P. Indira Devi and Others v. Canara Bank and The Deputy General Manager, Canara Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 16TH DAY OF JANUARY 2019 / 26TH POUSHA, 1940** ## **WP(C).No. 13367 of 2012** ## **PETITIONER/S:** |**1**|**P.INDIRA DEVI**| |---|---| ||**AGED 61 YEARS**| ||**W/O.LATE V.M.PADMANABHAN NAIR, SRI PADMAM,**| ||**CHITTADETH, KANNADICKAL P.O.,VENGERI, KOZHIKODE-**| ||**673010. [DECEASED]**| |**2**|**JAGADEESH. P**| ||**AGED 39 YEARS**| ||**SON OF LATE V.M.PADMANABHAN NAIR, SREE PADMAM,**| ||**CHITTADATH PARAMBA, KANNADICKAL, P.O VENGERI,**| ||**KOZHIKODE-673010.**| |**3**|**SABAREESH. P**| ||**AGED 37 YEARS**| ||**SON OF LATE V.M.PADMANABHAN NAIR, SREE PADMAM,**| ||**CHITTADATH PARAMBA, KANNADICKAL, P.O VENGERI,**| ||**KOZHIKODE-673010.**| ||**BY ADVS.**| ||**SRI.B.ASHOK SHENOY**| ||**SMT.LAKSHMI B.SHENOY**| |**RESPONDENT/S**<br>**:**|| |**1**|**CANARA BANK**| ||**REP.BY ITS CHAIRMAN AND MANAGING DIRECTOR, HEAD**| ||**OFFICE, INDUSTRIAL RELATIONS SECTION,PERSONNEL**| ||**WING, 112,J.C.ROAD, BANGALORE-560002**| |**2**|**THE DEPUTY GENERAL MANAGER**| ||**CANARA BANK, CIRCLE OFFICE, HUMAN RESOURCES**| ||**MANAGEMENT SECTION, ANNEXE BUILDING,TALI SAMOOHAM**| ||**ROAD, CHALAPPURAM, KOZHIKODE-673002**| ||**BY ADVS.**| ||**SRI.P.BENNY THOMAS**| ||**SRI.K.JOHN MATHAI**| ||**SRI.M.GOPIKRISHNAN NAMBIAR**| ||**SRI.P.GOPINATH (SR.)**| |**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON**|| |**16.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**|| **WP(C).No. 13367 of 2012 2** ## **JUDGMENT** The 1[st] petitioner late P. Indira Devi, who had originally filed this Writ Petition was the widow of Sri V.M. Padmanabhan Nair, who was a Clerk in the Olavanna Branch of the first respondent - Canara Bank and died while in service on 05.07.2003. The widow passed away during the pendency of the writ petition. Their two sons the legal heirs have got impleaded as additional petitioners. This writ petition was filed aggrieved by the denial of payment of lump sum exgratia. The date of death of Late. V. M Padmanabhan Nair was 05.07.2003. On 10.11.2003 the elder son Jagadeesh P., additional petitioner No. 2 submitted Ext. P1 application for compassionate appointment. The application was returned as per Ext.P2 letter dated 29.03.2005 informing the legal heirs of Late V.M. Padmanabhan Nair that the scheme for compassionate appointment does not exist and there is a new scheme introduced for lump sum payment of exgratia amount. The Bank had also forwarded the proforma of application under the new scheme for submission. 2. The additional petitioner no.2 filled up the proforma and submitted the application within a period of thirty days. It was stated that the request for providing financial relief as per the new **WP(C).No. 13367 of 2012 3** scheme formulated by the Bank would be processed subject to the satisfaction of eligibility criteria laid down under the scheme. There upon Ext.P3 application was submitted jointly by the widow and the two sons on 01.07.2005. The petitioners have stated that they were having 6.85 cents of land as the only immovable property. It was stated that they had liabilities to the tune of Rs. 4,12,989/-, Rs.1,17,333/- and Rs.34,770/- due to Canara Bank - Vellimadukunnu, Canara Bank – Olavanna, and Canara Bank staff Co-operative Society, Challissery and another sum of Rs.31,780/was due to the Bank Employees Co-operative Society, Calicut. As against the name of second son Sri. Sabareesh P, it was stated that he was a partner in a Clinical Laboratory with an income of Rs. 1000/- and that he was living separately. As per Ext.P4 letter dated 13.01.2006 Sri. Jagadeesh P. had informed that the fresh application was being submitted without prejudice to the claim for