Aby Geevarghese v. Canara Bank and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 29[TH] DAY OF MARCH 2022 / 8TH CHAITHRA, 1944** ## **WP(C) NO. 27930 OF 2019** ## **PETITIONER/S:** ABY GEEVARGHESE AGED 33 YEARS S/O. T.M. GEEVARGHESE, THENGUVILAYIL HOUSE, CHANNAPETTA P.O, KOLLAM DISTRICT, PIN-691 311 BY ADVS. M.P.MADHAVANKUTTY SHRI. SHIJOY JOHN MATHEW ## **RESPONDENT/S:** 1 CHAIRMAN AND MANAGING DIRECTOR CANARA BANK, HEAD OFFICE, NO.112, J.C. ROAD, BANGALORE, KARNATAKA PIN-560 002. 2 GENERAL MANAGER, PERSONNEL WING, CANARA BANK, HEAD OFFICE, NO.112, BANGALORE, KARNATAKA, PIN-560 002 3 DEPUTY GENERAL MANAGER, HUMAN RESOURCES WING, PERSONNEL MANAGEMENT SECTION, CANARA BANK, HEAD OFFICE, NO.112, J.C. ROAD, BANGALORE, KARNATAKA, PIN-560 002 4 ADDL.R4. CANARA BANK, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER AND MANAGING DIRECTOR, HEAD OFFICE, 6648, 112, J.C.ROAD, P.B.-HALSURPETE, NAGARATH PETE, BANGALURU, KARNATAKA STATE, PIN-560 001. ADDL.R4 IMPLEADED AS PER ORDER DATED 22.11.2021 IN I.A.3/2021 IN WP(C) 27930/2019. BY ADVS. M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM RAJA KANNAN ## **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **20.01.2022, THE COURT ON 29.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.27930 0f 2019 -2- ## **JUDGMENT** Dated this the 29[th] day of March, 2022 The petitioner's father T.M.Geevarghese diedin-harness on 12.04.1995, while working as Officer at the Jalandhar Regional Office of the Canara Bank. Immediately thereafter, the Bank issued Ext.P1 letter informing the petitioner's mother that she is eligible for compassionate employment. In response, the petitioner's mother submitted Ext.P2 application dated 07.06.1995. As the petitioner's father had contracted an earlier marriage with one Saramma Thomas, disputes arose between the first wife and the petitioner's mother regarding the right to receive the retirement benefits of late T.M.Geevarghese. The dispute was finally settled and Saramma Thomas relinquished her right and acknowledged the second wife and children as the rightful legal W.P.(C) No.27930 0f 2019 -3- heirs. Later, the petitioner's mother received Ext.P3 letter dated 03.11.2003, informing her that her request for employment was not considered favourably by the competent authority. 2. Later, the petitioner's mother submitted Ext.P4 representation dated 19.04.2008, requesting to consider the petitioner, who had by then completed 20 years, for compassionate employment. The said request was also answered in the negative. Thereupon, petitioner and his mother filed W.P.(C) No.19656 of 2009, seeking a direction to the Bank to give Compassionate Appointment to the petitioner. The writ petition was disposed of by Ext.P6 judgment finding no justification in directing consideration of the request for compassionate employment, since the Scheme for Compassionate Employment had ceased to be in operation from 2005 onwards. Alternatively, the petitioner was granted the liberty to submit an application for _ex gratia_ payment, under the W.P.(C) No.27930 0f 2019 -4- prevailing Scheme. Ext.P6 judgment was unsuccessfully challenged in appeal and also before the Apex Court. 3. While matters stood thus, the Bank introduced a new scheme for compassionate employment with effect from 05.08.2014 (Ext.P9) and the Apex Court rendered Ext.P10 judgment ( _**Canara Bank and another v. M. Mahesh Kumar**_ _**[(2015) 7 SCC 412])**_ , wherein after considering the question whether the Compassionate Employment Scheme, 1993 or the _Ex gratia_ Payment Scheme of 2005 would be applicable to the legal heir of an employee who had died while the Compassionate Employment Scheme was in vogue and the application was filed after introduction of E _x_ _gratia Payment S_ cheme. It was held as under; _“22. Considering the scope of the scheme “Dying in Harness Scheme 1993” then in force and the facts and circumstances of the case, the High Court rightly directed the appellant Bank to reconsider the claim of the respondent for_ W.P.