Mahesh Singh Bisht vs Canara Bank
2016 Latest Caselaw 5682 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                         ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                               
                               WRIT PETITION NO.1603 OF 2012




                                                       
    Mahesh Singh Bisht, C/o.Kachru M.Mhatre              )
    A-303 Pravitha CHS, Om Complex                       )
    D D X Road, Thakurwadi,                              )
    Dombivili (W) 421 202.                               )...Petitioner




                                                      
                   Versus

    Canara Bank,                                         )




                                            
    Head Office- 112- J.C.Road,                          )
    Bangalore - 560002 (service through
                                    ig                   )
    Canara Bank Circle Office 14th floor,                )
    Maker Tower - "E" Cuffe Parade,                      )
    Mumbai-400005.                                       )...Respondent
                                  
    Mr.S.N.Deshpande   with   Mrs.N.S.Deshpande   &   Ms.Swarna   Munshi,   for 
    the Petitioner.
      
   



    Mr.Piyush Shah, for the Respondent.
                                      ---

                                                CORAM: ANOOP V. MOHTA &





                                                       G.S.KULKARNI,JJ.

JUDGMENT RESERVED ON: 22 September 2016 JUDGMENT PRONOUNCED ON: 29 September 2016

Judgment : -(Per G. S. KULKARNI, J.)

1. By this Writ Petition under Article 226 of the Constitution of

India, the Petitioner challenges the decision of the Respondent - Canara

Bank in refusing to the petitioner employment on compassionate ground

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and /or the benefits of the lumpsum ex-gratia amount under the 2005

Scheme in lieu of compassionate appointment. Therefore, if the relief of

compassionate employment is granted to the petitioner then, in that case

the relief of ex-gratia payment to be paid would not be available.

2. We may at the outset observe that the application which was

made by the Petitioner for compassionate appointment was well in time,

however, the manner in which the Petitioner was treated by the

Respondent-Bank, as evident from the correspondence, in our opinion,

lacked absolute human sensitivity. For the present, we stop at this.

3. The Petitioner's father Mohan K. Singh Bisht was working with

the Respondent-Bank as Armed Guard at Currency Chest, Fort branch of

the Respondent. On 14 July 2001 while on duty, the Petitioner's father

suffered a massive cardiac arrest and expired on the same day leaving

behind, the widow and the Petitioner-son.

4. As there was no earning member in the family, the widow

Smt.Gangadevi Mohan Bisht addressed a letter to the Respondent dated

23 August 2001 requesting to grant employment to the Petitioner on

compassionate ground. The letter categorically stated that deceased

Mohan was in good health and his sudden death was a huge calamity on

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the family as there was no source of income and the very livelihood was

affected. As there was no response, another letter dated 24 December

2001 was addressed to the Respondent. It was again stated that the

family pension was insufficient as the last drawn salary of the deceased

Mohan was Rs.286/- after deduction. It was also stated that she was

aged and suffering from different ailments due to which she was unable

to work and, therefore, the Petitioner be appointed on compassionate

ground.

5. The Petitioner also submitted an application for compassionate

appointment in the prescribed form dated 20 December 2001 which was

received by the concerned office of the Respondent. The Senior Manager

of the Respondent made an endorsement on the said Application dated

29 December 2001 that the Petitioner's Application be considered

sympathetically. For substantial time, no decision was taken on the

application despite recommendation.

6. Thereafter, the Respondent appears to have started processing

the Petitioner's application and by a letter dated 8 March 2002 sought

certain details in regard to the personal borrowings of the Petitioner. The

Petitioner by his letter dated 2 April 2002 complied with the said

requirements interalia stating that as the Petitioner's father was ex-army

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servicemen, his mother was getting army pension at normal rate of

Rs.1275/-. The Respondent thereafter by another letter dated 18 July

2002 demanded further documents. As no decision was taken despite

submission of the documents, the Petitioner addressed one more letter

dated 20 March 2003 reiterating the financial problems on the family and

requesting for an early decision.

7. Thereafter by another letter dated 10 September 2003, the

Respondent purportedly sought further documents from the Petitioner.

In fact the contents of the letter are almost the same to that of earlier

letter dated 18 July 2002 which were complied. The Petitioner however

again by his letter dated 16 September 2003 complied with the said

requirement as well. Despite all these compliances by the Petitioner, for

almost a period of two years, no decision was taken by the Respondent.

8. The Respondent ultimately by the impugned letter dated 21

March 2005, referring to the application of the Petitioner dated 28

December 2001 for employment on compassionate ground, informed the

Petitioner that the Respondent had formulated a scheme for payment of

ex-gratia lumpsum amount and thus there was no provision for

employment on compassionate ground and therefore the Respondent will

not be in a position to consider the Petitioner's request for employment

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on compassionate ground. It was stated that if a request is received from

the Petitioner for providing financial relief under the said new scheme,

such request would be processed subject to satisfying eligibility criteria

under the Scheme. A fresh set of application was enclosed to be

completed and submitted by the Petitioner. It was stated that no

correspondence would be entertained with regard to providing of

employment on compassionate ground.

