Karnataka High Court
Vijaya Bank vs Smt. T.D. Jayamma And Anr. on 12 August, 2003
Equivalent citations: (2004)ILLJ706KANT, 2003 LAB. I. C. 3236, 2003 AIR - KANT. H. C. R. 2590, (2004) 100 FACLR 75, (2004) 1 LABLJ 706, (2003) 103 FJR 1048
Author: K. Bhakthavatsala
Bench: K. Bhakthavatsala
JUDGMENT Kumar Rajaratnam, J.
1. The Vijaya Bank, Bangalore, being aggrieved by the order of the learned single Judge dated March 3, 2000, in Writ Petition No. 1963 of 2000 has preferred this appeal.
The facts, as set out by the bank in the grounds of appeal, read as follows:
"Smt. Jayamma, respondent herein on the death of her husband who was working in the appellant-bank, applied to the bank seeking her appointment on compassionate grounds in the bank. Since disciplinary proceedings had been initiated against the deceased employee of the bank, i.e., the husband of Smt. Jayamma, the bank referred the matter to the Government for approval of appointment of the respondent on compassionate grounds as per the Scheme formulated by the bank for appointment of the dependants of the deceased employee on compassionate grounds.
The Central Government did not approve the appointment of the respondent on compassionate grounds. Therefore, the bank, vide its letter dated March 25, 1998 (as per annexure K), communicated to the respondent that her request for appointment on compassionate grounds has not been considered by the Ministry of Finance and the recommendation of the appellant-bank was rejected."
2. In effect, what is under challenge before this Court is the non-approval by the Central Government of the appointment of the first respondent on compassionate grounds. The learned single judge allowed the Writ Petition and directed the bank to give an appointment to the first respondent, the wife of the deceased on compassionate grounds on the recommendation made by the bank.
3. Before we deal with the vexed question as to whether the bank can file this appeal, it is necessary to extract the reasons of the bank for making a reference to the Central Government:
Reasons for Reference to Government/ Deviation Involved from the Scheme "In terms of the Government guidelines, in cases where disciplinary proceedings were pending/contemplated at the time of death of the employee or the employee was proceeded against before death, the bank is required to refer all such cases to the Government with full details, namely, nature of misconduct of causing loss to the bank, punishment awarded/proposed to be awarded/usually warranted for such misconduct, etc., and only with the approval of the Government, compassionate appointment can be provided to the dependants of such deceased employees. Further, banks are advised not to decide such cases on their own despite the fact that all the usual conditions for such appointments are satisfied.
In the instant case, the deceased employee was charge-sheeted, vide charge-sheet No. PER/3453/85, dated October 24, 1985, for (1) riotous and disorderly behaviour in the premises of the bank; (2) physically pushing the D.M. and threatening him that if he loses his job he would murder him; and (3) unlawfully detaining D.M. inside his cabin. The employee was punished on November 20, 1985, by imposing the punishment of stoppage of one increment temporarily for a period of one year. Further, he was suspended from the services of the bank as per Order No. PER/IRD/590/96, dated March 19, 1996, for committing irregularities in loan portfolio during his tenure as acting B.M. at the bank's branch at Changadihalli. The financial loss of Rs. 2, 280 on account of the above irregularities is yet to be recovered."
The appellant-bank, after setting out the reasons as to why reference was required to be made to the Central Government and also after making a reference with respect to the disciplinary proceedings against the deceased, gave strong reasons as to why the wife of the deceased should be appointed on compassionate basis. We extract below the reasons of the bank for recommending the case of the first respondent:
Reasons for Recommending Proposal The family consists of the wife of the deceased and two daughters. The family is not eligible for pension and they have no other source of income. Hence, the condition of the family is indigent and in great distress. The proposed employment to the applicant will help the family to face the financial crisis being faced by them at this juncture.
Cadre to which appointment is proposed:
Clerical cadre.
The level at which the proposal has been approved:
Chairman and Managing Director.
Any other information the bank proposed to furnish:
Nil.
The financial background of the deceased is also set out in the recommendation to the Central Government. We feel this also has some bearing in this appeal and we extract the financial position of the family as set out by the bank in their recommendation dated March 25, 1998.
