IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.10.2011 CORAM: THE HONOURABLE MR.JUSTICE T.RAJA Writ Petition No.43425 of 2002 1. Smt.V.Mullai Vasuki W/o.Late K.Veerarajan 2. V.Gokulakrishnan S/o. Late K.Veerarajan .. Petitioners -Vs- 1.Syndicate Bank rep. by its Chairman and Managing Director, Head Office: Manipal 576 119. 2. Syndicate Bank rep. by its Deputy General Manager, Zonal Office, 69 Armenian Street, Madras-1. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying this Honourable Court to issue a writ of Declaration that the action of the respondents Bank in denying compassionate appointment to the second petitioner is illegal, arbitrary and violative of Articles 38, 39 and 41 of the Constitution of India and consequently to direct the respondents to provide compassionate appointment to the second petitioner herein. For petitioners : Mr.S.Vaidyanathan For respondents : Mr.V.Karthick for M/s.T.S.Gopalan & Co. ORDER The petitioners have prayed for issuance of a writ of declaration declaring that the action of the respondents Bank in denying compassionate appointment to the second petitioner is illegal, arbitrary and violative of Articles 38, 39 and 41 of the Constitution of India and consequently to direct the respondents to provide compassionate appointment to the second petitioner. https://hcservices.ecourts.gov.in/hcservices/ 2. The first petitioner's husband Late K.Veerarajan, while serving as manager in the Sardhana branch of respondents-Syndicate Bank in Meerut, Uttar Pradesh was returning home from work carrying important documents and also the keys of the bank including keys of safe room, was shot dead on 25.6.2001 by unidentified youngsters and the assailants escaped after snatching his bag containing important bank documents and the bank keys from the victim. Though he was rushed to a nursing home, yet unfortunately he was declared dead. The bank also remained closed on the next day as the keys were also in the looted bag. When this is the admitted position by both sides and when the poor wife of the victim viz. first petitioner applied for compassionate appointment to the second petitioner, the said request was turned down by the respondents as unjust. In support of their decision to refuse compassionate appointment, mercilessly they took shelter under hyper technical men-made rules. Had the first petitioner's husband, as a manager of the bank, not carried the bank's keys and important bank's documents, the unidentified assailants would not have shot him dead. 3. The first petitioner's husband has lost his life for the bank. But the respondents-bank officials have not reciprocated a minimum gesture to help the berieved family. A brief facts leading to filing of the writ petition, which need mentioning, as under:- The first petitioner's husband while serving as Senior Officer at the management level in the respondents-Bank, the bank has introduced a Voluntary Retirement Scheme, 2000. In response to the voluntary retirement scheme, the first petitioner's husband Mr.K.Veerarajan also applied for voluntary retirement in terms of the said scheme. In the meanwhile, before his request for voluntary retirement was accepted by the respondents-bank, on 25.6.2001, when the manager Mr.K.Veerarajan, working in Sardhana branch of respondents-Syndicate bank was returning home from work, carried bank's bag containing important documents and bank's keys including keys of safe room also, the miscreants thinking that the first petitioner's husband was carrying bank's money, shot him dead and escaped after snatching the victim's bag. As the keys were in the looted bag, the bank remained closed on the next day. However, after the recovery of the empty bag near Fazalpur, the bank was opened. It is pertinent to mention that while he was in service, applied for VRS in December 2000 on 2.4.2001, the respondents-bank accepted his request for voluntary retirement and passed an order that he would be relieved with effect from 30.6.2001. Just five days before 30.6.2001, when he died, immediately after his death in order to help the berieved family the Respondent Bank released the death cum retiral benefits. https://hcservices.ecourts.gov.in/hcservices/ 4. Subsequently, the first petitioner viz., the wife of Late K.Veerarajan and the second petitioner viz., his son approached the respondents-bank seeking compassionate appointment to the second petitioner, the bank, after noting down that the family of the deceased was getting monthly pension of Rs.5542/-, rejected the request of the petitioners that they became ineligible for compassionate appointment. Aggrieved by the denial of the bank in not considering the genuine request of compassionate appointment by not showing magnanimity to the berieved family of an officer of the bank, who was shot dead, the present writ petition has been filed. 