Canara Bank vs Smt. Usha P. Murari

This appeal is filed by the respondent - Bank in W.P. No. 34505/2003 being aggrieved by the order dated 29.09.2005, wherein the learned single Judge of this Court has set aside the endersement issued by the respondent -Bank (appellant herein) dated 17.07.2002 as per Annexure '' B'' to the writ petition rejecting the application of the writ petitioner (respondent herein) for appointment on compassionate ground and has directed the respondent to consider the case of the writ petitioner for compassionate appointment in accordance with law in terms of the order within eight weeks from the date of receipt of copy of the said order.

The material facts leading up to this appeal are as follows:-

2.1 The husband of the writ petitioner - P.S. Murari was working in the respondent - Bank as a Clerk. He died in harness while in service on 27.12.1995. In view of the scheme framed by the respondent - Bank for compassionate appointment, the writ petitioner made a representation as per Annexure ''A'' to the writ petition on 24.04.1998 averring that her husband died in harness while in service and has left behind herself and two minor sons and wherefore, sought for compassionate appointment. However, the said application was rejected by the respondent - Bank as per the endorsement dated 17.07.2002 (Annexure ''B'' to the writ petition). Being aggrieved by the said endorsement, the writ petition was filed seeking for quashing of the same and for a direction to the respondent - Bank to consider the application of the writ petitioner for appointment on compassionate ground.

2.2 The writ petition was resisted by the respondent-Bank contending that the writ petitioner is ineligible for appointment on compassionate ground as there was enquiry for misconduct against the husband of the writ petitioner and he was punished for misconduct touching upon the integrity and honesty. Therefore, the provisions of the Scheme are not applicable to the writ petitioner and to safeguard the dignity of the husband of the writ petitioner, the said misconduct was not specifically mentioned in the order impugned in the writ petition and wherefore, the respondent sought for dismissal of the writ petition.

2.3 The learned single Judge, after considering the contentions of the learned counsel for the parties, by order dated 29.09.2005, held that Annexure ''B'' to the writ petition does not state the said misconduct on the part of the husband of the writ petitioner and what is stated in Annexure ''B'' is that the writ petitioner is receiving a pension of Rs. . 1,440/- per month and she has also received terminal benefits amounting to Rs. . 1,81,000/-, including insurance claim amount and wherefore, there exist no indigent circumstance to consider the request of the writ petitioner for appointment on compassionate ground. Accordingly, the learned single Judge, following the decision of the Hon''ble Supreme Court in Balbir Kaur And Another Vs. Steel Authority of India Limited And Others (AIR 2000 SC 1596), set aside the endorsement issued by the respondent - Bank rejecting the application of the writ petitioner for compassionate appointment and directed the respondent - Bank to consider the case of the writ petitioner for compassionate appointment in accordance with law in terms of the said order within eight weeks from the date of receipt of a copy of the order. Review Petition No. 693/2005 filed by the appellant - Bank for review of the said order dated 29.09.2005 has been rejected by the learned single Judge by order dated 13.02.2006. Being aggrieved by the said order dated 29.09.2005 passed in the writ petition and the order dated 13.02.2006 passed in the review petition, this appeal is filed by the Bank.

We have heard the learned senior counsel appearing for the appellant - Bank and the learned counsel appearing for the respondent - writ petitioner.

The learned senior counsel appearing for the appellant - Bank submitted that the scheme framed by the appellant - Bank for compassionate appointment is only to overcome the financial contingency, which may occur due to the death or the employee while in service to the members of his family and in the present case, there was an enquiry for misconduct against the husband of the respondent herein and the scheme was not applicable to the respondent. The learned senior counsel further submitted that when financial contingency has been overcome in view of the terminal benefits granted to the respondent and also the pension, which she is receiving per month, the direction issued by the learned single Judge for considering the application of the respondent herein for compassionate appointment is illegal and liable to be set aside. The learned senior counsel further submitted that the application of the respondent has been rightly rejected by the appellant - Bank as per the endorsement dated 17.07.2002. In support of his contention, he has relied upon the decision of the Hon''ble Supreme Court in M/s. Eastern Coalfields Ltd., Vs. Anil Badyakar and Others AIR 2009 SCW 4427, wherein it is held that-appointment on compassionate ground is not a vested right and cannot be claimed long after death of employee in harness and when there was a dispute between the heirs of deceased employee, the claim for appointment made and granted 12 years after the death of employee was contrary to the object of such appointment and appointment was liable to be cancelled. The learned senior counsel has also relied upon the decision of the Hon''ble Supreme Court in General Manager (D and PB) and Others Vs. Kunti Tiwary and Another, wherein the Hon''ble Supreme Court has held that in view of the scheme framed by the Bank, compassionate appointment can be provided only in cases, where the deceased employee left his family in penury and without any means of livelihood and since terminal benefits received and other movable and immovable property possessed, by the family of the deceased employee showed that its financial condition was not penurious, the employer-Bank was justified in rejecting the application for compassionate appointment.