Financial position of the family:
The family was entirely dependent on the deceased. With the demise of the only earning member in the family, they are left with no source of income. As the deceased had not opted for pension, they are not eligible for the family pension also. Though the family had received/is eligible to receive a total sum of Rs. 2.85 lakhs as service benefits, compensation under the contributory family welfare scheme, they had an outstanding liability of Rs. 4.89 lakhs towards bank loans and hand loans. It is informed that the family has a share in the landed property of the joint family of late P. C. Jagathpal, worth about Rs. 0.09 lakh. Even though Rs. 1 lakh was the total assured sum in two LIC policies against which it is informed that a loan of Rs. 0.50 lakh had been availed of, LIC has rejected her claim for the reason that material information regarding his health was withheld by her late husband while taking the policy. As such, nothing will be left out of service benefits for the family for their use. Further, the family will be still in debt after the adjustment of service benefits. There are three members in the family including two minor children who are still studying. As there is no source of income for the family, the condition of the family is indigent and in great distress.
4. In spite of such a strong recommendation made by the appellant-bank, a communication was received from the Ministry of Finance stating that the wife of the deceased cannot be considered for appointment on compassionate grounds. Annexure K is the communication from the bank, which is impugned in the writ petition. Annexure K reads thus:
"This has reference to your letter dated September 16, 1997, on the above matter.
We regret to inform you that your request for appointment in the services of the bank under compassionate grounds has not been considered by the Ministry of Finance."
5. We had occasion to peruse the order of the second respondent herein (Central Government) which rejected the recommendation of the bank for compassionate appointment. The Central Government in a cryptic etter addressed to the bank dated March 19, 1998, expressed its inability to agree to the proposal of the bank for the appointment of the respondent in the clerical cadre on compassionate grounds. The contents of the letter dated March 19, 1998, addressed by the Central Government to the bank were communicated to the respondent vide a letter dated March 25, 1998 (annexure K). The letter of the Central Government on the basis of which annexure K was passed reads as follows:
"I am directed to refer to your letter No. PER: HRD : RCT : F-627 :A 11478: 97, dated December 11, 1997, on the above-mentioned subject and to say that the matter has been examined. The Government regrets its inability to agree to the proposal of the bank for appointment of Smt. T. D. Jayamma in the clerical cadre on compassionate grounds."
6. In other words, what was challenged in the writ petition was the rejection by the Central Government of the recommendation by the appellant-bank for appointment on compassionate grounds. The bank in its letter dated March 25, 1998, merely communicated the wishes of the Central Government and no more. The appellant-bank was helpless in the matter since it had already taken a decision to appoint the respondent on compassionate grounds and that recommendation was shot down by the Central Government. The bank had no role to play in denying the respondent the appointment on compassionate grounds. On the contrary, the bank had as stated earlier, strongly recommended the case of the respondent for appointment on compassionate grounds.
The bank in its recommendation to the Central Government, dated December 11, 1997, has stated that the family of the deceased consists of the wife find two daughters. The family is not eligible for pension and they have no source of income. Hence the condition of the family is indigent and in great distress. The proposal of employment to the applicant will help the family to face the financial crisis being faced by them at this juncture.
In the column "financial position of the family", the bank has stated that nothing will be left out of the service benefits of the deceased for the family for their use. It was further stated that the family will still be in debt after the adjustment of service benefits. The report added that there are three members in the family including two minor children who are still studying. There is no source of income for the family. The condition of the family is indigent and in great distress.
(emphasis by Court)
7. The recommendation stated that the bank as per the Scheme, had to bring to the notice of the Central Government if there was any disciplinary proceedings pending against the deceased. It is only for this reason, the bank sought the clearance of the Central Government.
8. Therefore, in the light of the strong recommendation made by the bank, the bank could not have had any grievance against the order of the learned single Judge since it fully supported the case of the first respondent for compassionate appointment
9. Learned counsel for the second respondent-Central Government was specifically asked as to what was the stand of the second respondent in the writ appeal. Learned counsel graciously and magnanimously submitted that in the facts of this case, the Central Government if aggrieved would have preferred an appeal. Since the Central Government did not file an appeal, it was to be understood that in the facts and circumstances of this case and in the light of the strong recommendation of the bank, which culminated in the order of the learned single judge, that pronouncement would be final and binding on the parties. This is how we understood the reason for the Central Government in not filing the appeal.
