IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4256 of 2011 Sushma Kumari W/of late Mahesh Prasad resident of village- Salempur, P.S. Nagarnausa, Dist. Nalanda. ----Petitioner Versus 1. The Punjab National Bank through its chairman –cum- Managing Director having its Head office at 7 Bhikaji Cama Place, New Delhi. 2. The Chairman-cum-Managing Director, Punjab National Bank, Head Office-7 Bhikaji Cama Place, New Delhi. 3. The Chief Manager, Punjab National Bank, P.F. & Pension Department, Rajendra Bhawan, New Delhi-8. 4. The Circle Head, Punjab National Bank, Patna Circle, R Block, Chanakya Place, Patna. 5. The Assistant General Manager, Punjab National Bank, P.F. & Pension Department,Rajendra Bhawan, New Delhi-8. 6. The Branch Manager, Punjab National Bank, Sadisopur, Patna. ---Respondents. For the petitioner : Mr. Chitranjan Sinha, Sr. Advocate. For the Punjab National Bank : Mr. Raj Nandan Prasad, Advocate. ----------- 03 12.07.2011 Heard learned counsel for the petitioner and learned counsel for the respondents. Petitioner is widow of a deceased employee of Punjab National Bank (for short ‘the Bank’). While her husband was serving the Bank as clerk-cum- cashier at the Sadisopur Branch of the Bank he was murdered by some unknown persons for which an F.I.R. was lodged on 07.06.2005. The petitioner being the widow of the said employee made frantic efforts to get herself appointed on compassionate ground as the respondent Bank, by the time, had come out with a policy decision of grant of ex-gratia instead of providing employment on compassionate ground. The petitioner could not file application for ex-gratia payment as she was under the belief that her application seeking compassionate appointment was under consideration of the respondent Bank. In the meantime, respondent Bank came out with a scheme as contained in 2 Annexure-6 whereby, the provision of PF and Pension was introduced in respect of employees who had already retired/superannuated and/or died while in service. The said scheme was circulated to all the concerned Banks. As per Clause (D) of the aforesaid scheme the family of the officers/employees who were in the service of the Bank after that date but prior to 27.04.2010, were entitled to be benefited under the said scheme. Clause (D) thereof reads as under:- “(D) THE FAMILY OF THOSE OFFICERS/EMPLOYEES WHO WERE IN THE SERVICE OF THE BANK PRIOR TO 29TH SEPTEMBER 1995 BUT HAVE DIED WHILE IN SERVICE OF THE BANK AFTER THAT DATE BUT PRIOR TO 27.04.2010 WILL BE ELIGIBLE FOR FAMILY PENSION PROVIDED: (a) The family of the deceased officer/employee exercises an option in writing within 60 days from the date of the offer to become a member of the Pension Fund and (b) Refund within 30 days after expiry of the said period of 60 days, the entire amount of the bank’s contribution to the Provident Fund and interest accrued thereon received by the officer/employee on retirement and by the family of the officer/employee after death together with his share in contribution towards meeting 30% of the funding gap. On an individual basis, the payment over and above the bank’s contribution to Provident Fund and interest thereon has been worked out at 56% of the said amount of Bank’s contribution to Provident Fund and interest thereon received by the officer/employee on retirement.” It further appears therefrom that the last date for exercising option as per the said scheme was fixed on 25.10.2010. An advertisement was thereafter published in the daily newspaper on 18.08.2010 (Annexure-4) by the Indian Bankers Association. Petitioner having come to know about the scheme made an application on 12.11.2010 (Annexure-5) followed by another application in appropriate format on 3 30.11.2010 (Annexure-7) which was considered and rejected by the respondent Bank on the ground that such option was being exercised after the expiry of the period contemplated under the said scheme i.e. 25.10.2010. The respondents informed the petitioner about the decision vide communication dated 10.12.2010 (Annexure-8) which has been impugned in the present writ petition. Mr. Chitranjan Sinha, learned senior counsel for the petitioner drew attention of the Court to Clause -10 of the scheme (Annexure-6) which reads as under:- “10. Incumbents Incharge of Branches/Divisional Heads of HO Divisions/Departments and Circle Heads of Circle Offices are requested to bring the contents of the Circular to the Notice of all Staff Members working at their Branch/Office and display the instructions on the Notice Board of the Branch/Office and suitably inform about the same to the employees/officers who have retired from their Branch/Office or also the employees on sabbatical leave/ under suspension/gone abroad/long leave/unauthorizedly absent etc. at the last given/available address. Employees/ Officers on deputation to other Banks/Departments be also informed at their present office of posting. They are also requested to extend necessary assistant to the retired employees/ family members in the matter.” Mr. Sinha, thereafter drew attention of the Court to the averments set out in paragraph no. 12 of the writ petition which reads as under:- “12. That the aforesaid circular further contemplated its wide circulation through the in- charge of branches, Divisional heads, Circle head and the same was to be suitably informed to those employees who had retired from their branch but in spite of that no notice/information was sent to the petitioner from the branch where her husband was working.” 