(C) No.27930 0f 2019 -5- _compassionate appointment in accordance with law and as per the Scheme (1993) then in existence. We do not find any reason warranting interference.”_ Pointing out these aspects and seeking compassionate appointment, the petitioner submitted Ext.P13 representation and the Bank rejected the request under Ext.P14. Hence, the writ petition. 4. Adv.M.P.Madhavankutty, learned Counsel for the petitioner, submitted that based on the judgment in _**M.Mahesh Kumar**_ and connected cases, the petitioners therein were given compassionate appointment. Unfortunately, the petitioner's case was not tagged along with that batch of writ petitions resulting in his SLP being dismissed. Even though the petitioner and his mother filed a review petition against the order in the SLP, the same was dismissed by Ext.P12 order dated 25.01.2017. It is contended that, in the light of the declaration of law by the Apex Court in W.P.(C) No.27930 0f 2019 -6- _**M.Mahesh Kumar**_ and later, in _**Santhosh N.C v. State of Karnataka and others [(2020) 7 SCC 617],**_ the petitioner's claim is liable to be considered either under the Scheme of 2009 or at least in accordance with the Scheme of 2014. The impugned orders are assailed on the ground of nonapplication of mind and failure to consider the request in accordance with the provisions of the applicable scheme. It is contended that Ext.P14 gives rise to a fresh cause of action and therefore, rejection of the petitioner's claim in the earlier round of litigation will not be a bar in deciding the writ petition on merits. 5. Adv.Jaimohan appearing for the respondent Bank raised a preliminary objection regarding maintainability of the writ petition in view of Ext.P6 inter parte judgment, confirmed up to the Supreme Court. Attention is drawn to the finding in Ext.P6 judgment that there is no W.P.(C) No.27930 0f 2019 -7- justification for directing the respondents to consider the request of the petitioner under a Scheme which had ceased in operation since 2005. This Court even went to the extent of holding that the petitioner was ill advised in pursuing his attempts to obtain compassionate employment. The only liberty granted was to submit a proper application in accordance with the Scheme for Ex gratia Payment within one month. Instead of availing the liberty thus granted, petitioner pursued the matter up to the Supreme Court and failed. Hence, the petitioner cannot rely on the observations in _**Mahesh Kumar** (supra)_ to contend that his claim ought to be considered either under the earlier scheme, which is no longer in existence, or Ext.P9 scheme of 2014. Attention is drawn to the decision in _**Secretary to Government**_ _**Department of Education (Primary) and others v. Bheemesh Alias Bheemappa [2021 SCC OnLine SC**_ W.P.(C) No.27930 0f 2019 -8- _**1264**_ , wherein the Apex Court has held that the applicability of the modified scheme should depend upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor such as date of submission of application. 6. The legal position that compassionate appointment is intended to enable the family of a deceased employee to tide over the crisis that is caused as a result of the sudden death of the only earning member of the family, needs no reiteration. Hence, the essence of the claim lies in the immediacy of the need. Further, appointment of compassionate grounds is not automatic, but subject to strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family. No ## W.P.