10. No doubt, there are cases where even if you are not an aggrieved party, it is permissible to file an appeal provided such recommendation was by mistake of fact or contrary to law. In this case, the recommendation is neither a mistake of fact nor a mistake of law. The recommendation of the bank is strong and without reservation and within a scheme and by no stretch of imagination such recommendation could be called illegal or contrary to law.
11. The learned single Judge relied on an unreported judgment of this Court in V. Y. Ramesh v. State Bank of Mysore in W.P. No. 21622 of 1999, dated January 14, 2000. The said judgment was extracted in his order by the learned single Judge. This Court in Ramesh's case held that any disciplinary proceedings pending against the deceased cannot be a ground for denying the legal heir appointment on compassionate grounds. Perhaps, the Court took the view that the proceedings abated as against the deceased and, therefore, such proceedings which have abated should not come in the way of the wife of the deceased getting appointment on compassionate grounds, if otherwise found suitable. The Court in Ramesh's case understood the meaning of compassionate appointment as compassionate appointment and no more.
With regard to the other question as to whether the Court can direct the bank to appoint a legal heir on compassionate grounds or only issue a mandamus to direct the bank to consider the case of the petitioner was dealt with by the learned single Judge at paragraph 3 of his order:
"Having heard learned counsel appearing for the petitioner and the first respondent-bank, I am of the view the petitioner is entitled for the relief sought for by him in this petition. There is no dispute that but for the fact that the father of the petitioner was facing disciplinary proceedings, the petitioner would be eligible for being considered for appointment in the first respondent-bank on compassionate grounds. The only ground on which the appointment is denied to the petitioner is that the second respondent did not approve the recommendation made by the first respondent on the ground that disciplinary proceedings were pending against the father of the petitioner. In my view, the stand taken by the respondent cannot be justified. The scheme framed by the first respondent-bank does not prevent the first respondent-bank to appoint the legal heir of the deceased employee of the bank on the ground that the disciplinary proceedings were pending against the deceased employee on the date of his death. The only circumstance under which the compassionate appointment can be denied to the legal heir of the deceased employees is when the deceased employee had suffered a major penalty. Admittedly, there was no penalty imposed on the father of the petitioner at any time before his death. Under these circumstances, in my view, on the reading of the scheme itself, the petitioner cannot be denied his claim to be appointed on compassionate ground. Even the guidelines laid down by the second respondent does not prevent the respondents from appointing the legal heir of the deceased employee of the bank in cases where disciplinary proceedings were pending on the date of the deceased employee of the bank. The guidelines relied upon by Sri Narasimhan only states that before appointment, approval of the second respondent should be obtained. Admittedly, the first respondent has recommended the case of the petitioner for being appointed as a clerk in the first respondent-bank. Under these circumstances, in my view, it was not permissible for the second respondent to refuse to accord approval for appointment of the petitioner in the first respondent-bank. It is also not the case of the second respondent that the petitioner is not suitable to be appointed in the bank in view of public interest and interest of the administration. It is not permissible for the second respondent to arbitrarily reject the recommendation made by the first respondent for appointment of the petitioner. It is well settled that the action of the second respondent must be fair and reasonable. When the scheme framed for appointment permits the appointment of the petitioner within the norms laid down by the scheme and on that basis recommendation was made by the first respondent, the second respondent cannot reject such a recommendation. The action of the second respondent in not approving the recommendation made by the first respondent for appointment of the petitioner, in the facts and circumstances of the case, must be termed as highly arbitrary, unreasonable and violative of the right guaranteed to the petitioner under Article 14 of the Constitution of India. In my view, I am also supported by the decision of this Court in the case of Saroja Shivakumar v. State Bank of Mysore 1996 (90) FIR 226, M.F. SALDANHA J. under similar circumstances has taken the view I have taken above. It is useful to extract of the said judgment, which reads as follows:
