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    Appeal Bank of India Vs Bank of India

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    Appeal Bank of India Vs Bank of India

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    appeal Bank Of India vs Bank Of India

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    Appeal Bank of India Vs Bank of India

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    of 6

    Neutral Citation No.

    - 2022:AHC-LKO:28187-DB

    Court No. - 2

    Case :- SPECIAL APPEAL DEFECTIVE No. - 42 of 2022

    Appellant :- Bank Of India Thru. Its General Manager,


    Mumbai And Ors (In Wria 5709 Of 2002)
    Respondent :- Sri Pankaj Srivastava
    Counsel for Appellant :- Lalit Shukla
    Counsel for Respondent :- Yogesh Kesarwani

    Hon'ble Devendra Kumar Upadhyaya,J.


    Hon'ble Subhash Vidyarthi,J.
    (C. M. Application No.2 of 2022)

    This is an application seeking condonation of delay in filing the


    special appeal. Office has reported a delay of 5 days.

    Having heard learned counsel for the parties and having


    perused the averments made in the application seeking
    condonation of delay, we find that the delay has sufficiently
    been explained.

    Accordingly, the application is allowed and delay in preferring


    the special appeal is condoned.

    Order on memo of Special Appeal

    Heard Shri Lalit Shukla, learned counsel for the appellants-


    bank authorities and Shri Yogesh Kesarwani, learned counsel
    representing the sole respondent.

    By means of this intra-court appeal, the appellants have sought


    to challenge the judgement and order dated 13.04.2022 passed
    by the learned Single Judge in Writ-A No.5709 of 2022,
    whereby the writ petition has been allowed and the order dated
    20.06.2002 rejecting the claim of the respondent-petitioner for
    compassionate appointment has been quashed and further, a
    direction has been issued to the appellants to consider the claim
    of the respondent-petitioner for grant of compassionate
    appointment within a period of six weeks.

    Submission of the learned counsel for the appellants is two


    folds. Firstly, he has submitted that since disciplinary
    proceedings against the father of the petitioner, who was the
    employee in the bank, was in contemplation before his death, as
    such in terms of the scheme of compassionate appointment, the
    respondent-petitioner cannot be given appointment on
    compassionate grounds. Secondly, it has also been argued that
    since the death of the father of the petitioner, considerable time
    has lapsed, as such in view of the law laid down by Hon'ble
    Supreme Court in the case of State of Himachal Pradesh and
    another vs. Shashi Kumar, reported in (2019) 3 SCC 653,
    respondent is not entitled to seek compassionate appointment at
    this point of time.

    So far as the first argument made by the learned counsel for the
    appellants is concerned, we may reproduce the provision
    contained in paragraph 10(iv) of the Scheme for Recruitment of
    Dependents of Employees Who Die in Harness on which he
    intends to rely. The said provision is extracted here under:

    10(iv). In case where the deceased employee had been


    awarded minor penalty or disciplinary proceedings against
    the employee was pending or contemplated at the time of
    death of the employee, which would prima-facie have
    resulted in award of minor penalty, appointment on
    compassionate grounds of the dependents will be considered
    with the approval of the bank's board. In case where the
    deceased employee had been awarded major penalty or
    disciplinary proceedings against the employee was pending
    or contemplated at the time of death of the employee, which
    would prima-facie have resulted in award of major penalty,
    appointment on compassionate grounds of the dependents
    will be considered with the approval of the Government of
    India, Ministry of Finance, Department of Economic Affairs
    (Banking Division).
    As per the aforequoted provision of the scheme, in a case where
    the deceased employee was awarded major penalty or
    disciplinary proceedings against him were pending or
    contemplated at the time of death of the employee, which
    would prima-facie has resulted in award of major penalty,
    appointment on compassionate ground of the dependents is to
    be considered with the approval of the Government of India,
    Ministry of Finance, Department of Economic Affairs (Banking
    Division).

    Learned counsel for the appellants has drawn our attention to


    the resolution of the Board of Governor of the appellants-bank
    which is available at page 110 of this special appeal and reads
    as under:

    The Board directed that employment on compassionate


    ground need not be considered in cases where major penalty
    was awarded/considered/contemplated to employees on
    account of fraud/forgery/misappropriation, on account of
    any vigilance angle/negligence and authorized the Executive
    Director to consider only those cases not involving the
    above, for employment of dependent of deceased employees
    on compassionate ground.
    The said decision of the Board of Governors appears to have
    been taken on a reference made to the Board of Governors of
    the appellants-bank vide letter dated 08.04.2002 which is
    available at pages 158 to 160 of this special appeal. The
    reference made to the Board of Governors, which led the
    decision dated 20.06.2002, is related to 12 cases including the
    case of the petitioner as well, which were referred to the
    Ministry of Finance, Department of Economic Affairs for
    approval as per aforequoted paragraph 10(iv) of the Scheme.
    The Board of Governors on the said reference contained in the
    letter dated 08.04.2002 took a decision that employment on
    compassionate ground need not be considered in cases where
    major penalty was awarded/considered/contemplated to
    employees on account of fraud/forgery/misappropriation, on
    account of any vigilance angle/negligence. The resolution
    further states that the Board of Governors authorized the
    Executive Director to consider only those cases not involving
    the aforesaid, for employment of dependent of deceased
    employees on compassionate ground.

