Punjab-Haryana High Court
Haryana Vidyut Prasaran Nigam Limited ... vs Smt. Kelo Devi And Another on 7 November, 2012
Bench: A.K. Sikri, Rakesh Kumar Jain
LPA No. 1078 of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No. 1078 of 2012 (O&M)
Date of Decision : 7th November, 2012
Haryana Vidyut Prasaran Nigam Limited and others
...Appellants
Versus
Smt. Kelo Devi and another
...Respondents
CORAM: HON'BLE MR. JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR. JUSTICE RAKESH KUMAR JAIN
Present: Mr. Narender Hooda, Senior Advocate,
with Mr. P.S. Sullar, Advocate,
for the appellants.
Mr. Sandeep Parkash Chahar, Advocate,
for the respondents.
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A.K. SIKRI, C.J.
Taking note of the facts of this case, in the first instance, would bring into focus the controversy as well. Therefore, we proceed to state these facts which are also in narrow compass. The respondent No. 1 is the widow of Late Sh. Ram Kishan and the respondent No. 2 is his son. Sh. Ram Kishan was working with the appellant/Haryana Vidyut Prasaran Nigam Limited, who died in harness on 04.10.2005, while working on the post of Carrier Attendant. He was 50 years of age at that time. Vide order dated 03.01.2006, the appellants had granted an ex-gratia amount of Rs. 25,000/- as an immediate relief. Thereafter, however, vide letter dated 10.08.2006, the respondent No. 1 was informed that her LPA No. 1078 of 2012 (O&M) -2- request for appointment on compassionate basis cannot be considered as she was found ineligible being less educated and, therefore, her case had been listed with other cases to be considered for compassionate financial assistance and would be dealt in its turn. The State of Haryana has framed Rules known as 'Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2003' (hereinafter referred to as Rules, 2003) in exercise of powers conferred by the proviso to Article 309 of the Constitution of India to regulate the compassionate assistance by way of ex-gratia financial assistance or ex-gratia appointments on compassionate grounds to the members of the family of the deceased government employee who die while in service. The object of these Rules is to assist the family of the deceased employee in tiding over the emergency situations, resulting from the loss of bread-earner by giving one of the two following options:-
(i) Ex-gratia appointment on compassionate grounds to a member of the family who was 'completely dependent' on the deceased employee and is in extreme financial distress due to the loss of the deceased employee who dies in 'harness'.
(ii) Ex-gratia compassionate financial assistance to the family of the deceased over and above all other benefits like ex-gratia grants due to his family to be paid at the rate of Rs. 2.5 lacs, in cases where the family of the deceased does not opt for ex-gratia employment.
In 2006, the State has promulgated the LPA No. 1078 of 2012 (O&M) -3- 'Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006' (hereinafter referred to as Rules, 2006) which are enforced vide notification dated 01.08.2006.
Rules, 2006 have also been framed in exercise of powers conferred by proviso to Article 309 of the Constitution of India with the object to assist the family of the deceased/missing government employees of Groups C and D in tiding over the emergent situation, resulting from the loss of the bread-earner while in regular service by giving financial assistance. Rules 5 and 6 of these Rules are relevant for our purposes and, therefore, they are reproduced below:-
"(1) On the death of any government employee, the family of the employees would continue to receive as financial assistance a sum equal to the pay and other allowances that was last drawn by the deceased employee in the normal course without raising a specific claim:-
(a) For a period of fifteen years from the date of death of the employee, if the employee at the time of his death had not attained the age of thirty five years;
(b) For a period of twelve years or till the date the employee would have retired from government service on attaining the age of superannuation, whichever is less, if the employee at the time of his death had attained the age of thirty five years but had not attained the age of forty eight years;
(c) For a period of seven years or till the date the employee would have retired from government service on attaining the age of superannuation, whichever is less, if the employee had attained the age of forty eight years.
(2) The family shall be eligible to receive family pension as per the normal rules only after the period during which he receives the financial assistance as above is completed.LPA No. 1078 of 2012 (O&M) -4-
(3) The family of a deceased government employee who was in occupation of a government residence would continue to retain the residence on payment of normal rent/license fee for a period of one year from the date of death of the employee.
(4) Within fifteen days from the date of death of a government employee, an ex-gratia assistance of twenty five thousand rupees shall be provided to the family of the deceased employee to meet the immediate needs on the loss of the bread earner.
(5) House Rent Allowance shall not be a part of allowance for the purposes of calculation of assistance.
