Allahabad High Court
Punjab National Bank ( S/S 687/2005 ) vs Sri Deepak Pandey on 21 November, 2013
Author: Ritu Raj Awasthi
Bench: Ritu Raj Awasthi
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH, LUCKNOW ************* Chief Justice's Court Reportable Case :- SPECIAL APPEAL No. - 867 of 2006 Appellant :- Punjab National Bank ( S/S 687/2005 ) Respondent :- Sri Deepak Pandey Counsel for Appellant :- Sharad Bhatnagar,D.P.S. Chauhan,Dr. Sheelendra Kumar Counsel for Respondent :- K.D. Nag Hon'ble Dr. Dhananjaya Y. Chandrachud, Chief Justice Hon'ble Ritu Raj Awasthi,J.
This appeal arises from a judgment of the learned Single Judge dated 28th October, 2006 by which a petition for the grant of compassionate appointment was allowed and a mandamus was issued to the appellant to consider the case of the respondent for giving compassionate appointment in the Bank. The learned Single Judge, following the judgment of the Supreme Court in Govind Prakash Verma Vs. Life Insurance Corporation of India and Others1 held that compassionate appointment is over and above what is admissible to the legal representatives of a deceased employee as terminal benefits and hence the receipt of terminal benefits will not come in the way of the grant of compassionate appointment.
In the present case, the deceased employee Daya Shankar Pandey was working in the post of Cashier-cum-Clerk in the Punjab National Bank and died in harness on 10th November, 2002. The respondent is the son of the deceased employee. The mother of the respondent submitted an application on 29th November, 2002 to the Senior Manager of the Bank at Unnao seeking compassionate appointment to her son, the respondent. By a letter dated 27th March, 2004 the request for compassionate appointment was rejected on the ground that the deceased had left a residential house and his widow was in receipt of family pension. Subsequently, a representation was submitted by the respondent on 6th February, 2005 which was considered by the Bank. By a letter dated 9th May, 2005, the request for compassionate appointment was rejected. In so far as is material, the order of rejection provides as follows:
"a) The object of the scheme was to consider the compassionate employment to the dependent of an employee dying in harness leaving his family without livelihood. Mere death of an employee in harness would not, however, entitle his dependents to such employment. The Bank will consider compassionate employment in such cases where it is satisfied that the financial condition of the family of deceased employee is such that but for provision for employment to his dependent the family will not be able to meet crisis at the time of death of such employee.
b) In terms of the Scheme, the financial condition of the family of the deceased employee is examined as per the following parameters specified in Para 10:
I.Family Pension II.Gratuity amount received III.Employee's/Employer's contribution to PF IV.Any compensation paid by bank/or its Welfare fund V.Proceeds of LIC policy and other investments of the deceased employee VI.Income of the family from other sources VII.Employment of other family members VIII.Size of the family and other liabilities, if any, etc. The Board of Directors of the bank had approved the above stated scheme which was based upon the guidelines circulated by Indian banks' association to all public sector banks which in turn are based upon law laid down by Hon'ble Supreme Court in the case of Umesh Kumar Nagpal Vs. State of Haryana
c) In the instant case the deceased employee has left behind a family of 3 members i.e. his widow and two qualified sons who are residing in their own residential accommodation. The family is also receiving family pension of Rs. 4807/- p.m. from the bank as against net take home salary of Rs. 2007/- pm. There is no material change in the financial condition of the family after the death of Sh. Pandey that the family cannot tide over the sudden crisis and there are no indigent circumstances necessitating employment to Sh. Deepak Pandey.
d) As regards the cases relied upon by the petitioner, in the case of Balbir Kaur Hon'ble Supreme Court had held that retiral benefits including pension drawn by the family of deceased employee cannot be a ground to deny compassionate appointment in the case of one Sh. Ashwini Taneja. On a SLP filed by the bank against the said order, Hon'ble Supreme Court upheld the view of the bank vide order dated 16.8.2004 that the retiral benefits are to be considered while considering applications for compassionate appointment for the reasons that the Scheme of the Bank categorically provides for the same."
