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CASE NO.:

Appeal (civil) 11881 of 1996

Appeal (civil) 11882 of 1996

PETITIONER:

BALBIR KAUR & ANR.

Vs.

RESPONDENT:

STEEL AUTHORITY OF INDIA LTD. & ORS.

DATE OF JUDGMENT: 05/05/2000

BENCH:

U.C.Banerjee, S,B,Majumdar

JUDGMENT:

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J U D G M E N T

BANERJEE,J.

The core question which falls for determination before

this Court in these Civil Appeals pertain to the

interpretation of Family Benefit Scheme as introduced in

NJSC Tripartite Agreement of 1989 and the consequences

thereof on the existing welfare measure as contained in NJSC

Agreement in 1983: Whereas the Orissa High Court in the

judgment impugned held that by reason of introduction of

Family Benefit Scheme in terms of NJSC Tripartite Agreement

in 1989, question of compassionate appointment would not

arise the appellant herein contended that by reason of

clause 8.14.1 in the 1989 Agreement; the requirement of

compassionate appointment cannot possibly be given a go bye:

It is an existing obligation and has been expressly saved.

The appellant contended that having regard to constitutional

obligation as regards Egalitarian society, the issue of

compassionate appointment cannot and ought not to be trifled

with the question therefore does not seem to be so simple

as suggested by Mr. Bhasme the learned Advocate appearing

for the respondents and the issue undoubtedly is one of the

live issues to be decided by this Court, more so having

regard to the constitutional mandate. Incidentally be it

noted that the appeal No.11882 of 1996 (Smt. T.K.

Meenakshi & Anr. V. Steel authority of India Ltd. & Ors.)

has been tagged on to the main appeal as argued before this

Bench (CA No.11881 of 1996: Balbir Kaur & Anr. Vs. Steel

Authority of India Ltd. & Ors.) by reason of the

consideration of the issue pertaining to the Family Benefit

Scheme but the factual contexts are however at variance and

it is in this perspective we deem it fit to advert to the

factual matrix of both the matters briefly. In Civil appeal

No.11881 of 1996: (Balbir Kaur & Anr. Vs. Steel Authority

of India & Ors.) it appears that the appellants before this

Court are the dependants of a deceased employee Hari Singh,

who happened to be a technician working in the department of

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Captive Power Plant-II belonging to Steel Authority of

India. The deceased employee was admitted to Ispat General

Hospital on 4th August, 1992 and was treated for cancer till

24th September, 1992. At the same hospital the deceased

employee however underwent surgery and subsequent thereto

the latter was advised to undergo treatment at Meharbhai

Tata Memorial Hospital and accordingly was admitted therein

on 25th September, 1992 but was discharged on10th November,

1992 when he was asked to report further on 7th December,

1992. The employee Hari Singh, however, expired on 22nd

November, 1992.

Further factual score in the matter in issue depicts

that on 22nd January, 1993 a request for compassionate

employment to the appellant No.2, who is the holder of a

valid heavy vehicle driving licence, was made but

unfortunately of no effect. Having, however, being denied

of any consideration, the appellant herein moved the High

Court and the latter upon a reasoned judgment negated the

plea as raised in the writ petition before the High Court

and hence the appeal before this Court. The other appeal

(T.K. Meenakshi & Anr. Vs. Steel Authority of India: CA

No.11882 of 1996) though pertain to the similar issue of

Family Benefit Scheme, but since the factual score is at

variance with Balbir Kaurs matter, it would be convenient

to advert to the same briefly at this juncture. The

appellants herein are the dependants of one M. Kesavam the

deceased employee of respondent No.1. Kesavam during his

life time was working as an operator in Coke Oven

(Operation) of Rourkela Steel Plant of the Steel Authority

of India. The appellant No.1 being the wife of the deceased

employee developed certain complications after a surgery at

Ispat General Hospital and was advised to proceed to

Christian Medical College, Vellore vide movement order dated

3rd January, 1994. The Service Conduct Appeal Rules read

with Circular issued from time to time by the respondent

No.1, entitles a lady patient for an escort as also

travelling allowance and in terms therewith the deceased

employee applied for grant of advance travelling allowance

for himself as an escort and his wife as patient and was

sanctioned an advance travelling allowance of Rs.3280/-.