9. The Petitioner under a bonafide belief responded to the said

letter of the Respondent and made an application dated 23 September

2005 for lumpsum ex-gratia amount, on the presumption that there is no

provision for employment on compassionate ground. The Respondent,

however, by its letter dated 6 January 2006, informed the Petitioner that

on placing the matter before the Competent Authority, the request of the

Petitioner for lumpsum ex-gratia amount cannot be considered as the

Petitioner does not satisfy the eligibility norms laid down under the

scheme. No reason was given as to on what ground the Petitioner lacks

eligibility. The Petitioner therefore made a detailed representation being

aggrieved by both the issues namely for non grant of compassionate

appointment and/or rejection of the eligibility for lumpsum ex-gratia

amount. The representation was replied by the Respondent by its letter

dated 28 July 2007. Again in rejecting the request, no reason was set

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out.

10. The Petitioner thereafter again addressed a letter dated 2

August 2007 now to the General Manager of the Respondent making a

grievance that his case was pending since 2001. However there was no

response even to this letter. The Petitioner in this situation approached

the Ministry of State for Labour and Employment, Government of India

and also the Ministry of Finance by his representation dated 27 August

2009 and 27 March 2010 respectively. The Petitioner also made

application under the Right to Information Act which revealed that

between 2001 to 2005 the Respondent had implemented the

compassionate appointment scheme in case of 101 employees which

shows that the Petitioner was discriminated.

11. The Petitioner accordingly approached this Court in the present

Writ Petition. At the hearing of this Petition on 27 July 2014, this Court

considering the decision of the Supreme Court in Respondent's own case

namely in "Canara Bank & Anr. Vs. M.Mahesh Kumar1", permitted the

Petitioner to file a fresh representation based on the said decision and

directed the Respondent to consider the said representation. However,

the Respondent by its communication dated 21 August 2015 rejected the

said representation. This is how the matter stands before us.

    1 (2015 II CLR 563)




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12. Learned Counsel for the Petitioner having pointed out all the

above facts and the documents as placed on record submits that the case

of the Petitioner is of absolute discrimination. It is submitted that the

Petitioner had applied for compassionate appointment immediately on

demise of his father at which point of time the scheme of appointment on

compassionate ground was very much in vogue. It is submitted that the

Petitioner had made all compliances required by the Respondent. It is

submitted that however without giving up his right for compassionate

appointment the Petitioner under a bonafide belief applied for lumpsum

ex-gratia amount. It is submitted that his application for lumpsum ex-

gratia amount cannot amount to taking away his right of appointment on

compassionate ground, when his application for compassionate

appointment was a legitimate application and which was illegally not

considered by the Respondent. The learned Counsel for the Petitioner in

making this submission has relied on the letter dated 21 March 2005 of

the Respondent which is a composite letter informing the Petitioner that

his application for appointment on compassionate ground was not

considered as the scheme itself was not available and called upon him to

apply for lumpsum ex-gratia amount under the 2005 scheme. It is

submitted that it is no fault of the Petitioner to have bonafide made an

application under the 2005 Scheme. It is submitted that in fact about

101 cases of compassionate appointment were considered during the

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period from 2001 to 2005 and that there is gross discrimination meted

out to the Petitioner. It is submitted that by the impugned action of the

Respondent the fundamental rights entitled to the Petitioner under

Articles 14 and 21 of the Constitution stand breached at the hands of the

Respondent.

13. The Respondent opposed the Writ Petition relying on the reply

affidavit dated 3 September 2012. The contention of the Respondent is

nothing but reiterating the stand as recorded in the letters addressed to

the Petitioner as noted above. The Respondent contends that the

Petitioner cannot be granted compassionate appointment as the scheme

itself is not available. It is submitted that it is not a matter of legal right

for the Petitioner to ask for compassionate appointment. To support this

submission reliance is placed on the decision of the Supreme Court in the

case "State Bank of India & Ors. Vs. Smt.Vindhwashini Devi & Anr.2",

and "Umesh Kumar Nagpal Vs. State of Haryana & Ors. 3" In fact a

contrary stand is taken in the written notes that as the Petitioner had not

furnished the information, the Respondent could not process his

application till 14 February 2005.

