IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 WP(C).No. 16749 of 2006(R) --------------------------------------- PETITIONER: ------------------- SHREYAS DEVARAJ, RAJBHAVAN HOUSE, KADUTHURUTHY.P.O, KOTTAYAM DISTRICT. BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR, SRI.SAJU JOHN. RESPONDENTS: ------------------------ 1. CENTRAL BANK OF INDIA, REPRESENTED BY THE MANAGING DIRECTOR, CENTRAL OFFICE, CHANDERMUKHI, NARIMAN POINT, MUMBAI-400 021. 2. THE REGIONAL MANAGER, CENTRAL BANK OF INDIA, REGIONAL OFFICE, IST FLOOR, "METRO PALACE", KOCHI-18, PIN-682 018. 3. THE BRANCH MANAGER, CENTRAL BANK OF INDIA, KOTTAYAM BRANCH, KOTTAYAM. R1 TO R3 BY ADV. SRI.V.V.SIDHARTHAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.16749/2006-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPLICATION DTD. 16/06/2003 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.2: COPY OF THE LETTER DTD. 16/08/2004 OF THE SENIOR MANAGER OF THE R.1. EXT.P.3: COPY OF THE REPRESENTATION DTD. 15/09/2004 SUBMITTED BY THE PETITIONER BEFORE THE R.3. EXT.P.4: COPY OF THE SUCCESSION CERTIFICATE DTD. 09/12/2003 ISSUED BY THE TAHSILDAR OF VAIKOM TALUK. EXT.P.5: COPY OF THE INCOME CERTIFICATE DTD. 17/09/2004 ISSUED BY THE MUTTUCHIRA VILLAGE OFFICER. EXT.P.6: COPY OF THE STATEMENT ISSUED BY THE R.3. EXT.P.7: COPY OF THE CERTIFICATE DTD. 09/02/2005 ISSUED BY THE MANAGER OF THE MUTTUCHIRA BRANCH OF THE KADUTHURUTHY REGIONAL SERVICE CO-OPERATIVE BANK. EXT.P.8: COPY OF THE SCHEME FRAMED BY THE CENTRAL BANK OF INDIA FOR APPOINTMENT OF DEPENDENTS OF DECEASED EMPLOYEE ON COMPASSIONATE GROUNDS. EXT.P.9: COPY OF THE JUDGMENT DTD. 19/08/2005 OF THIS HON'BLE COURT IN W.P.(C). NO.29889/2004. EXT.P.10: COPY OF THE REPRESENTATION DTD. 28/09/2005 WITHOUT ITS ANNEXURES SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS. EXT.P.11: COPY OF THE LETTER DTD. 07/10/2005 OF THE R.2. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE LETTER NO. F. 18/139/95-IR GOVERNMENT OF INDIA, DTD. 07/08/1996 TOGETHER WITH A COPY OF O.M. NO. 14014/22/94 ESTT.(D) DTD. 28/11/1994 CONTAINING THE GUIDELINES OF THE DEPARTMENT OF PERSONNEL & TRAINING. EXT.R1.B: COPY OF THE LETTER NO. F. 18/139/95 – IR DTD. 10/07/1998 ISSUED BY DEPUTY SECRETARY, GOVERNMENT OF INDIA TO ALL THE CHIEF EXECUTIVES OF PUBLIC SECTOR BANKS AND FINANCIAL INSTITUTIONS. W.P.(C). NO.16749/2006-R: EXT.R1.C: COPY OF THE SCHEME FOR APPOINTMENT OF DEPENDENTS OF DECEASED EMPLOYEES ON COMPASSIONATE GROUND ISSUED BY CENTRAL BANK OF INDIA. EXT.R1.D: COPY OF THE GUIDELINE NO.PD/CIR/76/532 DTD. 23/08/1996 ISSUED BY INDIAN BANKS ASSOCIATION TO PUBLIC SECTOR BANKS. //TRUE COPY// P.A. TO JUDGE. Prv. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.16749 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of September, 2010 J U D G M E N T The unfortunate son of parents both of whom died while in the service of the Central Bank of India is the petitioner herein. He also belongs to a scheduled caste community. He has approached this court for the second time complaining that compassionate employment due to him on account of the death of her mother, while in service, is not being granted to the petitioner by the respondents in accordance with the Compassionate Employment Scheme which was in vogue in the bank at the time of death of his mother. Petitioner earlier approached this court and obtained Ext.P9 judgment. That judgment would give the entire facts of this case also. Therefore I deem it appropriate to quote the entire judgment, which reads as follows: “The mother of the petitioner died in harness on 22.5.2003. She fell prey to brain cancer. Petitioner is the only son. Father of the petitioner died on 9.6.1982 and it is not in W.P.(C)No.16749 of 2006 -2- dispute that the petitioner 's mother got employment under the compassionate appointment scheme upon the death of the petitioner's father. Petitioner belongs to Scheduled Caste community. He has passed Pre-degree and has got admission in the Polytechnic, Kalamassery for Electrical Engineering Diploma Course. According to him he could not complete the course because of the illness of the mother. He made Ext.P1 application on 16.6.2003 claiming appointment under the scheme evolved by the Bank. In Ext.P2 it is stated that the Central Office of the Bank has expressed their inability to consider the claim of the petitioner. Petitioner has submitted a representation as Ext.P3. Ext.P4 is the succession certificate which would show that the mother has left behind her, the petitioner and her mother. Ext.P5 is the income certificate issued by the Village Officer, Muttuchira, which shows that the annual income of the petitioner is Rs.6000/-. 