    Based on the said resolution of the Board of Governors, the


    decision not to consider the case/rejecting the claim of the
    respondent-petitioner seeking compassionate employment was
    communicated by the Assistant General Manager vide his letter
    dated 16.10.2002 as is available at page 109 of this special
    appeal. When we consider the aforesaid submission made by
    the learned counsel for the appellants-bank, what we find is that
    the Board of Governors in its meeting held on 20.06.2002 had
    decided not to consider the cases for compassionate
    appointment where the deceased employee concerned was
    either punished with major penalty or such a penalty was in
    contemplation before death.

    The issue, which needs to be considered and which actually has


    been considered by the learned Single Judge in the order under
    appeal is as to whether there was any disciplinary proceedings
    contemplated against the father of the respondent-petitioner
    before his death. It is not in dispute that neither the father of the
    petitioner was suspended, nor was any charge-sheet issued to
    him before his death. Father of the respondent-petitioner is said
    to have died on 28.07.2000 and till the said date, he was neither
    placed under suspension either on institution of disciplinary
    proceedings or in contemplation thereof. There is nothing on
    record to indicate that even the charge-sheet was issued what to
    say about the same being served upon the deceased employee.
    The only assertion made on behalf of the appellants is that
    charge-sheet was under preparation which means charge sheet
    was not issued.

    In our considered opinion, merely because the charge-sheet


    was said to be under preparation before the death of the father
    of the respondent-petitioner, it cannot be said that any major
    penalty was in contemplation. Thus, the aforesaid submission
    made by the learned counsel for the appellants does not appeal
    to this Court which is hereby rejected.

    Regarding the other ground urged by the learned counsel for the
    appellants to challenge the order under appeal based on the
    judgment of Hon'ble Supreme Court in the case of Shashi
    Kumar (supra), we may only observe that in the said case the
    employee concerned had died on 29.03.2005 whereas writ
    petition for compassionate appointment was instituted on
    11.05.2015 i.e. after a lapse of 10 years. It is also to be noticed
    that in the said case of Shashi Kumar (supra) the application
    seeking compassionate appointment was made after lapse of a
    period of about 2 years from the death of the employee i.e. on
    08.05.2007 which was rejected on 15.01.2008. After rejection
    of the claim in the year 2008 the writ petition was instituted
    after a lapse of 7 years i.e. in the year 2015. It is in these facts
    and circumstances of the said case that Hon'ble Supreme Court
    has observed that, "this sense of immediacy is evidently lost by
    the delay on the part of the dependent in seeking compassionate
    appointment". In the said facts Hon'ble Supreme Court
    observed that the dependent of the deceased employee was
    barred from seeking compassionate appointment by the delay as
    well, and by the lapse of time which has taken place.

    However, the facts in the case of the present case are clearly
    distinguishable from the facts in the case of Shashi Kumar
    (supra). In the instant case, father of the respondent-petitioner
    died on 28.07.2000. Immediately after his death respondent-
    petitioner applied for compassionate appointment which in
    terms of the paragraph 10(iv) of the scheme of compassionate
    appointment which was in vogue in the establishment of
    appellants-bank, the matter was referred to the Government of
    India and finally, when the reference was pending, the Board of
    Governors of the appellants-bank a decision dated 20.06.2002
    which is the basis of rejection of the claim of the respondent-
    petitioner. The respondent-petitioner immediately instituted the
    proceedings of writ petition, namely, Writ A No.5709 of 2002
    which has now been decided by the learned Single Judge by
    means of the judgment and order dated 13.04.2002 which is
    under appeal herein. Thus, the lapse of time, if any, cannot be
    attributed to the respondent-petitioner and as such in our
    considered opinion, the judgment in the case of Shashi Kumar
    (supra) does not come to the rescue of the appellants-bank
    authorities.

    For the reasons aforesaid, we are not persuaded to take a view


    different from the view taken by the learned Single Judge while
    allowing the writ petition by means of the judgment and order
    dated 13.04.2002.

    The special appeal is, thus, dismissed.

    There will be no order as to costs.


    Order Date :- 26.5.2022
    akhilesh/

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