INDIAN BANK & ORS. versus PROMILA & ANR. on 8 January 2020

408

[2020] 1 S.C.R. 408

SUPREME COURT REPORTS

[2020] 1 S.C.R.

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INDIAN BANK & ORS.

v.

PROMILA & ANR.

(Civil Appeal No. 2798 of 2010)

BJANUARY 08, 2020

[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ. ]

Service Law – Compassionate appointment – Principlesapplicable to the cases of – In the appellant-Bank, scheme wasbrought into force for compassionate appointment on 04.04.79 –CNew Scheme was promulgated on 05.11.85 which in effect continuedthe old Scheme – Person appointed as Clerk-cum-Shroff in the Bank– Died on 15.1.04 – Survived by his wife (respondent no.1 andthree minor children, one of the son being respondent no.2) –Application made on behalf of respondent no.2, when he was minor,Dseeking compassionate employment – Post the said application, newScheme was brought into force w.e.f. 27.04.04, in supersession ofthe previous Scheme – One of the condition for such Scheme wasthat the monthly income of the family (including terminal benefits,insurance claims, investments, etc. as well as pension and spousalincome) was less than 60% of the last drawn gross salary, net ofEtaxes, of the deceased employee – Respondents did not apply underthe new Scheme – Also, respondent no.1’s gross salary declarationonly on 17.02.06 crossed the benchmark of 60%, thus they wereinformed that even cash compensation was not available to themand that there could be no question of compassionate appointmentF– Respondents sought compassionate appointment under the 2004Scheme, upon the respondent no.2 attaining age of majority – HighCourt granted Rs.2 lakh ex gratia payment, leaving open to therespondents to make appropriate application regarding any terminalbenefits, if not paid – Held: Compassionate appointment is not analternative to the normal course of appointment – There is noGinherent right to seek compassionate appointment – Question ofapplicability of any subsequent Scheme really does not apply inview of the judgment of Supreme Court in Canara Bank – Thus, itwould not be appropriate to examine the case of the respondents inthe context of subsequent Schemes, but only in the context of theH

Scheme of 4.4.1979, the terms of which continued to be applicableeven as per the new Scheme of 5.11.1985, i.e. the Scheme applicableto the respondents – There is no provision in this Scheme for any exgratia payment – Further, option of compassionate appointment wasavailable only if the full amount of gratuity was not taken, somethingwhich was done – Thus, the option of compassionate appointmentreally was not available to the respondents – Keeping in mind thebasic principles applicable to the cases of compassionateemployment, i.e., succor being provided at the stage of unfortunatedemise, coupled with compassionate employment not being analternate method of public employment, it is noticed that therespondents had the wherewithal at the relevant stage of time, asper the norms, to deal with the unfortunate situation– It is not forthe Courts to substitute a Scheme or add/subtract from the termsthereof in judicial review – Court may have sympathy with therespondents, but sympathy alone cannot give remedy, more so whenthe relevant benefits available to the respondents were granted bythe Bank and when respondent no.1, herself was in employmenthaving monthly income above the benchmark – Impugned order setaside – Writ petition originally filed by the respondents is dismissed.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

HELD 1.1 The question of applicability of any subsequentScheme really does not apply in view of the judgment of SupremeCourt in Canara Bank. Thus, it would not be appropriate toexamine the case of the respondents in the context of subsequentSchemes, but only in the context of the Scheme of 4.4.1979, theterms of which continued to be applicable even as per the newScheme of 5.11.1985, i.e. the Scheme applicable to therespondents. There is no provision in this Scheme for any exgratia payment. The option of compassionate appointment wasavailable only if the full amount of gratuity was not taken,something which was done. Thus, having taken the full amountof gratuity, the option of compassionate appointment really wasnot available to the respondents. Though the subsequent Schemeswere not applicable, even if benefit was sought to be given ofthose Schemes, initial non-disclosure and subsequent disclosureby respondent No.1, of her employment and her emoluments AB

