Canara Bank v. Ajithkumar G.K.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** **W.A.No.1364 OF 2016** **AGAINST THE JUDGMENT IN WP(C).16592/2016 DATED 09-06-2016 OF HIGH COURT OF KERALA** ## **APPELLANT/ RESPONDENT:** **CANARA BANK, REPRESENTED BY ITS MANAGING DIRECTOR & CHIEF EXECUTIVE OFFICER, HEAD OFFICE, 112 JC ROAD, BENGALURU-560 002. BY ADVS. SRI.E.K.NANDAKUMAR (SR.) SRI.P.GOPINATH (SR.) DR.THUSHARA JAMES.** ## **RESPONDENT/ PETITIONER:** **AJITHKUMAR G.K., AGED 39 YEARS, S/O. LATE V.C.GOPALAKRISHNA PILLA, LATHA BHAVAN, AYATHIL P.O., KOLLAM-691 021.** **R1 BY ADV. SRI.B.ASHOK SHENOY R1 BY ADV. SRI.K.V.GEORGE R1 BY ADV. SRI.P.S.GIREESH R1 BY ADV. SRI.P.N.RAJAGOPALAN NAIR R1 BY ADV. SRI.RIYAL DEVASSY.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **W.A.1364 of 2016** **K.Vinod Chandran & V.G.Arun, JJ. -------------------------------W.A.No.1364 of 2016 -------------------------------Dated, this the 04[th] day of November, 2019** ## **JUDGMENT** **Vinod Chandran, J.** **The appeal is concerned with the claim for compassionate appointment, which arose on the death of an employee in 2001. Despite judgments in two writ petitions, the first of which having already attained finality, the son of the deceased, for whom the hapless widow claimed compassionate appointment, is still unemployed after 18 years.** **2. Immediately on the death of the employee, an application was filed as seen from Exhibit P1 for compassionate appointment. The application indicates that the deceased left behind the widow, three married daughters and an unemployed son. Obviously the claim for compassionate appointment was for the dependent family, which comprises the widow and the son. At the initial stage the claim was rejected by Exhibit P2, which quoted three reasons - (i) the deceased employee had only short period of service for retirement at the time of death, (ii) the receipt of family pension amounting to Rs.4,637.92 per mensem, and (iii) the son being over-aged.** **W.A.1364 of 2016 - 3 -** **3. A further application was filed by the son, which was also rejected by Exhibit P4, in which it has been stated that the financial position of the family has already been examined in depth and there are no fresh grounds to consider the claim. Then, a re-consideration sought for was also rejected by Exhibit P6. The son, hence, approached this Court with W.P(C) No.38363 of 2003, which was disposed of only on 16.06.2015. The learned Single Judge noticed that the Scheme for Employment on Compassionate Grounds [for brevity “the Scheme”] provided for relaxation of the maximum age limit which, as per the notification, was 26 years applicable to both clerical and sub-staff categories. It was also noticed that the terms of the Scheme specifically empowered the competent authority to relax the age by five years when there are no other dependents within the prescribed age limit available for employment. It was found that the Bank had not considered such relaxation only for the reason of a family pension being paid to the widow of the deceased. When there is a specific request for age relaxation, it should have been addressed by the competent authority and the reasons for not considering such relaxation should also be explicit in the order, was the finding.** **- 4 -** **W.A.1364 of 2016** **4. The learned Counsel for the respondent-writ petitioner had even at that time relied on the decisions in** _**Canara Bank v**_ **.** _**M.Mahesh Kumar**_ **[** _**(2015) 7 SCC 412**_ **] and** _**Canara Bank v. Priya Jayarajan**_ **[** _**2001 KHC 306**_ **], the former a decision of the Hon'ble Supreme Court and the latter of a Division Bench of this Court. The Bank, per contra relied on the decision of the Hon'ble Supreme Court in** _**State Bank of India v**_ **.** _**Somvir Singh**_ **[** _**Civil Appeal No.743 of 2007**_ **] to urge that compassionate appointments are solely within the discretionary realm of the Bank. The learned Single Judge found that the reasons stated in the impugned order were not at all in terms with the Scheme of compassionate appointment. The Bank was found to have not addressed the laudable object of the Scheme with reference to the condition of the family of the deceased employee. A re-consideration was directed, which resulted in the order impugned in the present writ petition.** **5. Exhibit P8, the impugned order, noticed** _**Umesh Kumar Nagpal v**_ **.