4 It is pointed out that the newspaper notice (Annexure-4) was not in conformity with the scheme/circular (Annexure-6) as on going through the contents of the notice it would not appear that the said scheme /circular of the Bank (Annexure-6) was also meant for deceased employee of the Bank. It is contended that the petitioner, a widow, who has to look after the family consisting of 07 dependents remained unaware of the scheme and no intimation was sent to her. As soon as she became cognizant she promptly made an application on 12-11-2010 (Annexure- 5) followed by another application in prescribed format dated 30-11-2010 which was considered and rejected merely on the ground that the option as per the scheme was being exercised beyond the last date prescribed therefor (25-10-2010). It is contended that in the particular facts of the case hyper technical stand taken by the respondent Bank is arbitrary and this Court would interfere in the matter and direct the respondents to consider the case of the petitioner on its own merit. A counter affidavit has been filed on behalf of the respondent Bank. Mr. Prasad learned counsel representing the Bank drawing attention of the Court to averments made in paragraph nos. 11 and 12 of the counter affidavit submits that if a litigant is not vigil about her rights she cannot be granted any relief by this Court. It is contended that if any such indulgence is granted in the case of the petitioner then this will amount to opening of Pandora Box. It is also contended that this Court may not direct the respondent Bank to act in breach of the provision of the scheme. 5 It appears from the pleadings on record and the submissions of the parties that the respondent Bank came out with a scheme providing pension to all its retired /deceased employees. This can be seen from documents placed at Annexure-6. Since the said scheme was going to affect many employees, some of whom had superannuated and living elsewhere and some of whom had already died, a special care has been taken in Clause-10 of the scheme which has already been taken notice hereinabove. It is the specific case of the petitioner that the notice published by the Indian Bankers Association (Annexure-4) was quite ambiguous inasmuch as from perusal of the contents thereof it is not apparent as to whether the said scheme also relate to deceased employee(s) of the respondent Bank. Averments made in paragraph no.12 of the writ petition have been replied by the respondent Bank in paragraph no. 19. This Court deems it apposite to quote in extenso the said paragraph which runs thus:- “19. That with respect to the averments made in paragraph no.12 to the writ petition it is stated that the information in respect of settlement dated 27.04.2010 vide which another pension portion was introduced, was widely circulated by the Indian Bank’s Association in the daily newspaper and it was duly informed in the notice to contact the branch offices for other details. Further in the said notice IBA had also informed the website where all the details of the settlement were available. The Circular dated 8/2010 issued by the respondent bank was widely circulated and it was available in the every branch office from where her husband was last posted to get the other details of the scheme and she failed to exercise the potion within stipulated time i.e. 25-10- 2010 and deposit the contribution required to be deposited by her on or before the cut off date of 24- 11-2010 under the scheme.” 6 This Court, noticing the aforesaid facts/circumstances directed the Bank to file specific affidavit as would appear from order dated 09.03.2011. In the light of said order counter affidavit has been filed which is on record. This Court has no hesitation in holding that the newspaper publication (Annexure-4) was silent in respect of applicability of the scheme to the deceased employee of the Bank who were also to be benefited. The respondent Bank being aware of the benevolent nature of scheme and its effects on host of employees of the Bank, many of whom had then retired and/or died, contemplated in Clause 10 thereof that employees/officers/dependents who were to be benefited by the said scheme were to be informed by sending appropriate information at the last given/available address of such employees. It has further been underlined that the officers of the Bank are required to extend necessary assistance to the retired employees/family members in the matter. Having realized the contours of the aforesaid provisions of the scheme the officials at the Branch recommended the case of the petitioner for consideration as would appear from Annexure-7. The stand of the Bank that the application of the petitioner would not be considered for admitting her to pension scheme of the Bank as per (Annexure-6) since the application was filed beyond the last date of exercising such option, in the particular facts of the case, would be hyper technical approach particularly when there is nothing on record to indicate that an effort was made to apprise the petitioner by any communication about the option(s) to be exercised by her as per the scheme. This Court cannot be oblivious of the fact that the husband of 7 the petitioner was killed/murdered while serving the Bank and the petitioner had to take care of the family consisting of as many as 07 dependents. It further appears from the record that she was residing at her village home. It is not expected of a widow, like the petitioner to visit the Bank/Branch and acquaint herself of the circular, which, according to Bank, was also pasted on the different branches of the Bank. In my view, the petitioner has made out a case of invocation of extra ordinary writ jurisdiction in the matter which would sub-serve the cause of justice. This Court, however, hastens to add that the order passed in the present writ petition is confined to the particular facts of the present case. Mr. Sinha learned counsel at this stage submits that the petitioner is ready and willing to pay back the amount received by her as per the scheme with reasonable interest to be fixed by the respondent Bank. Accordingly, the application is allowed. The order contained in Annexure-8 is quashed and set aside. Respondent Bank is directed to consider the case of the petitioner in accordance with circular/scheme treating the same as having been filed within time. Before this Court parts with the order, based on pleadings of the parties, it is observed that the matter concerning grant of ex-gratia payment shall also be expedited at the level of the Bank. Sym ( Kishore K. Mandal, J. )