The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.8 of 2018 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Smt. Sumitra Barik …. Petitioner(s) -versus- The Zonal Manager, Zonal Office, UCO Bank, Bhubaneswar &Anr. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: : For Petitioner(s) Mr. Surendra Nath Panda, Adv. For Opposite Party (s) : Mr. M. Balakrishna Rao, Adv. (for O.P.1) CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-07.05.2024 DATE OF JUDGMENT: -24.07.2024 Dr. S.K. Panigrahi, J.
Legal Reasoning
1. The Petitioner through this Writ Petition has challenged the impugned order dated 15.12.2017 of the Bank. She also seeks a direction from this Court to the Opp. Parties to appoint her as Peon in Bank. I. CASE OF THE PETITIONER: 2. The brief fact of the case is that: (i) The Petitioner’s husband, Late Rama Chandra Barik, was engaged as Sweeper in consolidated monthly wages since 1991 at UCO Bank, Temple Extension Counter, Puri Branch and continued the job being transferred to SCS College, Puri Branch subsequently. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:11 Page 1 of 9 (ii) He was elevated to the post of part time Sweeper, at 1/3rd Scale of pay as applicable to a Sub-staff of the Bank w.e.f. 01.05.2010 vide the Letter No. ZO/BBSR/PSD/BR/cum-23/2010 dtd.31.08.2010 of the Chief Officer, Zonal Officer, Bhubaneswar of the Bank. The husband of the Petitioner was allotted employment No. as 50444 by the Bank, vide Head Office Letter dated 10.09.2011. (iii) The husband of the Petitioner was confirmed in Bank Service vide Zonal Office, Bhubaneswar Letter dated 21.01.2011 addressed to the Branch Head of SCS College, Puri Branch of the Bank. The deceased Rama Chandra Barik, had possessed the educational qualification of Class-VIII and left Biswambhar Bidyapitha, Puri, while he was studying in class 9 (IX) and he had the date of birth as 15.04.1974, as recorded in the school register. (iv) The husband of the Petitioner met a fatal accident while he was returning to his home in a motorcycle sitting at the back and was admitted to Kalinga Hospital, Bhubaneswar on 09.06.2013. He was declared "Dead" on 12.06.2013 by the Hospital authority. Subsequently, the legal heir certificate was issued on 30.09.2013 by the Tahasildar, Puri stating the name of the following persons as legal heirs of the deceased. (1) Sumitra Barik, aged about 24 years, Wife (2) Adyasha Abhyarthana 1 year 7 month-Daughter (v) The Petitioner was asked by the then authority of SCS College, Puri Branch to sign a drafted letter addressed to the competent authority of the Bank to get ex-gratia on death of her husband. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:11 Page 2 of 9 (vi) The Petitioner submits that on receiving the information from the Bank about payment of ex-gratia, she visited the branch. The Branch authority handed over a drafted letter for her signature giving information to her that in the event of death of her husband as per Bank’s Policy, she was only entitled to receive ex-gratia and no other benefit like compassionate ground appointment in the Bank. As the Petitioner had no idea of Bank’s Policy, believing the authority’s version, in good faith, had signed the drafted letter and Rs.6 Lakhs ex- gratia was credited to her Savings Bank Account with the Branch on 15.05.2014. (vii) Subsequently, the Petitioner came to know from the reliable sources in August, 2017 that she was entitled to get an appointment as Peon in the Bank on compassionate ground in lieu of Ex-gratia. This fact was suppressed by the Bank authority to her at the relevant time. As a result, not only could she not apply within stipulated time period but was deprived of her due claim of appointment as Peon in the Bank though she had fulfilled all criterias of compassionate appointment as per the circular No. CHO/PMG/24/2007-08, dtd.07.11.2007. By getting a job in the Bank on compassionate ground, she could have been able to educate her only daughter properly, meeting the expenses for her health care and other need based family expenses. (viii) The Petitioner submits that she had satisfied all the required eligibility criterias in terms of the above stated guidelines to get appointment as Peon in the Bank. The Bank issued another circular on compassionate Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:11 Page 3 of 9 ground of recruitment on 29.09.2014 with effect from 05.08.2014 wherein the provision of payment of ex-gratia has been discontinued. (ix) In accordance with the order dated 03.11.2017 of the High Court, a representation dated 08.11.2017 