Calcutta High Court (Appellete Side)
Tara Devi & Ors vs Bank Of India & Ors on 5 September, 2019
Author: Amrita Sinha
Bench: Amrita Sinha
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Item. 05.09.2019 W.P. No. 10067 (W) of 2019
3
Ct 24.
Tara Devi & Ors. vs. Bank of India & Ors.
Mr. Kishore Mukherjee.
..For the petitioners.
Mr. R. N. Majumder,
Mr. Sourav Chakraborty.
..For the respondents.
The decision of the bank rejecting the prayer of the petitioner no. 2 for compassionate appointment is impugned in the instant writ petition.
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 attain 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 before 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 2 benefits. The petitioners filed a Suit before the learned Civil Judge (Junior Division), Alipore praying for a declaration of death of the employee.
The 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. 3
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.
It is the contention of the petitioners that though the presumed date of death of the employee was in the year 2007 the case of the petitioner No.2 was considered by the bank for giving compassionate appointment in the year 2019 and accordingly the scheme which was in vogue on the date of consideration of the prayer of the petitioner should be taken into account.
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.
The petitioners rely 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 4 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 when missing nor 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 rely 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 proving for compassionate appointment 5 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.
The bank prays for dismissal of the writ petition.
I have heard the submissions made on behalf of both the parties.
The issue which falls for consideration in the instant case is whether the petitioner will be entitled to get the benefit of the scheme which was in vogue at the time of consideration of the application for compassionate appointment or whether the scheme which was in vogue at the time of death of the deceased employee can be made applicable.
It has to be kept in mind that the issue relates to appointment on compassionate ground in respect of a missing employee.
It is settled law that compassionate appointment can never be a matter of right. It is a compassion that is shown to the members of the deceased family, for overcoming the financial crisis, faced by the family of the deceased, on the death of the bread earner. Compassionate appointment is given in accordance with a scheme.
In the case at hand, the application was made by the petitioner no. 1 for providing employment to the petitioner no. 2 on 14th April, 2014. Admittedly on the 6 said date there was no scheme for providing compassionate appointment to the dependents 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 7 compassionate appointment on 14th April, 2014 the petitioner no. 2 took no steps to 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 petitioner 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 dependents 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.
Here it is a case of a missing employee. 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 8 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 petitioners at such a delayed stage.
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 9 such a belated stage.
No relief can be granted to the petitioner in the instant case.
W.P No. 10067 (W) of 2019 is dismissed. There will be order as to costs.
Urgent certified photocopy of this order, if applied for, be supplied to the parties on compliance of usual legal formalities.
( Amrita Sinha, J. ) ``