# Rachit v. U.O.I. & Ors

- **Citation:** (2024) 5 ILRA 1135
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-22
- **Case number:** Writ-A No.17724 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rachit-v-u-o-i-ors-51976
- **Pages:** 7

## Headnote

Law
-
Scheme
for
Compassionate Appointment or Payment
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
of Ex-Gratia Financial Relief to Dependents
of Deceased Employees on Compassionate
Grounds - scheme for compassionate
appointment applies to dependent family
members of permanent employees who die
while in service, regardless of age - upper
age limit of 55 years applies only to cases
of retirement on medical grounds due to
incapacitation - Bank should not reject the
claim solely because the family received
benefits
under
various
welfare
schemes.(Para - 11,15)

Petitioner's father died in harness in 2016 - minor
- attained majority - applied for compassionate
appointment in 2021 - delayed due to his minority
- Bank rejected claim - citing petitioner's father's
age at the time of death (57 years) - delay in
application.(Para - 1 to 4)

HELD: - Bank's decision was based on a
misreading of the scheme. Scheme does not
prescribe an upper age limit for death in harness
cases. Petitioner's claim is not time-barred. MD
& CEO of the Bank should consider it.(Para -
10,15)

Writ Petition Allowed. (E-7)

## Text

5 All. Rachit Vs. U.O.I. & Ors.
1135
Hence, there is no justification for the
forfeiture of gratuity on the ground stated in
the
order dated
20-4-2004
that
the
"misconduct proved against you amounts to
acts involving moral turpitude". At the risk
of redundancy, we may state that the
requirement of the statute is not the proof of
misconduct
of
acts
involving
moral
turpitude but the acts should constitute an
offence involving moral turpitude and such
offence should be duly established in a court
of law.
20. That the Act must prevail over
the Rules on Payment of Gratuity framed by
the employer is also a settled position as per
Jaswant Singh Gill [Jaswant Singh Gill v.
Bharat Coking Coal Ltd., (2007) 1 SCC
663 : (2007) 1 SCC (L&S) 584] . Therefore,
the appellant cannot take recourse to its own
Rules, ignoring the Act, for denying
gratuity."

21. In view of whatever has been
held by this Court and the position of the law
authoritatively settled, we hold that it was
not open to the respondents to recover the
sum of Rs.5,62,745/- from the gratuity
payable to the petitioner on account of
death-cum-retirement benefits due to the
petitioner's husband and now receivable by
her.

22. In the result, this writ petition
succeeds and is allowed. A mandamus is
issued to respondent Nos.2, 3, 4 and 5 to
ensure amongst themselves immediate
refund of the sum of Rs.5,62,745/- to the
petitioner in account within a month of the
date of receipt of a copy of this order. The
said sum of money will carry simple interest
at the rate of 6% per annum, reckoned from
the month after death of the petitioner's
husband, until realization. In the event, the
said sum of money is not remitted in account
to the petitioner within a month of receipt of
a copy of this order by the respondents, it
will carry simple interest at the rate of of 9%
per annum beyond the period of one month
as aforesaid, until realization.

23. There shall be no order as to
costs.

24. Let a copy of this order be
communicated to the Chairman, U.P. Power
Corporation Limited, Shakti Bhawan, 14
Ashok Marg, Lucknow, the Deputy General
Manager, Electricity Distribution Circle,
Western Area, Pashchimanchal Vidyut
Vitran Nigam Limited, Railway Road,
Bulandshahr,
the
Executive
Engineer,
Electricity Urban Distribution Division,
Pashchimanchal
Vidyut
Vitran
Nigam
Limited, Railway Road, Bulandshahr and
the Superintending Engineer, Electricity
Distribution
Circle-1,
Pashchimanchal
Vidyut Vitran Nigam Limited, Railway
Road,
Bulandshahr
by
the
Registrar
(Compliance).
----------
(2024) 5 ILRA 1135
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No.17724 of 2023

Rachit ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Prabhakar Awasthi, Mr. Suresh Singh

Counsel for the Respondent:
Mr. Ashok Trivedi, Ms. Annapurna Singh 'Chandel'

(A)
Service
Law
-
Scheme
for
Compassionate Appointment or Payment
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
of Ex-Gratia Financial Relief to Dependents
of Deceased Employees on Compassionate
Grounds - scheme for compassionate
appointment applies to dependent family
members of permanent employees who die
while in service, regardless of age - upper
age limit of 55 years applies only to cases
of retirement on medical grounds due to
incapacitation - Bank should not reject the
claim solely because the family received
benefits
under
various
welfare
schemes.(Para - 11,15)

