IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.1283 (S/S) of 2006 Ajveer Singh Chauhan S/o Sri Rajendra Singh ….. Petitioner Versus Bank of Baroda & ors. …… Respondents Hon’ble Tarun Agarwala, J. Heard Sri A.M. Saklani, the learned counsel for the petitioner and Sri S.K. Jain, the learned counsel for the respondents. This petition has a chequered history. The facts leading to the filing of the writ petition can be said in a nutshell. The petitioner’s father was appointed as a peon in the respondent-bank in the year 1981 and worked for 21 long years without any grievance from any quarters and died in harness on 21st February, 2002. The petitioner applied for appointment on compassionate ground under the existing rules relating to compassionate appointment on 16th July, 2002. This application remained pending with the bank for reasons best known to them inspite of repeated reminders being sent by the petitioner from time to time which the bank has acknowledged receiving such reminders. Eventually, the claim of the petitioner was rejected by an order dated 15-11-2003 on the ground that since the income of the family was more than 60% of the last drawn pay of the deceased, the petitioner was accordingly not entitled for compassionate 2 appointment under the scheme framed by the bank for compassionate appointment. The petitioner, being aggrieved by the said order, filed Writ Petition No. 828/2004 (S/S) before this Court which was allowed by a judgment dated 18-05-2006 and the order of the respondent-bank was quashed. The Court directed the bank to reconsider the petitioner’s application and calculate with precision as to whether the notional income which the family was receiving was more than 60% of the last drawn pay of the deceased or not. The respondent-bank again reconsidered the application of the petitioner and once again rejected the claim of the petitioner by an order dated 17th August, 2006. The petitioner, being aggrieved by the said order, has filed the present writ petition. The sole ground mentioned in the impugned order for rejecting the application of the petitioner for appointment on compassionate ground is that the notional income which the family of the deceased was receiving was more than 60% of the last drawn pay and, consequently, the petitioner was not entitled to be considered for appointment on compassionate ground since the petitioner was not an indigent person nor the family was in distress as held by the Supreme Court in various judgments. 3 Before proceeding further, it would be necessary to have a glance at the scheme framed by the respondent-bank for appointment on compassionate grounds. Admittedly, the scheme which is applicable is dated 18th August, 1998 (annexure-14 to the writ petition). The object of the scheme as disclosed in clause-II is to offer compassionate appointment in case where the bank was satisfied that the financial condition of the family was penurious but for the provision of employment, the family would not be able to meet the crisis. Under clause-III, the appointment is to be offered to the spouse or a son or a daughter who is major i.e. over 18 years of age and who would give an undertaking that he/she would look after the family of the deceased-employee. The said clause further states that the reason for giving employment is to enable the family to tide over the family crisis. Clause-IV of the scheme talks about the eligibility of the applicant as on the date of the death of the employee. Clause-IV indicates the minimum qualification and the period of limitation within which the request for appointment under the scheme could be made. Clause-VI(c) is the disputed clause under which the claim of the petitioner has been rejected. This provision provides a formula for calculating the income of the family in order to arrive at the financial position of the family. For facility, Clause- VI (c) of the scheme is extracted below:- 4 “(c) Calculation Formula for Income: Following formula would be followed for arriving at the financial position or income of the family: The total of the following amounts received as Terminal Benefits will form the available resources: i) Balance of provident fund ii) Gratuity iii) Additional Retirement Benefits iv) Investment made from loan from others. From the above, following outstanding financial liabilities to be deducted: i) Housing loan ii) Vehicle loan iii) Other loans from Bank iv) Loan from others After arriving at the net amount remaining with the family, interest @ 11% be applied to arrive at monthly income of the family by further taking into consideration: i) Net salary of dependent family members viz., spouse/son/daughter /dependent unmarried brother/ dependent unmarried sister. ii) Pension (monthly) iii) Income from Savings and other investments. After arriving at the monthly income as above, if the same is less than 60% of the total emoluments (which the deceased was drawing at the time of death) less Tax @ 15% (if the income is more than Rs.10,000/- p.m.) the case for compassionate appointment can be considered.” A perusal of the aforesaid provision indicates that the terminal benefits which the family received 5 by way of provident fund, gratuity, additional retirement benefits, investment made from loan is to be clubbed together and liabilities such as housing loan, vehicle loan, other loans from bank and loans from others are to be deducted. Further interest notional income at the rate of 11% per annum is to be arrived at and then it has to be seen as to whether the said notional income exceeds 60% of the last drawn pay of the