"The last question that arises is as to whether the bank was justified in having refused to consider the application for compassionate employment. It is in regard to this area as also the earlier ones that I am constrained to observe that this Court most unequivocally point out to public institutions that it is essential that the officers taking these decisions should function like human beings and not like a bunch of zombies. One cannot lose sight of the traumatic position in which the family and dependents are left behind, particularly having regard to the sad facts of this case where Shivakumar was eclipsed by serious ailments for a long period of time, where his family had to incur heavy debts and where he ultimately died of cancer. It is in this back-ground that it is most unfortunate that, the bank refused to consider the request at the point of time when the family most needed the assistance, the demand for the payment of the terminal dues and where technical and unsustainable contentions were taken up and where the request for compassionate employment to the son, who was only asking for the job of clerk, was arbitrarily denied. The justification put forward is wholly and totally hopeless. The defence taken is under the guise of a certain letter from the Under Secretary, Government of India, Ministry of Finance, dated February 20, 1991, that the scheme for appointment on compassionate grounds which has been promulgated by the State Bank of India and holds good for this institution also, stands virtually amended or abridged. It is contended that the bank was required in misconduct cases to make a back reference to the Government of India by virtue of this letter. I refuse to accept this for the simple reason that no such back reference was made nor was this communicated to the petitioner but in fact the request for compassionate employment was straight-away turned own. I need to examine whether the bank was justified in its reasoning that if Shivakumar by virtue of the disciplinary proceedings which may have been inconclusive but which was pending against him was relegated to the position of a tainted employee and, therefore, his son was disqualified from asking for compassionate employment is sustainable. One needs to take cognizance of the fact that I have already held that the charges were never proved and that the correct position in law as far as such situation where the enquiry has abated is that it will have to be ignored. Under these circumstances, such categorisation of Shivakumar was not permissible. There is an additional reason for this in so far as it needs to be pointed out that misconduct is something absolutely personal and it is for this reason that the consequences of misconduct, namely, punishment, can be visited only on the employee. This is a unique situation in which the respondents contend that the misdeeds of the father can be visited on the son. In the first instance, misdeeds were never established but more importantly, there can be no question of transfer or vicarious liability in these circumstances and, therefore, it was wholly impermissible for the bank to have taken these circumstances into consideration. As regards the defence that a back reference had to be made to the Government of India by virtue of the letter dated February 20, 1991, the petitioner's learned advocate has pointed out to me that these are autonomous institutions and that the scheme in question has been framed in exercise of the statutory powers and that it is not open to the Government of India to amend or abridge the scheme and that too through a mere letter from the Under Secretary. The learned advocate is fully justified in the submission and I need to hold that even if the bank officers were under the impression that this letter precluded them from giving employment to the petitioner's son that they were wrong in coming to such a conclusion. It is not as though the bank has refused compassionate employment because of this letter because that defence is downright false. Had that, been so, the bank would have replied to the petitioner that the matter had been referred to the Government of India and the reply is awaited but this was not the reply, which was received. It is precisely because of this attitude displayed by the bank in having raised frivolous and unsustainable objections in having refused to settle the terminal dues and in having refused to assist by considering the application for compassionate employment, that this Court has been required to lay down in the course of this judgment the principle that apart from the duty to act fairly, it is equally necessary for these institutions to act humanely while deciding cases."
The Court, therefore, in Ramesh's case, W.P. No. 21622 of 1999, dated January 14, 2000, held that in appropriate cases, it is permissible for the Court in exercise of its jurisdiction under Article 226 of the Constitution of India to give a positive direction instead of remitting the matter for a fresh consideration to the authority concerned. Ultimately, the learned single Judge, after making a reference to Ramesh's case, held that in appropriate cases, it is permissible for this Court in exercise of its jurisdiction under Article 226 of the Constitution of India to give a positive direction instead of remitting the matter for a fresh consideration to the authority concerned.
12. The learned single Judge concluded that the bank had already recommended the respondent to be appointed on compassionate grounds and in the circumstances, directed the bank to appoint the respondent on compassionate basis, if otherwise found suitable.