Petitioner's father died in harness in 2016 - minor
- attained majority - applied for compassionate
appointment in 2021 - delayed due to his minority
- Bank rejected claim - citing petitioner's father's
age at the time of death (57 years) - delay in
application.(Para - 1 to 4)

HELD: - Bank's decision was based on a
misreading of the scheme. Scheme does not
prescribe an upper age limit for death in harness
cases. Petitioner's claim is not time-barred. MD
& CEO of the Bank should consider it.(Para -
10,15)

Writ Petition Allowed. (E-7)

(Delivered by Hon'ble J.J. Munir, J.)

The petitioner has applied for a
mandamus to consider his case for
compassionate appointment on account of
his father's death in harness while in the
employ of the respondent-Bank of Baroda.

2. The petitioner's father joined
service of the Bank of Baroda, Khaga,
Fatehpur Region, Fatehpur1 as a Peon on
09.10.1984. He was promoted from a Class
IV post to a Class III post with the Bank. He
was working as a Cashier in the year 2016.
The petitioner's father died in harness on
21.02.2016. He left behind him a family of
three - his widow, Smt. Gyanmati Devi and
two sons, the petitioner, Rachit and his
younger brother, Sachin.

3. It is the petitioner's case that his
mother, being the only surviving adult in the
family, moved an application on 10.01.2017
to the Branch Manager of the Bank,
indicating that her elder son was 14 years
old, and the younger, 11. It was also said that
the family have been destituted and in the
event, the petitioner's sons be regarded
ineligible on account of their minority, their
right to be considered must be postponed
until
a
later
date.
The
application
desperately says in the end that either the
petitioner's
mother's
candidature
be
considered
or
consideration
of
the
petitioner's right be postponed, keeping it
intact.

4. During the interregnum, nothing
happened. The petitioner passed his High
School Examination in the year 2020 and the
Intermediate Examination in the year 2022.
He earned his Bachelor of Science Degree
from the Professor Rajendra Singh (Rajju
Bhaiya)
University,
Prayagraj
in
the
examination of 2022-23. The petitioner,
after attaining majority, contacted the
Branch Office of the Bank to gather progress
about the consideration of his claim. The
Branch Office advised the petitioner to
move an application in the proforma
prescribed for claiming compassionate
appointment. The petitioner moved an
application in the appropriate proforma on
20.01.2021. The petitioner's application in
the proper proforma along with the checklist
was forwarded on 02.03.2021. Despite
submission of the application on 20.01.2021
along with the checklist separately and a 'No
Objection' by the other family members, the
claim has not been considered by the Bank,
and therefore, the petitioner, being a
member of the deceased's family, who say
that they have not been able to tide over the
resultant economic crisis, has prayed that
5 All. Rachit Vs. U.O.I. & Ors.
1137
this Court may issue a mandamus, directing
the respondents to consider his claim.

5. A counter affidavit has been filed
on behalf of the Bank, after a notice of
motion was issued.

6. In the brief facts, it is averred that
a sum of ₹17,09,549 has been paid in all
towards terminal benefits to the deceased's
widow, Smt. Gyanmati Devi. The widow is
also being paid family pension in the sum of
₹17,332 per month. It is not denied that
when the deceased Shyam Lal passed away,
the
scheme
dated
18.02.2016
for
compassionate appointment or payment of
ex gratia or financial relief was in force. It is
pleaded that in order to seek compassionate
appointment, the applicant must have
completed 18 years of age. It is also the
respondents' case that for entitlement to
compassionate appointment or ex gratia
financial relief to the dependant of a
deceased employee, the deceased should not
have crossed the age of 55 years at the time
of his demise in harness. Since in the present
case, the deceased was aged 57 years, the
benefit of compassionate scheme or ex
gratia financial scheme is not available to his
dependants.

7. The petitioner's mother moved
an application on 01.02.2021, saying that
earlier the date of birth disclosed for the
petitioner in her deceased husband's service
record as 24.12.2003 is incorrect and the
correct date of birth of the petitioner is
24.12.2002. It has been castigated by the
respondents as a suppression of fact. It is
also asserted as a suppression of fact that the
petitioner's
mother,
on
three
earlier
occasions, had moved applications seeking
compassionate appointment, all of which
were declined on 31.03.2017, 10.04.2017
and 13.03.2018. It is pleaded in paragraph
No. 21 that when the deceased's widow
applied for compassionate appointment for
her son on earlier occasions, she was
advised that it is not permissible for him to
be appointed, inasmuch as on 21.02.2016,
he was aged 12 years, 1 month and 27 days
and by time he attained the age of 17 years,
the period of five years would have already
expired.

