& Anr. v. M. Mahesh Kumar,1qua what would be the cut-off date for
application of such scheme. It is trite to emphasise, based on numerous
judicial pronouncements of this Court, that compassionate appointment is
not an alternative to the normal course of appointment, and that there is no
inherent right to seek compassionate appointment. The objective is only to
provide solace and succour to the family in difficult times and, thus, the
relevancy is at that stage of time when the employee passes away. An
aspect examined by this judgment is as to whether a claim for
compassionate employment under a scheme of a particular year could be
decided based on a subsequent scheme that came into force much after the
claim. The answer to this has been emphatically in the negative. It has also
been observed that the grant of family pension and payment of terminal
benefits cannot be treated as a substitute for providing employment
assistance. The crucial aspect is to turn to the scheme itself to consider as to
what are the provisions made in the scheme for such compassionate
appointment.
3. On the relevant scheme being placed before us, what emerges is that
vide Circular No.56/79, a scheme was brought into force for compassionate
appointment on 4.4.1979. This is the scheme which was applicable on
1(2015) 7 SCC 412
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15.1.2004, i.e. on the date of the death of Shri Jagdish Raj. A provision was
made for compassionate appointment, but subject to the terms & conditions
of the scheme. Para 7 of the scheme reads as under:
“7. According to an agreement with the Union, the dependant will
either be paid gratuity as if the deceased employee has served the full
term of service, which will be calculated as per gratuity rules on the
basis of his/her last drawn pay at the time of his/her death or given
the option for appropriate employment for one dependent subject to
the rules framed for appointment under compassionate grounds. It is
therefore, obvious that appointments under compassionate grounds
will be open only to dependents who do not opt for payment of
gratuity for the full term of service of the employee who died while
in service.”
The aforesaid paragraph, thus, makes it clear that either gratuity or
compassionate appointment can be availed of by the dependents. The result
is that if the dependents opted for payment of gratuity for the term of service
of the employee who died while in service, no compassionate appointment
could be granted. The admitted position is that the benefit of gratuity was
availed of by the dependents in the present case.
4. Another relevant paragraph of the scheme is para 8, which reads as
under:
“8. No person or dependent can claim, as a matter of right,
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employment in the Bank under this Scheme and appointments will be
considered purely at the sole discretion of the Bank. The Bank
reserves to itself the right to modify, suspend, or withdraw the
scheme at any time at its sole discretion and the Bank’s decision in
this regard will be final and cannot be called in question.”
The aforesaid paragraph makes the consideration for appointment on
compassionate grounds at the discretion of the Bank, and not as a matter of
right. This really only emphasizes the settled position of law, discussed
aforesaid.
5. A new Scheme was promulgated on 5.11.1985, but para 4 of the
Scheme clarifies as under:
“the norms prescribed under scheme for appointment in the Bank of a
dependent of a confirmed employee who dies while in service
remains unchanged.”
Thus, though this may be a new Scheme, it, in effect, continued the
older Scheme, and that is the reason the terms of that Scheme applied on the
date of death of Shri Jagdish Raj, on 15.1.2004.
6. The first communication was addressed by respondent No.1, on
24.1.2004, to the CMD of the appellant-Bank, seeking compassionate
appointment for her son, respondent No.2. The aforesaid arrangement, thus
being applicable even at that time.
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7. A development post the demise, and this application, was a new
Scheme being brought into force through a Board meeting of the appellant-
Bank w.e.f. 27.4.2004, by way of Circular No. PRNL/09/2004-05, in
supersession of the previous Scheme. However, the qualification for such
Scheme was the death of an employee on account of injury sustained while
performing official duty, with a second condition that the monthly income
of the family (including terminal benefits, insurance claims, investments,
etc. as well as pension and spousal income) was less than 60% of the last
drawn gross salary, net of taxes, of the deceased employee and that the
application for such compassionate appointment had to be submitted within
three (3) months from the demise of such deceased employee. There was
also an option to provide ex gratia compensation with the same second
qualification as aforesaid, if such application is made within three (3)
months from the demise of the deceased employee. The Scheme also refers
to a lumpsum compensation, even where this 60% bar is crossed, and for
Clerks like Shri Jagdish Raj, the amount specified is Rs.2 lakh.
8. The appellant-Bank, thus, in response to the application for
compassionate appointment, sent a communication to respondent No.1,
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asking her to submit a fresh application under the new Scheme within a
month, i.e., by 9.8.2004. The intent, really, was that only cash
compensation could be made available. This period, for tendering an
application seeking cash compensation, was further extended repeatedly, but
it appears that the respondents did not apply for the same as they appeared
to be only interested in compassionate appointment.