The learned counsel appearing for the respondent submitted that the husband of the respondent herein has died in harness while in service and the scheme has been framed by the appellant - Bank for appointment of members of the family of the person, who dies in harness while in service with the Bank. The terminal benefits, pension and insurance claim amount received by the family of the deceased cannot be taken into account while considering the financial condition of the family of the deceased employee. The learned counsel further submitted that in the endorsement dated 17.07.2002 (Annexure ''B'' to the writ petition), the only reason assigned by the Bank while holding that there exist no indigent circumstance to consider the case of the respondent for appointment on compassionate ground is that the respondent is receiving monthly pension of Rs. 1,440/- and she has also received terminal benefits amounting to Rs. 1,81,000/-, including insurance claim amount. The learned counsel further submitted that the appellant failed to note that the husband of the respondent died in harness while in service leaving behind his wife and two sons, who were minor as on the date of his death. The learned counsel has relied upon the decision of the Hon''ble Supreme Court in Govind Prakash Verma Vs. Life Insurance Corporation of India and Others ((2005) 10 SCC 289), wherein it is held as follows:

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. So far as the question of gainful employment of the elder brother is concerned, we find that it had been given out that he has been engaged in cultivation. We hardly find that it could be considered as gainful employment if the family owns a piece of land and one of the members of the family cultivates the field. This statement is said to have been contradicted when it is said that the elder brother had stated that he works as a painter. This would not necessarily be a contradiction much less leading to the inference drawn that he was gainfully employed somewhere as a painter. He might be working in his field and might casually be getting work as painter also. Nothing has been indicated in the enquiry report as to where he was employed as a regular painter. The other aspects, on which the officer was required to make enquiries, have been conveniently omitted and not a whisper is found in the report submitted by the officer. In the above circumstances, in our view, the orders passed by the High Court are not sustainable. The respondents have wrongly refused compassionate appointment to the appellant. The inference of gainful employment of the elder brother could not be acted upon. The terminal benefits received by the widow and the family pension could not be taken into account.

We have given careful consideration to the contentions of the learned counsel appearing for the parties in the light of the judgements cited by the learned counsel appearing for the parties and scrutinized the material on record.

The material on record would clearly show that the husband of the respondent herein was working as a Clerk in the appellant - Bank and he died while in service on 27.12.1996 and wherefore, an application was filed by the respondent seeking for appointment on compassionate ground under the scheme. Though it is contended by the learned senior counsel appearing for the appellant that the husband of the respondent was subjected to disciplinary enquiry for misconduct and wherefore, the respondent was not entitled to the benefit of the scheme, the said ''act is not stated in the endorsement issued by the appellant -Bank dated 17.07.2002, which reads as under:

On placing the matter before the competent authority here have observed that:

a) You have received the terminal benefits of 1.8.1 lacs including insurance claim.

b) You are getting family pension of Rs. 1,440/- per month. As such they have opined that there exists no indigent circumstances to consider your request for employment on compassionate grounds and hence your case is not considered. This is for your information. No further correspondence will be entertained in this regard.

It is clear from the above said reasoning assigned by the appellant -Bank that the application of the respondent For appointment on compassionate ground dated 24.04.1998 has been rejected by the appellant - Bank as per the impugned endorsement dated 17.07.2002 only on the ground that she has received terminal benefits amounting to Rs. . 1,81,000/- and also getting family pension of Rs. . 1,440/- per month. The contention now raised by the learned senior counsel for the appellant that an enquiry was conducted against the husband of the respondent for misconduct and he was punished for the same is not stated in the said endorsement dated 17.07.2002. In view of the decision of the Hon''ble Supreme Court in GOVIND PRAKASH VERMA''s case (referred supra), the terminal benefits and family pension received by the widow of the deceased employee cannot be taken into account while considering the application of the widow for appointment on compassionate ground. It is contended by the learned senior counsel appearing for the appellant - Bank that since there was no financial contingency, which had to be overcome by the respondent consequent to the death of her husband, the question of appointing the respondent on compassionate ground does not arise. We do not propose to go into the merits of the case in view of the order that would be passed by us as any finding given on the contentions of the learned counsel appearing for the parties would prejudice the case of the parties before the competent authority. The learned single Judge, having found that the contentions urged before him with regard to the misconduct on the part of the husband of the respondent herein did not find mention in the endorsement dated 17.07.2002 issued by the appellant herein - Bank rejecting the application of the respondent for compassionate appointment, has set aside the said endorsement and has only issued a direction to the appellant herein (respondent in the writ petition) to consider the application of the respondent herein (writ petitioner) for appointment on compassionate ground in accordance with law. The review petition filed by the appellant - Bank for review of the order dated 29.09.2005 passed in the writ petition has been rejected by the learned single Judge by order dated 13.02.2006. There is no direction issued by the learned single Judge to the effect that the respondent herein should be given compassionate appointment. As per the impugned order of the learned single Judge, the appellant - Bank is only required to consider the case of the respondent herein for compassionate appointment in accordance with law. Therefore, it cannot be said that there is any direction issued by the learned single Judge for appointment of the respondent herein on compassionate ground and we make it clear that it is open to the appellant - Bank to reconsider the application of the respondent for compassionate appointment strictly in accordance with law, without being influenced by any of the observations made in the order of the learned single Judge or this order as we have not gone into the merits of the case. Apart from making the above said observation, we hold that the impugned orders of the learned single Judge are justified and do not suffer from any error or illegality as to call for interference in this intra Court appeal.

Accordingly, the Writ Appeal is dismissed.