(6) All pending cases of ex-gratia assistance shall be covered under the new rules. The calculation of the period and payment shall be made to such cases from the date of notification of these rules. However, the families will have the option to opt for the lump sum ex-gratia grant provided in the Rules, 2003 or 2005, as the case may be, in lieu of the monthly financial assistance provided under the Haryana Compassionate Assistance to the Dependents of the Deceased Government Employees Rules, 2006."
The respondent No. 1 gave option for financial assistance under the aforesaid Rules in the prescribed form. Order dated 08.02.2007 was passed by the appellants granting compassionate financial assistance equal to the pay and other allowances that was last drawn by the deceased in normal course in favour of the respondent No. 1 w.e.f. 01.08.2006 to 04.10.2012. However, thereafter, the appellants passed order dated 29.02.2008 withdrawing the earlier order dated 08.02.2007 vide which financial assistance was given to the respondent No. 1 under Rules 2006 on the ground that the deceased had expired before Rules 2006 i.e. on 04.10.2005 when Rules 2003 were in force. Therefore, the case of the respondent LPA No. 1078 of 2012 (O&M) -5- No. 1 was to be considered under Rules 2003, as per which, she was entitled for grant of Rs. 2.5 lacs in lump sum. It was also directed that difference of amount of salary and family pension already paid be adjusted while making payment of Rs. 2.5 lacs.
In the meantime, the respondent No. 2, son of the deceased, had also made a request for appointment on compassionate grounds under Rules 2003 which request was rejected vide order dated 29.09.2008.
Challenging both these orders, the respondents filed the writ petition under Article 226/227 of the Constitution of India. The learned Single Judge has affirmed the order rejecting the request for appointment of the respondent No. 2 on ex-gratia basis which is not under challenge before us. Therefore, this part is not required to be considered. However, in so far as the order dated 29.02.2008 withdrawing the benefit given to the respondent No. 1 under Rules 2006 is concerned, that order is set aside by the learned Single Judge holding that the respondent No. 1 was entitled to the benefit of Rules 2006 by virtue of Rule 6 thereof which provides an option to her to be considered under Rules 2003 or Rules 2006.The reason for taking this view is contained in para 2 of the impugned judgement dated 29.02.2012, which is reproduced below:-
"On the basis the order passed already provided for a monthly payment was withdrawn and lump sum grant of Rs. 2.5 lacs was offered to be given and also deposited in the account directly. The petitioner would not want the lump sum assistance and says that under the 2006 rules themselves, there was an option under clause 6 which made possible to obtain LPA No. 1078 of 2012 (O&M) -6- assistance in the manner provided under 2006 rules or take a lump sum grant either under 2003 rules or 2005 rules as the case may be. If the rules are provided for such an option and the petitioner had actually exercised the option to receive the monthly payment on the basis of the last pay drawn, the instructions cannot over ride such a rule and direct but gives its applicability to be effective to persons who had died subsequently to 01.08.2006. Counsel for the respondent is fair to state that even the instructions dated 19.07.2007 were quashed by this Court. I do not have the details of the judgement but suffice it to hold that such an instruction cannot be issued against the express provisions under 2006 rules allowing for its applicability to all pending cases relating to compassionate assistance. The impugned order is quashed."
Challenging this part of the order, present intra-Court appeal is preferred by the appellants. As per the appellants, the case of the respondent No. 1 was to be governed by Rules 2003, which aspect was even clarified vide communication dated 19.07.2007, stipulating that Rules 2006 would be applicable only to persons who died after 01.08.2006 and for the persons who died earlier the lump sum payment as provided for the compassionate scheme under Rules 2003 alone was to be considered and paid. The entire case rests on the interpretation which is to be given to Rule 6 of Rules 2006.
Before we advert to this aspect, it would be imperative to take note of a Full Bench judgement of this Court in Krishna Kumari Vs State of Haryana and others alongwith bunch of writ petitions decided on 20.04.2012, the subject matter of which was these Rules, as the said judgement is relied upon by learned counsel for both the parties in support of their submissions.
The question of law which was referred to can be gauged LPA No. 1078 of 2012 (O&M) -7- from the reading of the opening paras of the judgement which are as under:-
"This order shall dispose of a bunch of writ petitions which have been preferred by various petitioners. However, the facts have been referred from CWP No. 4303 of 2009.
The question of law, which has been referred to this Full Bench for decision is as regards the rules which would be applicable to government employees who seek compassionate appointment whether it would be the rules in operation at the time of death of the employee or the rules applicable on the date when case is considered by the appropriate authority. In view of the conflicting views by various Division Benches, the case has been referred to the Full Bench."
