Manish Verma And Anr. vs State Bank Of Bikaner And Jaipur
2007 Latest Caselaw 767 Del

JUDGMENT

Mukundakam Sharma, C.J.

CM 4833/2006

By this application the appellants pray for condensation of delay in filing the appeal.

Heard the learned Counsel appearing for the parties on this application.

For the reasons stated in the application, the same is allowed. Delay in filing the appeal stands condoned. The appeal is taken on record.

The application stands disposed of.

LPA 533-534/2006

1. This appeal deals with the issue of giving appointment on compassionate ground by the respondent Bank. The appellants have also prayed for enhancement of compensation of Rs. 1,00,000/- awarded by the learned Single Judge.

2. Father of the appellants was a Head Clerk with the respondent bank and while working in the bank he was shot dead by the security guard of the bank. The security guard was convicted and was awarded rigorous imprisonment for life. The appellants thereafter lived with their grandfather as their mother had expired six months prior to the aforesaid shooting of their father. The aforesaid incident took place on 20th July, 1997. It is stated that the respondent also informed the grandfather of the appellants that they would consider appellant No. 1 for compassionate appointment on his attaining majority.

3. On 3rd March, 2002 the grandfather of the appellants expired leaving behind the appellants. Consequent thereto, appellant No. 1 was not only to look after himself but also appellant No. 2. In the year 2002, on attaining majority, appellant No. 1 submitted an application to the respondent bank requesting for compassionate appointment. However, by order dated 10th May, 2002, the request for compassionate appointment was rejected.

4. The appellants filed a writ petition in this Court praying for a direction to the respondent bank to give compassionate appointment to appellant No. 1. The learned Single Judge, considering the rival contentions of the parties in the writ petition, disposed of the same by order dated 6th January, 2006. While disposing of the said writ petition, the learned Single Judge held that the decision of the bank not to provide compassionate appointment to the first appellant was neither unreasonable nor arbitrary. But as regards the second issue of tortuous liability of the bank, it was held that the bank should pay to the appellants further amount of Rs. 1,00,000/- each and also pay interest @ 7% p.a.

5. Being still dissatisfied, they filed the present appeal praying for a direction to the bank to give compassionate appointment to appellant No. 1 in a post for which he is qualified and also to pay enhanced compensation. We have heard the learned Counsel appearing for the parties on this appeal. By this judgment and order we propose to dispose of this appeal.

6. There is no dispute to the fact that as of today the appellants have received without any protest or demur a total sum of Rs. 1 lac each. In the receipt dated 18th March, 2006, which is at page 138A, it is clearly stated by the appellants that they have accepted the decision and have received Rs. 1 lac each with interest @ 7% p.a., in terms of the order passed by the learned Single Judge in full and final payment of their claims. They have also certified in the said receipt that nothing further is due from the bank. It is, therefore, clear that the appellants have received the entire payment in terms of the orders of the learned Single Judge without raising any objection and in full and final settlement of the claims. After receipt of the aforesaid amounts by executing the aforesaid receipt with the contents stated therein, the present appeal was filed by the appellant.

7. On the question of compensation and quantum, we agree with the findings and observations made by the learned Single Judge. Learned Single Judge has specifically held that it would not be a wise exercise of discretion to adjudicate the issue as to whether the respondent-Bank had breached its duty of care and was vicariously liable for the acts of the security guard that led to the death of the appellant's father. In spite of the above finding, learned Single Judge in equity, and not on the basis of any legal right, had awarded compensation of Rs. 1 lac along with interest @ 7% per annum from 1st January, 2001 with a direction that the entire amount be paid within six weeks. While doing so, the learned Single Judge noticed that ex-gratia payment of Rs. 70,000/- had already been paid. It was also noticed that the deceased had worked for nearly 20 years and would have been eligible for voluntary retirement if he had continued in service for some time more.

8. The deceased had expired in an unfortunate incident on 20th July, 1997. The Writ Petition was filed only in 2004 It is apparent that the appellants herein were satisfied with the ex-gratia payment of Rs. 70,000/-. It also appears that the Writ Petition was filed basically to secure compassionate employment after one of the appellant's became major. On the question whether there was any animosity between the deceased and the guard there is conflicting evidence and material as pointed out by the learned Single Judge. It is mentioned in the impugned judgment that at one stage learned Counsel for the respondent-Bank had suggested that there was personal grudge and animus between the deceased and the guard but this was denied by the learned Counsel for the appellants who stated that the deceased employee was doing his job and had taken steps which had led to loss of extra income of the security guard. These factual aspects cannot be appropriately decided in a writ petition. The cause and reason for the security guard to kill the deceased are factual disputes which require adjudication after parties have lead evidence.