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410SUPREME COURT REPORTS

Awould disentitle her under those Schemes, too. Thus, when theappellant was calling upon the respondents to apply under thesubsequent Schemes, that could have been beneficial to therespondents only if they were entitled to any of the benefits underthat Scheme. That could not happen because the benchmarkprovided in those subsequent Schemes took the emoluments ofBrespondents beyond the prescribed limit, so as to disentitle themfrom both, compassionate employment and ex gratia payment.The basic principles applicable to the cases of compassionateemployment are to be kept in mind, i.e., succor being providedat the stage of unfortunate demise, coupled with compassionateCemployment not being an alternate method of public employment.It would be noticed that the respondents had the wherewithal atthe relevant stage of time, as per the norms, to deal with theunfortunate situation which they were faced with. Thus, lookedunder any Schemes, the respondents cannot claim benefit, though, as clarified, it is only the relevant Scheme prevalent on the dateDof demise of the employee, which could have been considered tobe applicable, in view of the judgment of Supreme Court in CanaraBank. It is not for the Courts to substitute a Scheme or add orsubtract from the terms thereof in judicial review. The Court mayhave sympathy with the respondents about the predicament they Efaced on the demise of the deceased, but then sympathy alonecannot give remedy to the respondents, more so when the relevantbenefits available to the respondents have been granted by theappellant and when respondent No.1, herself, was in employmenthaving monthly income above the benchmark. The Court thus,have no option but to reluctantly set aside the impugned orderFand dismiss the writ petition originally filed by the respondents.[Paras 15-19] [415-D-H; 416-A-E]

Canara Bank & Anr. v. M. Mahesh Kumar (2015) 7SCC 412 : [2015] 9 SCR 724 ; State of HimachalPradesh & Anr. v. Parkash Chand (2019) 4 SCC 285 :G[2019] 1 SCR 533 – relied on.

Case Law Reference

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2798of 2010.

From the Judgment and Order dated 11.08.2008 of the High Courtof Punjab and Haryana at Chandigarh in CWP No. 17105 of 2006.

Vikalp Mudgal, Shashwat Sharma, Ms. Madhu Sikri, Advs. forthe Appellants.

Debesh Panda, Chanchal Kumar Ganguli, Advs. for theRespondents.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J.

1. One Jagdish Raj, husband of respondent No.1 and father ofrespondent No.2, was appointed as a Clerk-cum-Shroff in the appellant-Bank, where he continued to work till his unfortunate demise on15.1.2004. He was drawing a gross monthly salary of Rs.16,486.60 atthe time of his demise. Consequent to his death, the benefits availablefor the family of Jagdish Raj were calculated and sanctioned to the tuneof Rs.5,45,872, but on account of deductions for staff housing and vehicleloans, post adjustment, a net payment of Rs.2,99,672 was made to thefamily, apart from the grant of a monthly pension of Rs.5,574.12. Anissue has been raised about the amount being paid less to the family ofJagdish Raj, but that has really not been debated before us.

2. Late Shri Jagdish Raj was survived by his wife and three minorchildren. As it transpires, respondent No.1 was already employed andearning a salary at the time of the demise of her husband, whichinformation came to the knowledge of the appellant-Bank, later. Thecause for the present dispute arises from an application made on behalfof the son (respondent No.2 herein) seeking compassionate employmenton account of demise of Shri Jagdish Raj. We may add at the thresholdthat this application was made on 24.1.2004, on which date the son wasa minor. Needless to say that any such request for compassionateemployment had to be in terms of the prevalent scheme at that time.There has been some confusion as to the scheme applicable and, thus,this Court directed the scheme prevalent, on the date of the death, to beplaced before this Court for consideration, as the High Court appears tohave dealt with a scheme which was of a subsequent date. The need A

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Afor this also arose on account of the legal position being settled by thejudgment of this Court in Canara Bank & Anr. v. M. MaheshKumar,[1]qua what would be the cut-off date for application of suchscheme. It is trite to emphasise, based on numerous judicialpronouncements of this Court, that compassionate appointment is not analternative to the normal course of appointment, and that there is noBinherent right to seek compassionate appointment. The objective is onlyto provide solace and succour to the family in difficult times and, thus,the relevancy is at that stage of time when the employee passes away.An aspect examined by this judgment is as to whether a claim forcompassionate employment under a scheme of a particular year couldCbe decided based on a subsequent scheme that came into force muchafter the claim. The answer to this has been emphatically in the negative.It has also been observed that the grant of family pension and paymentof terminal benefits cannot be treated as a substitute for providingemployment assistance. The crucial aspect is to turn to the schemeitself to consider as to what are the provisions made in the scheme forDsuch compassionate appointment.

