Partly allowed

Mayabha Murubha Ker v. State Bank of India

Gujarat HC12 Dec 2018SCA/10421/2004

Case brief

AI extract

What is this about?

The High Court of Gujarat under Article 226 quashed the respondent bank's rejection of a petition for compassionate appointment. Citing settled law that terminal benefits cannot substitute employment, the Court directed the bank to reconsider the petitioner's scaled-in request within three months based on merit.

What did the court decide?

Impugned decision rejecting compassionate appointment quashed; petitioner directed to submit request with supporting decisions within two weeks; respondent authorized to decide within three months.

Mayabha Murubha Ker Vs State Bank of India — Service and Employment | Gujarat HC (2018)

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C/SCA/10421/2004 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 10421 of 2004

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE A.J. SHASTRI

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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MAYABHA MURUBHA KER Versus

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STATE BANK OF INDIA

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Appearance:

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KRISHNAN M GHAVARIYA(8133) for the PETITIONER(s) No. 1 MR SANDEEP N BHATT(190) for the RESPONDENT(s) No. 1,2 RULE SERVED(64) for the RESPONDENT(s) No. 1,2

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CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

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Date : 12/12/2018

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ORAL JUDGMENT

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The present petition under Article 226 of the Constitution of India is filed for the purpose of seeking the

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C/SCA/10421/2004 JUDGMENT

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following reliefs:

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“{A} THIS HONOURABLE COURT be pleased to admit the present petition;

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{B} THIS HONOURABLE COURT be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent bank authorities to consider various requests letters/ applications/ representations submitted by the present petitioner to the respondent bank authorities and further be pleased to direct the respondent bank authorities to appoint the present petitioner on compassionate ground with the respondent bank in the interest of justice;

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{C} PENDING admission, hearing and final disposal of the present petition, this Honourable Court be pleased to grant interim relief and further be pleased to direct the respondent bank authorities to consider various requests letters/ applications/ representations submitted by the present petitioner to the respondent bank authorities and further be pleased to direct the respondent bank authorities to appoint the present petitioner on compassionate ground with the respondent bank, by way of interim relief, till the present petition is finally heard and decided by this Honourable Court;

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{D} THIS HONOURABLE COURT be pleased to pass any such other and/or further order/s, thought just and proper, in the interest of justice.”

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It is the case of the petitioner that father of the petitioner, who was serving with the respondent bank, had expired way back on 17.1.1996, while serving as Hawaldar(Arms Guard). Upon the death of the father, immediately within a period of approximately one year, a

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C/SCA/10421/2004 JUDGMENT

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request was made for giving compassionate employment on 8.12.1997. For a pretty long period, approximately around 7 to 8 years continuously, requests were being made by the petitioner but the same have not been considered. As a result of this, against such inaction, the present petitioner has approached this Court by way of this petition under Article 226 of the Constitution of India.

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This petition was entertained and the rule was issued on 7.3.2005 made it returnable on 1.7.2005. However, after completion of pleadings, now it has come up for consideration finally before this Court.

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Mr. Krishnan M. Ghavariya, learned advocate appearing for the petitioner has vehemently contended that the respondent bank is an authority under Article 12 of the Constitution of India and hence, its every action is on the touchstone of Article 14 of the Constitution of India and principle of fair play. Despite the fact that there is a policy prevailing in the respondent authority to extend the benefit of compassionate employment and though within a reasonable period, the petitioner has applied, the same has not been unilaterally attended to by the respondent

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authority. By that time, the petitioner was also asked to submit his declaration, which has also been provided on 24.5.1999 and, therefore, such inaction deserves to be deprecated by directing the respondent authority to consider the case of the petitioner. It has further been submitted that subsequent to this policy, on number of occasions, the details, which have been called for, have also been supplied and even a fresh request was made on 12.9.2002 having come to know about a newspaper article. But, then, the said request has been turned down only by observing that since resources available to the family are adequate and sufficient enough for sustenance of the dependents of the deceased family. Said communication has been received by the petitioner on 18.8.2000 which has ultimately dragged the petitioner to this Court by giving statutory notice. It has been submitted that time and again the policy of compassionate employment is under scanning before the Hon’ble Apex Court and the Hon’ble Apex Court has held that the retirement itself or the benefit received by the family of the deceased cannot be treated as a substitute to compassionate employment and, therefore, by referring to the latest decision rendered by the Division Bench of this Court on 18.7.2018 in Letters Patent Appeal No.789 of 2018,

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learned advocate has submitted that case of the petitioner deserves consideration. Even the decision delivered by this Court dated 11.9.2018 in Special Civil Application No.4955 of 2015 is also taken in aid and requested the Court to direct the respondent authority to reconsider the case of the petitioner on compassionate basis.

