U. Valsala v. Canara Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY,THE 14TH DAY OF NOVEMBER 2018 / 23RD KARTHIKA, 1940** **WA.No. 1777 of 2017** **AGAINST JUDGMENT IN WPC 20200/2009 of HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **U.VALSALA W/O. LATE C.V. SUKUMARAN, 'PRARTHANA', CHUNANGAD P.O., OTTAPALAM (VIA), PIN - 679 511, PALAKKAD DT.** **BY ADV. SRI.K.K.SATHEESH** ## **RESPONDENT/RESPONDENT:** **CANARA BANK REPRESENTED BY THE DEPUTY GENERAL MANAGER, PERSONAL MANAGEMENT SECTION, PERSONNEL WING, HEAD OFFICE, 112/J.C.ROAD, BANGALORE - 560 002.** **SRI.P.GOPINATH MENON, SC** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.A.No.1777 of 2017 -2- ## **JUDGMENT** ## **V.G.Arun, J.** **This writ appeal is filed, aggrieved by the dismissal of the writ petition wherein the petitioner had raised a claim for compassionate appointment for her daughter, pursuant to the death of her husband. The petitioner's husband, Sri.C.V.Sukumaran, was an employee of the respondent Bank. He died-in-harness on 2.6.1997. Thereupon, the petitioner filed Ext.P1 application seeking compassionate appointment for her daughter Swapna. By Ext.P2, the respondent rejected the request made by the petitioner on the ground that there was no indigent circumstance warranting appointment of a member from the family of the deceased. This prompted the petitioner to submit Ext.P3** W.A.No.1777 of 2017 -3- **representation requesting for reconsideration of Ext.P2 decision. After reconsideration, the authority held that the rejection made by way of Ext.P2 was proper. Challenging the rejection of her request for compassionate appointment, the petitioner filed O.P.No.9716 of 2003. While that original petition was pending before this Court, the respondent bank introduced a new scheme providing for ex-gratia payment to the family of the deceased, in lieu of compassionate appointment. Taking note of this changed situation, O.P.No.9716 of 2003 was disposed of directing the respondent bank to consider the case of the petitioner for ex-gratia payment in accordance with law, in lieu of compassionate appointment. In accordance with directions contained in the judgment in O.P.No.9716 of 2003, the bank considered the claim for lump sum ex-** W.A.No.1777 of 2017 -4- **gratia payment and rejected the same based on the finding that the income of the petitioner would exceed 60% of the last drawn salary of the deceased employee.** **2. Challenging rejection of her request for ex-gratia payment, the petitioner filed W.P.(C) No.25249 of 2006. Subsequently, that writ petition was withdrawn with liberty to approach this Court again. In the writ petition against which this appeal is filed, the petitioner's claim was restricted to compassionate appointment, on the premise that the Scheme that was prevalent at the time of death of Sri.C.V.Sukumaran provided for compassionate appointment to the members of the family of the employee who had died-in-harness. By Ext.P6 interim order dated 4.11.2015 in the writ petition, the learned Single Bench had directed** W.A.No.1777 of 2017 -5- **the bank to consider the petitioner's original application (Ext.P1) for compassionate appointment, as per the Dying-in-Harness Scheme, 1993, after affording an opportunity of being heard to the petitioner. It was also observed that it shall be open to the petitioner to bring to the notice of the respondent the decision of the Apex Court in Canara Bank and another v. M.Mahesh Kumar [2015 SAR (Civil), 829].** **3. As directed in Ext.P6 interim order, the respondent considered the petitioner's request in accordance with the Dying-in-Harness Scheme, 1993 and provided an opportunity of hearing to the petitioner. After elaborate consideration of the petitioner's claim, the same was again rejected by Ext.P11. The reasons which compelled the respondent Bank to reject the petitioner's claim is elaborated in paragraphs 6 to 10 of Ext.P11** W.A.No.1777 of 2017 -6- ## **which reads as under:** **“6. Accordingly, as per the directions of the Hon'ble Court your case has been examined under the scheme for payment of exgrata. Since it was found that the income of the family from all the sources exceeded 60% of the last drawn gross salary of the employee, the family was not conforming to the eligibility criteria laid down under the scheme for payment of lump sum as such was ineligible. The decision of the Bank was communicated to you vide our letter dated 29/08/2006 which is under challenge before the Hon'ble High Court in Writ Petition 20200 of 2009.** **7. It is pertinent to mention here that what is pending before the Hon'ble High Court is rejection of your claim for Exgratia which has been done by the Bank as per the norms of the scheme and there is no perversity.** **8. In your representation it ts submitted that the principles laid down by the Hon'ble Supreme Court in CANARA BANK & ANOTHER VS N MAHESH KUMAR is applicable to the facts and circumstances of your case and your case needs to be examined as per 1993 scheme of Compassionate Appointment. The ratio of the decision in CANARA BANK & ANOTHER VS M NAHESH KUHAR only holds that all applications prior to the introduction of the ex-gratia scheme hes to be considered under the earlier scheme. It does not in any manner dilute the requirement of indigent circumstances to warrant grant** W.A.No.1777 of 2017 -7- **of appointment under the compassionate appointment scheme. In light of the same, please note that the facts on record clearly shows that your application dated 21/07/1997 was examined and rejected by the Bank way back in 1999 holding that there were no indigent circumstances warranting compassionate appointment.