From the aforesaid, it becomes clear that in so far as question of law referred to the Full Bench is concerned, it was identical to the question which was arisen before us. Interestingly, however, this question had arisen in completely reverse circumstances than those before us, which read as under:-
"Petitioner's husband, who had been working as Junior Engineer in Haryana Irrigation Department, expired on 23rd February, 1995. On 5th May, 1995, she moved an application to respondent department for providing employment on compassionate grounds to her only son namely, Manoj Kumar, who at that time was seven years old. A letter was thereafter addressed from the Superintending Engineer, Narnaul requesting that a post be kept reserved for the minor child of the widow in order to consider his case on attaining majority. In the year 2005, petitioner moved an application that her son be considered for appointment on compassionate ground as he had attained age of 17 years and was going to appear in B.A. final year examination. She relied upon letter, Annexure P-2 and instructions issued by government dated 27th March, 1991. However, application was rejected by the respondents vide their letter dated 18th August, 2006.LPA No. 1078 of 2012 (O&M) -8-
The petitioner protested and sent representations. However, stand of respondents remained the same. They communicated to the petitioner that there was no provision for employment under new policy dated 3rd August, 2006, thus petitioner was at liberty to opt for financial assistance under the new scheme which would be considered by the department."
Thus, that case pertained to claiming appointment on compassionate ground which provision was there in Rules 2003. Under this provision, application for appointment on compassionate ground was made in the year 2005. However, by the time this request was rejected on 18.08.2006, new policy as per Rules 2006 had come into force w.e.f. 03.08.2006, which provided for financial assistance. On this basis, on the application of new policy, request of the petitioner in that case was rejected.
The Court answered the question by holding that the policy prior to 2006 would be applicable when the deceased employee died. Reason given was that if the application for appointment was made on the basis of policy prevalent at that time which gave right to the dependent of the deceased employee to seek appointment on compassionate basis this right could not have been taken away merely because the application was kept pending for years and in the meantime new policy came into force. The argument of the petitioner that the policy on compassionate appointment being in a nature of the social welfare measure needed interpretation was accepted. The concluding portion of the said judgement reads as under:-
"In view of this clear enunciation of law we cannot but come to the conclusion that rules applicable on the date of death/incapacitation of an employee need LPA No. 1078 of 2012 (O&M) -9- to be followed. Needless to observe it is upto the authority to consider the application without inordinate delay and take a decision thereon. In the eventuality application remains pending for considerable period and some other policy comes into operation, no fault can be found on part of the employee. This appears to be the principle recognized by the apex court in its recent judgement in Bhawani Prasad Sonkar's case. As held therein, application for compassionate employment has to be preferred without undue delay and has to be considered within a reasonable period of time as compassionate appointment is to meet the sudden crisis on account of death or invalidation of the bread winner of the family. We, thus, come to the conclusion that in case an application is made by the dependent belatedly or is considered after inordinate delay, basic requirement of meeting the immediate crisis becomes redundant. Since the objective of the policy is to rescue the family from sudden event plunging it into penury, consideration of application after number of years would be beyond the principles accepted by the apex court in its various decisions. In such circumstances, it would be difficult to accept the exception to the general rule of employment as envisaged by Articles 14 and 16 of the Constitution of India. We answer the reference accordingly."
The answer was, thus, given taking note of the situation where a benefit available under the said scheme which was prevalent at the time of death was taken away by the promulgation of new scheme. The Court took the view that since such a benefit had accrued to the dependents of the deceased employee, namely, consideration of their cases for compassionate appointment, the dependents should not be deprived of this benefit because of the fault of the employer in keeping the application pending with coming into force the new policy.
Learned counsel for the appellants has strongly relied upon the aforesaid judgement to contend that in so far as the question of LPA No. 1078 of 2012 (O&M) -10- law is concerned, the same is answered by the Full Bench holding that Rules in operation at the time of death of the employee are to be made applicable and on this principle, Rules 2003 would be applicable in the instant case. Interestingly, however, in the present case, we are faced with a situation where by Rules 2006, better benefit is provided than prevalent in Rules 2003, in so far as financial assistance is concerned.
Thus, the Full Bench was faced with a situation, where benefit of compassionate appointment to the destitute family of the deceased which was available in Rules 2003 was taken away in Rules 2006 and the question was answered in that context holding that such a benefit could not be taken away by the new Rules in those cases where death took place before the incorporation of the new scheme. On the contrary, in the present case, we are concerned with compassionate financial assistance and provision in this aspect in Rules 2006 is more favourable than what was available in Rules 2003. In such circumstances, the applicability of the aforesaid judgement of the Full Bench in the present set of facts with altogether different question seems to be doubtful.