5. The learned counsel appearing for the petitioners submitted that the amount of ex-gratia paid by the bank soon after the death of the officer Late K.Veerarajan was an amount in any way disbursed to the petitioners' family under the voluntary retirement scheme. He further submitted that the petitioners are entitled to compassionate appointment under the new scheme prepared by the personnel department of the respondents-bank on 19.7.2007. While adding his submission, he also brought to the notice of this Court paragraphs 4(A) and 4(B) of revised model scheme for appointment of dependent of deceased employee on compassionate ground. As per 4(B), when an employee dies, while performing duty, by way of robbery or dacoity, he is entitled to get compassionate appointment. The case of the petitioners is fully covered by clauses 4(B) and para 5(h) of the very same scheme. Para 5(h) says that the scheme will come into force with retrospective effect from 31.7.2004 and all the applications pending as on 31.7.2004 shall be considered in accordance with the revised scheme. On these basis, he further contended that it is an admitted case by the respondents-bank that when the second petitioner's father who was the Chief Officer and manager of the bank, while getting into vehicle after closing the bank's door, the miscreants thinking that the manager was carrying the bank's money in his bag, attempted to snatch the bag and when the manager, to safeguard the interest of the bank, refused to part with the bag which was containing bank's keys including that of safe room, the miscreants shot him dead on the spot. 6. The learned counsel for the petitioners further added that the respondents-Bank being a State, within the meaning of Article 12 of the Constitution of India, cannot take any negative stand on hyper-technical ground to deny the compassionate appointment and the denial of compassionate appointment to the second petitioner is illegal. Therefore, the action of the respondents-Bank is opposed to Articles 38, 39 and 41 of the Constitution of India. On this basis, he further prayed for issuance of writ of declaration against the respondents-Bank declaring that the action of the respondents Bank in denying https://hcservices.ecourts.gov.in/hcservices/ compassionate appointment to the second petitioner is illegal, arbitrary and violative of Articles 38, 39 and 41 of the Constitution of India and to direct the respondents to provide compassionate appointment to the second petitioner. He further pressed into service his prayer pleading that the respondents-Bank being instrumentality of the State, is bound by Articles 39 and 41 of the Constitution of India, because Article 39 enjoins the State and all the instrumentalities of the State to strive to secure adequate means of livelihood to every citizen. Therefore the respondents-Bank must take all efforts to implement these directives and the Courts should also equally enforce such laws against the respondents bank by suitably moulding the relief. He further submitted that if the Authorities, while passing the order on 2.4.2001 relieved the second petitioner's father on the very same date, he could have avoided the brutal killing on 25.6.2001 and as a resourceful person, he would have continued to live with his family members. This should have fetched several other benefits to his family. But for the fact that the Bank while accepting his request for VRS on 2.4.2001, had chosen to relieve him with effect from 30.6.2001, he would have escaped from the death call on 25.6.2001. As the Bank had relieved him with effect from 30.6.2001, instead of 2.4.2001, he continued to serve the Bank till 30.6.2001, but on 25.6.2001, he was killed by the miscreants, hence the Respondent Bank should come forward to provide compassionate appointment to the second petitioner who is a son of the deceased officer. On this basis, he prayed for allowing the writ petition. In support of his argument, also he relied on the Judgments of the Apex Court in Daily Casual Labour Employed under P & T Department v. Union of India (1988) 1 SCC 122) and Jacob M.Puthuparambil v. Kerala Water Authority (1991) 1 SCC 28). 7. Per contra, the learned counsel appearing for the respondents-Bank, opposing the above prayer of the petitioners, has submitted that while the death of the deceased officer may be unfortunate, it is equally relevant to point out that the economic condition of the petitioners' family is far better than many other families whose bread-winner died while in service. Adding his submission, he further submitted that in the year 2000, the respondents-Bank announced a Voluntary Retirement Scheme 2000 and in response to that the first petitioner's husband late K.Veerarajan applied for voluntary retirement in terms of the said Scheme on 2.4.2001. After applying for voluntary retirement, unfortunately when he was returning home after closing the bank, he was shot dead by some miscreants on 25.6.2001. He further submitted that taking note of the untimely death of officer of the bank, the respondents-Bank immediately processed his application seeking for voluntary retirement and accordingly on 2.4.2001, the respondents-Bank after accepting the request for voluntary retirement, passed an order stating that he https://hcservices.ecourts.gov.in/hcservices/ would be relieved with effect from 30.6.2001. Thereafter, in order to be more helpful to the deceased officer, the bank released ex-gratia, gratuity, E.P.F etc. Further, as per the voluntary retirement scheme of the bank, an amount of Rs.2 lakhs has also been paid. Since the petitioners' family was paid compensation, the petitioners are not entitled to compassionate appointment. On this basis, he justified the rejection of the petitioners' request for compassionate appointment. 8. Heard both sides. 