The respondent filed a petition under Article 226 of the Constitution. The learned Single Judge by the order which is impugned in these proceedings held that in view of the judgment of the Supreme Court in Govind Prakash Verma (supra) the amount which was paid by way of pension to the widow of the deceased is wholly irrelevant to the grant of compassionate appointment since the scheme governing such appointment is over and above what is admissible to the legal representatives of a deceased employee as a benefit of service which is granted on the death of the employee hence the learned Single Judge held that compassionate appointment cannot be refused on the ground that any member of his family has received amounts payable under the Rules by way of terminal benefits. With these observations, the proceedings were remitted back to the Bank for reconsideration of the request for compassionate appointment.
Learned counsel appearing on behalf of the appellant submits that (i) the scheme for compassionate appointment which held the field at the relevant time was that dated 29th March 1997 under which, the Bank was required to consider the means of livelihood of the family including family pension, gratuity, contribution to PF, LIC benefits, income from other sources, employment of family members and the size of the family and its liability; (ii) the judgment of the Supreme Court in Govind Prakash Verma's case has subsequently been considered and it has been held that the terminal benefits would necessarily have to be taken into account having due regard to the scheme for considering the request for compassionate appointment; and (iii) in the present case, a reasoned order has been passed dealing with all aspects of the matter on 9th May, 2005 and the learned Single Judge had acted in excess of the jurisdiction by directing the claim for compassionate appointment to be considered without taking into account the terminal dues which were payable to the deceased. On the contrary, the petition ought to have been rejected.
On the other hand, it has been submitted on behalf of the respondent that (i) the learned Single Judge has followed the judgment of the Supreme Court in Govind Prakash Verma's case which holds the field and hence no interference is warranted; and (ii) in any event there was no reason or justification to deny compassionate appointment.
The rival submissions fall for consideration.
Before this Court, it is not in dispute that the application for compassionate appointment, following the death of the deceased employee on 10th November, 2002, was governed by a scheme adopted by the Punjab National Bank on 20th March, 1997. The scheme lays down the object and purpose of the grant of compassionate appointment as follows:
"The object of the Scheme is to consider compassionate employment to the dependent of an employee dying in harness leaving his family without any means of livelihood. Mere death of an employee in harness would not entitle his dependents to such employment. Bank will consider compassionate employment only in such cases where it is satisfied that the financial condition of the family of the deceased employee is such that but for the provision of employment to his dependent, the family will not be able to meet the crisis it faces at the time of death of the said employee."
Among other things, clause 10 of the scheme mandates that the financial condition of the family should be taken into account. Clause 10 is as follows:
"10. Financial Condition of the Family: The dependents of an employee dying in harness may be considered for compassionate appointment provided the family is without sufficient means of livelihood, specifically keeping in view the following:
a) Family Pension
b) Gratuity amount received
c) Employee's/Employer's contribution to PF
d) Any compensation paid by bank/or its Welfare fund
e) Proceeds of LIC policy and other investments of the deceased employee
f) Income of the family from other sources
g) Employment of other family members
h) Size of the family and other liabilities, if any, etc."