deceased. If it exceeds 60%, the bank draws a conclusion that the family is not in distress and is not entitled for compassionate appointment. From a perusal of various paragraphs of the scheme, one thing is implicit and clear, namely, that the notional income which the bank has to draw and calculate is to be done on the date of the death of the deceased and not what the family would receive subsequent to the date of the death of the deceased. By necessary implication, terminal benefits which the family may receive consequent upon the death of the deceased should not be taken into consideration while calculating the income of the family. Terminal benefits like provident fund, gratuity which is statutorily given by law and is not given to the family member as a charity by the bank. This fact over the years has been lost sight of by the bank while framing such schemes. The Supreme Court in Balbir Kaur and another Vs. 6 Steel Authority of India Ltd. and ors. 2000 (6) SCC 493 has held that the provision of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 is a beneficial piece of legislation and the object is to ensure better future of the employee concerned on his retirement and for the benefit of the dependants in case of his earlier death. The Supreme Court further held that the provisions of the Payment of Gratuity Act was no longer in the realm of charity but a statutory right provided in favour of the employee. Consequently, the Court expresses a doubt that where the statutory mandate is unequivocal and unambiguous in nature, such mandatory obligation, which is statutory in nature, cannot be stifled with the adaptation of a method of calculation of terminal benefits under the scheme as framed by the bank to calculate the family income. The Court expresses grave concern as to whether such terminal benefits could be taken into consideration, which runs counter to the statutory obligation, which is in favour of the employee. The Court is not judging whether the terminal benefits could be taken into consideration while calculating the family income as arbitrary since it is not necessary in the present case to dwell into this matter. It is sufficient for the Court to observe what has been stated aforesaid since the Court finds that the writ could be disposed of within 7 the realm of clause-VI (c) of the scheme framed by the respondent-bank itself. The Court finds that while calculating the financial income of the family, after taking into consideration the terminal benefits received by the said family, certain financial liabilities are required to be deducted, namely, (i) housing loan, (ii) vehicle loan, (iii) other loans from bank (iv) loan from others. In the present case, the family of the deceased took a loan of Rs.80,000/- from their relatives and proof of this fact was filed before the bank by way of affidavits from those persons. This amount of Rs.80,000/- was not deducted from the terminal benefits. The authority has rejected the same on the ground that the provisions of the scheme does not indicate that borrowings from relatives could be considered as an outstanding liability. In my opinion, this finding is patently perverse. Clause-VI(c)(iv) contemplates loan from others. The family of the deceased had taken a loan from their relatives which is liable to be considered under this residuary clause. There is nothing to indicate that “loan from others” would mean a loan from other statutory authorities. It is a known fact that often loans are taken from relatives in order to meet the exigency of needs. In the present case, the need of taking such a loan has been explained, namely, to meet the medical expenses for the 8 treatment of the deceased. This ground by itself was sufficient to process the claim of the petitioner but the same has been rejected on frivolous grounds that the necessary medical/hospitalization bills was not submitted either by the deceased or by the family members for reimbursement. In my opinion, this observation of the authority was patently erroneous and against the record. There is nothing on the record to indicate that hospitalization bills /vouchers etc. were asked by the banks as proof of the expenses incurred. In any case, it was not required since the scheme only stipulated that loans from others was sufficient to include the same in order to judge the financial liability. Affidavits of the relatives were filed and that was sufficient proof filed by the petitioner which has not been disbelieved or discarded by the respondent-bank. In the light of the aforesaid, if the aforesaid sum of Rs.80,000/- is taken into consideration under the heading outstanding financial liability, the notional monthly income that would be arrived at would obviously would be less than 60% of the last drawn pay of the deceased. In the light of the aforesaid, the respondent-bank committed an error in not taking into consideration the loan taken by the family from their relatives. In the light of the aforesaid, the impugned order cannot be sustained and is quashed. The writ petition is allowed. A writ 9 of mandamus is issued to the respondent-bank to calculate the notional income of the family of the deceased after taking into consideration Rs.80,000/- which the family had received from their relatives and if the notional income comes to less than 60% of the last drawn pay of the deceased, in that case, a letter of appointment would be issued as per the requisite qualification of the petitioner within three months from the date of presentation of a certified copy of this order. (Tarun Agarwala, J.) 29/12/2009 Shiv/Bhaskar