** _**State of Haryana**_ **[** _**(1994) 4 SCC 138**_ **] as also the preamble of the Scheme brought out by the Bank to assert the right of discretion on the competent authority for granting compassionate appointment. The impugned order found certain facts to undisputed, which again was (i) that the deceased employee died with a meager service of just** **W.A.1364 of 2016 - 5 -** **over four months left prior to superannuation, (ii) the family having received terminal benefits of Rs.3.09 lakhs after recovery of outstanding liabilities, and (iii) the family pension of Rs.4,637.92. It was also recorded, as undisputed, that the deceased left behind his spouse and one unmarried son and that three daughters were married and settled. The son was found to be 26 years and 8 months of age, as on the date of application.** **6. The impugned order again focused on the immediate financial difficulty or a penurious state of the family on account of the sudden death as the primary and most basic issue. It was held that on retirement the pension which he would have received was Rs.6,398/- and his widow was receiving family pension of Rs.4,637.92, a little below the pension actually entitled to. The terminal benefits, as noticed above, was also taken into account. Taking these facts into consideration, it was found, the family circumstances prevailing does not disclose any indigent situation, for the dependent family, which could be overcome only by a compassionate appointment. It was found that the question of compassionate appointment arises only if there is an indigent circumstance found by the competent authority. The question of relaxation of upper age was refused to be considered despite the direction of** **- 6 -** **W.A.1364 of 2016** **the learned Single Judge in the earlier writ petition. Pertinent also is the fact that the earlier judgment, which has acquired finality, had deprecated the stand of the Bank that the family required no compassion for reason of the family pension.** **7. The learned Single Judge, in the impugned judgment, found that** _**Priya Jayarajan**_ **and** _**M.Mahesh Kumar**_ **were cases in which the appellant-Bank was the contesting party.** _**M.Mahesh Kumar**_ **has clearly held that the grant of family pension or the payment of terminal benefits cannot be treated as a substitute for providing compassionate appointment. It was found that the Bank failed to consider the case as directed in Exhibit P7 judgment and had attempted to reiterate the earlier reasons. The Scheme was looked into, to find power on the competent authority to grant relaxation of upper age. It was also noticed that the special provisions permitted compassionate appointment to be given under the Scheme when the applicant was employed elsewhere or even if a member of the family is already employed with the Bank. The Bank was found to have unjustifiably denied the respondent-writ petitioner an appointment for 14 long years. The writ petition was allowed, directing appointment and exemplary costs of Rs.5 lakhs to cover the denial of employment to the bereaved** **- 7 -** **W.A.1364 of 2016** **family.** **8. The learned Senior Counsel who appears for the appellant-Bank before us again asserted the discretion conferred on the competent authority as also the consideration of financial impecuniousness for the purpose of granting a compassionate appointment. The decision in** _**G.M.(D&PB) v**_ **.** _**Kunti Tiwary**_ **[** _**(2004) 7 SCC 271**_ **] was relied on to contend that the terminal benefits received by the family of the deceased was a relevant consideration in granting compassionate appointment.** _**State of H.P**_ **.** _**v**_ **.** _**Parkash Chand**_ **[** _**(2019) 4 SCC 285**_ **] was also pressed into service insofar as the constrained jurisdiction of a judicial review attempted under Article 226 of the Constitution.** **9. The learned Counsel appearing for the respondent relied on** _**Priya Jayarajan**_ **,** _**M.Mahesh Kumar**_ **and** _**Subhadra v**_ **.** _**Ministry of Coal**_ **[** _**(2018) 11 SCC 201**_ **].** **10. The family has not been shown to be otherwise than indigent, by the competent authority of the Bank deciding the question of compassionate appointment, under the terms of a scheme formulated by the Bank. But for the terminal benefits and the pension there is no other attendant circumstance pointed out by the Bank to come to the conclusion.