The learned Single Judge has clearly missed, in issuing the impugned directions, the basic purpose of the scheme and the governing requirements stipulated in clause 10. The object of a scheme of compassionate appointment is to provide relief "only in such cases" where the financial condition of the family of the deceased employe is such that but for the provision of employment to his dependent the family will not be able to meet the crises it faces at the time of death. Under clause 10 what is required to be borne in mind is whether the family of the deceased employee is without sufficient means of livelihood. For that purpose clause 10 mandates that the family pension, gratuity, contribution to PF, compensation paid from the Welfare fund, proceeds of LIC policy, income from other sources, employment of other family members and the size of the family and the liabilities, if any, have to be considered. Hence reading the scheme as it stands, it is evident that the view of the learned Single Judge is in the teeth of the provisions of the scheme. There is no vested right to compassionate appointment. A dependent of a deceased employee who claims to be considered for appointment must fall within the parameters which are specified in the scheme. Once the scheme mandates that the entirety of the financial position including receipt of the terminal benefits has to be considered, it must be so construed. The learned Single Judge was not justified in holding that the terminal benefits were irrelevant to the question as to whether compassionate appointment should be granted. The learned Judge took the view that terminal benefits are over and above the right of an employee who seeks compassionate appointment upon death of the employee. This view of the learned Single Judge, with respect, is an erroneous appreciation of law because the whole purpose of compassionate appointment is to enable the family of the deceased employee to seek recourse to compassionate appointment to tide over the financial crisis that results from the death of the employee. In computing the financial means, the Bank has framed a scheme which requires all income to be taken into account including the terminal benefits. The scheme must, therefore, be applied when a request for compassionate appointment is being considered.
Now, it would be necessary to advert to the judgment in Govind Prakash Verma's case. In that case, a Bench of two learned Judges of the Supreme Court held as follows:
"6. In our view, it was wholly irrelevant for the departmental authorities and the learned Single Judge to take into consideration the amount which was being paid as family pension to the widow of the deceased (which amount, according to the appellant, has now been reduced to half) and other amounts paid on account of terminal benefits under the Rules. The scheme of compassionate appointment is over and above whatever is admissible to the legal representatives of the deceased employee as benefits of service which one gets on the death of the employee. Therefore, compassionate appointment cannot be refused on the ground that any member of the family received the amounts admissible under the Rules."
The judgment in Govind Prakash Verma's case was preceded by a judgment of a Bench of two learned Judges in General Manager (D&PB) and Others Vs. Kunti Tiwary and Another2. In that case, compassionate appointment was refused by the Bank taking into account the overall financial position including family pension received by the widow of the deceased employee. The learned Single Judge of the High Court dismissed the petition seeking compassionate appointment. The Division Bench had allowed the appeal. The Supreme Court while restoring the judgment of the learned Single Judge dismissing the petition observed as follows:
"9. On the basis of criteria as recommended by the Indian Banks' Association and adopted by the appellant Bank, it could be said that the family of the late K.N. Tiwary had been left in "penury" or "without any means of livelihood". The particulars of their income have been noted in their application and it certainly could not be said on the basis thereof that the respondents were living hand to mouth. The Division Bench erred in diluting this criteria of penury to one of "not very well-to-do"."
The decision in Punjab National Bank and Others Vs. Ashwini Kumar Taneja3 also involved a case where the High Court had directed that the terminal benefits payable to the heirs of the deceased employee should not be taken into consideration. Holding that the view of the High Court was contrary to the judgment in Kunti Tiwari's case, the Supreme Court held as follows:
"9. One other thing which needs to be considered is whether the retiral benefits are to be taken into consideration while dealing with prayer for compassionate appointment. The High Court was of the view that the same was not to be taken into consideration. The view is contrary to what has been held recently in G.M. (D&PB) v. Kunti Tiwary. It was categorically held that the amounts have to be taken into consideration."
In the decision of the Supreme Court in Mumtaz Yunus Mulani (Smt.) Vs. State of Maharashtra and Others4 the judgment in Govind Prakash Verma's case was duly considered. The Supreme Court noted that retiral benefits should be taken note of in considering an application for compassionate appointment and, the decision in Govind Prakash Verma had not taken notice of the earlier binding precedents of the Supreme Court.
In a more recent judgment in Union of India & Anr. Vs. Shashank Goswami & Anr.5 all the earlier judgments have been noted including the judgment in Govind Prakash Verma. The Supreme Court held that having regard to the scheme involved in that case the retiral and terminal benefits were required to be considered and since the scheme laid down a cap or limit, an application for compassionate appointment was not eligible in respect of a Group 'C' post.