8. A rejoinder affidavit was filed on
behalf of the petitioner. The parties having
exchanged affidavits, the writ petition was
heard finally on 19.12.2023. Judgment was
reserved.

9. Heard Mr. Prabhakar Awasthi
along with Mr. Suresh Singh, learned
Counsel for the petitioner, Mr. Ashok
Trivedi, learned Counsel appearing for
respondents Nos. 2, 3 and 4, and Mr. Satish
Chandra Singh, Advocate holding brief of
Ms. Annapurna Singh Chandel, learned
Counsel appearing on behalf of respondent
No. 1.

10. Upon hearing learned Counsel
for parties, what this Court finds is that
respondents have not been very fair in
considering the petitioner's claim for
compassionate
appointment
under
the
scheme that was in vogue. The plea taken
that since the petitioner's father died at the
age of 57 years, the petitioner is not eligible
under the scheme, is a patent misreading of
the scheme. The scheme for compassionate
appointment,
called
the
Scheme
for
Compassionate Appointment or Payment of
Ex-Gratia Financial Relief to Dependants of
Deceased Employees on Compassionate
Grounds2, is annexed as Annexure CA-3 to
the counter affidavit filed on behalf of
respondents Nos. 2 and 3. It is annexed to a
circular letter of the Bank addressed to all
branches and offices of theirs. A perusal of
1138 INDIAN LAW REPORTS ALLAHABAD SERIES
Paragraph No. 1 of the Scheme, that speaks
about coverage, reads :

1.1 To a dependent family member
of a permanent employee of the Bank who

a) Dies while in service (including
death by suicide)
b) is retired on medical grounds due
to incapacitation before reaching the age of
55 years
Incapacitation is to be certified by a
duly appointed Medical Board in a
Government Medical College/Government
District Head Quarters Hospitals/Panel of
Doctors nominated by the Bank for the
purpose).

1.2 For the purpose of the Scheme
"employee" would mean and include only a
confirmed regular employee who was
serving full time or part time on scale wages,
at the time of death OR retirement on
medical grounds, before reaching age of 55
years and does not include any one engaged
on contract/temporary/casual or any person
who is paid on commission basis.

11. Upon a reading of paragraphs
Nos. 1.1 and 1.2 together, particularly with
reference to Clauses (a) and (b) of Paragraph
1.1, it is evident that a dependant family
member of a permanent employee of the
Bank is one defined with reference to a
permanent employee, who dies while in
service, including a person who dies by
suicide. Clause (b) of paragraph 1.1 says that
a dependant family member could be one in
relation to a person who has retired on
medical grounds due to incapacitation
before reaching the age of 55 years.
Likewise, the word "or" used in Paragraph
1.2 of the scheme makes it evident that the
upper age limit for the employee in order to
entitle his dependant family members under
the Scheme, is prescribed in the contingency
where the employee is retired on medical
grounds due to incapacitation. It does not
apply to a case of death in harness. To the
clear understanding of this Court, death in
harness has nothing to do with the age of the
employee, who dies while still in the Bank's
service. If this is the criteria by which the
petitioner's claim has been judged by the
respondents, we have no hesitation in saying
that it has been misjudged by a manifestly
illegal understanding of their own scheme
by the Bank. So far as the other contention
is concerned, that the petitioner was a minor
and by the time he turned 17, the maximum
permissible period of limitation of five years
would be over is, again, based on a
misreading of paragraph No. 8 of the
scheme. Paragraph No. 8 of the Scheme
reads :

8.
TIME
LIMIT
FOR
CONSIDERING APPLICATIONS:
8.1 Request for appointment should
be received by the Bank within one year
from the date of death of the employee
8.2 Application for employment
under the Scheme from eligible dependents
can normally be considered upto five years
from the date of death or retirement on
medical grounds and decision to be taken on
merits of each case.
8.3 However, Bank can consider
request for compassionate appointment even
when the death or retirement on medical
grounds of the employee took place long
back, even five years ago (in cases where the
dependant's
eligibility
is
not
there
immediately). however, in any case, not
before 05.08.2014 as the scheme is
applicable from 05.08.2014 onwards While
considering such belated requests, it should,
however be kept in view that the concept of
compassionate
appointment
is
largely
related to the need for immediate assistance
5 All. Rachit Vs. U.O.I. & Ors.
1139
to the family of the employee in order to
relieve it from economic distress. The very
fact that the family has been able to manage
somehow all these years should normally be
taken as adequate proof that the family had
some dependable means of subsistence
Therefore. examination of such cases would
call for a great deal of circumspection. The
decision
to
make
appointment
on
compassionate grounds in such cases (cases
of death / medical retirement which
occurred more than 5 years back) will
therefore, be taken only at the level of MD
& CEO

