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2015 DIGILAW 1119 (MP)

CHIEF GENERAL MANAGER v. MAMTA BAI SONI

2015-10-20

A.M.KHANWILKAR, SANJAY YADAV

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JUDGMENT : A.M. Khanwilkar, CJ. This intra-Court appeal takes exception to the decision of the learned Single Judge dated 19-6-2008 in W.P. No. 4733/2006(S). 2. The learned Single Judge allowed the writ petition preferred by the respondent and has directed the appellant-Bank to consider the proposal of the respondent for appointment on compassionate ground; and take a final decision on merits in accordance with the relevant Scheme within two months from the date of receipt of the order. 3. The learned Single Judge accepted the plea of the writ petitioner/respondent that she had submitted an application for appointment on compassionate ground within one year time stipulated, as per the prevailing scheme. In that, the predecessor of the respondent, who was employed in the appellant-Bank died on 9-6-2004; and the application was submitted by the respondent on 9-10-2004 for appointment on compassionate ground. 4. The respondent, however, did not submit any acknowledgement of dispatch/service of that application, but relied on the fact so stated in her subsequent representation dated 18-11-2005. The Appropriate Authority had considered this contention of the respondent, as was directed by this Court in terms of order passed on 25-11-2005 in W.P. No. 14938/2005(S); and opined that no evidence was produced by the respondent to establish the factum of delivery/dispatch of the application dated 9-10-2004 to the Bank. On that basis, the Appropriate Authority rejected the application, as it was not submitted within one year from the date of death of the Bank employee in harness; and also because under the new Scheme only the pending valid applications could be processed further. 5. The learned Single Judge, however, accepted the stand of the respondent on this factual aspect and has noted as follows :- "According to the petitioner after death of her husband on 9-6-2004, General Secretary of the State Bank of India, Workmen's Union, Bhopal Circle, Bhopal vide Annexure P-11 dated 10-6-2004 intimated to the petitioner his condolence and also enlightened her about the rights available to the petitioner and forwarded the prescribed form on which application can be submitted seeking compassionate appointment. In pursuance to the same the petitioner is said to have submitted the application in the prescribed proforma vide Annexure P-5. supported by an affidavit sworn before the Notary. Jabalpur as contained in Annexure-P-8. A perusal of the application Annexure P-5 and the affidavit (Annexure P-8) indicates that they are dated 9-10-2004. In pursuance to the same the petitioner is said to have submitted the application in the prescribed proforma vide Annexure P-5. supported by an affidavit sworn before the Notary. Jabalpur as contained in Annexure-P-8. A perusal of the application Annexure P-5 and the affidavit (Annexure P-8) indicates that they are dated 9-10-2004. even though there is no acknowledgement in the application (Annexure P-5) but in the application (Annexure P-6) the petitioner has categorically referred to the application submitted by her on 9-10-2004 and has reminded the Bank to consider her application submitted on 9-10-2004 and take action. The Bank has considered this application (Annexure P-6) submitted on 18-11-2005 to be the first application and by holding that it is submitted after a period of one year has rejected the application. The documents available on record if read, in its totality, indicates that the petitioner did not file an application on 9-10-2004 before Bank, even though there is no acknowledgement of the same. A complete analysis of the documents: namely the communication made by the Union vide Annexure P-11. the application dated 9-10-2004 (Annexure P-5) and the affidavit (Annexure P-8) sworn before the Notary on 9-10-2004 compels this Court to draw a conclusion in favour of the petitioner to the effect that she did file the application on 9-10-2004 but the Bank by taking a very hyper technical view of matter has rejected the application on the around of delay." (Emphasis Supplied) 6. This finding has been reached by the learned Single Judge notwithstanding the specific plea taken by the appellant on affidavit with reference to the finding in the enquiry conducted by the Appropriate Authority. In paragraph 2 of the reply-affidavit, it was stated on behalf of the appellant/Bank, as follows :- "2. While considering the application, the Competent Authority of the Bank found that the husband of the petitioner died on 9-6-2004 and as per the provisions of the Bank's Scheme for grant of appointment on compassionate ground, the petitioner was required to make a request for compassionate appointment within one year from the date of death i.e. by 9-6-2005. It was found that the petitioner did not make any offer within the stipulated time as for the first time, the representation was filed on 18-11-2005. In the earlier Writ Petition, the petitioner contended that the application for compassionate appointment was submitted by her on 9-10-2004. It was found that the petitioner did not make any offer within the stipulated time as for the first time, the representation was filed on 18-11-2005. In the earlier Writ Petition, the petitioner contended that the application for compassionate appointment was submitted by her on 9-10-2004. However, the said application was not received by the Bank. No evidence was filed by the petitioner to establish that the application dated 9-10-2004 was delivered/sent to the Bank, it was stated by the petitioner in the earlier Writ Petition that the recommendations of the Branch Manager dated 9-10-2004 is Annexure P/1 to the petition which on verification was found that as per the Bank's record neither the application dated 9-10-2004 was received nor the recommendation of the Branch Manager was sent. In view of the fact that the representation dated 18-1 1-2005 was received by the Bank after the period stipulated in the scheme, the same was not considered." (Emphasis Supplied) 7. We are in agreement with the submission of the appellant/Bank that the learned Single Judge completely misconstrued, if not glossed over the above factual position asserted by the appellant. In that, as the factum of receipt of application sent by the respondent was rebutted by the appellant on oath, the appellant could not have produced negative evidence to substantiate that fact. Instead, the onus had shifted on the writ-petitioner to substantiate the factum of dispatch of the said application or the receipt thereof by the appellant-Bank. The respondent having failed to do that, no inference could be drawn of the relevant fact in favour of the respondent. 8. Further, in the facts of the present case, inference of the fact asserted by the respondent could not have been drawn in favour of the respondent also on account of the factual position emerging from the stated Application - Annexure P/5 (allegedly submitted by the respondent to the appellant-Bank dated 9-10- 2004). Against Clause 23 of the said application (Photostat copy whereof has been relied by the respondent and appended to the writ petition as Annexure P/5), the factual position stated by the respondent in the said application belies her claim. It reads thus : "23 Copies of testimonials (At least three of which one must be from the Principal/Head Master of the School/College in which you have last studied. (i) xxx (ii) Indra Primary School, Sarafa Miioniganj, Jabalpur. It reads thus : "23 Copies of testimonials (At least three of which one must be from the Principal/Head Master of the School/College in which you have last studied. (i) xxx (ii) Indra Primary School, Sarafa Miioniganj, Jabalpur. (iii) T.C. Dated 8-6-2005" (Emphasis Supplied) 9. It is unfathomable that the respondent could rely on a document issued on 8-6-2005, which has been produced with the application dated 9-10-2004 made in earlier point of time. This fact, by itself, leaves no manner of doubt that the appellant-Bank is justified in contending that the application dated 9-10-2004 was never submitted to the respondent-Bank, but the respondent has been ill-advised to rely on that fact by making reference to the existence of such document in the communication/representation sent to the appellant Bank on 18-11-2005. That was done to create a false circumstance to further the cause of the respondent and nothing more. 10. Understood thus, it would necessarily follow that the respondent has not approached the Court with clean hands knowing that the Scheme under which she was claiming appointment on compassionate ground, was already abandoned by the appellant-Bank on 5-8-2005. The respondent had not submitted any application to the appellant Bank for such request till that date. 11. Accordingly, this appeal must succeed. The impugned judgment is quashed and set aside; and instead the writ petition is dismissed with no order as to costs.