2. A counter affidavit has been filed, wherein it is stated that the details of the amount received by the petitioner towards the terminal dues of late mother is Rs.3,86,510.98 towards Provident Fund, Rs.1,70,271/- towards gratuity, Rs.35,598/- towards insurance amount thus making a total amount of Rs.5,92,378.98. It is stated that the petitioner has other sources of income and the terminal dues received by the petitioner would generate reasonable income. Reference is placed on Ext.R1 (a), which is the Government letter containing observations of the Supreme Court. Ext.R1(b) is a letter issued by the Government of India to all Chief Executives of Public Sector Banks and Financial Institutions, wherein it is stated that notice is taken that large number of appointments on compassionate grounds are made and it ends with a request to abide by the guidelines of the Supreme Court. Ext.R1(c) is a scheme. In Ext.R1 (c) it is stated that the Bank may at its discretion, after examining the financial condition of the family of the deceased and if satisfied that but for the provision of employment on compassionate ground the family will be able to meet the crisis appoint in the Bank in clerical and subordinate staff cadre the relatives mentioned therein. Clause 15 reads as follows: “15. The compassionate appointments will be considered by the completed authority after taking into account the following to determine the financial condition of the family. A) Family Pension. B) Gratuity amount received. W.P.(C)No.16749 of 2006 -3- C) Employee's/Employer's contribution to Provident Fund. D) Any compensation paid by the Bank or its Welfare Fund. E) Proceeds of LIC policies and other investments of the deceased employee. F) Income for family from other sources. G) Employment of other family members. H) Size of the family and liabilities, if any etc. Clause (H) of Clause 15 does given an indication that the size of the family and the liabilities etc. are relevant considerations to determine the financial condition of the family. Petitioner has in this context relied on Ext.P6. Ext.P6 is issued by the Bank itself dated 4.2.2005. It says that while Rs.5,56,781.98 was the amount paid as the terminal benefits on account of the mother of the petitioner, the loans stated therein are outstanding in the name of the deceased employee and the same were adjusted out of the terminal benefits. The amount adjusted under various loans come to Rs.3,97,595.70, thus leaving a sum of Rs.1,91,784/-. Besides this, the petitioner also refers to Ext.P7, which is the certificate issued by the Kaduthuruthy Regional Service Co-operative Bank Ltd. It shows that the petitioner's mother had availed of a loan of Rs.50,000/- and it was repaid on 6.8.2003. Thus the total liabilities as indicated in Exts.P6 and P7 are taken as Rs.4,47,595/-. Learned Standing Counsel Sri. V.V. Sidhardhan would contend that the decision was taken on the basis of the guidelines stipulated by the Supreme Court and it is not a case where the petitioner was found in a state of penury. But I find that for arriving at the said decision the Bank was obliged to take into consideration the state of the liabilities. Reference is made in the counter affidavit to the total terminal dues received. There is no reference to the effect of the liabilities on the terminal assets. I feel that in such circumstances, the approach of the Bank does not appear to be in keeping with the scheme itself while it is true that the right for compassionate appointment will depend upon the terms of the scheme in question. It cannot be disputed that in the present scheme the Bank is obliged to take note of the liabilities. In such circumstances I am inclined to allow this writ petition. Accordingly Ext.P2 is quashed. There will be a direction to the competent authority of the respondent Bank to W.P.(C)No.16749 of 2006 -4- consider the matter afresh bearing in mind Exts.P6 and P7 and the terms of the scheme and all other relevant aspects. It will be open to the petitioner to produce documents which shall also be considered in accordance with law. A decision shall be taken in accordance with law as expeditiously as possible and at any rate within a period of one month from the date of receipt of a copy of this judgment.” 2. The petitioner would submit that, since the petitioner's mother died of cancer, the entire savings of the family was spent on treatment of the mother and therefore petitioner was left with absolutely nothing after the death of the mother and whatever terminal benefits received were not even sufficient to pay off the debts contracted by the mother and the petitioner for the treatment of the mother. Pursuant to Ext.P9 judgment, the respondents passed Ext.P11 again denying the benefit of compassionate employment on the mere ground that the total liquid asset of the family was worth Rs.7.45 lakhs, out of which the liability was only to the extent of Rs.4.48 lakhs and therefore the petitioner was still left with Rs.2.97 lakhs which is sufficient to deny the petitioner the benefit of compassionate employment. Petitioner is now challenging W.P.(C)No.16749 of 2006 -5- Ext.P11 order seeking the following reliefs: i) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P11 and quash the same. ii) declare that the petitioner is eligible and entitled to be appointed in the Central Bank of India on compassionate grounds. iii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to appoint the petitioner in the service of the Central Bank of India on compassionate grounds. 