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1998(1) Supreme 392
Supreme Court of India
(From Madras High Court)
S.B. Majmudar & M. Jagannadha Rao, JJ.
Indian Bank -Appellant
versus
K. Usha & Anr. etc. etc. -Respondents
Civil Appeal No. 3619 of 1993
With
[Civil Appeal Nos. 3620-3625 of 1993; Civil Appeal No. 481 of 1998 (arising out of SLP (C) No. 11171 of 1994); and Civil Appeal No. 480 of 1998 (arising out of SLP (C) No. 11823 of 1994)]
Decided on 28-1-1998
Counsel for the Parties :
For the Appellant in C.A. No. 3619/93 : N.B. Shetye, Sr. Advocate, Ambrish Kumar, Advocate.
For the Appellant : Ambrish Kumar, Advocate.
For the Respondents : Ms. Indira Jaisingh, Sr. Advocate, Sudarsh Menon, Advocate.
Held that the topic regarding giving compassionate appointments to the heirs and legal representatives of the ex-employees of the transferor bank who might have died in harness during the time the transferor bank was operating is not covered by Clause 10. In other words on this topic no provision is made in Clause 10 of the Scheme either expressly or by necessary implication. Once that conclusion is reached sub-section (14) of Section 45 of the Act gets out of picture. As observed earlier before sub-section (14) of Section 45 can be pressed in service it must be shown that there is an express provision on a given topic of liability in the Scheme on in the Section and such express provision should be irreconcilable with and be in express conflict or be repugnant to any contrary express provision found in any other instrument having the force of the law or in any part of the Act or any other law or award. In the present case we are concerned with the agreement under Section 2(p) of the I.D. Act entered into in 1982 by the transferor bank with the Union of its employees and it is that agreement which provided for giving compassionate appointments to the heirs of the employees dying in harness. The aforesaid provision contained in the 2(p) Settlement is not in conflict with any other contrary express provision in the Scheme especially Clause 10 thereof. In fact the entire Scheme is silent on this topic. It is obvious that a provision which is silent on a topic cannot be said to have laid down any intention contrary to the one as reflected by any other express provision contained in any other instrument or agreement. Repugnancy or conflict as contemplated by sub-section (14) of Section 45 can arise only when on the same topic there are two contradictory express provisions, one in the Scheme and another in the agreement. Then only the provision in the Scheme would override such contrary express provision in the agreement. (Para 12)
Further held we must also have to keep in view the settled legal position that while construing any Scheme in connection with the question of providing compassionate appointments to the heirs of deceased employee who was the bread-winner and whose exit had left his heirs in the lurch and in precarious and vulnerable economic position a construction which fructifies such a welfare measure has to be preferred as compared to another construction which stultifies such a benevolent welfare measure. (Para 13)
Keeping in view the aforesaid settled rule of construction when we consider the scope and ambit of clauses 2 and 10 of the Scheme we do not find anything provided therein which would of necessity contra-indicate the foisting of liability and obligation on the transferee-bank in connection with the contractual obligation undertaken by its predecessor-in-interest, namely, the transferor-bank under the 2(p) Settlement of 1982 in connection with the question of providing compassionate appointment to the heirs of deceased bread-winner who might have died in harness. (Para 13)
Consequently the appellant transferee-company which has emerged as an amalgamated company as a result of the amalgamation with the earlier company would be liable to meet the contractual obligations flowing from the settlement binding on the transferor - company and these contractual obligation which could have been specifically enforced against the transferor-company during the currency of the settlement under Section 2(p) read with Section 18(1) of the I.D. Act would get transmitted and foisted on the shoulders of the appellant transferee - company on the combined operation of Section 19(1)(d) of the Specific Relief Act and Section 2 of the Act. (Para 16)
Consequently held, the compassionate appointments could be granted only against such vacancies and the Court cannot direct, by mandamus, to create vacancies for the purpose if there are none. The appellant had already rejected the claim of the respondents only on the plea that they had no legal right to claim compassionate appointments being outsiders and heirs of ex-employees of the transferor - bank who could not claim any such appointments from the transferee - bank. It was not the case of the appellant while rejecting their claims that there were no vacancies where they could be fitted even though they were eligible for such appointments. On these facts, therefore, the High Court was perfectly justified in issuing mandamus to the appellant - bank once the main defence of the appellant was found to be unsustainable and which view of the High Court is approved by us. (Para 17)
The Division Bench of the High Court was invited by learned counsel for the appellant themselves to go into the question of merits of the eligibility of the respondents and once the High Court found that their claim was wrongly rejected by the appellant - bank and especially when the appellant - bank had not put forward the defence of non-availability of vacancies no fault could be found with the High Court when it issued mandamus to the appellant to grant appointments to the concerned respondents. (Para 17)
(ii) Service Law - Compassionate Appointments-Rule of construction. (Para 13)
Judgment
S.B. Majmudar, J.-Leave granted in Special Leave Petitions.
