Smt. Pramila Tripathi vs The State Of Madhya Pradesh
2023 Latest Caselaw 8942 MP

                                  1               W.P. No.5940 of 2016


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                           BEFORE

     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA

                  ON THE 16th OF JUNE, 2023
               WRIT PETITION No. 5940 of 2016
BETWEEN:-
SMT. PRAMILA TRIPATHI W/O LATE DR.
KRISHNA DATT TRIPATHI, AGED ABOUT 57
YEARS, R/O UPRETHI REWA, DISTT. REWA
(MADHYA PRADESH)


                                                         .....PETITIONER
(BY SHRI JAI SHUKLA - ADVOCATE)

AND
1.   STATE OF MADHYA PRADESH, THROUGH
     PRINCIPAL    SECRETARY,    HIGHER
     EDUCATION   DEPARTMENT,   VALLABH
     BHAWAN, BHOPAL (MADHYA PRADESH)

2.   COMMISSIONER,   HIGHER           EDUCATION
     DEPARTMENT,    SATPUDA             BHAWAN,
     BHOPAL (MADHYA PRADESH)

3.   ADDITIONAL    DIRECTOR,     HIGHER
     EDUCATION   REWA   DIVISION   REWA
     (MADHYA PRADESH)

4.   DISTRICT TREASURY OFFICER,           REWA,
     DISTT. REWA (MADHYA PRADESH)

5.   DIVISIONAL PENSION OFFICER REWA
     DIVISION REWA (MADHYA PRADESH)

6.   DIVISIONAL    COMMISSIONER    REWA,
     DIVISION REWA (MADHYA PRADESH)

                                                     .....RESPONDENTS
(BY SHRI HARPREET RUPRAH - ADDITIONAL ADVOCATE GENERAL &
SHRI SUBODH KATHAR - GOVERNMENT ADVOCATE)
                                      2             W.P. No.5940 of 2016

      This petition coming on for admission this day, the court passed the
following:
                                ORDER

This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-

"(i) To issue a writ of mandamus directing the respondents to make payment of full compensation and to issue revised P.P.O. with five years revised pension including enhanced D.A. on it.

(ii) To declare that the action of respondents adjusting payment of pension in compensation is illegal and therefore, they be directed to correct the same.

(iii) To grant any other relief, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case including cost of the litigation in favour of the petitioner."

2. It is submitted by the counsel for the petitioner that the husband of the petitioner has died in harness. On the date of death of her husband, the circular dated 18/08/2008 was in force, according to which in lieu of appointment on compassionate ground, the last pay drawn was to be paid for a further period of five years or till attaining the age of superannuation by the deceased employee, whichever is earlier. It is alleged that the petitioner was paid one month salary vide order dated 29/07/2008 and thereafter salary for the remaining period was not paid and accordingly, the petitioner filed Writ Petition No.18581/2012. The said Writ Petition was disposed of by order dated 09/01/2014 with a direction to the Commissioner, Rewa to take suitable decision within a period of three months from the date of receipt of certified copy of the order in the light of the communication

dated 19/08/2010 sent by Principal, Government College with regard to entitlement of the petitioner to receive the salary along with dearness allowance for the remaining period of 59 months. It was made clear that the Court has not considered the merits of the case. Accordingly, an amount of Rs.12,38,693/- was paid to the petitioner, although the arrears of salary for five years was Rs.29,38,800/-. The petitioner made representations on 24/06/2015 and 25/08/2015, accordingly the Principal, Government College Raipur Karchuliyan, District Rewa by letter dated 14/09/2015 informed the Deputy Commissioner (Revenue) Rewa Division Rewa that in lieu of the compassionate appointment, the petitioner was entitled for the salary for a period of five years which came to Rs.29,37,600/- and after deducting the payment made on earlier occasion as well as the family pension, the remaining amount of Rs.12,38,693/- was paid and accordingly, it was directed that the Divisional Pension Officer, Rewa be directed to issue amended P.P.O.

3. It is submitted that the deduction of the family pension from the compensation in lieu of compassionate appointment was incorrect. The family pension and appointment on compassionate ground are two different aspects and cannot be clubbed together. To buttress his contention, the counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the case of Canara Bank and Another Vs. M. Mahesh Kumar reported in (2015) 7 SCC 412 as well as judgment passed by the Supreme Court in the case of Govind Prakash Verma v. Life Insurance Corporation of India and Others reported in (2005) 10 SCC 289.