14. We have heard the learned Counsel for the parties. We have

also perused the averments made in the Writ Petition and the reply and 2(2009(120) FLR 461) 3 (1994)4 SCC 138

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the rejoinder affidavits as also the documents. It is an admitted position

that when the Petitioner submitted an application for compassionate

appointment on 28 December 2001, the scheme for employment on

compassionate ground was very much available when an employee of the

Respondent-bank died in harness. There is no dispute that the Petitioner

was eligible being son of the deceased employee. Notwithstanding the

obligation under the Scheme to decide the application in fair and non-

arbitrary manner, the Respondent, in our opinion, without any

reasonable cause and despite compliances, kept the said application

pending for almost four and half years and by the impugned

communication dated 21 March 2005 without rejecting the Petitioner's

application for compassionate appointment, informed the Petitioner that

the Respondent will not be in a position to provide the Petitioner

appointment on compassionate ground giving a reason of a new scheme

for payment of ex-gratia lumpsum amount as a substitute to the

compassionate appointment scheme. A perusal of this communication

clearly shows that the Petitioner's application for compassionate

appointment is not rejected. In fact the tenor of the letter indicates that

the Petitioner was compelled and called upon to apply now for ex-gratia

lumpsum amount. In our opinion, this position taken by the Respondent

clearly shows that the Petitioner's application for compassionate

appointment was considered to be void and that is how he was asked to

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make an application for ex-gratia lumpsum amount. If it was to be a

genuine case of rejection of the Petitioner's application for compassionate

appointment in that case the reasons would have been different. In these

circumstances there was nothing wrong that the Petitioner being

outsider, in bonafide belief responded and applied for ex-gratia lumpsum

amount. However, the said application was also turned down by the

Respondent by a cryptic communication dated 6 January 2006 stating

that the application is rejected as it does not satisfy the eligibility norms

under the scheme. No reason whatsoever is given as to how the

application of the Petitioner had become ineligible.

15. We are deeply pained to read the nature of the letters as

addressed by the Respondent to the Petitioner. In our opinion the

approach of the Officers of the Respondent is absolutely insensitive to the

peculiar requirements of dealing with the cases on compassionate

appointment. The human consideration as the situation requires in

attending to such application is completely forgotten. There is no

application of mind of any degree, to the Petitioner's application for

compassionate appointment and it appears that deliberately no decision

on the Petitioner's application for compassionate appointment was taken.

Such a conduct is not expected from the public officers and a public body

like the Respondent.

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16. In our opinion, the Petitioner had complied with all the

requirements under the appointment on compassionate ground scheme

and was eligible for compassionate appointment as the Petitioner's father

died in harness. The Respondent for the reasons best known to it did not

decide the Petitioner's application for compassionate appointment. In the

entire correspondence, the Respondent did not set out any reason to hold

the Petitioner dis-entitled for compassionate appointment. Probably

there were no reasons and /or the Respondent was acting on extraneous

considerations. However, in this situation the Respondent foisted on the

Petitioner letter dated 21 March 2005 informing that "in view of the

scheme for payment of ex-gratia lumpsum amount, the Respondent-bank

will not be in a position to consider your request for employment on

compassionate ground." This clearly indicates that the Petitioner's

application for no reason whatsoever was not decided. The Respondent

could not demonstrate from any prior correspondence that the Petitioner

for some reason was held ineligible for compassionate appointment. In

our opinion, the Petitioner could not have been foisted with the letter

dated 21 March 2005 informing to apply for payment of ex-gratia

lumpsum amount. Such action on the part of the Respondent was

definitely arbitrary and unjust. We, are therefore, of the clear opinion

that the prayer of the Petitioner for compassionate appointment ought

to be granted. The learned counsel for the Petitioner in support of his

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submissions is justified in relying on the recent decision of the Supreme

Court which was in case of this very Respondent namely in Canara Bank

& Anr. Vs. M.Mahesh Kumar (supra) wherein the Supreme Court

considered the issue proximate to the facts of the present case. The

Supreme Court considered the very same assertion as made by the

Respondent of non-availability of compassionate appointment scheme in

view of ex-gratia lumpsum payment in lieu of compassionate

appointment scheme. Considering the law and the submissions of the

Appellant-Bank in the said case it is observed that the father of the

Respondent's in the said case had died on 10 October 1998 while he was

serving as a clerk in the bank and that a timely application for

compassionate appointment was made under the 'Dying In Harness

Scheme' which was in force at that point of time. It is held that the cause

of action for considering the application for compassionate appointment

arose when the scheme "dying-in-harness scheme" was in force. The

appeal of the Respondent-bank was dismissed directing the Respondent -

Bank to consider the case of the Respondent therein, for compassionate

appointment as per the said scheme which was in force. It will be

profitable to note the observations of the Supreme Court in paragraphs

13 to 17 which read thus :-

"13. Applying these principles to the case in hand, as discussed earlier, respondent's father died on 10.10.1998 while he was serving as a clerk in the appellant-bank and the respondent applied timely for compassionate appointment as per the scheme 'Dying in

