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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:

L.....I.........T.......T.......T.......T.......T.......T..J       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.