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2002 DIGILAW 186 (KER)

Vasantha Kumari v. Canara Bank

2002-03-15

K.BALAKRISHNAN NAIR

body2002
Judgment :- K. Balakrishnan Nair, J. The main point to be decided in this case is whether the petitioner is ineligible for appointment under the dying-in-harness scheme on the ground of the alleged affluence of her parents. The brief facts necessary for the disposal of the case are the following: 2. The petitioner’s husband was a Clerk of the first respondent Canara Bank . While working at the Calicut Branch of the said Bank, he died in harness on 6.9.1996. He left behind the petitioner and her two minor children aged 14 and 8, and also his aged mother. At the time of death of her husband, the petitioner was aged 36 and was a graduate. The petitioner’s husband did not have any income other than his salary and he was the only earning member of the family. After his death, the petitioner has to look after her minor children and also his aged mother and therefore, for appointment under the dying-in-harness scheme, she submitted an application, Ext. P1 dated 28.10.1996. The second respondent Deputy General Manager of the Canara Bank gave Ext. P2 reply to the petitioner on 19.1.1998 stating that the competent authority on an indepth examination of the financial position of the family of the deceased found that no indigent circumstances exist warranting giving employment under the dying-in-harness scheme to the dependant of the deceased employee. She submitted a representation to reconsider the stand of the bank and the reply to the same is Ext. P3 dated 8.9. 1998. The Bank reiterated the position that the financial position of her family has been examined by the competent authority in depth and therefore no fresh grounds were made out to reconsider her request. Another representation made by her met with the same fate as evident from Ext. P4 dated 5.11.1999. Then she submitted another representation to the Chairman and Managing Director of the first respondent Bank which was rejected by Ext. P5 wherein it was reiterated that no ground has been made out for reconsideration. She again submitted a representation Ext. P6 dated 4.5.2001 relying on a decision of this Court as well as the decision of the Supreme Court. The petitioner challenges the rejection of her request for appointment under the dying-in-harness scheme on the ground that the same is contrary to law. 3. She again submitted a representation Ext. P6 dated 4.5.2001 relying on a decision of this Court as well as the decision of the Supreme Court. The petitioner challenges the rejection of her request for appointment under the dying-in-harness scheme on the ground that the same is contrary to law. 3. The respondents have filed a counter affidavit explaining the stand taken by them, mainly raising the following contentions. The appointment under the dying-in-harness scheme is something which is granted in the discretion of the bank. Therefore, the Original Petition is not maintainable as the petitioner does not have any legal right to get appointment. It is also submitted that the Original Petition is highly belated. The petitioner got Rs. 1.5 lakhs as balance terminal benefits after deducting the liabilities. She is also being paid a family pension of Rs. 3,321/84. Apart from that, the petitioner is the member of an affluent family. She is the partner of a flourishing business establishment engaged in the business of ayurvedic medicines/raw materials. The petitioner’s mother owns a commercial complex in a prime locality wherein the Regional Office of the Canara Bank is housed. The rent paid by the Bank itself will come to more than Rs. 60,000/- per month. The business establishment in which the petitioner is a partner is also housed in the same building. The family of the deceased owns a building constructed availing a housing loan from the Bank. In view of the above reasons, it is submitted that the petitioner’s application for appointment under the dying-in-harness scheme is rejected. 4. The petitioner has filed a reply affidavit denying the allegations. It is pointed out that the partnership in which the petitioner was a member, is already dissolved and she is not any more its member. Further, it is pointed out that the petitioner’s mother is finding it very difficult to pay the dues to the Banks from which loans were raised for the construction of the shopping complex. Further, the mother’s income cannot be equated as the income of the petitioner. She was married and was living separately with her husband in a building constructed availing a building loan. If they were affluent, they would not have availed the loan. It is also pointed out that the family pension will be reduced to a paltry sum of Rs. 1,146/- from 7.9.2003. So, she is in dire need of employment. She was married and was living separately with her husband in a building constructed availing a building loan. If they were affluent, they would not have availed the loan. It is also pointed out that the family pension will be reduced to a paltry sum of Rs. 1,146/- from 7.9.2003. So, she is in dire need of employment. 5. I heard both sides. It is evident from the materials produced in this case that the family of the deceased is not affluent. At any rate, the Bank has not anywhere stated about any material to show that the family of the deceased is affluent. In Ext. P2 it is stated that owing to the financial position of the family of the deceased, the petitioner’s application is rejected. But, when it comes to Ext. P3 and also the pleadings in the counter affidavit (except the pleading in paragraph 15 thereof), the respondents speak of the financial position of the petitioner’s parents’ family, and not of the family of the deceased employee. The deceased employee’s in-laws may be affluent. But the same cannot be taken as the affluence of the deceased employee. So, the decision making process of the respondents in the matter of disposing of the claim of the petitioner for appointment is vitiated by taking into account irrelevant facts. So, this decision is unreasonable in the “Wednesbury Sense” and therefore void. The petitioner’s mother may be affluent. She is having other sons and daughters. If she dies intestate and if any estate is inherited, the petitioner may get a share in that. Such a chance of inheritance cannot be treated as an affluence of the petitioner or an affluence of the family of the deceased employee. The very affluence of the petitioner’s mother is also a disputed question. If the construction of the commercial building by the mother is made by availing bank loans and if they are not paid in time, nothing may survive even if her mother dies intestate. So, the approach of the respondents in the case at hand is unreasonable for having taken into account irrelevant facts. The petitioner is entitled to live with dignity as a widow without going with a begging bowl before her relatives. The death can lay its icy hands even on Kings. So, the approach of the respondents in the case at hand is unreasonable for having taken into account irrelevant facts. The petitioner is entitled to live with dignity as a widow without going with a begging bowl before her relatives. The death can lay its icy hands even on Kings. One should not forget that those adorning the seats of power are also not beyond the reach of death and their dependants may also have to stand in the queue for employment. The claim for employment has to be determined having regard to the income of the family of the deceased, and not on the basis of the income of the relatives of his wife. 6. The technical contentions advanced by the Bank are devoid of any merit . The Power to give appointment under the dying-in-harness scheme is definitely a power coupled with a duty and the respondents are bound to exercise that power when an application from a person interested is received requesting to exercise that power. The contention regarding delay is also plainly untenable and perverse. It is a fundamental principle of law that no one can take advantage of his own wrong. Immediately after the death of the employee, the petitioner has applied. On untenable grounds, the respondents have rejected her claim and on the basis of their own repeated illegal action, the respondents are now contending that the application is belated. The said contention cannot be entertained. 7. It has to be reiterated that the petitioner who is a widow is entitled to live with dignity and in the light of the special protections granted in our constitution as well as in various international covenants in favour of women, the mere chance of inheritance of some property cannot be put as a hurdle before the petitioner to deny her employment. 8. Therefore, this Original Petition is allowed. The impugned orders are quashed. It is declared that the petitioner cannot be denied employment under the dying-in-harness on the ground of the affluence of her mother who is having other children also. Since the respondents do not have a case that the deceased or his family was affluent, the petitioner is entitled to get appointment under the dying-in-harness scheme. The impugned orders are quashed. It is declared that the petitioner cannot be denied employment under the dying-in-harness on the ground of the affluence of her mother who is having other children also. Since the respondents do not have a case that the deceased or his family was affluent, the petitioner is entitled to get appointment under the dying-in-harness scheme. The respondents are directed to reconsider the claim of the petitioner for appointment in the light of the observations made hereinabove and pass final orders within one month from the date of receipt of a copy of this judgment.