Judgment:
Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the records pertaining to the order, dated 13.03.2004, passed by the first respondent herein vide the proceedings IRD/184/254/2003-2004 rejecting the petitioner's claim for an appointment on compassionate grounds and to quash the same and further direct the first respondent to provide an appointment on compassionate grounds to the petitioner.
O R D E R
1. The prayer in the writ petition is to quash the order, dated 13.03.2004, declining the request of the petitioner seeking compassionate appointment due to the death of the petitioner's father, as he died while in service on 16.07.1998.
2. According to the petitioner, the petitioner's mother applied for compassionate appointment on 30.06.1999 and no reply was given either accepting or rejecting the request of the petitioner's mother. Thereafter, the petitioner also applied for compassionate appointment and no order having been passed, the petitioner issued a counsel notice on 01.03.2004 for which a reply was given by the first respondent on 13.03.2004 stating that the petitioner's mother's request was rejected during the year 2000 and the petitioner's request was also rejected without mentioning any date and month.
3. The alleged rejection order passed in so far as the petitioner's mother is concerned, no date or month are given by the respondents. It is stated therein that the Government of India has issued guidelines permitting the compassionate appointment for dependents of the deceased only when the services of the deceased were unblemished and as per the records, the petitioner's father was issued with four charge memos, dated 06.12.1994, 10.11.1995, 27.03.1996 and 29.01.1997 for his un-authorised absence under minor and gross misconducts and awarded various punishments. Again, he was issued with another charge memo on 22.04.1997 for gross misconduct of un-authorised absence and the said charge was pending at the time of his death i.e., on 16.07.1998. Therefore, the petitioner cannot claim compassionate appointment as the legal heir of the deceased, Late.A.Rajan.
4. The first respondent has filed a counter affidavit stating that the petitioner's father joined in the services of the respondent Bank on 08.09.1979 and while in-service he died on 16.07.1998. The petitioner's mother applied on 30.06.1999 seeking compassionate appointment and in the year 2000, her application was rejected. The petitioner's request was also rejected, which was communicated, by way of a reply to the counsel's notice.
5. Learned counsel for the petitioner argued that the petitioner's father died on 16.07.1998 and at that time, provision was available to give compassionate appointment to one of the legal heir in the respondent Bank. He further submitted that the date of death of the employee and the rules applicable on that date shall be taken into consideration for considering the request of the legal heir, seeking compassionate appointment. He further stated that even assuming that there are charges pending and minor or major punishments imposed earlier, the petitioner's father was in service on the date of his death and on his death, the charge pending will automatically lapse and therefore the impugned order is liable to be set-aside and the first respondent is bound to consider the claim of the petitioner seeking compassionate appointment as he has applied within one year.
6. When the writ petition was heard earlier on 19.04.2012, the learned counsel for the respondents was directed to get the rejection order, if any, passed, rejecting the request of the petitioner's mother seeking compassionate appointment which was allegedly rejected in the year 2000. Learned counsel submitted that the said order is unable to be traced. The request of the petitioner was also rejected earlier, according to the impugned order, which was again informed through the impugned order by way of reply to the counsel's notice. He also relied on the scheme introduced from 04.10.2004 dispensing with the grant of compassionate appointment, instead payment of ex-gratia. Therefore, according to the learned counsel, the petitioner is not entitled to seek appointment on compassionate grounds. It is also contended by the learned counsel that the petitioner's father was imposed with three punishments while he was in service i.e., by order, dated 07.03.1995, a punishment of withholding of one increment with cumulative effect which was imposed for drunkenness and absence; again by order, dated 31.10.1996, a punishment of reduction in basic pay by two stages with cumulative effect was imposed for un-authorised absence; and further, on 28.02.1997, a punishment of stoppage of one increment was imposed for unauthorised absence and at the time of his death, a charge memo, dated 22.04.1997, was pending for subsequent un-authorised absence. Learned counsel also relied on the scheme which was issued in the year 1979, which is applicable to the petitioner's case due to the death of petitioner's father before the introduction of the new scheme on 01.10.2004 and submitted that eligibility is prescribed under the scheme and how a person who is imposed with minor punishment / major punishment / pendency of charge for which major penalty may be imposed / minor penalty may be imposed is to be dealt with. Learned counsel further submitted that the petitioner's father was imposed with three major penalties and one charge memo was pending, for which imposing of major penalty is possible and therefore, the petitioner is not entitled to get the relief of compassionate appointment.