** **W.A.1364 of 2016 - 8 -** **11. We have already noticed the grounds on which the claim was rejected, with reference to which we have to look at the Scheme of compassionate employment. The Scheme, produced at Exhibit P9, does not provide for any dis-entitlement if the employee pre-deceases his retirement within a certain period. Hence, the fact that the employee had only four months to retire when his life was extinguished, is not at all a consideration under the Scheme.** **12. The objectives of the Scheme, as revealed from the first two paragraphs, is 'to overcome the immediate financial difficulties on account of the sudden stoppage of main source of income'. The reference to a main source of income, indicates that merely because the family had another income it would not dis-entitle them from consideration for compassionate appointment. The consideration also has to be of existing indigent circumstances necessitating employment to one of the dependents and the service record of the deceased employee being unblemished. There is no case for the Bank that the employee had anything other than an unblemished service. The claim of indigent circumstances is rubbished by the Bank relying on the receipt of terminal benefits at Rs.3.09 lakhs and family pension of Rs.4,637.92 per mensem; the** **- 9 -** **W.A.1364 of 2016** **latter of which was already deprecated by this Court in the earlier proceedings.** **13. Here, we look at the decision in** _**Kunti Tiwary**_ **, which considered the Scheme as framed by the State Bank of India. It is revealed from the said decision that the Indian Banks' Association adopted the directives in** _**Umesh Kumar Nagpal**_ **and recommended broad guidelines to determine the financial condition of the family taking into account Family Pension, Gratuity, Provident Fund, any compensation paid by the Bank, proceeds of LIC, income of family from other sources, employment of other family members and size** **of the family and liabilities, if any. These recommendations of the Indian Banks' Association were accepted in the Scheme, which specifically provided for all these to be taken into account for the purpose of deciding the indigent circumstance faced by a family qualifying for a compassionate appointment. We have to immediately notice that there is no such inclusion of terminal benefits, in the subject Scheme, for consideration of indigent circumstances, in making a compassionate appointment, as framed by the Bank, produced at Exhibit P9. As the learned Single Judge noticed, there are special provisions which enable a person employed elsewhere to seek compassionate appointment and also another member, to seek compassionate** **- 10 -** **W.A.1364 of 2016** **appointment, when one other member of the family is already employed with the Bank. The decision cited has no application in the context of the specific terms of the Scheme, brought out by the appellant Bank.** **14. Yet again, we notice that the Hon'ble Supreme Court in** _**Kunti Tiwary,**_ **was considering the death that occurred in 1998 and the terminal benefits received was far greater than what was received by the family in the present case. In that case, the terminal benefits granted to the widow came to more than Rs.6 lakhs and relevant was also the fact that the widow owned a house, valued at Rs.4,70,000/- and had an investment of Rs.66,000/- under various heads in addition to which she was also drawing a family pension of Rs.5,583/-. The facts in the present case indicate that here an application of the judgment cannot be made for two reasons – (i) the Scheme having not included terminal benefits for determining the indigent conditions and (ii) the terminal benefits coupled with the family pension not being capable of dispelling the indigent circumstance claimed by the bereaved family.** **15. We also take note of the totally irrelevant consideration of three married daughters being settled; obviously settled in their marital homes. The Bank cannot assume that the married daughters would assist the** **W.A.1364 of 2016** ## **- 11 -** **dependent family members; nor can it be said that the factum of marriage of three daughters would efface the penurious condition in which the dependent family members are placed, on the death of the sole bread-winner. We also notice the contention raised by the respondent-writ petitioner that the marriage of the three daughters carried out in the life time of the deceased had left substantial liabilities which had to be settled with the terminal benefits.** **16.