Sushanta Kumar Sahu, Ganjam vs Registrar Of Co-Operative ...
2014 Latest Caselaw 211 Del

                             HIGH COURT OF ORISSA: CUTTACK
                                 W.P.(C) No.15836 of 2013

        In the matter of an application under Articles 226 and 227 of the
        Constitution of India.
                                       --------

Sushanta Kumar Sahu, Son of late Kanhu Charan Sahu, At: Padhal, P.O. Jeypore, P.S. Aska, Dist: Ganjam ... Petitioner

-Versus-

Registrar of Co-operative Societies, Orissa, Bhubaneswar and another ... Opp. Parties

For Petitioner : Mr.Shakti Datta Tripathy

For Opp. Parties : Mr.Baidhar Sahoo & G.N.Sahu [For O.P. No.2]

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P R E S E N T:

THE HONOURABLE SHRI JUSTICE I. MAHANTY AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment: 10.01.2014

B.N. Mahapatra, J. This writ petition has been filed for a direction to opposite

party No.2-Secretary, Berhampur Central Cooperative Bank Limited,

Berhampur to appoint the petitioner under the Rehabilitation Assistance

Scheme on account of death of his father and for a further direction to

opposite party No.1-Registrar, Cooperative Societies, Orissa,

Bhubaneswar to accord approval in respect of the said appointment.

2. Petitioner's case in a nut-shell is that the father of the

petitioner late Kanhu Charan Sahu died in harness due to kidney failure

on 29.11.2005. At the time of his death, petitioner's father was serving

under Opposite Party No.2 as a regular employee. After death of his

father, the petitioner made representation under Annexure-3 to opposite

party No. 2 for his appointment under the Rehabilitation Assistance

Scheme. Vide Letter No.5676/12-13 dated 17.01.2013 (Annexure-4),

though opposite party No.2-Secretary has required approval of opposite

party No.1 for appointment of the petitioner along with others under the

Rehabilitation Scheme, no action has yet been taken by opposite party

No.1. Hence, the present writ petition.

3. Mr.Tripathy, learned counsel appearing on behalf of the

petitioner submitted that both the opposite parties have failed to exercise

their duties in proper perspective. Petitioner and his family members are

in bare need of financial assistance for their survival. For no valid

reason, the petitioner has been deprived of getting appointment under

the Rehabilitation Assistance Scheme formulated by opposite party No.1.

Mr.Tripathy further submitted that petitioner's case is covered by order

of this Court dated 22.04.2013 passed in W.P.(C) No.7653 of 2013

(Sibananda Jena Vs. the Registrar, Co-operative Societies, Orissa and

another). The petitioner in that case has got appointment under the

Rehabilitation Assistance Scheme on the basis of the aforesaid Court

order. Therefore, it is submitted that in the instant case the petitioner is

entitled to be appointed under the Rehabilitation Assistance Scheme

under Annexure-1 formulated by opposite party No.1.

4. Mr.Baidhar Sahoo, learned counsel appearing on behalf of

opposite Party No.2 referring to the counter affidavit filed on behalf of

opposite party No.2 submitted that the father of the petitioner expired on

29.11.2005 while working as Peon in opposite party-Bank. Petitioner had

filed representation for appointment under the Rehabilitation Assistance

Scheme to opposite party No.2 on 10.02.2009, which is after lapse of

three years from the date of death of his father. The Human Resource

Policy for the Central Cooperative Banks of Odisha incorporating the

Staff Service Rules, 2011 (for short, "Rules, 2011") has been adopted by

opposite party-Bank. Referring to Rule 8 of the Rules, 2011, it was

submitted that the petitioner has not applied for any appointment within

one year from the death of his father. Therefore, his case cannot be

considered in violation of provision of Rule 8 of the said Rules, 2011.

Annexure-1 filed by the petitioner is not applicable to his case. Opposite

party No.2 has never assured the petitioner for providing appointment as

stated in paragraph 5 of the writ petition. Though opposite party No.2

has issued letter No.5676 dated 17.01.2013 to opposite party No.1, no

approval has yet been accorded by the statutory authority. Petitioner's

case is not covered by the decision of this Court rendered in W.P.(C)

No.7653 of 2013. In that case, petitioner-Sibananda Jena had passed +2

with Diploma qualification and applied for appointment in the opposite

party Bank under the Rehabilitation Assistance Scheme within one year

from the date of death of his father. He has also filed the Distress

Certificate. Therefore, he has been appointed against the post of a Peon.

If ineligible candidates' cases are considered for appointment under the

Rehabilitation Assistance Scheme, the direct recruitment will not be

held, as a result, suitable candidates will be debarred from joining the

bank service which would paralyze the actual functions of the bank.

5. On the rival contentions of the parties, the only question

that falls for consideration by this Court is that whether on account of

death of father of the petitioner in harness, his case can be considered

for the purpose of giving appointment to him in Group 'B' or Group 'C'

post as per his qualification under the Rules, 2011 even though he has

not made application for such appointment within one year from the date

of death of his father as required under Rule 8 of the Rules, 2011.