The factual score depicts that the appellant No.1 being

accompanied by the deceased employee went to Vellore for

medical treatment on 20th January, 1994 but whilst at

Vellore the deceased employee fell ill somewhat seriously by

reason wherefore the latter was admitted at the Christian

Medical College Hospital at Vellore on 25th January, 1994

and on 28th January, 1994 the deceased employee breathed his

last. The factual aspect therefore depicts rather a sad and

dismal picture a person with a desire to have his wife

treated at the Christian Medical College Hospital, goes to

Vellore and there dies within three days after admission to

the hospital. It is on this count that the widow of the

deceased employee made a request to the Steel Authority of

India for providing compassionate employment to the

appellant No.2 since the bread-earner of the family

unfortunately met with pre-mature death resulting into

untold financial sufferings for the entire family. The

representations went unheeded by reason wherefore a writ

petition was moved before the High Court. The decision of

the High Court as noticed above upheld the validity of the

Family Benefit Scheme and answered the question of

compassionate employment in the negative by reason of

introduction of such a scheme. It is this order which has

been impugned in this appeal before this court and since

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issues involving in both these two matters being identical

as dealt with presently this matter has been tagged on to

the other matter of Balbir Kaur as noted above. Before

however, embarking on an inquiry in regard thereto it would

be convenient to note however the necessary provisions of

the NJSC Tripartite Agreement of 1983 as also of 1989. The

same are set out herein below:-

Cl.7.16 NJCS Agreement, 1983

Cl.7.16: Employment.

Employment would be provided to one dependant of

workers disabled permanently and those who meet with death.

One dependant of the retiring employee would be provided

employment, but in case of TISCO, the same would be subject

to their Certified Standing Orders.

1989 Tripartite Agreement:

Cl.8.10.4: In case of death due to accident arising

out of and in course of employment, employment to one of

his/her direct dependant will be provided.

Cl.8.10.5: A Scheme would be introduced by NJCS for

employees who die while in service or who suffer from

permanent total disablement to receive monthly payments

after the death/permanent total disablement of the

employees, in case the widow/employees deposit P.F. amount

and Gratuity dues with the Companys separate trust

constituted for this purpose. When finalised, the Scheme

would be effective from 1.1.1989.

Cl.8.14.1: Benefits provided under the previous NJCS

Agreement will continue, unless otherwise specified in this

Agreement.

Cl.8.14.2: Merely as a consequence of the

implementation of this Agreement, any facility, privilege,

amenity, benefit, monetary or otherwise or concession to

which an employee might be entitled by way of practice or

usage, shall not be withdrawn, reduced or curtailed except

to the extent and manner as provided for in this Agreement.

The employer being Steel Authority of India,

admittedly an authority within the meaning of Article 12 has

thus an obligation to act in terms of the avowed objective

of social and economic justice as enshrined in the

Constitution but has the authority in the facts of the

matters under consideration acted like a model and an ideal

employer It is in this factual backdrop, the issue needs

an answer as to whether we have been able to obtain the

benefit of constitutional philosophy of social and economic

justice or not. Have the lofty ideals which the founding

fathers placed before us any effect in our daily life the

answer cannot however but be in the negative what happens

to the constitutional philosophy as is available in the

Constitution itself, which we ourselves have so fondly

conferred on to ourselves. The socialistic pattern of

society as envisaged in the Constitution has to be

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attributed its full meaning: A person dies while taking the

wife to a hospital and the cry of the lady for bare

subsistence would go unheeded on certain technicality. The

bread earner is no longer available and prayer for

compassionate appointment would be denied, as it is likely

to open a Pandoras Box This is the resultant effect of

our entry into the new millenium. Can the law courts be a

mute spectator in the matter of denial of such a relief to

the horrendous sufferings of an employees family by reason

of the death of the bread-earner. It is in this context

this Courts observations in Dharwad Distt. PWD Literate

Daily Wage Employees Assn. & Ors. v. State of Karnataka &

Ors. [1990 (2) SCC 396] seem to be rather apposite. This

Court upon consideration of Randhir Sigh v. Union of India,

[1988 (1) SCC122] as also Surinder Singh v.

