Calcutta High Court (Appellete Side)
Smt. Tara Devi & Anr vs Bank Of India & Ors on 4 March, 2020
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142
Ct. No.16
sg
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
04-03-2020
FMA 109 of 2020
with
CAN 11398 of 2019
Smt. Tara Devi & Anr.
Vs.
Bank of India & Ors.
Mr. Kishore Mukherjee, Adv.
...for the appellants
Mr. R.N. Majumdar, Adv.
Mr. Sourav Chakraborty, Adv.
...for the respondents
The appeal is arising out of an order dated 5th September, 2019 in a writ petition filed by the appellants for compassionate appointment. The writ application was dismissed on 5th September, 2019.
One Sukdev Prasad Singh was an employee of the bank. A disciplinary proceeding was initiated against him in the year 2012. The proceeding was decided ex parte as the employee did not attend the said proceeding in spite of repeated notices. The bank imposed the penalty of compulsory retirement with superannuation benefit by an order dated 27th February, 2013.
The petitioner no.1 being the spouse of the employee intimated the bank that the employee went missing since 2nd February, 2007. A GDE was lodged in the concerned police station on 28th May, 2007. After passing of the final order in the disciplinary proceeding, the petitioner no.1 requested the bank for releasing the terminal benefits of the employee and also to give compassionate appointment in favour of her son, being the petitioner no.2 herein.
By a letter dated 19th April, 2014, the petitioner was requested to obtain and submit a Civil Death Certificate of the employee for settlement of his terminal benefits. The petitioners filed a Suit before the learned Civil Judge (Junior Division), Alipore praying for a declaration of death of the employee.
2The learned Trial Judge dismissed the Suit on contest. The petitioner preferred an appeal before the court of the Civil Judge (Senior Division), Alipore which was also dismissed.
The petitioners thereafter filed a writ petition before this Court praying for a direction upon the respondent authorities for disbursal of the terminal benefits of the employee and for providing compassionate appointment to the son of the employee. The said writ petition was disposed of by an order dated 4th January, 2019 by directing the bank to take a reasoned decision on the representation made by the petitioner within a specified time.
In compliance of the order passed by the Court, the bank considered the prayer of the petitioners, whereby the bank took a decision to settle the terminal benefits of the employee considering his date of death as 28th May, 2007 (presumed) that is the date on which the General Diary was lodged with the concerned police station.
The prayer for compassionate appointment of the petitioner no.2 was however rejected on the ground that there was no provision to extend compassionate appointment during the relevant time.
Being aggrieved, the petitioners filed the instant writ application praying for a direction upon the bank to provide compassionate appointment to the petitioner No.2.
The writ petitioner contended before the learned Single Judge that the date of death of the concerned employee was considered by the bank as 28th May, 2007, then the scheme which was in vogue on the date of death of the said deceased employee should be taken into account for consideration of the prayer of the petitioner for giving appointment of the petitioner on compassionate ground.
The petitioners submit that the scheme for compassionate appointment came into effect in the year 2014 and the said scheme was very much in vogue when the prayer of the petitioner No.2 for compassionate appointment was taken up for consideration by the bank.
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The petitioners relied upon the decision delivered by the Constitution Bench of the Hon'ble Supreme Court in the matter of D.S. Nakara & Ors. vs. Union of India & Ors. reported in (1983) 1 SCC 305 on the point of permissibility of fixing up a cut-off date for extending the benefit to the employees.
The petitioners seek for a direction upon the respondent authorities for consideration of the claim for compassionate appointment on the basis of the circular that was in vogue at the time of consideration of the application made by the petitioner No.2.
The learned advocate for the bank submitted a report in the form of an affidavit wherein it has been mentioned that the scheme for compassionate appointment came into force with effect from 5th August, 2014. As the period of seven years from the date the petitioner was last heard had expired long prior to the coming into effect of the scheme for compassionate appointment, accordingly, no appointment can be given in favour of the petitioner no.2.