(C) No.27930 0f 2019 -9- doubt, in the instant case, the petitioner's mother had submitted the application for compassionate appointment on 07.06.1995, just about two months of her husband's death. Due to the tussle between the two wives of the deceased, the application was not processed immediately. Finally, by Ext.P3, the petitioner's mother was informed that her request for compassionate employment was not considered favourably. Unfortunately, Ext.P3 was not subjected to challenge, instead Ext.P4 application was filed in the year 2008, seeking compassionate employment for the petitioner. That application was rejected under Ext.P5, the legality of which order is not open for consideration now in view of Ext.P6 judgment upholding the rejection. Ext.P6 being an _inter parte_ judgment, the petitioner cannot rely on the decision in _**M. Mahesh Kumar** (supra)_ rendered ## W.P.(C) No.27930 0f 2019 -10- under a different set of circumstances and pertaining to third parties, to contend that the benefit of that judgment should be extended to the petitioner. It is also pertinent to note that Ext.P4 application was submitted only in the year 2019. Being so, no immediacy of need, compelling the respondents to act upon the application, can be urged. In _**Santhosh N.C v. State of Karnataka and others [(2020) 7 SCC 617]**_ , the Apex Court has held that the norms, prevailing on the date of consideration of the application, should be the basis for consideration of the claim for compassionate appointment. But, in _**Bheemesh Alias Bheemappa**_ ( _supra_ ), it is held that the interpretation as to the applicability of the modified scheme should depend only upon the determinate and fixed criteria such as the date of death and not an indeterminate or not variable factor. The W.P.(C) No.27930 0f 2019 -11- applicability or otherwise of the above decision do not arise in this case, since the petitioner's claim is for all purposes, time barred and stale. For the same reason, the respondents cannot be held to be at fault for having rejected Ext.P13, pointing out the earlier rejection and the fact that the 2014 Scheme covers cases in which the death has occurred on or after 5.8.2014. For the aforementioned reasons, the writ petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ W.P.(C) No.27930 0f 2019 -12- ## **APPENDIX OF WP(C) 27930/2019** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE LETTER DATED| |---|---| ||25.05.1995 ISSUED BY THE RESPONDENT| ||CANARA BANK.| |EXHIBIT P2|TRUE COPY OF THE APPLICATION DATED| ||07.06.1995 SUBMITTED BY THE| ||PETITIONER'S MOTHER.| |EXHIBIT P3|TRUE COPY OF THE LETTER DATED| ||03.11.2003 FROM THE OFFICE OF THE HEAD| ||OFFICE OF CANARA BANK OF BANGALORE.| |EXHIBIT P4|TRUE COPY OF THE LETTER DATED| ||19.04.2008 SEND BY THE PETITIONER.| |EXHIBIT P5|TRUE COPY OF THE LETTER DATED| ||07.05.2008 ISSUED BY THE RESPONDENT.| |EXHIBIT P6|TRUE COPY OF THE JUDGMENT DATED| ||06.03.2012 IN W.P.(C) NO. 19656/2009| ||BEFORE THIS HON'BLE COURT.| |EXHIBIT P7|TRUE COPY OF THE JUDGMENT DATED| ||28.06.2012 IN W.A. NO. 1198/2012| ||BEFORE THIS HON'BLE COURT.| |EXHIBIT P8|TRUE COPY OF THE ORDER DATED| ||02.11.2012 IN S.L.P (CIVIL) NO.| ||31540/2012 BEFORE THE HON'BLE SUPREME| ||COURT OF INDIA.| |EXHIBIT P9|TRUE COPY OF THE COMPASSIONATE| ||APPOINTMENT SCHEME WITH EFFECT FROM| ||05.08.2014.| |EXHIBIT P10|TRUE COPY OF THE JUDGMENT OF THE| ||HON'BLE SUPREME COURT IN CIVIL APPEAL| ||NO. 260/2008, CIVIL APPEAL NO.| ||266/2008 AND CIVIL APPEAL NO. 267/2008| ||DATED 15.05.2015.| |EXHIBIT P11|TRUE COPY OF THE ORDER DATED| ||16.08.2016 IN S.L.P(CIVIL) NO.| ||31540/2012 BEFORE THE HON'BLE SUPREME| ||COURT.| |EXHIBIT P12|TRUE COPY OF THE ORDER OF DISMISSAL OF| ||THE REVIEW PETITION DATED 25.01.2017| ||BEFORE THE HON'BLE SUPREME COURT.| W.P.(C) No.27930 0f 2019 -13- EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 02.02.2019 BEFORE THE RESPONDENTS PREFERRED BY THE PETITIONER. EXHIBIT P14 TRUE COPY OF THE LETTER DATED 25.03.2019 ISSUED BY THE 3RD RESPONDENT.