compassionate employment, on the basis of application already submitted. The Assistant General Manager informed the petitioner that they would not be in a position to examine the case unless the application is submitted unconditionally. The first additional petitioner Sri. Jagadeesh P. there upon submitted Ext.P7 letter dated 26.07.2006 informing that his request for compassionate employment may not be rejected and that he was willing to accept payment of lump sum exgratia from the bank unconditionally. **WP(C).No. 13367 of 2012 4** Even though subsequent representations Exts.P8, P9, etc. were submitted, the respondents by Ext. P10 letter dated 29.1.2011 informed that the application for lump sum exgratia in lieu of compassionate employment was declined by the Competent Authority as the dependents were not eligible for the same as per the Government guidelines. 3. Aggrieved by the same the widow addressed the Chairman & Managing Director as per Ext.P11 letter requesting for the proceedings by which their application for exgratia was returned by the competent authority. She thereafter submitted Ext.P12 representation requesting to consider their case sympathetically for granting a lump sum exgratia in lieu of compassionate employment. She stated that the only source of income was the meager pension she was getting and she was under threat of eviction from their house towards recovery of an outstanding loan amount of Rs.10,00,000/- towards Vengeri Service Co-operative Bank Ltd. This writ petition was filed thereafter pointing out that the respondents have not considered the case of the petitioners in accordance with the provisions contained in Ext.P15 scheme. 4. Respondents 1 and 2 have filed a counter affidavit stating that the second son was employed at the time of death of late V.M.Padmanabhan Nair. Both children were major aged about **WP(C).No. 13367 of 2012 5** 33 and 31 years and were old enough to take care of the family. Apart from that the dependents were receiving pension at the rate of Rs. 4,133.33/- as on January 2008 from the bank. It is stated that the scheme for payment of lump sum exgratia cannot be claimed as a matter of entitlement and it is only a discretion of the first respondent looking into the financial condition of the family and that is payable only in eligible cases. It was also found that the dependents were staying in their own house and therefore the denial of payment was not arbitrary. It is stated that the application was submitted by the mother and two children jointly. Respondent stated though the younger son Sri. Sabareesh P. was asked to submit his income certificate, he replied that he is living separately. Therefore the respondents stated that the petitioners are not entitled to lump sum ex-gratia appointment in accordance with the scheme. They also stated that the liabilities mentioned by the respondents are relating to the periods subsequent to the death of the 1[st] petitioner's husband. 5. The learned counsel for the petitioner relying on the judgment of the Apex Court in _**Ajithkumar G.K v. Canara Bank & anr.**_ [2015 (3) KHC 512 (para.20)] **and** _**Ajithkumar G.K. v. Canara Bank, Bengaluru**_ [2016(2) KLT 914] points out that the respondents have not considered the case of the legal heirs of the deceased as per Ext.P15 scheme. In eligible cases the exgratia **WP(C).No. 13367 of 2012 6** amount has to be paid within three months from the date of receipt of the application and within a period of six months from the date of death of the employee. Family, is defined under Clause 2 of Ext P15 to mean and include spouse and wholly dependent children. Clause 4 provides for the calculation of exgratia, according to which, exgratia is payable, if the monthly income