12. A reading of sub-para (3) of
Paragraph No. 8 of the Scheme shows that
the usual period for consideration is up to
five years from the date of death. However,
the concluding words of Paragraph No. 8.3
would show that consideration beyond five
years is also possible, but that decision has
to be taken by the Managing Director and
Chief Executive Officer3 of the Bank. It is
said in Paragraph No. 8.3 that if the family
have been able to survive for a period of five
years, it would normally be taken as
adequate proof that the family has some
dependable means for sustenance. It is for
this reason that cases beyond the period five
years have to be dealt with a great deal of
circumspection. The decision to consider
beyond five years has to be taken by the MD
& CEO of the Bank. The fact that the
decision to consider beyond five years can
be taken, whoever might be the officer
competent, the Bank cannot take a stand that
beyond five years, no consideration is
permissible.

13. Then, there are some general
rules applicable for evaluating cases for
compassionate
appointment.
These
provisions are carried in paragraph No. 16 of
the Scheme. Paragraph No. 16 reads :
16. GENERAL:
16.1 Appointment made on grounds
of compassion to be done in such a way that
persons appointed to the post oo have the
essential
educational
anc
technical
qualifications and experience required for
the post consistent with the requirement of
maintenance of efficiency of administration.
16.2 It is not the intention to restrict
employment of a family member of the
deceased or medically retired sub-staff
employee to an erstwhile sub-staff post only
As such, a family member of such erstwhile
sub-staff employee can be appointed to a
clerical
post
for
which
he/she
is
educationally qualified, provided a vacancy
in clerical post exists for this purpose.
16.3
An
application
for
compassionate appointment shall, however
not be rejected merely on the ground that the
family of the employee has received the
benefits due the benefits under the various
welfare schemes. While considering a
request for appointment on compassionate
grounds,
a
balanced
and
objective
assessment of the financial condition of the
family has to be made taking into account its
assets and liabilities (including the benefits
received under the various welfare schemes
mentioned above) and all other relevant
factors such as the presence of an earning
member, size of the family, etc.
16.4 Compassionate appointment
shall be made available to the person
concerned if there is a vacancy meant for
compassionate appointment and he or she is
found eligible and suitable under the
scheme.
16.5 Requests for compassionate
appointment consequent on death or
retirement on medical grounds of erstwhile
sub-staff may be considered with greater
sympathy by applying relaxed standards
depending on the facts and circumstances of
the case.
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
16.6 Compassionate appointment
will have precedence over absorption of
surplus employees and regularization of
temporary employees.

14. The stand in the counter
affidavit to the effect that a lump sum of
₹17,09,549 have been paid to the widow and
she is being paid a family pension in the sum
of ₹17,332 is not enough to infer that the
family
are
not
living
in
penurious
circumstances and their means are sufficient
to sustain themselves in life. The deceased
was a Class III employee and a sum of
rupees seventeen lacs and odd is not such a
princely sum in these hard days that the
same can serve as an assurance about
sustenance for the family. The pension too is
a meagre sum. What has to be borne in mind
is the fact that the deceased has two sons and
a widow. While the pension paid to her and
the lump sum payment may barely serve the
widow's purpose to keep her body and soul
together, it may not really serve the family
to provide for their basic needs. The needs
here would be the sons' education. The
petitioner's younger brother is three years
younger to him age. He might still be
requiring funds to study. The family could
be in need of other things, like roof and
shelter, about which, there has been no
inquiry. There is no inquiry disclosed about
alternate sources of income.