Engineer-in-chief [1986 (1) SCC 639]; and DS Nakara v.

Union of India [1983 (1) SCC 305] observed in paragraphs 14

and 15 as below:

14. We would like to point out that the philosophy

of this Court as evolved in the cases we have referred to

above is not that of the court but is ingrained in the

Constitution as one of the basic aspects and if there was

any doubt on this there is no room for that after the

Preamble has been amended and the Forty-second Amendment has

declared the Republic to be a socialistic one. The

judgments, therefore, do nothing more than highlight one

aspect of the constitutional philosophy and make an attempt

to give the philosophy a reality of flesh and blood.

15. Jawaharlal Nehru, the first Prime Minister of

this Republic while dreaming of elevating the lot of the

common man of this country once stated:

Our final aim can only be a classless society with

equal economic justice and opportunity to all, a society

organised on a planned basis for the raising of mankind to

higher material and cultural levels. Everything that comes

in the way will have to be removed gently, if possible;

forcibly if necessary, and there seems to be little doubt

that coercion will often be necessary.

These were his prophetic words about three decades

back. More than a quarter of century has run out since he

left us but there has yet been no percolation in adequate

dose of the benefits the constitutional philosophy stands

for to the lower strata of society. Tolstoy wrote:

The abolition of slavery has gone on for a long time.

Rome abolished slavery. America abolished it and we did but

only the words were abolished, not the thing.

Perhaps what Tolstoy wrote about abolition of slavery

in a large sense applies to what we have done to the

constitutional ethos. It has still remained on paper and is

contained in the book. The benefits have not yet reached

the common man. What Swami Vivekananda wrote in a different

context may perhaps help a quicker implementation of the

goal to bring about the overdue changes for transforming

India in a positive way and in fulfilling the dreams of the

Constitution fathers. These were the words of the Swami:

It is imperative that all this various yogas should

be carried out in practice. Mere theories about them will

not do any good. First we have to hear about them; then we

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have to think about them. We have to reason the thoughts

out, impress them on our minds and meditate on them;

realise them, until at last they become our whole life. No

longer will religion remain a bundle of ideas or theories or

an intellectual assent; it will enter into our very self.

By means of an intellectual assent, we may today subscribe

to many foolish things, and change our minds altogether

tomorrow. But true religion never changes. Religion is

realisation; not talk, nor doctrine, nor theories, however

beautiful they may be. It is being and becoming, not

hearing or acknowledging. It is the whole souls becoming

changed into what it believes. That is religion.

As a matter of fact the constitutional philosophy

should be allowed to become a part of every mans life in

this country and then only the Constitution can reach

everyone and the ideals of the Constitution framers would be

achieved since the people would be nearer the goal set by

the Constitution - an ideal situation but a far cry

presently.

Unfortunately, the High Court has completely lost

sight of this aspect of the matter.

Turning on to the factual aspects once again, it is

not that compassionate appointments have never been

effected. Steel Authority of India was in fact providing

compassionate employment to one dependant of an employee

dying in harness or permanently disabled. As a matter of

fact on 22nd September, 1982 the respondent-Steel Authority,

further issued the Circular pertaining to appointments on

compassionate grounds. The Circular however for the first

time introduced categorisation of compassionate employment

as First Priority Cases; Second Priority Cases and Third

Priority Cases. The Circular reads as below:

The system of compassionate appointments was reviewed

in a meeting of the Advisory Committee recently. On the

lines of the discussions, the system may be operated in

future as given below:

1. First Priority Cases

(a) Employment of a dependent of an employee who dies

owing to an accident arising out of and in the course of

employment;

(b) Employment of a dependent of an employee who dies

in a road accident while on duty or while coming to or going

back from duty.

The existing practice will continue.

2. Second Priority Cases

i.e. employment of a dependent of an employee whose

services are terminated in accordance with order 23 of the

Standing Orders, i.e. on his being found permanently

medically unfit for his job by the Director M&HS.

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(a) Dependents of only those employees would be

considered for employment on compassionate grounds whose

services are terminated on the ground of being declared

permanently unfit for their job before they enter 56th year

of age, that is, they have a balance of at least three years

of service.

