Union Bank of India vs Smt. Sheela Devi

H.L. Gokhale, C.J.—Heard Sri Vijay Ratan Agrawal, learned Senior Counsel appearing for the appellant and Sri A.N. Srivastava, learned Counsel for the respondent.

The appellant seeks to challenge the order dated 21st February, 2007 passed by a learned Single Judge, whereby the. learned Single Judge has directed the appellant to offer compassionate appointment to the respondent herein, preferably within six weeks from the date of the order.

The short facts leading to this appeal are this wise. The husband of the respondent was working as a Clerk/Typist under the appellant/Bank in district Ballia. He died at a young age of about 33 years due to cancer on 22nd March, 1999. On 10th April, 1999, the respondent applied for a job to the appellant/Bank on compassionate ground. She. had to look after three minor children apart from herself. This application dated 10th April, 1999 was rejected by the appellant/ Bank by its communication dated 19th February, 2000.

The respondent filed one writ petition earlier, which was allowed by a learned Single Judge of this Court, vide judgment dated 3rd March, 2005, whereby he directed the appellant/Bank to re-consider the application of the respondent. That application came to be rejected once again on 3rd May, 2005. It is this second decision of the appellant/Bank, which was challenged by tiling the present writ petition to the learned Single Judge. The learned Single Judge, as aforesaid, has allowed the writ petition and has this time directed the appellant/Bank to offer compassionate appointment to the respondent. It is this judgment and order, which is under challenge.

(i) Mr. Agrawal, learned Counsel for the appellant submitted that firstly, the compassionate appointment is a matter of discretion for an employer and there is no right as such to seek employment. He submitted that the normal course for seeking employment is through the proper channel, i.e., by an application when a post is advertised and on being found eligible as per the selection norms and, procedure. This is the mariner in which all the citizens who are interested in public employment seek employment. The compassionate appointment is an exception to this rule and therefore, this discretion is to be best left to the employer.

(ii) Thereafter, he submitted that the Scheme which was prevalent in the appellant/Bank, providing for compassionate appointment, had come to be scrapped with effect from 31st December, 2005. This is because the Bank is now proceeding to reduce its staff wherever it is in excess and has even offered Voluntary Retirement Schemes (V.R.S.) to the employees. In such circumstances, in his submission, the order directing compassionate appointment was not called for. He referred to two recent judgments of the Apex Court. First case is of the appellant/Bank itself - Union Bank of India and Others Vs. M.T. Latheesh, and thereafter the.judgment in State of Jammu & Kashmir and Others Vs. Sajad Ahmed Mir,

As against this submission of the appellant/Bank, the facta which have weighed upon the learned Single Judge, are the personal difficulties and financial hardships through which the respondent is required to go though. The learned Single Judge has noted that the appellant/Bank being a nationalised Bank, it must have a different and a considerate perspective when it comes to an employee dying-in-harness.

As far as the facts of the present case are concerned, we have to keep in mind as pointed out by Mr. Agrawal, that with effect from 31st December, 2005 the appellant/Bank has scrapped the Scheme of compassionate employment. However, in the present case, both the orders, which the appellant passed rejecting the application of the. respondent are prior to the scrapping of this Scheme for compassionate employment. The relevant Scheme under which the respondent applied, is a Scheme of 19.2.1997. Clause (3) of this Scheme clearly indicates that the Bank may, at its discretion, appoint in the Bank in any of the posts mentioned in the Scheme the widow or the other dependant of a deceased employee provided they fulfil the criteria for appointment under the Scheme. Thereafter, it is stated that the appointments are to be made to the clerical or subordinate cadre. It is clause (4) of the Scheme, which is material when it comes to examining the financial difficulty of the dependants of the deceased employee. This clause (4) reads as follows:

Sanction for appointment

Appointments under the scheme will be made by the Competent Authority. The object of granting compassionate appointment to the dependent of the deceased employee is to enable the family to tide over the sudden crisis. Compassionate appointment will be offered by the Bank only in the case where the bank is satisfied that the financial condition of family is such that but for the provision of employment, the family will not be able to meet the crisis, while considering such appointment the Competent Authority will take into account the following to determine the financial condition of the family:

(a) Family pension.

(b) Gratuity.

(c) Employee''s/Employer''s contribution to the Provident Fund.

(d) Any compensation paid by the Bank or its Welfare Fund.

(e) Proceeds of LIC policy and other investments of the deceased employee.

(f) Income for family from other sources.

(g) Employment of other family members.

(h): Size of the family and liabilities, if any, etc.

