IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 19TH MARCH 2009 / 28TH PHALGUNA 1930 WP(C).No. 11502 of 2008(T) --------------------------------------- PETITIONER: ------------------- REV.P.V.JACOB, PEZHAMATTATHIL ROSE VILLA, KARIKKATTOOR CENTRE P.O., MANIMALA, KOTTAYAM. BY ADVS. MR.SIBY MATHEW, MR. PHILIP J.VETTICKATTU. RESPONDENTS: ------------------------ 1. THE CHIEF GENERAL MANAGER, STATE BANK OF INDIA, LOCAL HEAD OFFICE, THAMPANOOR, TRIVANDRUM. 2. THE ASSISTANT GENERAL MANAGER, STATE BANK OF INDIA, REGION - I, ZONAL OFFICE, TRIVANDRUM. 3. THE BRANCH MANAGER, STATE BANK OF INDIA, PERUVANTHANAM BRANCH, MUNDAKKAYAM, KOTTAYAM. 4. THE CHIEF GENERAL MANAGER (P & HRD), STATE BANK OF INDIA, LOCAL HEAD OFFICE, TRIVANDRUM. R1 TO R4 BY MR. GEORGE THOMAS (MEVADA), SC, SBI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.11502/2008-T: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE DEATH CERTIFICATE DTD. 26/01/2005 ISSUED BY THE REGISTRAR OF BIRTH AND DEATH, PERUVANTHANAM. EXT.P.2: COPY OF THE LETTER DTD. 24/08/2005 ISSUED BY THE RESPONDENT BANK REJECTING THE CLAIM FOR COMPASSIONATE APPOINTMENT. EXT.P.3: COPY OF THE SERVICE SHEET OF MS. RACHEL SHOWING HER CARRER RECORDS. EXT.P.4: COPY OF THE NEW SCHEME FOR PAYMENT OF EX-GRATIA LUMPSUM AMOUNT. EXT.P.4.A: COPY OF THE CIRCULAR DTD. 04/08/2005 ISSUED ALONG WITH EXT.P.4. SCHEME. EXT.P.5: COPY OF THE APPLICATION DT. 23/01/2006 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT. EXT.P.6: COPY OF THE RECOMMENDATION LETTER DT. 23/01/06 FORWARDED TO THE ASST. GENERAL MANAGER, STATE BANK OF INDIA, ZONAL OFFICE BY THE GENERAL MANAGER, STATE BANK OF INDIA, PERUVANTHANAM. EXT.P.7: COPY OF THE JUDGMENT DTD. 03/12/2007 IN W.P.(C).NO.19480/2007 OF THIS HONOURABLE COURT. EXT.P.8: COPY OF THE LETTER DTD. 28/01/2008 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.9: COPY OF THE LAWYER NOTICE DTD. 07/02/2008 SENT BY THE PETITIONER TO THE RESPONDENT BANK. EXT.P.10: COPY OF THE REPLY NOTICE DTD. 11/03/2008 ISSUED ON BEHALF OF THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. V.GIRI, J. ------------------------- W.P.(C).No.11502 of 2008 ------------------------- Dated this the 19th day of March, 2009. JUDGMENT The daughter of the petitioner Ms.Rachael, while employed in the State Bank of India, as Assistant, died due to Internal Collapse at the age of 35 years, with 15 years of service to her credit, on 19.4.2005. At that time, she was drawing a salary of Rs.11,288/- per month. A scheme for compassionate appointment was available in the bank and an application was made by the brother of the deceased, the son of the petitioner herein, for compassionate appointment in the bank, on 21.5.2005, within a short time of the death of the incumbent. This was rejected as per Ext.P2, essentially on the ground that the incumbent was visited with disciplinary action while in service, by way of a punishment wherein her scale of pay was brought down by two stages and since her career was blemished on account of the disciplinary action, the dependent of a deceased, whose career was blemished was ineligible. But later, Ext.P4 was brought about with some radical changes. W.P.(C).No.11502 of 2008 :: 2 :: Instead of compassionate appointment, the bank was to grant Ex-gratia Lumpsum payment. Further, the persons eligible for Ex-gratia payment, in the case of an unmarried employee, would be the parents. The petitioner is a retired Priest aged 69 years. Going by the averments in the writ petition, it seems that the family was living with the wages earned by his unmarried daughter. Further, under Ext.P4, the disability which earlier visited the dependents of employees whose career was blemished was removed and such persons were also found eligible to apply for Ex-gratia payment. This is discernible from Clause 15(ii) of Ext.P4 scheme, which reads as follows: “The dependents of employees, who have died and whose service records were blemished on account of disciplinary action having been taken against them, will be considered under the scheme as this is a welfare measure and the families should not suffer for their acts. Similarly, where the employees were facing should not suffer for their acts. Similarly, where the employees were facing disciplinary action at the time of death, the cases will be treated as abated. The payment of Ex-gratia will be considered in such cases also. However, employees seeking premature W.P.