9. Judgment in the case of Lata Wadhwa and Ors. v. State of Bihar relied upon by the appellants deals with a situation where the doctrine of Res Ipsa Loquitor is applicable. In the said case the liability of the company which had set up the pandal was not denied. The pandal had caught fire, causing death and injuries to several persons. It cannot be said on the basis of this judgment that the respondent-Bank should be held vicariously liable to pay compensation because a security guard had shot an employee. Similarly, in the case of Chairman, Railway Board and Ors. v. Chandrima Das (Mrs.) and Ors. , the Court was dealing with a case where the victim was traveling as a passenger in a train. It is the duty of the Railways to look after the safety and well being of their customer, i.e. the passenger. The Supreme Court held that the employee of the Railways had caused injuries amounting to tortuous act and violated fundamental rights of the said woman passenger. In these circumstances principle of vicarious liability was invoked as it was the duty of the respondent-Railways to ensure safety of the passengers who had availed services of the appellant therein. By invoking public law remedy, compensation was awarded after noticing the exceptional features of the said case. In M.S. Grewal and Anr. v. Deep Chand , the Court was concerned with death of 14 young children who had gone for a school picnic and got drowned while they were in custody, care and charge of the school management. In these circumstances, the Court examined the concept of negligence and gave a finding that there was lack of exercise of diligence and care to look after the safety of the children. Accordingly, though teachers were present at the picnic, principle of vicarious liability was invoked. The said decision does not help and support the case of the appellants. The reason and cause for the guard killing the deceased has not been established and proved. The Bank was directly or indirectly the employer of both, the deceased and the security guard, but this stand alone cannot make the respondent-Bank liable to pay compensation. Whether there was personal animosity between the two and the reasons for the same have to be examined and gone into. The respondent- Bank cannot be held vicariously liable for the act of the security guard, even if there was personal grudge and disputes between the two, independent of and de hors the employment. These aspects require adjudication and can be decided after the parties have been given opportunity to lead evidence. In the case of State of Maharashtra v. Kanchanmala Vijaysing Shirke the Supreme Court has observed as under:

9. ...A master is liable even for acts which he has not authorised provided they are so connected with acts which he has been so authorised. On the other hand, if the act of the servant is not even remotely connected within the scope of employment and is an independent act, the master shall not be responsible because the servant is not acting in the course of his employment but has gone outside.

10. The appellants have accepted the entire amount in terms of the order of the learned Single Judge and on execution of the receipt stating that the said amount is received in full and final payment of the claims of the appellants. The respondent claim that principles of waiver and acquiescence apply. The appellants claim force and coersion. These aspects and contentions cannot be decided in an appeal, though it appears to be unfair for a party to accept payment as per the judgment and then challenge the same.

11. The respondent bank has laid down a policy as to under what circumstances compassionate appointment could be given. Under the said policy the bank was under duty to take into account all the circumstances such as quantum of the family pension paid to the dependants, the amount paid towards gratuity, provident fund and compensation, size of the family and liabilities. All the aforesaid factors which were required to be considered by the bank were in fact considered in the case of the appellants. The second contention is with regard to the amount that was made available to the appellants. The said fact is also not disputed by the appellants. The total amount that was paid to the appellants, which was invested, yields an interest of Rs. 1887/- per month. Family pension was also being paid to them. Having regard to the aforesaid and also the fact that the appellants own their own house, the bank decided that the case did not justify compassionate appointment.

12. The law regarding the issue of compassionate appointment is by now well settled by various decisions of the Supreme Court and of this High Court. We may refer to an earlier decision rendered by this Court in WP(C) No. 4733-34/004 : Smt. Savitri Devi and Anr. v. Union of India and Ors. decided on 5th October, 2005 in which it was stated that claim for appointment on compassionate ground whenever made should be reasonable and justified on the basis of sudden economic crises occurring in a family, whose bread earner has died in harness and that such request for appointment on compassionate ground has to be strictly in accordance with the Schemes/Rules and regulations framed for that purpose. In coming to the aforesaid conclusions, this Court considered various decisions of the Supreme Court including Punjab National Bank and Ors v. Ashwani Kumar Taneja and General Manager (D and PB) and Ors v. Kunti Tiwari and Anr . Supreme Court has also held that the retiral benefits which are received by the family on death of the deceased could also be considered by the Courts, while considering as to whether or not the person deserves to be granted appointment on compassionate ground. In the case of Sanjay Kumar v. State of Bihar and Ors. the Supreme Court has held that keeping in view the purpose and object behind compassionate appointment, a family member who was minor at the time of death of the deceased government employee, cannot claim any reservation or right to appointment once he becomes major after a number of years, unless there is a specific provision in the policy/rules.

13. The law laid down in these decisions makes it crystal clear that no one can claim compassionate appointment as a matter of right. It is also now settled law that the benefits received by the legal heirs of the deceased could also be taken notice of for the purpose deciding as to whether or not compassionate appointment can be given.

14. The very purpose of giving compassionate appointment is to tide over the immediate financial constraints faced by the family on the death of the earning member of the family. The appellants have received a substantial amount and it is clear now that they cannot be said to be under financial constraints. Such a situation does not exist in the present case, and therefore, the decision of the respondent bank to reject the case for giving compassionate appointment cannot be said to be arbitrary or unreasonable. The said rejection is in accordance with the policy laid down by the bank and, therefore, no interference with the said decision is called for. The learned Single Judge had directed that an additional amount of Rs. 1 lac be paid to each of the appellants with interest @ 7% p.a., which has been paid. Therefore, there is neither any illegality nor any irregularity in the order passed by the learned Single Judge.

15. Accordingly, we find no merit in the appeal and the same is dismissed, leaving the parties to bear their own costs.