(b) The minimum period of service of the employer,

whose dependent is to be considered for employment, will be

10 years, as against 5 years under the existing rules.

3. Third Priority Cases

i.e., Cases of death for reasons not covered under (I)

above. The existing rules will continue.

The above will be subject to the following general

conditions:

(i) The eligible dependents for consideration for such

employment would continue to be wife/husband/son/daughter.

(ii) No employment would be provided to a second

dependent, i.e., if the husband/wife or a son/daughter of

the deceased or of the employee whose services are

terminated on his being found medically unfit is already in

employment of RSP, no employment will be provided to another

dependent.

(iii) The employee covered under the 2nd and 3rd

priorities-

(a) should not have been awarded a major punishment

during the last 5 years of their service and

(b) should have at least good grading in the CCR for

the last 3 years

This has the approval of the Managing Director.

The requirement of such an insertion in the body of

the judgment was felt expedient by reason of the

introduction of the priorities and in any event special

reference may be made to clause 7.16 of the Circular which

expressly records cases of death for reasons not covered

under (I) above and in that event the existing rules will

continue. The existing rules as a matter of fact were not

prohibitive of such compassionate appointments but lend

affirmation to such appointments. Mr. Bhasme, learned

Advocate appearing for the Steel authority contended that

the Family Benefit Scheme was introduced on 21st November,

1992 and the salient features of the Scheme were to the

effect that the family being unable to obtain regular salary

from the management, could avail of the scheme by depositing

the lump sum provident fund and gratuity amount with the

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company in lieu of which the management would make monthly

payment equivalent to the basic pay together with dearness

allowance last drawn, which payment would continue till the

normal date of superannuation of the employee in question.

Mr. Bhasme further contended that adaptation of this Family

Benefit Scheme was meant to provide an assured or regular

income per month, while the bulk amount deposited by way of

provident fund and gratuity with the management remained

intact. Mr. Bhasme, contended that consequently on

deposits as above, with the management, the employees

family could avail of pay up to normal date of

superannuation on the footing that the employee though not

actually working but notionally continued to work till the

normal date of superannuation and such a scheme in fact

stands at a much better footing and much more beneficial to

an employee or a deceased employee. Apparently these

considerations weighed with the High Court and the latter

thus proceeded on the basis that by reason of adaptation of

a Family Benefit Scheme by the Employees Union, question of

any departure therefrom or any compassionate appointment

does not and cannot arise. But in our view this Family

Benefit Scheme cannot be in any way equated with the benefit

of compassionate appointments. The sudden jerk in the

family by reason of the death of the bread earner can only

be absorbed by some lump sum amount being made available to

the family This is rather unfortunate but this is a

reality. The feeling of security drops to zero on the death

of the bread earner and insecurity thereafter reigns and it

is at that juncture if some lump sum amount is made

available with a compassionate appointment, the grief

stricken family may find some solace to the mental agony and

manage its affairs in the normal course of events. It is

not that monetary benefit would be the replacement of the

bread earner, but that would undoubtedly bring some solace

to the situation. It is significant to note that the

Employees Provident Fund & Miscellaneous Provisions Act of

1952 is a beneficial piece of legislation and can amply be

described as social security statute, the object of which is

to ensure better future of the concerned employee on his

retirement and for the benefit of the dependants in case of

his earlier death. As regards the provisions of the Payment

of Gratuity Act, 1972 (as amended from time to time) it is

no longer in the realm of charity but a statutory right

provided in favour of the employee. Section 4 of the Act is

of some significance and as such the same is set out herein

below:

4. Payment of gratuity. (1) Gratuity shall be

payable to an employee on the termination of his employment

after he has rendered continuous service for not less than

five years, -

(a) on his superannuation, or (b) on his retirement or

resignation, or (c) on his death or disablement due to

accident or disease;

Provided that the completion of continuous service of

five years shall not be necessary where the termination of

the employment of any employee is due to death or

disablement:

[Provided further that in the case of death of the

employee, gratuity payable to him shall be paid to his

nominee or, if no nomination has been made, to his heirs,

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and where any such nominees or heirs is a minor, the share

of such minor, shall be deposited with the controlling

authority who shall invest the same for the benefit of such

minor in such bank or other financial institution, as may be

prescribed, until such minor attains majority.]