9. The admitted case of both sides shows that the first petitioner's husband was serving as manager in Sardhana branch of respondents- Syndicate bank in Meerut, Uttar Pradesh on 25.6.2001 and after closing the bank in the evening, he was returning home from work by carrying his bag containing bank's important documents and bank's keys including keys of safe room. At that time, some of the dacoities, thinking that the first petitioner's husband was carrying bank's money, attempted to snatch away the bag and when the poor manager refused to part with the bag, the dacoities shot him. However, when he was rushed to a nursing home, he was declared dead. Since the bank keys were lost, the bank remained closed on the next day and later, the bank was reopened. Due to untimely and unfortunate death, Mr.K.Veerarajan left behind his widow and three college going children. In the meanwhile, before he was murdered, Late Mr.K.Veerarajan applied for voluntary retirement in December 2000 on the basis of Voluntary Retirement Scheme announced by the bank in the year 2000. The respondents-Bank, accepting his request for voluntary retirement on 2.4.2001, passed an order that he would be relieved from the service with effect from 30.6.2001. Had the respondents bank while passing the order on 2.4.2001 relieved him with immediate effect from 2.4.2001, the death would not have occurred. But on the other hand, when the Bank accepting his request for VRS on 2.4.2001, instead of relieving him with immediate effect on 2.4.2001, had chosen to relieve him from the Bank's service with effect from 30.6.2001. To comply with the order, when he continued to work, he was murdered by the dacoitees on 25.6.2001 thinking that the deceased was carrying huge cash in his bag. More surprisingly, when the second petitioner who was doing MCA, approached the Bank for compassionate appointment, the dedicated and ever sincere officers of the Bank couragely rejected the said request on the ground that the family of the deceased was getting monthly pension of Rs.5,542/-. 10. Under this background, this Court has to see as to whether the petitioners' request for compassionate appointment is covered under the new scheme dated 19.7.2007, which is given as under:- https://hcservices.ecourts.gov.in/hcservices/ "1. Appointment of dependents of deceased employees on compassionate grounds in exceptional cases. 2. Scheme for payment of Ex-gratia amount in lieu of appointment on compassionate grounds. The model scheme for payment of ex-gratia amount in lieu of appointment of dependents of deceased employees on compassionate grounds presently in vogue in Public Sector Banks, is a scheme advised by the Government in July, 2004. Following demands made by workmen unions/Officers' associations for re-introduction of the scheme of compassionate appointment, in its original form, in public sector banks, IBA had recommended to the Government certain modifications to the scheme earlier advised on 31st July 2004. Government of India by letter D.O.No.F.18/1/2006-IR dated 19th June 2007 has since advised modifications to the existing scheme for payment of ex-gratia providing for compassionate appointment in exceptional cases, where an employee- 1. dies while performing his official duty as a result of violence, terrorism, robbery or dacoity; or 2. dies within 5 years of his first appointment or before he reaches the age of 30 year whichever is later leaving a dependent spouse and/or minor children. As suggested by the Government, we now enclose the revised model scheme for adoption by the Banks with the approval of the Board of Directors. The Government desires that the revised scheme be adopted by the banks preferably by 31st August 2007. The date of adoption of the revised scheme may please be advised to us in due course. All applications for appointment on compassionate grounds/payment of ex-gratia, pending as on 31.7.2004 i.e. the date on which the existing model scheme was circulated by IBA, shall be considered in accordance with the scheme to the revised now. Any application that has been disposed off prior to 31.07.2004 and any order passed thereon shall not be reopened." https://hcservices.ecourts.gov.in/hcservices/ 11. It is also pertinent to extract a relevant portion of revised model scheme where the petitioners' family is entitled to get appointment on compassionate ground:- "4.(A) The scheme for grant of ex-gratia will be applicable in the following cases of employees: (i)Employee dying in harness (other than due to injury sustained while performing official duty as a result of violence, terrorism, robbery or dacoity) (ii) Employee dying due to injury sustained while performing official duty within or outside office premises (other than due to violence, terrorism, robbery or dacoity and excluding travel from residence to place of work and back) (iii)Employee seeking premature retirement due to incapacitation before reaching the age of 55 years. 4(B). The Scheme of compassionate appointment will be applicable in the following cases: a. Employee dying while performing his official duty, as a result of violence, terrorism, robbery or dacoity. b. Employee dying within five years of his first appointment or before reaching the age of 30 years, whichever is later, leaving a dependent spouse and/or minor children. 5(h) The scheme will come into force with retrospective effect from 31.7.2004 and all applications pending as on 31.7.2004 shall be considered in accordance with the revised scheme. Any application disposed off prior to 31.07.2004 and any order passed thereon shall not be reopened. 