13. We have dealt with the order of the learned single Judge in some detail only to emphasise the fact that the bank was not really the aggrieved party even before the learned single Judge and more so, before us. That is why, we sought for the assistance of the senior counsel for the Central Government. Counsel for the Central Government fairly submitted, as stated earlier, that if the Central Government was aggrieved by the order of the learned single Judge, in the facts and circumstances of this case, the Central Government would have preferred an appeal. The inference of the submission is that the Central Government was not aggrieved by the order of the learned single judge. We feel that the submission of the Central Government counsel, in the facts and circumstances of this case, was in conformity with the principles of natural justice, equity and compassion.
14. We have observed earlier that the bank in its recommendation stated that the first respondent has two minor children who are still studying and there is no source of income for the family and the condition of the family is indigent and in great distress. It was also stated by the bank that the proposed employment to the wife of the deceased will help the family to face the financial crisis being faced by them at this juncture. The family is not entitled to pension and they have no other source of income.
These are not our words but the words of the bank as found in the recommendation to the Central Government.
15. Can the bank, in these circumstances and in the facts and circumstances of this case, be held to be an aggrieved party in this appeal. A Division Bench of this Court in an unreported judgment dated May 26, 2000, in W.A. No. 1297 of 2000 pronounced as follows:
"The appellant-bank has recommended, as already stated above, the appointment of the first respondent, but the approval has not been given effect to by the second respondent only on the ground that disciplinary proceedings were pending against the father of the first respondent. The, scheme of the appellant-bank does not prevent the appellant-bank to appoint the legal representatives of the deceased employee on compassionate grounds, on the ground of disciplinary proceedings pending against the deceased as on the date of death. Admittedly, the deceased employee has not suffered any major penalty which would come in the way of such appointment. The guidelines framed by the second respondent also did not put an embargo on such appointment on compassionate grounds when disciplinary proceedings were pending as on the date of death of the employee. The only requirement for the appointment of the first respondent by the appellant-bank is the approval of the second respondent. On a perusal of the letter of the second respondent, it did not even mention the grounds on which the proposal of the bank recommending the appointment of the first respondent was rejected. The learned single Judge has rightly come to the conclusion that the second respondent could not arbitrarily reject the recommendation of the appellant-bank. Viewed from any angle there are no reasons to interfere with the order of the learned single Judge. Hence, the appeal is dismissed."
16. We have not been able to lay our hands on any pronouncement of the Supreme Court on identical facts on the question as to who is an aggrieved party. Undoubtedly, it will depend on the facts and circumstances of each case. There can be no hard and fast rule in these matters. However, the Supreme Court in the case of Dr. Duryodhan Sahu v. Jitendra Kumar Mishra dealt with a case in service law with respect to a public interest litigation under the provisions of the Administrative Tribunals Act, 1985. The Supreme Court in the said case pronounced as follows at p. 1019 of LLJ:
"16. In Thammanna v. K. Veera Reddy , it was held that although the meaning of the expression 'person aggrieved' may vary according to the context of the statute and the facts of the, case, nevertheless normally, a person aggrieved must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something.
17. In Jasbhai Motibhai Desai v. Roshan Kumar , the Court held that the expression 'aggrieved person' denotes an elastic, and to an extent, an elusive concept. The Court observed:
'It cannot be confined within the bounds of a rigid, exact, and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him".
17. We feel that the bank having made such a strong recommendation for appointment of the respondent on genuine compassionate grounds cannot be an aggrieved party since the judgment of the learned single Judge, out of which the present appeal arises, was based on the reasoning given by the bank for appointing the respondent on compassionate basis. In that view of the matter, we are not inclined to interfere with the order of the learned single Judge.
It is brought to our notice that the respondent by virtue of an interim order of this Court has already been working in the bank for the last two and a half years. The interim order dated April 17, 2001 reads as follows:
"Admit.
We are not inclined to grant stay of the operation of the learned single judge's order having regard to the facts and circumstances of this case, especially in view of the recommendation made by the appellant-bank itself. The application for interim relief is dismissed.
Appointment to be provisionally made subject to the result of the writ appeal."
18. Taking into account the plight of the first respondent wife, it would be a shame for the bank to throw her with her two minor children to the wolves.
19. In the facts and circumstances of this case, we do not see any merit in this appeal. The writ appeal is dismissed. No order as to costs.