3. On the relevant scheme being placed before us, what emergesis that vide Circular No.56/79, a scheme was brought into force forcompassionate appointment on 4.4.1979. This is the scheme which wasapplicable on 15.1.2004, i.e. on the date of the death of Shri Jagdish Raj.EA provision was made for compassionate appointment, but subject tothe terms & conditions of the scheme. Para 7 of the scheme reads asunder:

“7. According to an agreement with the Union, the dependant willeither be paid gratuity as if the deceased employee has servedFthe full term of service, which will be calculated as per gratuityrules on the basis of his/her last drawn pay at the time of his/herdeath or given the option for appropriate employment for onedependent subject to the rules framed for appointment undercompassionate grounds. It is therefore, obvious that appointmentsGunder compassionate grounds will be open only to dependentswho do not opt for payment of gratuity for the full term of serviceof the employee who died while in service.”

The aforesaid paragraph, thus, makes it clear that either gratuityor compassionate appointment can be availed of by the dependents.H1 (2015) 7 SCC 412

The result is that if the dependents opted for payment of gratuity for theterm of service of the employee who died while in service, nocompassionate appointment could be granted. The admitted position isthat the benefit of gratuity was availed of by the dependents in the presentcase.

4. Another relevant paragraph of the scheme is para 8, whichreads as under:

“8. No person or dependent can claim, as a matter of right,employment in the Bank under this Scheme and appointmentswill be considered purely at the sole discretion of the Bank. TheBank reserves to itself the right to modify, suspend, or withdrawthe scheme at any time at its sole discretion and the Bank’s decisionin this regard will be final and cannot be called in question.”

The aforesaid paragraph makes the consideration for appointmenton compassionate grounds at the discretion of the Bank, and not as amatter of right. This really only emphasizes the settled position of law,discussed aforesaid.

5. A new Scheme was promulgated on 5.11.1985, but para 4 ofthe Scheme clarifies as under:

“the norms prescribed under scheme for appointment in the Bankof a dependent of a confirmed employee who dies while in serviceremains unchanged.”

Thus, though this may be a new Scheme, it, in effect, continuedthe older Scheme, and that is the reason the terms of that Scheme appliedon the date of death of Shri Jagdish Raj, on 15.1.2004.

6. The first communication was addressed by respondent No.1,on 24.1.2004, to the CMD of the appellant-Bank, seeking compassionateappointment for her son, respondent No.2. The aforesaid arrangement,thus being applicable even at that time.

7. A development post the demise, and this application, was anew Scheme being brought into force through a Board meeting of theappellant-Bank w.e.f. 27.4.2004, by way of Circular No. PRNL/09/2004-05, in supersession of the previous Scheme. However, the qualificationfor such Scheme was the death of an employee on account of injurysustained while performing official duty, with a second condition that the A

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Amonthly income of the family (including terminal benefits, insurance claims,investments, etc. as well as pension and spousal income) was less than60% of the last drawn gross salary, net of taxes, of the deceasedemployee and that the application for such compassionate appointmenthad to be submitted within three (3) months from the demise of suchdeceased employee. There was also an option to provide ex gratiaBcompensation with the same second qualification as aforesaid, if suchapplication is made within three (3) months from the demise of thedeceased employee. The Scheme also refers to a lumpsum compensation,even where this 60% bar is crossed, and for Clerks like Shri Jagdish Raj,the amount specified is Rs.2 lakh.C

8. The appellant-Bank, thus, in response to the application forcompassionate appointment, sent a communication to respondent No.1,asking her to submit a fresh application under the new Scheme within amonth, i.e., by 9.8.2004. The intent, really, was that only cashcompensation could be made available. This period, for tendering anDapplication seeking cash compensation, was further extended repeatedly,but it appears that the respondents did not apply for the same as theyappeared to be only interested in compassionate appointment.