15. Paragraph 16.3 of the Scheme
says that a claim for compassionate
appointment cannot be rejected on the
ground that the family of the deceased have
received benefits due to various welfare
schemes. There has to be a balanced and
objective assessment of
the family's
financial condition, taking into account their
assets and liabilities, which would, of
course, include benefits received from the
Bank and other relevant factors, such as the
presence of an earning member, size of the
family. As we have remarked, the needs of
the family like money for provision of roof
and shelter and education of children, is very
relevant.
Unfortunately,
the
counter
affidavit shows a very nonchalant approach
that the Bank have adopted in resisting the
petitioner's claim. They have not passed any
orders on his claim as yet, as no order is
annexed. It is possibly so, because the Bank
have taken the claim to be time-barred. Even
that order has not been passed. We have
already held that the claim is not
irredeemably time-barred and can be
considered by the appropriate officials of the
Bank, which, in this case, may be the MD &
CEO of the Bank. This Court thinks that if
the petitioner's claim on account of it being
belated beyond five years is required by the
Scheme to be considered by the MD & CEO
of the Bank, he ought to consider it, bearing
in mind the guidance in this judgment.

16. In the result, this petition
succeeds and stands allowed. A mandamus
is issued to the Assistant General Manager,
Bank of Baroda, Regional Office, Fatehpur,
the Regional Head, Bank of Baroda,
Fatehpur Region, Fatehpur and the Senior
Branch Manager, Bank of Baroda, Branch
Khaga, District Fatehpur to ensure, amongst
themselves, that the MD & CEO of the Bank
is immediately apprised of the petitioner's
claim, which shall be submitted to him and
the claim decided by the MD & CEO of the
Bank within one month from the date of
receipt of a copy of this order by him
through any of the respondents Nos. 2, 3 and
4, to all of whom this order shall be
communicated. After the necessary decision
is taken by the MD & CEO, the Assistant
General Manager, Bank of Baroda, Regional
Office, Fatehpur shall ensure that that orders
of the MD & CEO are communicated to the
petitioner within fifteen days of the MD &
5 All. Sandeep Kumar Pathak Vs. State of U.P. & Ors.
1141
CEO recording his decision on the
petitioner's claim.

17. There shall be no order as to
costs.

18. The Registrar (Compliance) is
directed to communicate this order to the
Assistant General Manager, Bank of
Baroda, Regional Office, Fatehpur, the
Regional Head, Bank of Baroda, Fatehpur
Region, Fatehpur and the Senior Branch
Manager, Bank of Baroda, Branch Khaga,
District Fatehpur.
----------
(2024) 5 ILRA 1141
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 18432 of 2023

Sandeep Kumar Pathak ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Akhilesh Chandra Srivastava, Sr. Advocate

Counsel for the Respondent:
C.S.C.

(A) Service Law - Disciplinary case against
an employee - Inquiry officer did not
conduct a proper inquiry - no evidence led
by establishment to prove charges against
petitioner - instead merely juxtaposing the
charges and the employee's defense -
establishment failed to prove the charges
through evidence, both documentary and
oral - inquiry officer assumed the charges
to
be
true
without
requiring
the
establishment to prove them - In a
disciplinary case involving a major penalty,
the Establishment must prove the charges
by leading both documentary and oral
evidence in a formally convened inquiry
and cannot assume the charges to be true
without evidence.(Para - 7, 8, 13,21,23)

HELD: - Impugned orders are vitiated and
must be quashed. Proceedings must be taken
again from the stage of the charge-sheet if the
respondents desire to pursue them. Orders the
reinstatement of the petitioner in service
immediately. Directs the payment of current
salary
to
the
petitioner
regularly.
If
respondents pursue fresh proceedings, the
issue of arrears will be decided based on the
outcome of those proceedings. If respondents
do not pursue fresh proceedings, the petitioner
will be entitled to 50% of the arrears of their
emoluments for the period they were out of
service.(Para - 23 to 25)

Writ Petition Allowed. (E-7)

List of Cases cited:

1. St. of U.P. & ors. Vs Saroj Kumar Sinha, (2010)
2 SCC 772

2. Roop Singh Negi Vs Punj. National Bank & ors.,
(2009) 2 SCC 570

3. St. of Uttaranchal & ors. Vs Kharak Singh,
(2008) 8 SCC 236

4. St. of U.P. & anr. Vs Kishori Lal an anr., 2018
(9) ADJ 397 (DB)(LB)

5. Smt. Karuna Jaiswal Vs St. of U.P., 2018 (9)
ADJ 107 (DB)(LB)

6. St. of U.P. Vs Aditya Prasad Srivastava & anr.,
2017 (2) ADJ 554 (DB)(LB)

(Delivered by Hon'ble J.J. Munir, J.)

1. his writ petition is directed
against an order of the Cane Commissioner,
U.P.,
Lucknow
dated
16.06.2023,
dismissing the petitioner, a Junior Clerk
from service after disciplinary proceedings.
Also impugned is an appellate order of the
State
Government
dated
18.09.2023
affirming the Disciplinary Authority.