9. A Circular No. PRNL/72/2005-06 dated 30.8.2005 was issued
whereby the benefit of compassionate appointment was denied to a
dependent of an employee who died in harness. Thus, only cash
compensation was the benefit which would accrue. The norm of 60%
eligibility criterion was still made applicable and the application had to be
preferred within six (6) months from demise. This Scheme came into force
from 10.8.2005.
10. Respondent No.1 made available her gross salary declaration of
Rs.15,912 only on 17.2.2006, which crossed the benchmark of 60% and,
thus, the respondents were informed vide letters dated 10.5.2006 and
30.6.2006 that even cash compensation was not available to the family, and
that there could be no question of compassionate appointment.
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11. It is in the aforesaid circumstances that the respondents filed CWP
No.17105/2006 on 27.10.2006, seeking consideration of compassionate
appointment under the 2004 Scheme, upon respondent No.2 attaining age of
majority. Ex gratia benefits, which were held back, were also sought, along
with interest.
12. The High Court of Punjab & Haryana vide impugned order dated
11.8.2008, granted Rs.2 lakh ex gratia payment, while leaving it open to the
respondents to make an appropriate application regarding any terminal
benefits, if not paid. This Rs.2 lakh benefit is in consonance with the
subsequent Schemes of 2004 and 2005 which had come into force, and
appears to have been so done more out of sympathy than any other factor.
13. The appellant-Bank aggrieved by this order filed a Special Leave
Petition and interim order of stay was granted on 16.1.2009. Leave was
granted subsequently and the interim order was made absolute.
14. We have examined the aforesaid factual matrix and the contentions
raised by learned counsel for the parties.
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15. The question of applicability of any subsequent Scheme really does
not apply in view of the judgment of this Court in Canara Bank2. Thus, it
would not be appropriate to examine the case of the respondents in the
context of subsequent Schemes, but only in the context of the Scheme of
4.4.1979, the terms of which continued to be applicable even as per the new
Scheme of 5.11.1985, i.e. the Scheme applicable to the respondents. There
is no provision in this Scheme for any ex gratia payment. The option of
compassionate appointment was available only if the full amount of gratuity
was not taken, something which was done. Thus, having taken the full
amount of gratuity, the option of compassionate appointment really was not
available to the respondents.
16. We may also notice that though the subsequent Schemes were not
applicable, even if benefit was sought to be given of those Schemes, initial
non-disclosure and subsequent disclosure by respondent No.1, of her
employment and her emoluments would disentitle her under those Schemes,
too. Thus, when the appellant was calling upon the respondents to apply
under the subsequent Schemes, that could have been beneficial to the
2(supra)
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respondents only if they were entitled to any of the benefits under that
Scheme. That could not happen because the benchmark provided in those
subsequent Schemes took the emoluments of respondents beyond the
prescribed limit, so as to disentitle them from both, compassionate
employment and ex gratia payment.
17. We have to keep in mind the basic principles applicable to the cases
of compassionate employment, i.e., succor being provided at the stage of
unfortunate demise, coupled with compassionate employment not being an
alternate method of public employment. If these factors are kept in mind, it
would be noticed that the respondents had the wherewithal at the relevant
stage of time, as per the norms, to deal with the unfortunate situation which
they were faced with. Thus, looked under any Schemes, the respondents
cannot claim benefit, though, as clarified aforesaid, it is only the relevant
Scheme prevalent on the date of demise of the employee, which could have
been considered to be applicable, in view of the judgment of this Court in
Canara Bank3. It is not for the Courts to substitute a Scheme or add or
subtract from the terms thereof in judicial review, as has been recently
emphasized by this Court in State of Himachal Pradesh & Anr. v. Parkash
3(supra)
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Chand4.
18. We may have sympathy with the respondents about the predicament
they faced on the demise of Shri Jagdish Raj, but then sympathy alone
cannot give remedy to the respondents, more so when the relevant benefits
available to the respondents have been granted by the appellant-Bank and
when respondent No.1, herself, was in employment having monthly income
above the benchmark.
19. We have, thus, no option but to reluctantly set aside the impugned
order and dismiss the writ petition originally filed by the respondents.
20. The appeal is accordingly allowed, leaving the parties to bear their
own costs.
………………………………J.
[Sanjay Kishan Kaul]
………………………………J.
[K.M. Joseph]
New Delhi.
January 8, 2020.
4(2019) 4 SCC 285
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