of the family from all sources is less than 60% of the last drawn salary of the ex-employee. The family income is to be calculated taking into account the terminal benefits including Provident Fund, Gratuity, leave encashment, amount paid under GPAI claim and any other amount under the scheme of the bank minus liabilities from the bank and financial institutions with approval of the bank outstanding on the date of death of the employee and net corpus of terminal benefits is calculated as the terminal benefits minus liabilities. It also provides for taking into account the investment of the deceased as well as the total monthly income of the family including interest from investments from monthly income of immovable property, monthly pension of the diseased employee and any other monthly income including monthly income of the dependent family members and pension. The scheme provides for the limit of exgratia which is payable. The learned counsel for the petitioner points out that the petitioners' case is not considered as provided in the scheme. **WP(C).No. 13367 of 2012 7** 6. The learned counsel for the respondents points out that the eligibility is to be determined as in the case of the compassionate employment and all criteria for granting compassionate employment as held in **Umesh** _**Kumar Nagpal Vs. State of Haryana**_ [(1994) 4 SCC 138] would be required to be met by the dependents who are claiming exgratia and it is not a right as in the case of compassionate employment. The judgment in _**Subin Raj v. Manager, LIC of India**_ [2014(2) KLJ 192] was also relied on in support of the contention that major sons of a deceased cannot be said to be dependents and in this case the application was submitted by all the legal heirs including a son who was already employed. According to the respondents, they had requested Sri. Sabarish P. to furnish his income certificate and he replied that he is living separately. 7. However, the petitioners filed reply affidavit stating that they were not made aware of the reasons by which their request for lump sum exgratia was rejected. On consideration of the pleadings, it is seen that the case of the petitioners is not considered as required in the scheme. The fact that the application was submitted jointly by the widow and their sons, did not mean that even the eligibility of the widow could not have been considered, in accordance with the scheme with reference to the relevant factors provided in clause 4. **WP(C).No. 13367 of 2012 8** 8. The petitioners have furnished the details regarding the liabilities. While considering the payment of terminal benefits made to the family, the liabilities were also to be looked into and deducted while computing the monthly income of the family. Even if one of the members was employed, who was living separately, according to the petitioners, the case of the widow required consideration in accordance with the scheme. No such consideration is seen made. While rejecting the application Ext.P10 the only reason stated was that the dependents were not eligible. Under which criteria they were ineligible was not stated and the only reason stated in counter affidavit is employment of one son and the age of both the sons. Just because there are two sons who are aged about 33 and 30 that would not make the widow ineligible. 