was submitted by the Petitioner to the Zonal Manager highlighting her grievances and stating reasons for not applying within 12 months’ time period for compassionate appointment for their consideration. She under the aforesaid reasons requested the authority to consider her representation sympathetically. (x) The Bank authority, vide their letter dated 15.12.2017 turned down the representation citing the reason that the representation was submitted after 3 ‰ years. There was no response or reason shown with regard to suppression of the provisions of the relevant circular of the Bank to her by the Bank authorities at the relevant time, to enable her to apply for compassionate appointment within the stipulated time period for the post of Peon in the Bank for which she was fully entitled for getting a Peon job in the Bank in 2013-14. The full provision of the circular by which she was to get the job was kept hidden from her and she was in dark till 2017 when she came to know from reliable source that the provision was entitling her to get a job. The Bank suppressing the fact got a drafted letter signed by her giving an information that she was only entitled to get ex-gratia and not the appointment on compassionate ground. As a result, she could not apply within the stipulated time period. (xi) By this action of the Bank not only was she completely harassed and faced precarious financial condition to bring up her only daughter Page 4 of 9 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:11 leaving aside to provide her proper education and need based health care but sustained huge amount of loss. If the Banks rules would have been revealed to her she could have obviously opted for appointment as a peon in the Bank and would not have accepted the amount of ex- gratia. (xii) Hence, this Writ Petition. II. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
Legal Reasoning
3. Learned counsel for the Opposite Parties earnestly made the following submissions in support of his contentions. (i) Petitioner’s husband, namely, Rama Chandra Barik died on 12-06- 2013 on account of road accident. At the time of his death, he was employed with the Bank as Part Time Sweeper (1/3) at its S.C.S College Brach at Puri having been confirmed as such w.e.f. 01-11-2010 vide communication dated 21-01-2011 vide Annexure-4. After the death of her husband, the petitioner being his wife sought for payment of ex- gratia compensation by submitting necessary application. Upon consideration of such request, the matter was processed and ex-gratia mount of Rs.6,00,000/-(Rupees Six Lakhs only) was sanctioned and credited to her Savings Bank Account No.19360110021552 maintained with the branch on 19-05-2014 in terms of Scheme dated 07-11-2007 prevalent at the relevant point in time. (ii) After receipt of the ex-gratia amount without any force, coercion and undue influence and utilizing the same, the petitioner sought for compassionate appointment and subsequently filed WP(C) No. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:11 Page 5 of 9 22360/2017 alleging inaction on the part of the bank to provide her
Decision
compassionate employment and the said writ petition was disposed of vide order dated 03-11-2017 and pursuant to which the petitioner submitted representation dated 08-11-2017 which was considered and disposed of by the competent authority vide impugned letter dated 15- 12-2017 under Annexure-14. The Petitioner’s request to provide her compassionate employment on account of the death of her husband was declined by passing a reasoned order. The Petitioner challenges such rejection order by way of this Writ Petition. (iii) Fact of the matter is that Clause-6 of 2007 Scheme provides for seeking compassionate employment within one year of death of the deceased employee which has not been complied with by the petitioner. On the other hand, the petitioner not only claimed but also availed and enjoyed/utilized the ex-gratia amount for her benefit on her own volition without any force, coercion or undue influence. The same would be evident from the statement of account. After availing and enjoying the ex-gratia amount credited on 19-05-2014 in terms of 2007 Scheme (which was prevalent at the relevant point in time), the petitioner made a turned around by rising from her slumber and sought for compassionate employment only in 2017 which is far more than the prescribed time period of one year. (iv) In other words, the petitioner intends to put the clock back which is not only impermissible under law but also not fair, proper and reasonable in the facts