4. Per contra, it is submitted by the counsel for the State that the compassionate appointment is granted in order to tied over the financial crises which the dependents of the deceased employee would face. The

financial condition of the dependents is one of the consideration and once the widow of the deceased is getting sufficient family pension, then she is not entitled for compassionate appointment. Accordingly, it is submitted that the entitlement for compassionate appointment is dependent on the financial condition of the dependents including the amount which will be received by his widow by way of family pension and thus, if the petitioner has opted for grant of salary of her late husband for a period of five years in lieu of compassionate appointment, then the amount of family pension which was to be received by her during the aforesaid five years was liable to be deducted and it has been rightly done so. Furthermore, the petitioner cannot be placed in a more advantageous position. In case of appointment on compassionate ground, the wife would be getting her salary in lieu of services rendered by her but when she opts for compensation, then she is already getting the salary of her husband without rendering any service therefore, if family pension and compensation are paid then it would amount to unjust enrichment.

5. Heard the learned counsel for the parties.

6. The Supreme Court in the case of Canara Bank (supra) has held as under:-

"19. 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 the 1993 Scheme says that in case the dependant of the 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 majority.

20. In Balbir Kaur v. SAIL [(2000) 6 SCC 493 : 2000 SCC (L&S) 767], while dealing with the application made 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 para 13, this Court held as under: (SCC p.

503) "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."

21. Referring to SAIL case, the 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."

7. The Supreme Court in the case of Balbir Kaur and Another Vs. Steel Authority of India Ltd. and Others reported in (2000) 6 SCC 493 has held has under:-

"13. Mr Bhasme, learned advocate appearing for Steel Authority contended that the Family Benefit Scheme was introduced on 21-11-1992 and the salient features of the Scheme were to the effect that the family being unable to obtain regular salary from the management could avail of the Scheme by depositing the lump sum provident fund and gratuity amount with the Company in lieu of which the management would make monthly payment equivalent to the basic pay together with dearness allowance last drawn, which payment would continue till the normal date of superannuation of the employee in question. Mr Bhasme further contended that adaptation of this Family Benefit Scheme was meant to provide an assured or regular income per month, while the bulk amount deposited by way of provident fund and gratuity with the management remained intact. Mr Bhasme contended that consequently on deposits as above with the management, the employee's family could avail of pay up to normal date of superannuation on the footing that the employee though not actually working but notionally continued to work till the normal date of superannuation and such a scheme in fact stands at a much better footing and much more beneficial to an employee or a deceased employee. Apparently these considerations weighed with the High Court and the latter thus proceeded on the basis that by reason of adaptation of a Family Benefit Scheme by the

employees' union, question of any departure therefrom or any compassionate appointment does not and cannot arise. 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."

8. Therefore, unless and until it is provided in the policy for appointment on compassionate ground that the family pension shall not be payable in case if appointment on compassionate ground is granted, only then the family pension can be withheld, otherwise the family pension is over and above the appointment on compassionate ground.

9. Neither of the party has placed the copy of the policy on record. Therefore, it is not possible for this Court to adjudicate as to whether the amount of family pension which was received by the petitioner for the period of five years after the death of her husband was liable to be adjusted or not.

10. Accordingly, the decision of the respondents to deduct the amount of family pension received by the petitioner is hereby quashed.

11. The matter is remanded back to the respondents to decide afresh as to whether there was any provision in the policy for appointment on

compassionate ground, which was in force at the time of death of husband of the petitioner, to the effect that after obtaining compensation in lieu of compassionate appointment or compassionate appointment, whether the widow of the deceased employee was entitled for family pension or not?

12. In absence of any such provision, the respondents cannot deduct the amount of family pension received by the petitioner during the period of five years and accordingly, they shall pay the same and in case if there was any such provision then a fresh order be passed by assigning reasons.

13. Let the entire exercise be completed within a period of three months from the date of receipt of certified copy of this order.

14. With aforesaid observation, the petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE shubhankar Digitally signed by SHUBHANKAR MISHRA Date: 2023.06.22 19:04:55 +05'30'