The respondents submit that the scheme for appointment on compassionate ground was neither available on 2nd February, 2007, the date on which the employee allegedly went missing, nor was it available on 28th May, 2007 when the missing complaint was lodged before the police station.
The respondents further submit that the case of the petitioner has to be decided on the basis of the circular which was in vogue on the date the employee went missing and not from the date of death of the employee.
The respondents relied upon the decision delivered by the Hon'ble Supreme Court in the matter of Canara Bank vs. M. Mahesh Kumar reported in (2015) 7 SCC 412, wherein the Court was answering the question as to whether the scheme passed in 2005 providing for ex gratia payment or the scheme then invoked in 1993 providing for compassionate appointment is applicable to the respondent. The court directed the bank to consider the case for compassionate appointment as per the scheme which was in vogue at the time of death of the employee concerned. 4
The issue that came up for consideration before the learned Single Judge was whether the appellants would be entitled to get the benefit of the scheme which was invoked at the time of consideration of the application for compassionate appointment or whether the scheme which was invoked at the time of death of the deceased employee can be made applicable. The appointment on compassionate ground is in respect of a missing employee. The learned Single Judge dismissed the writ application on the ground that the purpose of compassionate appointment is to enable the members of the deceased family to overcome the immediate financial crisis faced by the family of the deceased employee.
The application was made by the petitioner no.1 for providing employment to the petitioner no.2 on 14th April, 2014. Admittedly, on the said date there was no scheme for providing compassionate appointment to the dependants of the missing employees. The scheme for compassionate appointment, in respect of missing employee, came into force with effect from 5th August, 2014. Accordingly, on the date on which the application for compassionate appointment was made, it was not possible for the petitioners to anticipate that a scheme for compassionate appointment would be published by the bank in the near future pursuant to which the application would be considered. No right for appointment accrued in favour of the petitioner on the date the application was made due to non-availability of the scheme.
The scheme which came into effect from 5th August, 2014 mentions that the cases of missing employees will be covered by the said scheme provided a request to grant the benefit of compassionate appointment is made after a lapse of at least two years from the date on which the employee has been missing. It further mentioned that compassionate appointment in the case of missing employees also would not be a matter of right and will be subject to the fulfillment of all the other conditions, including the availability of vacancy as per the scheme.
On the date the scheme was published the employee was missing for more than two years and nearly seven years. After making the application for compassionate appointment on 14th April, 2014 the petitioner no.2 took no steps to 5 proceed with his claim for compassionate appointment. The bank vide a communication dated 19th April, 2014 requested the petitioners to furnish the civil death certificate for the settlement of provident fund and gratuity claim. There was no indication that the prayer of the petitioner for compassionate appointment will be taken up for consideration. The petitioners did not challenge the action of the bank for not considering his prayer for compassionate appointment at that point of time. The petitioners sat tight over the matter of compassionate appointment and proceeded with their claim for obtaining the provident fund and gratuity.
The petitioner approached the Court with his claim for compassionate appointment for the first time by filing the writ petition in the year 2018. The primary objective of the scheme for compassionate appointment is to provide succor to the dependants of the employee on his untimely death. The appointment of compassionate ground is never a matter of right. It is a compassion that is shown to the members of the deceased employee who may be put under extreme financial crisis on the death of the bread winner.
The employee went missing in February, 2007. A general diary was lodged by the petitioners after more than three months in May, 2007. There has been considerable lapse of time since the employee went missing and the date when the application for compassionate appointment was made. It is too late in the day to make a prayer for compassionate appointment. There is no scope for showing any compassion to the petitioner at such a delayed stage.
There is another aspect in this matter. The suit filed by the appellants for a declaration that the employee had a civil death was dismissed on merits. The Appeal Court affirmed the said order of the learned Trial Court. The said order had attained finality. Even if, we proceed on the basis that the appellants would be entitled to be considered for compassionate appointment, they have to first establish that there is civil death of the employee.