7. I have considered the rival submissions made by the learned counsel on either side and perused the materials available on record.
8. The petitioner's father's service from 1979 to 16.07.1998 in the second respondent Bank as a Messenger is not disputed. The death of the petitioner's father on 16.07.1998 and the application submitted by the petitioner's mother on 30.06.1999 is also not in dispute. Though it is stated in the impugned order and in the counter affidavit, it is stated that the application submitted by the petitioner's mother was rejected, neither the date nor the month on which the said order was passed is stated or the order passed to that effect is produced before this Court. The petitioner also applied for compassionate appointment and the same was also rejected and therefore, the respondents cannot contend that he has not applied for compassionate appointment. In the impugned order, dated 13.03.2004, it is clearly stated that the Bank has declined the request of the petitioner seeking compassionate appointment though no date, month and year is mentioned. The fact remains that the petitioner applied, otherwise the respondents may not be in a position to make such a statement.
9. Petitioner's father died on 03.11.1998. The scheme applicable at that time i.e., scheme issued in the year 1979 alone can be applied to consider the claim of the petitioner seeking compassionate appointment and the scheme issued in the year 2004 cannot be applied.
10. In so far as the eligibility for compassionate appointment, the guidelines issued by the Bank in the year 1979 which was revised up to 03.11.1998, reads as follows:-
"3. ELIGIBILITY
a. Request for appointment under the scheme should be received by the Bank at the earliest, in any case not later than one year from the date of death of the employee.
b. In case a member of the family sponsored for appointment desires to wait till he/she attains certain educational qualification, his/her case may be considered at the discretion of the Bank within four years of death of the employee to enable him/her to so qualify provided that the dependant has made a request to the Bank within one year of the death of the employee.
c. In case the member's family to the offered appointment is a minor, the offer of appointment may be kept open only for a period of four years from the date of death of employee (Ministry of Finance letter No.18/139/95) IR dated 7.8.96) provided that the dependant has made a request to the bank within one year of the death of the employee.
d. Another dependant of the deceased employee is eligible for appointment under the scheme even if one son/daughter/brother/sister is already in Bank's service or employed elsewhere, based on the merits of each case taking into account the size and income of the family and provided the son/daughter/brother/sister already in Bank's service was not appointed under compassionate grounds.
e. In case no other son or daughter is found eligible for appointment in the Bank, the widow, son or daughter, who is employed elsewhere and who is otherwise eligible for appointment in the Bank will be given the option of joining the Bank.
f. In cases where disciplinary proceedings were pending or were being contemplated at the time of death of the employee or the employee was proceeded against before death, the bank is required to adhere to the following (Ministry letter dated 3.11.1998).
1. Proposals for compassionate appointment to the dependant of employees in cases where the deceased employee had been awarded minor penalty or disciplinary proceedings against the employee were pending or contemplated at the time of death of the employee, which would prima facie have resulted in award of a minor penalty, can be considered with the approval of the Board.
2. Proposals for compassionate appointment to the dependents of employee in cases where the deceased employee had been awarded major penalty or disciplinary proceedings against the employee were pending or contemplated at the time of death of the employee, which would prima facie have resulted in award of a major penalty, have to be referred to the Government with the recommendations of the Board."
11. From the above extracted portion of the guidelines, it is evident that even though major penalty is awardable to a person for which charge memo was pending and the person died during the pendency of charge memo, there cannot be any absolute bar to consider the claim and the matter has to be referred to the Government of India alongwith the recommendation of the Board. The said exercise has not been followed by the first respondent while rejecting the request of the petitioner.
12. Taking note of the totality of the circumstances of the case, the impugned order is set-aside and the matter is remitted back to the first respondent to consider the claim of the petitioner on the basis of the guidelines, which were in force on the date of the death of the petitioner's father and take a decision and communicate the same to the petitioner, within a period of three (3) months from the date of receipt of a copy of this order.
13. The writ petition is disposed of with the above directions. No costs.