(C).No.11502 of 2008 :: 3 :: retirement due to incapacitation before 55 years of age and whose service records are blemished on account of disciplinary action having been taken against them, will be ineligible for payment of Ex-gratia Lump sum amount under the Scheme. 2. Ext.P5 application was submitted by the petitioner for such Ex-gratia payment on 23.1.2006. The petitioner had earlier approached this court in W.P.(C)No.19480/07, which led to Ext.P7 judgment, recording the submission of the bank that Ext.P5 application had already been rejected by the order marked as Ext.R1(d) in the said writ petition. The said order Ext.P8 has now been challenged in this writ petition. 3. A detailed counter affidavit has been filed by the bank. 4. I heard learned counsel for the petitioner Mr.Philip J.Vettickattu and Mr.George Thomas, learned counsel for the Bank. 5. Mr.George Thomas submits that Clause 14 of the Scheme would show that only applications preferred under the W.P.(C).No.11502 of 2008 :: 4 :: earlier scheme that were pending at the time of enforcement of the new scheme viz., 4.8.2005 would be eligible to be considered under the new scheme. Ext.P2 is a communication by which the application submitted under the earlier scheme stood rejected on 24.6.2005. It was not pending as on 4.8.2005. The stand taken in Ext.P8 is wrong according to the learned counsel for the petitioner. No doubt, Clause 14 of Ext.P4 speaks about the manner in which the applications preferred under the earlier scheme are to be dealt with. Therefore, there is an implied bar on fresh applications being entertained under the new scheme, if an application under the old scheme for compassionate appointment had already been rejected. But, I am inclined to hold that the scheme which provides for Ex-gratia payment in lieu of compassionate appointment should be liberally considered insofar as the scheme provides for considering applications for such Ex-gratia payments. In the absence of an express bar against consideration of an application for Ex-gratia payment, at the W.P.(C).No.11502 of 2008 :: 5 :: instance of a dependent, in spite of an application for compassionate appointment having been rejected under the old scheme, I am of the view that the bank should consider the application filed by the petitioner for Ex-gratia payment, on merits and in accordance with law. 6. There is yet another reason which persuades me to arrive at this conclusion. As stated above, the earlier scheme for compassionate appointment provided for a bar against consideration at the instance of dependents of employees whose service records were blemished. The said bar has been removed under the new scheme as is evidenced by Clause 15 thereof. This also indicates a more liberal approach by the bank, which, I should say, is salutary in character. Ext.P2 was rested solely on the blemished career of the deceased Rachael. The said infirmity is no longer relevant. It is only appropriate that the application filed by the father for the Ex-gratia payment on account of the premature death of his daughter be benevolently considered by the bank. W.P.(C).No.11502 of 2008 :: 6 :: In the result, the writ petition is allowed in part. Ext.P8 is quashed. The 1st respondent is directed to take a fresh decision on Ext.P5 in accordance with Ext.P4 scheme, within two months from the date of receipt of a copy of this judgment. Sd/- (V.GIRI) JUDGE sk/ //true copy//