9. A Circular No. PRNL/72/2005-06 dated 30.8.2005 was issuedwhereby the benefit of compassionate appointment was denied to aEdependent of an employee who died in harness. Thus, only cashcompensation was the benefit which would accrue. The norm of 60%eligibility criterion was still made applicable and the application had to bepreferred within six (6) months from demise. This Scheme came intoforce from 10.8.2005.

10. Respondent No.1 made available her gross salary declarationof Rs.15,912 only on 17.2.2006, which crossed the benchmark of 60%and, thus, the respondents were informed vide letters dated 10.5.2006and 30.6.2006 that even cash compensation was not available to thefamily, and that there could be no question of compassionate appointment.

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G11. It is in the aforesaid circumstances that the respondents filedCWP No.17105/2006 on 27.10.2006, seeking consideration ofcompassionate appointment under the 2004 Scheme, upon respondentNo.2 attaining age of majority. Ex gratia benefits, which were heldback, were also sought, along with interest.

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12. The High Court of Punjab & Haryana vide impugned orderdated 11.8.2008, granted Rs.2 lakh ex gratia payment, while leaving itopen to the respondents to make an appropriate application regardingany terminal benefits, if not paid. This Rs.2 lakh benefit is in consonancewith the subsequent Schemes of 2004 and 2005 which had come intoforce, and appears to have been so done more out of sympathy than anyother factor.

13. The appellant-Bank aggrieved by this order filed a SpecialLeave Petition and interim order of stay was granted on 16.1.2009. Leavewas granted subsequently and the interim order was made absolute.

14. We have examined the aforesaid factual matrix and thecontentions raised by learned counsel for the parties.

15. The question of applicability of any subsequent Scheme reallydoes not apply in view of the judgment of this Court in Canara Bank[2].Thus, it would not be appropriate to examine the case of the respondentsin the context of subsequent Schemes, but only in the context of theScheme of 4.4.1979, the terms of which continued to be applicable evenas per the new Scheme of 5.11.1985, i.e. the Scheme applicable to therespondents. There is no provision in this Scheme for any ex gratiapayment. The option of compassionate appointment was available onlyif the full amount of gratuity was not taken, something which was done.Thus, having taken the full amount of gratuity, the option of compassionateappointment really was not available to the respondents.

16. We may also notice that though the subsequent Schemes werenot applicable, even if benefit was sought to be given of those Schemes,initial non-disclosure and subsequent disclosure by respondent No.1, ofher employment and her emoluments would disentitle her under thoseSchemes, too. Thus, when the appellant was calling upon the respondentsto apply under the subsequent Schemes, that could have been beneficialto the respondents only if they were entitled to any of the benefits underthat Scheme. That could not happen because the benchmark providedin those subsequent Schemes took the emoluments of respondentsbeyond the prescribed limit, so as to disentitle them from both,compassionate employment and ex gratia payment.

17. We have to keep in mind the basic principles applicable to thecases of compassionate employment, i.e., succor being provided at the2 (supra)

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Astage of unfortunate demise, coupled with compassionate employmentnot being an alternate method of public employment. If these factorsare kept in mind, it would be noticed that the respondents had thewherewithal at the relevant stage of time, as per the norms, to deal withthe unfortunate situation which they were faced with. Thus, lookedunder any Schemes, the respondents cannot claim benefit, though, asBclarified aforesaid, it is only the relevant Scheme prevalent on the dateof demise of the employee, which could have been considered to beapplicable, in view of the judgment of this Court in Canara Bank[3]. It isnot for the Courts to substitute a Scheme or add or subtract from theterms thereof in judicial review, as has been recently emphasized by thisCCourt in State of Himachal Pradesh & Anr. v. Parkash Chand[4].

18. We may have sympathy with the respondents about thepredicament they faced on the demise of Shri Jagdish Raj, but thensympathy alone cannot give remedy to the respondents, more so whenthe relevant benefits available to the respondents have been granted by Dthe appellant-Bank and when respondent No.1, herself, was inemployment having monthly income above the benchmark.

19. We have, thus, no option but to reluctantly set aside theimpugned order and dismiss the writ petition originally filed by therespondents.

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20. The appeal is accordingly allowed, leaving the parties to beartheir own costs.

Divya Pandey

Appeal allowed.

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3 (supra)

4 (2019) 4 SCC 285