2. By consent of learned advocates appearing for contesting parties this group of nine appeals was heard finally and is being disposed of by this common judgment.
3. The common appellant, India Bank, in this group of appeals has brought in challenge the judgment and orders of Division Benches of Madras High Court allowing writ petitions of the respondents concerned who are the heirs and legal representatives of deceased employees of Bank of Thanjavur Limited which was amalgamated with the appellant - bank with effect from 20th February 1990 in accordance with the Scheme of Amalgamation framed under Section 45 of the Banking Regulation Act, 1949 (hereinafter referred to as ‘the Act’). The respondents concerned had sought compassionate appointments from the appellant - bank on the ground that they were the heirs and legal representatives of the deceased employees of Thanjavur Bank (hereinafter referred to as ‘the transferor bank’) whose assets and liabilities were taken over by the appellant - bank, hereinafter referred to as ‘the transferor bank’ for the sake of convenience. The claim of the respondents for such appointments was based on an agreement entered into between the recognised Union of the employees of the transferor bank in the year 1982 with the Management of the transferor bank under Section 2(p) of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the I.D. Act’). The said settlement was not arrived at during conciliation proceedings, hence it remained binding only on the parties to the said settlement, namely, the Union of employees of transferor bank on the one hand and the Management of the transferor bank on the other. As per the said settlement a scheme of compassionate appointment to be given to the eligible heirs of deceased employees of transferor bank who died in harness was evolved. The respondents’ contention was that the said settlement remained binding to the transferee bank as the successor bank which had taken over assets and liabilities of the transferor bank pursuant to the order of amalgamation. The appellant - transferee bank refused to entertain the said claims. That resulted in diverse writ petitions by the respondents before the High Court. The High Court took the view that the respondents were entitled to get the benefit of the said settlement which was binding not only on the transferor bank which was a party to the settlement but also on its successor-in-interest, namely, the appellant - bank and as the appellant - bank had rejected the request of the respondents by the impugned judgments, writs of mandamus were issued to the appellant - bank to grant appointments on compassionate ground to the concerned respondent - writ petitioners. Having obtained special leave to appeal under Article 136 of the Constitution of India these appeals have been moved by the appellant - bank challenging the aforesaid decisions rendered by the High Court.
4. It may be stated that earlier seven Special Leave Petitions arising out of a common judgment of the Division Bench of the High Court in writ appeals confirming decisions of the learned Single Judge were taken up for consideration by this Court and while granting leave the prayer for stay was refused. We are informed that as there was no stay of the impugned orders of the High Court pending these appeals the respondents concerned have already been appointed to the respective posts which they are holding and are working as employees of the appellant-bank. However it was brought to our notice by learned senior counsel for the appellant that the said appointments were given by the appellant subject to the result of these appeals and they will, therefore, have to abide by the present decision of ours.
5. In support of these appeals learned senior counsel, Shri N.B. Shetye, who appeared in Civil Appeal No. 3619 of 1993 which was taken up as a lead case and Shri Ambrish Kumar, learned
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