The learned Counsel for the appellants had relied upon another decision of the learned Single Judge Bench in the case of Smt. Ruda Devi & Anr. vs. Coal India Ltd. & Ors. reported in 2013(2) CLJ(Cal) page 639 to argue that the said decision as 6 has been pointed out that unless the legal character of the persons claiming through the original employee who had suffered a civil death is in dispute there would be no requirement to file the civil suit. The said decision also does not come to the aid of the appellants in the instant case. The Civil Court has decided the matter against the appellants. In paragraph 8 of the said decision, there is a reference of a Privy Council judgment to contend that it would not be necessary of file any such suit and filing of the suit may be ill advised. The law presumes that a fact exists unless rebutted does not require any authority. However, it is a presumption and a rebuttable presumption. From the written statement filed in the proceeding, the bank had denied that the employee did not suffer any civil death. The issues were framed on that basis and decided against the appellants.
The learned Counsel for the appellants has relied upon a decision of the Hon'ble Supreme Court in the case of State Bank of India and Others - versus - Sheo Shankar Tewari reported in (2019) 5 Supreme Court Cases 600 in order to persuade us to defer the hearing of the appeal till the issues raised in the said decision are finally decided by a Larger Bench. The reason for referring the matter to Larger Bench is summarized in paragraph 7 of the said decision, which reads as follows:
"7. In these decisions, the original scheme under which appointment on compassionate grounds could be made, was substituted by one under which only ex gratia payment would be made over to the dependants. The decisions relied upon by the petitioner proceed on the premise that there is no vested right to have the matter considered under the former scheme and the governing scheme would be one which was in force when the applications came up for consideration. On the other hand, the decision relied upon by the respondent proceeds on a different principle and stipulates that the governing scheme would be the former scheme and any subsequent scheme that came into force after the claim was raised would not be applicable. The decisions of this Court in Canara Bank did notice the earlier two decisions in SBI and MGB Gramin Bank."
However, the issues before us are not pari materia with the issues that came for consideration in State Bank of India & Ors. (supra).
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The principle laid down by the Hon'ble Supreme Court in the matter of D.S. Nakara (supra) will not be applicable in the facts and circumstances of the instant case. In the said case the Hon'ble Court was dealing with the arbitrary classification made between pensioners. The court held that the payment of pension was a statutory liability undertaken by the Government and whatever becomes due and payable is budgeted for. Pension is a liability incurred and has to be provided in the budget. In the instant case the right of the petitioner flows from the scheme. The date on which the petitioner made his application the scheme was not in existence. Though at the time when the application of the petitioner was taken up for consideration the scheme was available but in the meantime there has been a passage of nearly 12 years (from 2007 till 2019) from the date the employee went missing. Pension is a statutory right of a pensioner, whereas compassionate appointment can never be claimed as a matter of right. Providing appointment in such a case will be against the objective of the scheme and accordingly the prayer for appointment of the petitioner cannot be acceded to at such a belated stage.
Under such circumstances, the onus lies on the appellants to establish that there is a presumption of legal death. Although, we have noted that in 2019 the bank, in considering the representation for compassionate appointment, had released terminal benefit of Sri Sukdev Prasad Singh treating his date of death as on 28th May, 2007 (presumed) but such act of the bank could not be treated as accepting that the employee had suffered a civil death when the suit was filed and being contested by the Bank taking a stand that the said fact needs to be proved. Moreover, the Bank considered the facts and circumstances of the case and possibly, absence of any other claim being made by any other persons claiming to be the legal heirs of Sukdev Prasad Singh, had settled the terminal benefits in favour of the appellants as a model employer.
On such consideration, we dismiss the appeal and the application. However, there shall be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance of all requisite formalities.
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(Saugata Bhattacharyya, J.) (Soumen Sen, J.)