Now turning to the facts of the present case, as far as the respondent is concerned, as noted by the learned Single Judge, the total terminal benefits payable at the time of death under the heads of Provident Fund, Gratuity, Insurance and Leave encashment amounted to Rs. 3,02,640/- while the liability under various loans was Rs. 2,13,800/-. Therefore, the net payable amount was only Rs. 83,840/- which, according to the Bank, could have fetched interest of Rs. 740/- per month. This is against the fact that the respondent''s husband would have otherwise put in service till the year 2024 or 2026 depending upon his age of retirement. In our view, these are the factors which the Bank ought to have examined properly.

(i) In Union Bank of India and Ors. v. M.T. Lathesh (supra), appellant/Bank considered the benefits which would be payable to the widow of the deceased and. thereafter rejected the application made by her son for employment. In that matter, it is recoided by the Apex Court in paragraph 25 that the widow of the deceased was sanctioned severd benefits by the appellant/Bank under various heads. Those benefide Like death relief fund, L.I.C., employees provident fund, gratuity, leave encashment and SBS came to Rs. 7,18,753.09. This is because the deceased employee had put in long years of service. From that amount, the loan for housing purpose to the tune of Rs. 1,03,754 was adjusted. Certain further amount of loan was also deduced and a sum of Rs. 5,47,495/- was left in the hands of the widow. Certain further amount was contributed by the staff members of the Bank. Ultimately, the widow placed a sum of Rs. 5,25,000/- in a fixed deposit. She was also entitled to monthly pension of Rs. 4468/-. Finally, when both these amounts were added, her monthly yield come to Rs. 8574/- which was more than the last monthly salary drawn by the deceased employee which was Rs. 7,477.50. It is on this background that the Apex Court laid down in paragraph 26 and then in paragraph 27, that the competent authorities of the Bank had to consider the case of the petitioner as per the laid down parameters under the old Scheme and not under the new Scheme and that it could not be said, in any way, arbitrary when it declined to offer appointment to the son of the deceased. It is undoubtedly true that in paragraph 27 of the Judgment, the Apex Court did refer to the fact that the old scheme has been scrapped with effect from 21st December, 2005, but in the facts of this case, the decision of the bank has been upheld on the parameters which were laid down under the old Scheme itself.

(ii) The decision in the case of Union Bank of India (supra) has been followed and referred with approval in two subsequent judgments, where the State Bank of India found that the. financial condition of the family of the deceased employee did not warrant compassionate employment. This was in State Bank of India and Others Vs. Jaspal Kaur, and State Bank of India and Another Vs. Somvir Singh,

(i) The second judgment relied by Mr. Agrawal is the case of State of J. & K. and Ors. v. Sajad Ahmad Mir (supra), which deals with the question of delay. In paragraph 11, the Court undoubtedly refers to the principle that such an appointment is an exception of the general rule and this general rule should not be departed except where compelling circumstances demand, such as, death of sole bread earner and likelihood of the family suffering because of the set back The Apex Court however, observed that once it is proved that in spite of death of bread earner, the family survived and substantial period is over, there is no necessity to say ''goodbye'' to normal rule of appointment and to show favour to one at the cost of interest of several others ignoring the mandate of Article 14 of the Constitution. The material facts of the case, which are recorded in paragraph 17 are, the father of the applicant had died in March, 1987. The application for compassionate appointment was made by the applicant after four and half years in September, 1991, that application came to be rejected in March, 1996 but the writ petition was filed in June, 1999. By this time, the petition, was rejected and the Division Bench upheld the decision, more than fifteen years had passed from the date of death of the father of the applicant.

(ii) In the present case, as we have noted above, it is within a month from the date on which her husband died that the respondent applied for job, but that application was rejected by the appellant/Bank. This was also within less than a year from the date of death. It is true that the respondent took some time to file earlier writ petition, which was bearing number 43349 of 2003, and was filed within three years. However, in the facts of the present case, we do not think that it is a factor/which ought to be read against the respondent. We cannot ignore that the respondent was hardly thirty years of age, when her husband died in March, 1999, with three minor children to look after. She did make the application for compassionate employment immediately. She has, however, taken sometime to file the first writ petition to the High Court. When the High Court''s direction to reconsider, was rejected by the appellant-Bank on 3rd May, 2005, the respondent has immediately filed the second Writ Petition No. 47758 of 2005. In the facts of the present case, therefore, it cannot be said that there was any such delay which by itself can be read against the respondent to disentitle her the consideration for compassionate employment.