3. The respondents have filed a counter affidavit supporting Ext.P11 taking the stand that, the financial condition of the petitioner at the time of the death of his mother was not one sufficient to enable the petitioner to claim compassionate employment, since the petitioner is able to sustain himself with the balance terminal benefits. 4. I have considered the rival contentions in detail. 5. Certain facts are admitted before me. The petitioner's father was an employee of the Bank. He died while in service. His mother was given appointment in the bank under the Compassionate Employment Scheme. Petitioner's mother died of cancer. At the time when she W.P.(C)No.16749 of 2006 -6- died, she had liabilities of Rs.4.48 lakhs which could be proved by documents. The petitioner's mother was given employment under the Compassionate Employment Scheme because the bank was satisfied that, on the death of her husband the family could not have survived without an employment for one of the dependents. That would show that, whatever the mother had was only from her employment from the Bank. The bank would claim that, taking into account the terminal benefits from the bank and the insurance claim from the LIC and other assets, the total asset of the petitioner's mother would come to Rs.7.45 lakhs, out of which, the petitioner had shown only a liability of Rs.4.48 lakhs leaving a balance of Rs.2.97 lakhs. I am of opinion that, such a calculation would be without taking into account the stark realities of life. A person suffering from cancer will have to necessarily incur very huge expenses for treatment. Insofar as the petitioner and his mother had no other income necessarily they would have had to take loans from various sources. All of those W.P.(C)No.16749 of 2006 -7- loans may not have been documented. Even out of Rs.4.48 lakhs, admittedly as is clear from Ext.P6 Housing Loan, Supplementary Housing Loan, Conveyance Loan, Centbuy Loan etc. are all not for treatment and they have to be repaid also. Therefore in normal course, the petitioner and his mother would have to incur far more than Rs.4.48 lakhs as liability as on the date of death of the petitioner's mother. Therefore I am not inclined to accept the case of the respondents that, after the death of his mother, after setting off the liability, the petitioner still had Rs.2.97 lakhs. 6. Of course, the learned counsel for the Bank cites before me various decisions of the Hon'ble Supreme court on the question of Compassionate Employment namely: (2007 AIR SCW 1571) State Bank of India & Anr. v. Somvir Singh, (2006 AIR SCW 4626) Union Bank of India & Ors. v. M.T. Latheesh. I am of opinion that, although the legal position with regard to grant of compassionate employment has been settled by those decisions, the application of those W.P.(C)No.16749 of 2006 -8- decisions to the facts of this case does not arise, insofar as it cannot be disputed that, as on the date of death of the petitioner's mother, the family could not survive without an employment for the petitioner. On facts the respondents are bound to give compassionate employment to the petitioner, against which proposition there is nothing in any of these decisions. After having suffered Ext.P9, the respondents are bound to take action in accordance with that judgment. I have already given the reasons why I am not inclined to accept the case of the respondents that the petitioner had the means of livelihood in the form of surplus assets at the time of death of his mother. In this connection, another contention of the petitioner also has to be taken note of. In Ext.P10 the petitioner has specifically stated as follows: “It may also be noted that one Sindhu. C. was appointed in the services of the Bank under the compassionate appointment scheme recently. Her husband died in May, 2003. She received terminal benefits on account of the death of her husband apart from that she was receiving the family pension also. She is in a better financial position than me. I am also entitled to the treatment which is given in the case of Smt. Sindhu. C.” W.P.(C)No.16749 of 2006 -9- There is no specific denial by the respondents of this contention. This contention had been repeated by the petitioner in ground No.9 of the writ petition also. Insofar as the respondents have not chosen to affectively counter that argument, I am satisfied that the petitioner is entitled to benefit of that argument also. 7. The result of the above discussion is that, the petitioner has eminently made out a case for employment under the Compassionate Employment Scheme of the bank. Therefore denial of that claim by Ext.P11 is clearly unsustainable. Accordingly Ext.P11 is quashed. The respondents are directed to give the petitioner employment under the Compassionate Employment Scheme as expeditiously as possible at any rate within a period of three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN JUDGE shg/