It is upon consideration of the above noted provisions

of Section 4, it was contended that question of compulsory

depositing of the gratuity amount does not and cannot arise.

We shall come back to the deposit of the Provident Fund but

as regards the Gratuity amount, be it noted that there is a

mandate of the statute that Gratuity is to be paid to the

employee on his retirement or to his dependants in the event

of his early death the introduction of Family Pension

Scheme by which the employee is compelled to deposit the

Gratuity amount, as a matter of fact runs counter to this

beneficial piece of legislation (Act of 1972). The

statutory mandate is unequivocal and unambiguous in nature

and runs to the effect that the gratuity is payable to the

heirs of the nominees of the concerned employees but by the

introduction of the Family Pension Scheme, this mandate

stands violated and as such the same cannot but be termed to

be illegal in nature. We do find some substance in the

contention as raised, a mandatory statutory obligation

cannot be trifled with by adaptation of a method which runs

counter to the statute. It does not take long to appreciate

the purpose for which this particular Family Pension Scheme

has been introduced by deposit of the provident fund and the

gratuity amount and we are not expressing any opinion in

regard thereto but the fact remains that statutory

obligation cannot be left high and dry on the whims of the

employer irrespective of the factum of the employer being an

authority within the meaning of Article 12 or not.

Adverting to the Provident Fund, be it noted that the same

is payable to an employee under the provisions of a statute

and this statutory obligation cannot possibly by deferred in

the event of an untimely death of a worker or an employee.

As noticed above, the family needs the money in lump-sum and

availability of this amount is the only insulating factor in

such a grief stricken family. The amount is payable in one

lump and as a matter of fact it acts as a buffer to the

retirement of or on the death of an employee. Situations

are not difficult to conceive when the family needs some

lump- sum amount but in the event of deposit of the same

with the employer, the heirs of the deceased employee could

be put into the same problems of realities of life, even

though, if this money would have been made available to them

the situation could have been otherwise.

In any event as appears in the contextual facts, the

NJCS Agreement being a Tripartite Agreement expressly

preserves the 1982 circular to the effect that any benefit

conferred by the earlier circular shall continue to be

effective and on the wake of the same we do not see any

reason to deny the petitioner the relief sought for in the

writ petition.

On the wake of the aforesaid, we do feel it convenient

to record that the option should have been made available

either to have a compassionate appointment provided,

however, the deceased employees representative is otherwise

competent to hold the post or the adaptation of the family

pension fund by way of deposit of provident fund and

gratuity amounts. In fact, however, there was no option

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taken from the employees, at least no records have been

produced therefor, neither any submissions made in that

regard. Mr. Bhasme, further pointed out that though the

present appeals related to two individual cases but any

interpretation contrary to the one canvassed by the

respondent is likely to open a pandoras box, since in the

huge empire of the respondent, several such cases would be

existing which would have to be reconsidered. Mr. Bhasme

further contended that family members of large number of the

employees have already availed of the Family Benefit Scheme

and as such it would be taken to be otherwise more

beneficial to the concerned employee. We are not called

upon to assess the situation but the fact remains that

having due regard to the constitutional philosophy to decry

a compassionate employment opportunity would neither be fair

nor reasonable. The concept of social justice is the

yardstick to the justice administration system or the legal

justice and as Rescopound pointed out that the greatest

virtue of law is in its adaptability and flexibility and

thus it would be otherwise an obligation for the law courts

also to apply the law depending upon the situation since the

law is made for the society and whichever is beneficial for

the society, the endeavour of the law court would be to

administer justice having due regard in that direction.

The learned Advocate appearing in support of the

appeal very strongly contended that as per appellants

information the respondent Steel Authority of India is in

fact providing compassionate employment even now to one

dependant of an employee dying in harness or permanently

disabled. We are however not inclined to go into the issue

on this score.

In that view of the matter these appeals succeed, the

order of the High Court stands set aside. Steel Authority

of India is directed to consider the cases of compassionate

appointments in so far as the appellants are concerned.

There shall be no order as to costs.