The standard for judicial review has been reiterated in a decision of the Supreme Court in Union Bank of India and Others Vs. M.T. Lateesh6 where the Supreme Court held as follows:
"37. It is also settled law that the specially constituted authorities in the rules or regulations like the competent authority in this case are better equipped to decide the cases on facts of the case and their objective finding arrived on the appreciation of the full facts should not be disturbed. Learned Single Judge and the Division Bench by directing appointment has fettered the discretion of the appointing and selecting authorities. The Bank had considered the application of the respondent in terms of the statutory scheme framed by the Bank for such appointment. After that even though the Bank found the respondent ineligible for appointment to its service, the High Court has found him eligible and has ordered his appointment. This is against the law laid down by this court. It is settled law that the principles regarding compassionate appointment that compassionate appointment being an exception to the general rule the appointment has to be exercised only in warranting situations and circumstances existing in granting appointment and guiding factors should be financial condition of the family. The respondent is not entitled to claim relief under the new Scheme because the financial status of the family is much above the criterion fixed in the new Scheme."
Finally, it would be necessary to take note of the decision in State Bank of India and Another Vs. Somvir Singh7 where the parameters for the interference of the High Court have been laid down in the following observations:
"13. In our considered opinion, the High Court itself could not have undertaken any exercise to decide as to what would be the reasonable income which would be sufficient for the family for its survival and whether it had been left in penury or without any means of livelihood. The only question the High Court could have adverted itself to is whether the decision-making process rejecting the claim of the respondent for compassionate appointment is vitiated?" Whether the order is not in conformity with the scheme framed by the appellant Bank? It is not even urged that the order passed by the competent authority is not in accordance with the scheme. It is well settled that the hardship of the dependant does not entitle one to compassionate appointment dehors the scheme or the statutory provisions as the case may be. The income of the family from all sources is required to be taken into consideration according to the scheme which the High Court altogether ignored while remitting the matter for fresh consideration by the appellant Bank. It is not a case where the dependants of the deceased employee are left "without any means of livelihood" and unable to make both ends meet. The High Court ought not to have disturbed the finding and the conclusion arrived at by the appellant Bank that the respondent was not living hand-to-mouth. As observed by this court in G.M. (D&PB) v. Kunti Tiwary the High Court cannot dilute the criterion of penury to one of "not very well-to-do". The view taken by the Division Bench of the High Court may amount to varying the existing scheme framed by the appellant Bank. Such a course is impermissible in law."
Now, the correctness of the judgment of the learned Single Judge has to be considered from the perspective which has been laid down in the several decisions noted above. It is evident that the learned Single Judge was in error in holding that terminal benefits should not be taken into account in assessing an application for compassionate appointment. This view is manifestly contrary to the judgments of the Supreme Court and to the terms of the scheme as noted above.
The appellant, in assessing the financial condition of the family, has taken due note of the fact that the family was in receipt of family pension of Rs. 4,807/- per month as against the net take home salary of the deceased employee which was Rs. 2,007/- per month. Moreover, it has been noted that the deceased employee has left behind a family consisting of a widow and two qualified sons who are residing in their own residential accommodation. The General Manager, who has passed the impugned order dated 9th May, 2005, has also correctly assessed the position in law. The jurisdiction of the High Court in such matters is limited. In the present case, since the authority had considered the position in law correctly and had also evaluated the financial condition of the family, there was no occasion for the learned Single Judge to exercise the jurisdiction under Article 226 of the Constitution. Moreover, as noted above, the test which has been laid down by the learned Single Judge is contrary to the terms of the scheme and contrary to the judgments of the Supreme Court.
In the circumstances, we allow the appeal and set aside the impugned judgment and order of the learned Single Judge dated 28th October, 2006. The petition which has been filed by the respondent shall in consequence stand dismissed.
There shall be no order as to costs.
(Dr. D.Y. Chandrachud,CJ) (Ritu Raj Awasthi, J.) Order Date :- 21.11.2013 Santosh/-