06. APPOINTMENT ON COMPASSIONATE GROUNDS a. In case covered by para 4(B), appointment on compassionate grounds may be offered to one among the next of kin of the deceased employee. b. The appointment shall be made only in the clerical and sub-staff cadre. c. Application for employment under the scheme from eligible next of kin should be received by the bank, at the earliest, in any case not later than 12 months from the date of death of the employee. f. The scheme shall come into force with retrospective effect from 31.07.2004 and all cases of death occurring after 31.07.2004 in the circumstances as in Para 4(B) may be dealt with according to this scheme." https://hcservices.ecourts.gov.in/hcservices/ After the revised model scheme for compassionate appointment, one another HRD Circular No.433 dated 3.11.2007 was issued in the same line agreeing with the case of the petitioner that if any Bank employee dies in service as a result of violence or dacoity, the scheme of compassionate appointment will be applicable. The practice of giving compassionate appointment to a qualified son or daughter of a victim killed by violence, extremist terrorism, robbery in harness has given rise to the scheme of compassionate appointment. When this scheme of compassionate appointment has been in vogue, this novel phenomenon also subjected to liberal use which in-turn gave rise to another scheme for payment of ex- gratia amount in view of appointment on compassionate grounds. But this scheme for payment of ex-gratia amount was not accepted in toto, therefore the Government of India by letter D.O.No.F1 8/1/2006-IR dated 19.6.2007 has since advised modifications to the existing scheme for payment of ex-gratia providing for compassionate appointment in exceptional cases, where an employee dies while performing his official duty as a result of violence, terrorism, robbery or dacoity. After modification, the scheme again underwent some more changes by incorporating paragraph 4(A) and 4(B). These two paragraphs – 4(A) and 4(B) of the Revised Model Scheme provide for appointment of the dependant of the deceased-employee on compassionate ground under two specific circumstances respectively viz., (a) if an employee dies in harness while performing his official duty as a result of sudden cardiac arrest or any other fatal ailment, or (b) if he dies while returning back to his residence from office, as a result of violence. According to the respondents/Bank, applying the provision under para-4(A), after payment of the ex-gratia, if the Bank comes to the conclusion that the family of the deceased employee is getting a reasonable sum to run the family, it would be quite open for the Bank to refuse the grant of compassionate appointment to such family. Obviously, in the given case, that situation cannot be applied in terms of what is clearly outlined under paragraph 4(B) of the Model Revised Scheme. Further, the letter of the Government of India in D.O.No.F.18/1/2006-IR, dated 19th June, 2007 and the Revised Scheme adopted by the Bank from 31st August 2007 clearly spell out appointments on compassionate ground by virtue of application of Paragraph-4(B) of the Revised Model Scheme which provides that the scheme of compassionate appointment will be applicable where the employee dies while performing the duty as a result of violence, terrorism, robbery or dacoity. In the present case, when the first petitioner's husband, after closing the Bank's door, started leaving by carrying the Bank's documents and Keys including the key of the safe-room in the Bank, some of the miscreants thinking that the deceased was carrying Bank's money, mercilessly shot him to dead when he refused to part with the Bag he was carrying. If this is the admitted position of both sides, paragraph 4(B) of the Scheme must be applied by https://hcservices.ecourts.gov.in/hcservices/ giving the benefit of compassionate appointment to the second petitioner. But, unfortunately, the officials of the Bank under one false pretext or the other turned deaf ear to the plea of the deceased employee's family for compassionate appointment on the pointless ground that after payment of ex-gratia to which the petitioners are legally entitled to, there is nothing for the Bank even to consider the request for compassionate appointment. Such an imprudent and hard-hearted approach on the part of the Bank, which is an instrumentality of the State, is clearly opposed to Articles-38, 39 and 41 of the Constitution of India, which unambiguously compel the respondent-Bank to secure the petitioners, their right to adequate means of livelihood. Therefore, I am of the considered opinion that there is no merit whatsoever in the claim of the Bank that once the ex-gratia is settled, there is no obligation on their part to consider the plea of compassionate appointment raised by the members of the family of the deceased employee, who lost his invaluable life in his encounter with the miscreants while refusing to part with the bag carried by him containing the documents and keys of the Bank. May be, the argument of the Bank would aid them in a case falling under paragraph 4(A) of the Revised Model Scheme and such being not the situation herein, the Bank, being an instrumentality of the State, should act as a role-model employer and should not act in a manner that would depict it otherwise. 12. Therefore, I am of the considered opinion that the request of the second petitioner for compassionate appointment deserves to be considered as a special case in view of peculiar circumstances under which the first petitioner's husband was murdered on 25.6.2001. 13. Under these circumstances, the respondents-Bank is directed to accept the request of the petitioners by providing suitable employment to the second petitioner, within a period of four weeks from the date of receipt of copy of this Order. 14. With the above direction, the writ petition is allowed. No costs. vks Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To:- 1.Chairman and Managing Director, Syndicate Bank Head Office: Manipal 576 119. 2.The Deputy General Manager Syndicate Bank Zonal Office, 69 Armenian Street, Madras-1. + 1 cc to Mr. T.S. Gopalan & Co, Advocate SR No.63888 + 1 cc to Mr. C.S. Monica, Advocate SR No.64293 KSK(CO) SR/9.11.2011 Order in W.P.No.43425 of 2002 https://hcservices.ecourts.gov.in/hcservices/