There is another aspect which we have to note that under the Scheme 1997, as noted above, a dependent of the deceased employee had a right to be considered for compassionate appointment. With effect from 21st December, 2005 (which is after the second rejection of the appellant-Bank, the appellant-Bank came out with a scheme whereunder instead of offering Compassionate appointment, ex-gratia amount of Rs. 6,00,000/- to Rs. 8,00,000/- would be payable in appropriate cases. The appellant''s case will not be governed under that Scheme. However, there was another Scheme in between which was promulgated on 22.7.2003 and under that Scheme also there was a provision for lump sum relief instead of providing compassionate appointment. The case of the respondent would be covered under that Scheme since her application was pending before the Bank for reconsideration at that point of time after the order in the first writ petition.

Having noted the facts of this case and the order passed by the learned Single Judge as also the changes, which came about in the Scheme of compassionate employment, we had passed an order on 30.3.2007, asking Mr. Agrawal, learned Counsel appearing for the appellant/Bank to taken instructions and give particulars of the amounts, which were paid to the respondent on the death of her husband and what amounts would be payable to her under the Scheme, which was framed on 22.7.2003.

Mr. Agrawal has filed a supplementary affidavit of one Md. Raza-ur-Rahman, Assistant Manager (Personnel) of the Union Bank of India, affirmed on 11.4.2007. In this affidavit, it is placed on record that the following terminal benefits have already been given to the respondent:

____________________________________________________________________ Terminal Benefits Amount (Rs.) -------------------------------------------------------------------- Gratuity 84,031.00 Provident Fund 69,725.00 Proceeds of L.I.C. Policy 1,01,599.00 Leave Encashment 47,285.00 ____________________________________________________________________ Total 3,02,640.00 --------------------------------------------------------------------

The appellant/Bank has thereafter applied a formula under the Scheme of 22.7.2003 and they first arrived at net terminal benefits. In that, they cover amount of Provident Fund, Gratuity and Leave Encashment. Thereafter they arrived at the figure of 60% of gross emoluments, which are to be finally achieved. For that purpose, first they find out as to what would be the net monthly income and after deducting the net monthly income from 60% of gross emoluments, they arrive at a shortfall. This shortfall is sought to be made good by applying the formula. In the instant case, by this formula, the Bank has arrived at the figure of Rs. 3,46,159.00/-. This can be round of Rs. 3,50,000/-.

It is to be noted that under this Scheme, this amount ought to have been paid to the respondent in July, 2003 itself, when new Scheme came. Nearly four years have gone, and since this amount of Rs. 3,50,000/- is not received by the respondent, she has lost valuable amount of interest thereon. During that period, the rate of interest was, a little low. So one may taken a rate of interest @ 8% and add the amount of Rs. 1,60,000/- on this amount of Rs. 3,50,000/- to arrive at the figure of Rs. 5,10,000/- Mr. Agrawal very fairly stated that if the Court directs the payment of this amount, the appellant/Bahk will have no objection to it.

Thus, from what is stated above, the appellant/Bank had already paid the amount of Rs. 3,02,640/- to the respondent. Over and above the same, the amount of Rs. 5,10,000/- would be payable. Assuming that the respondent has utilised the amount received earlier because of her circumstances, even this amount of Rs. 5,10,000/- if properly invested to an annual interest @ 9%, would fetch an interest, which would come to above Rs. 3750/- per month. We quite understand that the respondent is in great difficulty. She has to support her three minor children. At the same time, we cannot ignore the fact that the Bank has scrapped the policy of compassionate employment. While doing that however, to over come the difficulties of the families suffering from unfortunate events, the appellant/Bank has come out with a Scheme and under the Scheme prevalent at the relevant time, the aforesaid amount of Rs. 3,50,000/- would have been paid to the respondent (which we have revised to Rs. 5,10,000/- after including the amount of interest).

We have to note that as far as the public employment is concerned, all are to be treated equally. It has been laid down by the Apex Court that the compassionate employment is an exception. In the case of Union Bank of India, it has scrapped the policy of compassionate employment and has provided for an alternative. They have launched the V.R.S. and, therefore, they have come out with an alternative scheme. In our view, the appellant/Bank cannot be faulted, if it offers the alternative under the Scheme.

In the circumstances, we modify the judgment and order passed by the learned Single Judge, directing that in place of the direction to employ the respondent in the Bank, the appellant/Bank will pay over to the respondent an amount of Rs. 5,10,000/- (Rupees Five Lacs Ten Thousand Only). We direct that the appellant/Bank to make this payment within four weeks to the respondent.

The appeal is allowed in part/as above.