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Harness Scheme' dated 8.05.1993 which was in force at that time. The appellant-bank rejected the respondent's claim on 30.06.1999 recording that there are no indigent circumstances for providing

employment to the respondent. Again on 7.11.2001, the appellant-

bank sought for particulars in connection with the issue of respondent's employment. In the light of the principles laid down in the above decisions, the cause of action to be considered for compassionate appointment arose when the Circular No.154/1993

dated 8.05.1993 was in force. Thus, as per the judgment referred in Jaspal Kaur's case, the claim cannot be decided as per 2005 Scheme providing for ex-gratia payment. The Circular dated 14.2.2005

being an administrative or executive order cannot have retrospective effect so as to take away the right accrued to the

respondent as per circular of 1993.

14. It is also pertinent to note that 2005 Scheme providing

only for ex-gratia payment in lieu of compassionate appointment stands superseded by the Scheme of 2014 which has revived the scheme providing for compassionate appointment. As on date, now

the scheme in force is to provide compassionate appointment. Under these circumstances, the appellant-bank is not justified in

contending that the application for compassionate appointment of the respondent cannot be considered in view of passage of time.

15. Insofar as the contention of the appellant-bank that

since the respondent's family is getting family pension and also obtained the terminal benefits, in our view, is of no consequence in considering the application for compassionate appointment. Clause 3.2 of 1993 Scheme says that in case the dependent of deceased

employee to be offered appointment is a minor, the bank may keep the offer of appointment open till the minor attains the age of majority. This would indicate that granting of terminal benefits is of no consequence because even if terminal benefit is given, if the applicant is a minor, the bank would keep the appointment open till the minor attains the majority.

16. In Balbir Kaur & Anr. vs. Steel Authority of India Ltd.

& Ors., (2000) 6 SCC 493, while dealing with the application made

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by the widow for employment on compassionate ground applicable to the Steel Authority of India, contention raised was that since she is entitled to get the benefit under Family Benefit Scheme assuring

monthly payment to the family of the deceased employee, the

request for compassionate appointment cannot be acceded to. Rejecting that contention in paragraph (13), this Court held as under:-

"13. ....But in our view this Family Benefit Scheme cannot in

any way be equated with the benefit of compassionate appointments. The sudden jerk in the family by reason of the death of the breadearner can only be absorbed by some lump-

sum amount being made available to the family -- this is rather unfortunate but this is a reality. The feeling of security

drops to zero on the death of the breadearner and insecurity thereafter reigns and it is at that juncture if some lump-sum

amount is made available with a compassionate appointment, the grief-stricken family may find some solace to the mental agony and manage its affairs in the normal course of events.

It is not that monetary benefit would be the replacement of the breadearner, but that would undoubtedly bring some

solace to the situation."

Referring to Steel Authority of India Ltd.'s case, High Court has rightly held that the grant of family pension or payment of terminal

benefits cannot be treated as a substitute for providing employment assistance. The High Court also observed that it is not the case of the bank that the respondents' family is having any other income to negate their claim for appointment on compassionate ground.

17. Considering the scope of the Scheme 'Dying in Harness Scheme 1993' then in force and the facts and circumstances of the case, the High Court rightly directed the appellant-bank to reconsider the claim of the respondent for compassionate appointment in accordance with law and as per the Scheme (1993) then in existence. We do not find any reason warranting interference."

17. We have not dealt with the various decisions referred by the

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Respondent in the written submissions. These decisions relied upon by

the respondents lay down certain propositions of law which are well

established and with which there cannot be any disagreement, but for the

purposes of this case they are academic.

18. In the light of the above discussion, we may unhesitatingly

conclude, that the facts and circumstances of the present case clearly

demonstrate an arbitrary action on the part of the Respondent in

depriving the petitioner benefit of the compassionate appointment. There

is no material to indicate that the Respondent had held the petitioner

ineligible for compassionate appointment and in fact kept dilly dallying

the Petitioner's application for a period of more than four years,

significantly, during the same period Respondent granted compassionate

appointment in more than hundred cases, however foisted on the

Petitioner, closure of the scheme for compassionate by Respondent's

letter dated 21 March 2005. This decision of the Respondent, as

contained in the letter dated 21 March 2005, in our opinion, is patently

illegal and deserves to be quashed and set aside. The facts which we have

noted in detail thus justify a direction to the Respondent grant of a

compassionate appointment to the petitioner. We accordingly direct the

Respondent to grant to the Petitioner, employment on compassionate

ground as per his application dated 28 December 2001 within a period of

four weeks from today.

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19. Writ Petition is allowed in the aforesaid terms however with

costs of Rupees Twenty Five thousand to be paid by the Respondent to

the Petitioner within a period four weeks from today.

                   (G.S.KULKARNI,J.)            (ANOOP V. MOHTA, J.)