6. Undisputed facts relevant for our purpose are that

petitioner's father died on 29.11.2005 while working as Peon in opposite

party-Bank. Petitioner has filed representation for appointment under

the Rehabilitation Assistance Scheme on 10.02.2009, which is three

years after death of his father.

7. On this factual backdrop, we have to answer the above

question. As it appears, the sole ground on which petitioner's case has

not been considered by opposite parties for appointment under the

Rules, 2011 is that he made an application for appointment under the

Rehabilitation Assistance Scheme after three years from the date of death

of his father. It was emphatically argued that since the petitioner has not

made an application within one year of death of his father, he is not

entitled to get such appointment under the said Rules, 2011.

8. Rule 8 of the Rules, 2011 deals with special provision for

appointment of Widow/son/unmarried daughter of deceased employee in

the service of the Bank. The said provision is extracted hereinbelow:-

"8. SPECIAL PROVISION:

Appointment of Widow / Son / unmarried Daughter of deceased employee in the service of the Bank.

 In such appointments Widow / Son /unmarried Daughter of deceased employee cannot claim such appointments as a matter or right.

 The Bank may pay salary of 24 months in lieu of providing appointment of Widow / Son / unmarried Daughter of deceased employee.

 In case, the compensation package offered is not accepted, in such case the competent authority may consider appointment of Widow / Son / unmarried Daughter of deceased employee depending on necessity, qualification and availability of vacancy in Group - B or Group - C posts.

Provided that in case of appointment on rehabilitation /compassionate grounds, appointment will be given only in the Grade the deceased employee was holding subject to maximum of Banking Assistant and within a period of one year."

9. In the present case, admittedly after death of the father of the

petitioner, he was not intimated by the employer of his father about the

special provision incorporated under the Rules, 2011.

10. It is the bounden duty of a model employer to act

benevolently with all sincerity for welfare of the legal heirs of an employee

who died in harness. A model employer should not only intimate the legal

heir(s) of the deceased employee regarding the provisions/procedure for

getting various benefits, but also should send copy of the said

provision/procedure to enable the bereaved family member(s) to avail the

benefit available to them in the event of death of their father/mother.

This attitude of the employer, no doubt, creates ample hope and

confidence in the minds of the employees for achieving excellence in

service. A model employer should not take advantage of the ignorance of

the legal heirs of any deceased employee in the matter of getting any

benefit under any Rehabilitation Assistance Scheme. An employer should

neither exploit its employees nor take advantage of any helplessness and

misery of the employees [See Sate of Haryana Vs. Piara Singh, (1992)

4 SCC 118].

11. The apex Court in Balbir Kaur & Anr. Vs. Steel Authority

of India Ltd. & Ors., JT 2000 (6) SC 281, while dealing with a matter

relating to family benefit scheme and compassionate appointment in the

case of an employee of Steel Authority of India who died in harness

observed as under:-

"The employer being Steel Authority of India, admittedly an authority within the meaning of Article 12 has thus an obligation to act in terms of the avowed objective of social and economic justice as enshrined in the Constitution but has the authority in the facts of the matters under

consideration acted like a model and an ideal employer - It is in this factual backdrop, the issue needs an answer as to whether we have been able to obtain the benefit of constitutional philosophy of social and economic justice or not. Have the lofty ideals which the founding fathers placed before us any effect in our daily life- the answer cannot however but be in the negative - what happens to the constitutional philosophy as is available in the Constitution itself, which we ourselves have so fondly conferred on to ourselves. The socialistic pattern of society as envisaged in the Constitution has to be attributed its full meaning: A person dies while taking the wife to a hospital and the cry of the lady for bare subsistence would go unheeded on a certain technicality. The bread earner is no longer available and prayer for compassionate appointment would be denied, as "it is likely to open a Pandora's Box" - This is the resultant effect of our entry into the new millennium. Can the law courts be a mute spectator in the matter of denial of such a relief to the horrendous sufferings of an employee's family by reason of the death of the bread-earner."

12. Needless to say that in the matter of compassionate

appointment for which specific Schemes are there, technicalities cannot

have preference over substantive justice.

13. In view of the above, we direct opposite party No.2-Secretary

of the Berhampur Central Cooperative Bank Limited to consider the case

of the petitioner for appointment under the Rehabilitation Assistance

Scheme/Staff Service Rules, 2011 irrespective of the fact that he filed the

application for appointment on account of death of his father in harness

after expiry of one year. If the petitioner is found otherwise suitable to

any post in the Bank under the Scheme/Rules in vogue, he may be given

such appointment. The entire exercise shall be completed within a period

of two months from the date of production of certified copy of this

judgment before opposite party No.2-Secretary, Berhampur Central

Cooperative Bank Limited.

14. In the result, the writ petition is allowed with the aforesaid

observations and directions but without any order as to costs.

................................

B.N.Mahapatra,J.

I.Mahanty, J.          I agree.

                                                       ..............................
                                                       I.Mahanty,J.



Orissa High Court, Cuttack
The January, 2014/ss/ssd/skj