and circumstances narrated above. Petitioner’s conduct in this regard is hit by the twin principle of estoppel and acquiescence. Page 6 of 9 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:11 (v) It is submitted that the petitioner on her own volition applied for grant of ex-gratia compensation without any force, coercion and undue influence. The allegations to the contrary are made for the purpose of this case and hence self-serving. In fact, the petitioner was paid the ex- gratia amount on 19-05-2014 and was received without any protest whatsoever. (vi) It is wrong to contend that she was coerced by bank’s staff to avail ex- gratia compensation in lieu of compassionate employment inasmuch as the same are without any substantiation. The allegations of hiding the Schemes from her are strongly refuted/denied. There is no iota of truth in such allegations which are not only bald and reckless but also are so made to hide petitioner’s own delay and latches. They are so made for the purpose of making out a case before this Court and garner sympathy. Hence, the petitioner is put to strict proof of all the allegations leveled against the bank and its staff. The assertions made with regard to sufferings and precarious financial condition of the petitioner is incorrect in view of her receipt of ex-gratia amount of six lakh rupees. (vii) Learned counsel for the Opposite Parties, accordingly, prays for dismissal of this Writ Petition. III. COURT’S REASONING AND ANALYSIS: 4. The Petitioner’s husband, Rama Chandra Barik, passed away on June 12, 2013, due to injuries from a road accident that occurred on June 9, 2013. At the time of his death, he was employed as a Part-Time Sweeper (1/3) at the S.C.S. College Branch in Puri and had been confirmed in this Page 7 of 9 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:11 position from November 1, 2010, as per a communication dated January 21, 2011 (Annexure-4). After his death, his wife, the petitioner, applied for ex-gratia compensation. Upon reviewing her application, an ex- gratia amount of Rs. 6,00,000 (Six Lakhs) was sanctioned and deposited into her Savings Bank Account No. 19360110021552 on May 19, 2014, according to the Scheme dated November 7, 2007 which was effective at that time. 5. After receiving the ex-gratia amount without any force, coercion, or undue influence and utilizing it, the petitioner sought for a compassionate appointment. She later filed a petition (WP(C) No. 22360/2017) alleging that the bank had not acted on her request for compassionate employment. This petition was addressed by an order dated November 3, 2017, and as a result, the petitioner submitted a representation on November 8, 2017. The competent authority considered and dismissed this request through a reasoned order dated December 15, 2017 (Annexure-14), which is the subject matter of challenge in this Writ Petition. 6. The Clause-6 of the 2007 Scheme required requests for compassionate employment to be made within one year of the employee’s death. The petitioner did not comply with this requirement. Instead, she applied for and used the ex-gratia compensation on her own accord, as shown by her account statement. After receiving the ex-gratia amount on May 19, 2014, she only requested compassionate employment in 2017, which is beyond the one-year limit set by the scheme. Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:11 Page 8 of 9 7. Besides, the Petitioner’s case also does not conform to the parameters of ‘employment assistance’ as laid down in Supreme Court of India’s decision reported in Umesh Kumar Nagpal v. State of Haryana1 wherein the Supreme Court has held that the compassionate appointment cannot be granted after a reasonable period which must be specified in rules. The consideration of such employment is not a vested right which can be exercised at any time in future. The object being to enable the family to get over the financial crises which it faces in the aftermath of the death of the sole bread winner. The compassionate employment cannot be claimed and offered after the lapse of time and after crises is over. 8. Therefore, this Court does not deem it necessary to accede to the submission of the Petitioner. With respect to the aforesaid discussion and the cases cited hereinabove, this Court is not inclined to entertain the prayer of the Petitioner. 9. This Writ Petition is hereby dismissed. Judge (Dr. S.K. Panigrahi) Orissa High Court, Cuttack, Dated the 24th July, 2024/ 1 1994(4) SCC-138 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 14-Aug-2024 14:59:11 Page 9 of 9