2000 Supreme(SC) 989

2000(4) Supreme 602
SUPREME COURT OF INDIA
(From Orissa High Court)
S.B. Majmudar & Umesh C. Banerjee, JJ.
Balbir Kaur & Anr. etc. -Appellant
versus
Steel Authority of India Ltd. & Ors. -Respondents
Civil Appeal No. 11881 of 1996
And
Civil Appeal No. 11882 of 1996
Decided on 5-5-2000
Counsel for the Parties :
For the Appearing Parties : C. Mohan Rao, Prashant Bhushan, Manoj Kumar Mishra, Jayant Bhushan, G.M. Misra, A.S. Bhasme, Advocates.

IMPORTANT POINTS
1. Introduction of Family Benefit Scheme cannot be ground to deny compassionate appointment.
2. 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 the beneficial piece of legislation of payment of Gratuity Act, 1972.

Headnote:Service Law-Compassionate appointment-Introduction of Family Benefit Scheme-Cannot be ground to deny compassionate appointment -Family Benefit Scheme cannot be in any way equated with benefit of compassionate appointment-Compulsion under Family Pension Scheme to deposit gratuity and P.F. amount with employer runs counter to payment of gratuity Act and P.F. Act-NJCS agreement expressly preserves right to compassionate appointment.

       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. (Para 13)

       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. (Para 15)

       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. (Para 16)

       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 employee s 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 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 pandora s box," since in the huge "empire" of the respondent, several such cases would be existing which would have to be reconsidered. (Paras 17 and 18)

       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. (Para 19)