9. The learned counsel for the respondents contends that as the widow is no more, it would not be necessary at this stage to consider the claim for exgratia. I find that the respondents have not considered the request for exgratia in accordance with the scheme, at the relevant time and therefore the same is required to be considered even if she is no more. In case she was found eligible for the same, the legal heirs would be entitled to receive the benefit, which was due to her even if the sons are found ineligible. **WP(C).No. 13367 of 2012 9** 10. In the above circumstances, there shall be a direction to the respondents to reconsider the request made in Ext.P3, treating the same as an application from the widow in tune with the observations made above and pass orders thereon within a period of three months from the date of receipt of a copy of the judgment. The writ petition is disposed of accordingly. **Sd/-** **P. V. ASHA JUDGE** SPR **WP(C).No. 13367 of 2012 10** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S EXHIBITS:**|| |**EXHIBIT P1**|**TRUE COPY OF APPLICATION FOR**| ||**EMPLOYMENT UNDER COMPASSIONATE**| ||**EMPLOYMENT, DATED 10/11/2003**| ||**SUBMITTED BY PETITIONERS SON,**| ||**JAGADEESH P., TO THE FIRST**| ||**RESPONDENT.**| |**EXHIBIT P2**|**TRUE COPY OF THE LETTER NO.TSW:T-**| ||**87:2363:SSP DATED 29/03/2005 ISSUED**| ||**TO PETITIONER BY THIRUVANANTHAPURAM**| ||**CIRCLE OFFICE OF THE FIRST**| ||**RESPONDENT.**| |**EXHIBIT P3**|**TRUE COPY OF THE LETTER DATED**| ||**01/07/2005 SENT BY PETITIONER'S**| ||**SON, JAGADEESH P., TO FIRST**| ||**RESPONDENT, WITH APPLICATION FOR**| ||**PAYMENT OF LUMP SUM EXGRATIA AMOUNT**| ||**ENCLOSED THEREWITH.**| |**EXHIBIT P4**|**TRUE COPY OF LETTER NO. TSW/T-**| ||**87/0257/SSP DATED13/01/2006 ISSUED**| ||**TO PETITIONERS SON, JAGADEESH P.,**| ||**BY THIRUVANANTHAPURAM CIRCLE OFFICE**| ||**OF FIRST RESPONDENT.**| |**EXHIBIT P5**|**TRUE COPY OF LETTER NO.**| ||**TSW/4503/2006/SSP DATED 18/06/2006**| ||**ISSUED TO PETITIONERS SON JAGADEESH**| ||**P., BY THIRUVANANTHAPURAM CIRCLE**| ||**OFFICE OF FIRST RESPONDENT.**| |**EXHIBIT P6**|**TRUE COPY OF REPRESENTATION DATED**| ||**17.07.2006 SUBMITTED BY PETITIONERS**| ||**SON JAGADEESH P., TO THE FIRST**| ||**RESPONDENT.**| |**EXHIBIT P7**|**TRUE COPY OF REPRESENTATION DATED**| ||**26/07/2006 SUBMITTED BY PETITIONERS**| ||**SON, JAGADEESH P., TO THE FIRST**| ||**RESPONDENT.**| |**EXHIBIT P8**|**TRUE COPY OF REPRESENTATION DATED**| ||**01/05/2007 SUBMITTED BY**| ||**PETITIONER'S SON, JAGADEESH P., TO**| ||**THE FIRST RESPONDENT.**| **WP(C).No. 13367 of 2012 11** |**EXHIBIT P9**|**TRUE COPY OF REPRESENTATION DATED**| |---|---| ||**05/07/2008 SUBMITTED BY**| ||**PETITIONER'S SON, JAGADEESH P., TO**| ||**THE FIRST RESPONDENT.**| |**EXHIBIT P10**|**TRUE COPY OF LETTER NO CCO/HRM/EX**| ||**GR/131/2001/PR DATED 29/01/2011**| ||**ISSUED BY ASSISTANT GENERAL MANAGER**| ||**FROM KOZHIKODE CIRCLE OFFICE OF THE**| ||**RESPONDENT TO PETITIONER.**| |**EXHIBIT P11**|**TRUE COPY OF LETTER DATED**| ||**03/03/2011 SENT BY PETITIONER TO**| ||**FIRST RESPONDENT.**| |**EXHIBIT P12**|**TRUE COPY OF REPRESENTATION DATED**| ||**03/01/2012 SUBMITTED BY PETITIONER**| ||**TO SECOND RESPONDENT.**| |**EXHIBIT P13**|**TRUE COPY OF AWARD DATED 19/12/2011**| ||**IN ARC NO. 1828/11 PASSED BY**| ||**ARBITRATOR, OFFICE OF THE ASSISTANT**| ||**REGISTRAR OF COOPERATIVE SOCIETIES**| ||**(GENERAL), KOZHIKODE.**| |**EXHIBIT P14**|**TRUE COPY OF AWARD DATED 19/12/2011**| ||**IN ARC NO. 1829/11 PASSED BY**| ||**ARBITRATOR, OFFICE OF THE ASSISTANT**| ||**REGISTRAR OF COOPERATIVE SOCIETIES**| ||**(GENERAL), KOZHIKODE.**| |**EXHIBIT P15**|**TRUE COPY OF CIRCULAR NO. 35/2205**| ||**DATED 14/02/2005 ISSUED BY FIRST**| ||**RESPONDENT WITH 'SCHEME FOR PAYMENT**| ||**OF EXGRATIA LUMPSUM AMOUNT IN LIEU**| ||**OF EMPLOYMENT ON COMPASSIONATE**| ||**GROUNDS' ATTACHED THERETO.**| |**RESPONDENT'S/S EXHIBITS:**|| |**EXHIBIT R1(a)**|**TRUE COPY OF THE LETTER NO.**| ||**TCO/7332/HRM/2081/T-12/RKP,DATED**| ||**05/07/2008 ISSUED BY THE BANK**| |**EXHIBIT R1(b)**|**TRUE COPY OF THE LETTER**| ||**PWPM/6120/3A/EXGRATIA/MB, DATED**| ||**30/11/2010 ISSUED BY THE BANK**|