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To meet with the stand taken by learned advocate for the petitioner, Mr. Sandip N. Bhatt, learned advocate appearing for the respondent bank has vehemently contended that the object of compassionate employment is just to give immediate help to the family of the deceased and, therefore, the request for the same cannot be entertained at a much belated stage. It has been submitted that now, even the petitioner has also settled down in the life and has reached the age of approximately more than 50 years and therefore also, since the entire family of the deceased has sustained during this period of life right from 1996, there is hardly any reason to entertain the petition by efflux of time as well. Mr. Bhatt, learned advocate has further submitted that even as per the policy of the bank, the concerned family member has to apply within a period of at least one year from the date of death of the deceased

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employee which has been stipulated clearly in the policy itself. Here is the case in which the petitioner has applied only after lapse of one year period since the death has occurred on 17.11.1996 and, therefore, by relying upon the clause contained in the policy applicable dated 28.2.1997, a request is made not to entertain the petition. Such relevant extract contained in relevant clause reads as under:

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“Request for the appointment under the scheme should be received by the Bank, at the earliest and in any case, not later than one year from the date of death of the employee. In respect of an employee who retires on medical grounds, such a request should be received immediately or latest within sixty days from the date of retirement from service.”

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It has further been submitted that the petitioner was already given a reply long back and it is the petitioner, who has chosen to remain dormant. Even this Court, while admitting the petition, has made the rule returnable on 1.7.2005 but, thereafter upto this date, no steps are taken to get the matter decided at the earliest and now has created a situation where if the employment is granted on compassionate basis, the same would frustrate the very object for which the policy is formulated and, therefore also, in this set of circumstance, the authority may not be

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C/SCA/10421/2004 JUDGMENT

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compelled to consider the request of the petitioner. However, learned advocate Mr. Bhatt could not resist the decision delivered by the Division Bench of this Court in the background of facts and such decisions referred to relied upon by the petitioner.

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Having heard learned advocates appearing for the parties and having gone through the decisions, which have been pressed into service, few circumstances are clear enough. It is to be noted that the respondent authority has decided not to extend the benefit of compassionate employment to the petitioner despite the fact that it is a settled position of law that terminal benefits, which are made available to the family of the deceased employee, cannot be treated as a substitute for providing employment assistance and the proposition is relied upon by the Division Bench of this Court after considering the case of Canara Bank Vs. M. Mahesh Kumar reported in (2015)7 SCC page 412 and, therefore, Letters Patent Appeal came to be dismissed with a cost of Rs.50,000/-. This binding decision would lead to a situation where the only objection, which has been reflecting, is that family is having adequate and sufficient funds available to sustain and these undisputedly

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are the post-death benefits, which are paid to family of the deceased and, therefore, since the issue is squarely covered, this cannot be allowed to be a factor to deny the benefit of compassionate employment and the reason appears to be not just and proper as is reflecting from the very communication, which is on page 31 of the petition compilation.

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Yet another decision, which has been taken by this Court is dated 11.9.2018 delivered in Special Civil Application No.4955 of 2015. The Court, after considering various decisions, in such a situation, has also directed to consider the case and pass a fresh order and the Court is also based upon the decision of Coordinate Bench which was taken after considering Canara Bank’s (supra) decision. As a result of this, the petition deserves to be considered.

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Of course, Mr. Bhatt, to some extend, is justified in contending that several years have been passed and by now, the petitioner has reached the age of more than 50 years and, therefore, now to consider the case would defeat the very object of compassionate employment which is for seeking immediate help to the family of the deceased.

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C/SCA/10421/2004 JUDGMENT

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However, since the reason, which has been assigned in denying, is not in conformity with the law laid down by the Division Bench of this Court, a fresh decision requires to be taken by the respondent authority after considering the over all situation. But, in any case, the impugned decision reflecting on page 31 is not possible to be accepted. Hence, the same is quashed hereby and consequently, the petition deserves to be partly allowed by issuing appropriate direction in this regard.

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The petitioner is entitled to approach the respondent authority with a request for seeking compassionate employment with necessary details and decisions, which are placed before this Court, within a period of two weeks from the date of receipt of copy of this order and consequently, the respondent authorities are directed to take appropriate decision in accordance with law after considering over all situation within a period of three months thereafter and if need be, the petitioner may be given an opportunity to represent the case.

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This Court has not expressed any opinion and since the decision is left to the authority to be taken in the context

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of the aforesaid situation and the proposition of law, the authorities are expected to take independent decision in accordance with law on its own merit and shall pass a reasoned order. With this observation, the petition stands partly allowed. Rule is made absolute to the above extent. Direct service is permitted.

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(A.J. SHASTRI, J)

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RADHAKRISHNAN K.V.

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Mayabha Murubha Ker v. State Bank of India

Case brief

What is this about?

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Mayabha Murubha Ker v. State Bank of India

Case brief

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