** _**Parkash Chand**_ **was with respect to a totally distinct issue on direction having been issued by the High Court under the Scheme for compassionate appointment** _**de hors**_ **the policy. Therein, the Scheme provided for only the widow to seek for a compassionate appointment if one of the children left behind by the deceased is employed. The claim raised therein was by one of the children when another son was already employed profitably. It was in that circumstance interference was caused to the exercise of judicial review under Article 226 of the Constitution, on the ground that it was not open to the High Court to re-write the terms of the policy.** **17. We do not think, either of the judgments placed before us by the learned Senior Counsel for the appellant-Bank commend us to cause interference to the** **- 12 -** **W.A.1364 of 2016** **judgment of the learned Single Judge. As noticed by the learned Single Judge,** _**M.Mahesh Kumar**_ **and** _**Priya Jayarajan**_ **have settled the issue under the very same Scheme of the identical Bank, which was the appellant therein. In** _**M.Mahesh Kumar**_ **it was categorically held that grant of family pension and payment of terminal benefits cannot be treated as a substitute for providing compassionate appointment. The Hon'ble Supreme Court having held so in 2015, in the case of the very same appellant, as rightly found by the learned Single Judge, it was audacious on the part of the Bank to have passed an order in conflict with the decision of the Hon'ble Supreme Court by Exhibit P8 dated 08.09.2015 when the judgment of the Hon'ble Supreme Court was already delivered on 15.05.2015.** **18. Not only did the Bank pass an order in conflict with the decision in its own case, but filed an appeal from the order dismissing the writ petition. We notice that the learned Single Judge had granted Rs.5 lakhs as exemplary costs for keeping the bereaved family of the deceased, wallowing in a penurious state, that too against the very provisions of the Scheme. We also take note of the fact that the age relaxation directed to be considered in the earlier writ petition was brushed aside by the Bank. That was the relevant and only consideration which should** **- 13 -** **W.A.1364 of 2016** **have been made on the totality of the circumstances, especially when the son had exceeded the maximum age only by eight months. The receipt of family pension, which was found to be not a relevant consideration was also projected as a reason for denying the appointment. We reiterate that a reading of the entire Scheme, especially the special provisions enabling appointment of one dependent even if another is employed, persuades us to find the rejection of the instant claim for reason only of a family pension and retirement benefit of Rs.3.09 lakhs to be against the spirit and tenor of the Scheme.** **19. We agree with the learned Single Judge that the attitude displayed by the Bank and the ensuing long years when the dependent member was kept out of employment was sufficient cause for not directing a further consideration to be made. We notice that the respondent-writ petitioner has been kept away from his employment for almost 18 years and he is already past 44 years of age. Compassion, as distinguished from a legal adjudication is not dispassionate. Any compassionate exercise has to be infused with an empathy far above that required in administrative action not at all regulated by the obstinate propensity to decline every request that pervades routine administrative rigmarole.** **- 14 -** **W.A.1364 of 2016** **We are also appalled with the Bank in having filed the appeal taking grounds already held against them by the Hon'ble Supreme Court and this Court, in almost identical cases. The right of appeal though a legal remedy cannot be reduced to a casual shot in the dark, which to a Public Sector Organization is an uncalled for luxury. The employment got further delayed by the appeal and the dependent family continued in misery. The Scheme holds out an assurance and a promise to the dependent family of an employee, who dies in harness, which has been resiled from on flimsy grounds. We, hence, dismiss the appeal with exemplary cost of Rs.5,00,000/- [Rupees five lakhs], in addition to that imposed by the learned Single Judge. The costs ordered shall be paid within a period of one month, within which period the respondent shall also be appointed in the sub-staff category in any of the Branches of the Bank.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** ## **Vku/-** **[true copy]**