While interpreting the Rule in the aforesaid manner and distinguishing the judgement of the Full Bench to the present set of circumstances, we are guided by the law laid down by the Hon'ble Supreme Court in Oriental Insurance Co. Ltd. Vs Smt. Raj Kumari and others 2007 (13) SCALE 113. In the said case, well known proposition, namely, it is ratio of a case which is applicable LPA No. 1078 of 2012 (O&M) -11- and not what logically flows therefrom is enunciated in a lucid manner. We would like to quote the following observations therefrom:-
"10. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct," or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an, authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See: State of Orissa Vs Sudhansu Sekhar Misra and Ors. (1970) ILLJ 662 SC and Union of India and Ors. Vs Dhanwanti Devi and Ors. (1996) 6 SCC 44. A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn Vs Leathern (1901) AC 495 (H.L.), Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.
11. Courts should not place reliance on decisions without discussing as to how the factual situation fits LPA No. 1078 of 2012 (O&M) -12- in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton 1951 AC 737 Lord Mac Dermot observed:
The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
In this case, the Hon'ble Supreme Court also highlighted that one additional different fact may result in different outcome. It is clear from the following observations therein:-
"13. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
14. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.LPA No. 1078 of 2012 (O&M) -13-
Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
The aforesaid principle was reiterated in Government of Karnataka and others Vs Smt. Gowramma and others 2007(14) SCALE 613, wherein, the Court observed as under:-
"10. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. Vs Horton 1951 AC 737, Lord Mac Dermot observed:
The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
Still normally, following the aforesaid Full Bench judgement, we could hold that Rules 2003 would be applicable which were prevalent at the time of death of the husband of the respondent No. 1. However, in Rules 2006, a provision is made, which changes the entire complexion of the case. It is Rule 6 thereof LPA No. 1078 of 2012 (O&M) -14- which gives option to the family of the deceased and has already been reproduced above. This Rule 6 is framed keeping in view the provision of financial assistance in mind. It states that two cases of ex-gratia assistance would be covered under the new Rules. Moreover, option is given to the families to opt for the lump sum ex- gratia provided in Rules 2003 or 2005, as the case may be, in lieu of monthly financial assistance provided under Rules 2006. The objective of this Rule can be summarized by observing that the intention of the government was to provide monthly financial assistance, as per Rules 2006, instead of lump sum amount of Rs. 2.5 lacs under Rules 2003. The scheme of 2006 provides, as per Clause 5, this monthly financial assistance for a period of 15 years from the date of death of an employee to a sum equal to the pay and other allowances that was last drawn by the deceased employee, if the deceased had not attained the age of 35 years; for a period of 12 years if the employee had attained the age of 35 years but had not attained the age of 48 years; and for a period of 7 years if the deceased had attained the age of 48 years.
Alternatively, whether the family of such a deceased employee wants lump sum ex-gratia under the old Rule or monthly financial assistance under Rules 2006, the option for that purpose is given to the family. If the judgement of the Full Bench is read in the context of financial assistance as well (though that judgement was given in the context of compassionate appointment), it would amount to annihilating Rule 6 altogether. Therefore, the ratio of the Full LPA No. 1078 of 2012 (O&M) -15- Bench judgement is to be limited to the cases of compassionate appointment and it cannot be read in the context of ex-gratia financial assistance which was not the subject matter before the Full Bench. Extending that principle here would not only lead to illogical results, but will be contrary to the expressed provision contained in Rule 6. Furthermore, the spirit behind the Full Bench judgement was to construe a provision which is favourable to such persons, scheme being benevolent in nature.
Going by these considerations and particularly having regard to the plain language of Rule 6 of Rules 2006, when we find that option was given to the respondent No. 1 and she exercised her option to be covered by Rules 2006 and on that basis the appellants had even passed the order dated 08.02.2007 granting her the benefits in terms of Clause 5 of Rules 2006 which she was enjoying, such a benefit cannot be taken away by recalling that order. Learned Single Judge, therefore, rightly set aside orders dated 29.02.2008. We, thus, do not find any merit in the present appeal which is accordingly dismissed with costs quantified at Rs. 10,000/-.
(A.K. SIKRI) CHIEF JUSTICE (RAKESH KUMAR JAIN) JUDGE 7th November, 2012 Amodh