** **9. Moreover, by seeking the relief of Exgratia in lieu of Compassionate Appointment in OP No.9716/2003 wherein you had actually sought for Compassionate Appointment, you have forgone relief of Compassionate Appointment. Further, as per the direction of Hon'ble High Court dated 08/03/2006 Bank has examined your case under Exgratia Scheme and it was found that you are not eligible.** **10. Without prejudice to the above, it is observed that your family was consisting of yourself, son Sri U Sunil and daughter Ms U Swapna. Though in your application dated 21/07/1997 your son was mentioned as a student, it was revealed that he was in fact employed and married as on the date of death of your husband and his wife was also employed. The family was having assets and you were getting 2 pension i.e., one from defence and another from the Bank. At present you are getting Rs.6,938/- as pension from the Bank alone. Your daughter is married and as told she is taking care of yourself.”** ## **4. The reasoning of the respondent Bank for** **rejecting the petitioner's claim is well founded.** W.A.No.1777 of 2017 -8- **As found by the respondent bank in Ext.P11, though the petitioner had initially raised a claim for compassionate appointment, she gave up that claim at a later point of time and staked claim for ex-gratia lump sum payment in accordance with the new scheme. When the claim for ex-gratia payment was rejected for unassailable reasons, she again shifted her stand and reverted to her original claim for compassionate appointment.** **5. On facts, the respondent has found that the petitioner's daughter for whom request for compassionate appointment is made, got married on 28.1.2006. The petitioner's son was and is gainfully employed. That at the time of submission of her application, the petitioner's son was employed abroad and even according to the counsel for the petitioner, the petitioner's son** W.A.No.1777 of 2017 -9- **is now employed at Bangalore. The petitioner is drawing a defence family pension of Rs.2,271/and family pension of Rs.4,003/-, since her husband C.V.Sukumaran had served as a defence personnel prior to his appointment in the respondent bank. It is also found that the petitioner had sold various extents of properties. Among the properties sold, one is a residential house which was constructed and sold by the petitioner in the year 2004, for an amount of Rs.10 lakhs. Later, after availing a loan of Rs.2,50,000/-, the petitioner had started construction of a new house. It was based on all these factors that the respondent bank came to the definite conclusion that the petitioner's request for compassionate appointment for her daughter could not be considered favourably.** **6. The main challenge against rejection of** W.A.No.1777 of 2017 -10- **the petitioner's request for compassionate appointment is that the marriage of her daughter for whom compassionate appointment is sought cannot be taken as a reason for rejecting the claim. It is also contended on behalf of the petitioner that the receipt of pension and sale of immovable properties cannot also to be taken as a ground for rejection. These contentions were considered i** _**n extenso**_ **by the learned Single Judge in the impugned judgment before arriving at the finding that from the totality of the facts and circumstances it was evident that the family of the deceased employee was not living in penury, requiring compassionate appointment to one among the members of the family to tide over the situation. The learned Single Judge had also relied on the decision of the Honourable Supreme Court in Umesh Kumar Nagpal v. State of Haryana** W.A.No.1777 of 2017 -11- **and others [(1994) 4 SCC 138].** **7. Though in Canara Bank and another v. M.Mahesh Kumar reported in [2015 SAR (Civil) 829] cited by the appellant, the Honourable Supreme Court has observed that the application for compassionate appointment ought to be considered in accordance with the scheme that was prevailing at the time of death of the employee that does not in any way dilute the requirement of indigent circumstances, consequent to the sudden death of the employee, warranting compassionate appointment. As far as the case of the petitioner is concerned, it is evident that neither the petitioner nor the members of the family had faced a situation, warranting compassionate appointment to one of the members of the family of the deceased, consequent to the sudden demise of Sri.C.V.Sukumaran. As observed by the** W.A.No.1777 of 2017 -12- **Honourable Supreme Court in** _**Umesh Kumar Nagpal**_ **'s case, the whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis and is not to give a member of such family a post, as was held by the deceased. Mere death of an employee in harness does not entitle his family to such source of livelihood. The Government or the public authority concerned has to examine the financial condition of the family of the deceased, and it is only on being satisfied that, but for the provision of employment, the family will not be able to meet the crisis, that a job is to be offered to the eligible member of the family.** **8. The findings of fact regarding the financial capability of the petitioner being unassailed and in view of the dictum laid down by the Honourable Supreme Court in** _**Umesh Kumar**_ W.A.No.1777 of 2017 -13- _**Nagpal**_ **'s case, the learned Single Judge was fully justified in dismissing the writ petition.** **Therefore, we find no reason to interfere with the impugned judgment and accordingly the writ appeal is dismissed.** **Sd/C.T.RAVIKUMAR JUDGE** **Sd/V.G.ARUN JUDGE** **Scl/14.11.**