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Service Laws – If the dependents opted for payment of gratuity for the term of service of the

INDIAN BANK & ORS. V. PROMILA & ANR.  CIVIL APPEAL NO.2798 OF 2010 ON 08TH January 2020.

This appeal was brought by the Indian Bank against the writ filed by the Promila seeking compassionate employment was allowed by the Supreme Court under the bench comprising of Justice Sanjay Kishan Kaul and Justice K.M. Joseph.

One Jagdish Raj, husband of respondent No.1 and father of respondent No.2 died on 15.1.2004 during the course of his work. His salary was Rs.16,486.60. after his death, there was a certain benefit available to his family. The deceased has a wife and three minor children. His wife was working and earning while her husband died, which came to the knowledge of the appellant ie., the bank later

The issue in the present case whether the respondent 2 ie., minor son of the deceased can seek compassionate employment.

Any such request for compassionate employment had to be in terms of the prevalent scheme at that time. There was a confusion to be solved is which scheme has to be followed. The HC dealt with the scheme which was of subsequent on date of the death, the Supreme Court directed the scheme prevalent on the death. The main aim of the scheme is to provide assistance and comfort to the family members of the deceased employee.

The subsequent scheme which was used by the High Court delt with the same provisions a the old one which was applied to the death of the deceased employee. The development in this scheme is there should qualification for such a scheme are the death of an employee on account of an injury sustained while performing an official duty, the monthly income of the family was less than 60% of the last drawn gross salary, net of taxes, of the deceased employee and that the application for such compassionate appointment had to be submitted within three months from the demise of such deceased employee.

For the application filed by the respondent seeking compassionate employment, the appellant responded by asking them to submit the new application under the scheme said above they also intent only the payment of cash as compensation is available. The respondents did not apply for the cash compensation as they were only interested in compassionate employment.

“A Circular No. PRNL/72/2005-06 dated 30.8.2005 was issued whereby the benefit of compassionate appointment was denied to a dependent of an employee who died in harness. Thus, the only cash compensation was the benefit which would accrue.” The repondents were again provided with six months’ time to apply under this scheme for cash compensation.

The respondent submitted the gross salary details which were above 60% which was mentioned in the scheme, therefore, the family was not even applicable to apply for the cash compensation.

The Court stated that if the dependents opted for payment of gratuity for the term of service of the employee who died while in service, no compassionate appointment could be granted. The admitted position is that the benefit of gratuity was availed of by the dependents in the present case.

“The High Court of Punjab & Haryana vide impugned order dated 11.8.2008, granted Rs.2 lakh ex gratia payment, while leaving it open to the respondents to make an appropriate application regarding any terminal benefits, if not paid. This Rs.2 lakh benefit is in consonance with the subsequent Schemes of 2004 and 2005 which had come into force and appears to have been so done more out of sympathy than any other factor.”

Aggrieved by this the appellant filed a special leave petition which was allowed. This SC kept in the mind the basic principles applicable to the cases of compassionate employment, only the comfort and assistance can be provided in unexpected situations the compassionate employment cannot be coupled with.

The applicable scheme had so many terms and conditions subject to the compassionate employment one such is the only gratity or compassionate employment that will be provided to the dependents, both shall not be provided. In the present, the respondents have used the gratity. The claim of compassionate employment was not granted as a right it was only at the discretion of the bank.

“Appointments under compassionate grounds will be open only to dependents who do not opt for payment of gratuity for the full term of service of the employee who died while in service.” “It is not for the Courts to substitute a Scheme or add or subtract from the terms thereof in judicial review” this was held by the Supreme Court by referring to State of Himachal Pradesh & Anr. v. Parkash Chand.

The SC held that they have sympathy towards the family member of the deceased Shri Jagdish Raj, but sympathy alone cannot give any compensation to respondent when the wife of the deceased is working for a salary more than the salary fixed by the scheme. Therefore the order passed by the High court out of sympathy has been set aside and the writ petition filed by the respondents is dismissed. The appeal was allowed.

View/ Download the Judgment: INDIAN BANK & ORS. V. PROMILA & ANR.

–  Manusri Ramakrishna

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