IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 WA.No. 1963 of 2008 --------------------------------- AGAINST THE JUDGEMENT IN WPC.17608/2008 Dated 14/07/2008 .................... APPELLANTS/RESPONDENTS: 1. CANARA BANK LTD. REP. BY THE DEPUTY GENERAL MANAGER, CANARA BANK STAFF SECTION (W), CIRCLE OFFICE, THIRUVANANTHAPURAM. 2. THE DEPUTY GENERAL MANAGER, DO. DO. BY ADV. SRI.P.GOPINATH MENON, SC, CANARA BANK RESPONDENT/PETITIONER: SETHU RADHAKRISHNAN, W/O LATE B.RADHAKRISHNAN, KRISHNASREE, VELIYANAD P.O., (VIA) ARAKUNNAM, ERNAKULAM DIST. BY ADV. SRI.SAJEEV KUMAR K.GOPAL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy & K.P.Balachandran, JJ. --------------------------------- W.A.No.1963 of 2008 --------------------------------- JUDGMENT Koshy, J. The respondent/petitioner is the widow of a Clerk, who was employed in Canara Bank. Her husband died on 16.9.2005 while in service. She approached the Bank for ex-gratia payment in lieu of her appointment under the dying-in-harness scheme. By Exhibit P7, she was informed that her application was placed before the competent authority and the request was not considered favourably. Exhibit P7 was challenged before this Court. The learned single Judge held that the petitioner is eligible to be sanctioned ex-gratia amount in terms of Exhibit R1(e) scheme and orders should be passed by the respondents sanctioning and disbursing such amount to the petitioner, as the dependent of late Radhakrishnan, an employee of the Kadavanthara Branch of the Canara Bank within three months from the date of receipt of a copy of the judgment. The WA 1963/08 2 above judgment is under challenge in this writ appeal by the Bank. 2. It is stated that late Radhakrishnan was charge sheeted and punished for misconduct in the year 1999. Thereafter, he was again charge sheeted for misconducts, misappropriation and dishonesty and was placed under suspension vide Exhibit P1 order. While he was under suspension pending enquiry, he died in harness. Due to his death, further enquiries were dropped. It is the contention of the Bank that the Bank has got discretion in granting ex-gratia amount, especially when a person is charge sheeted. In General Manager, State Bank of India v. Anju Jain (2008 AIR SCW 5833) the Honourable Supreme Court approved the observations of the High Court in the judgment impugned in that case and approved the following passages: “30. In our opinion, therefore, if disciplinary proceedings have been initiated against an employee and WA 1963/08 3 the charges levelled against such employee are proved and he is punished, it is indeed a relevant consideration for not extending the benefit to the dependent of such employee on the ground that he was punished. To us, it cannot be said that it is a case of double jeopardy or a dual punishment. Compassionate appointment is really a concession in favour of dependents of deceased employee. If, during his carrier, he had committed illegalities and the misconduct is proved and he is punished, obviously, his dependents cannot claim right to the employment. With respect, the learned single Judge was wholly wrong in observing that such an action would be violative of principles of natural justice. 31. To us, the observation of the learned single Judge that “no past acts of misconduct of the employee, who dies in harness, can be taken into account while considering the case of a family member for WA 1963/08 4 employment on compassionate ground” is not in consonance with law. Past conduct of an employee is undoubtedly an important consideration. We are also of the view that the State Bank was right in rejecting the prayer of the wife of the deceased employee vide its letter dated January 29, 2001 observing therein that “unblemished service record is implicit”.” It is argued that what is claimed is only an ex- gratia payment in lieu of compassionate appointment considering the pitiable conditions of the dependent. It is for the Bank to decide the same. As held by the Honourable Supreme Court, court can only direct consideration of the matter by the competent authority (see the principles laid down by the Honourable Supreme Court in State of Mysore v. Syed Mahmood (AIR 1968 SC 1113). However, the Bank has got discretion in granting the benefits etc. This Court in such cases cannot direct appointment or payment of ex-gratia amount in lieu WA 1963/08 5 of appointment under the dying-in-harness scheme. That is a matter to be decided by the competent authority. The application was rejected by an Officer not competent to pass such orders as per the Scheme. But, going by the Scheme, the matter has to be decided by the Board and therefore, we set aside the impugned judgment and direct the second respondent to place the application submitted by the respondent/petitioner before the Board for consideration. The Board shall pass orders after considering the entire facts of the case, including the plea made by the dependent, within a period of three months from the date of receipt of a copy of this judgment. The writ appeal is disposed of with the above directions. (J.B.Koshy, Judge) 14th October, 2008 (K.P.Balachandran, Judge) tkv