# Krishna Kumar v. Assistant General Manager, S.B.I, Kanpur and another

- **Citation:** (2004) 2 ILRA 617
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-09-10
- **Case number:** Writ Petition No. 9774 of 2002
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/krishna-kumar-v-assistant-general-manager-s-b-i-kanpur-and-another-40277
- **Pages:** 4

## Headnote

Dying in Harness Rules-S.B.I. Scheme for
appointment on Compassionate groundsObject-Income of married brothers not
staying with the family not to be
included in income of family-Further,
income received from family pension and
interest from terminal benefits, held, not
to be included in income of family-Hence
respondents
directed
to
reconsider
petitioner's application for appointment
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
618
on Compassionate ground.

Held: Para 7

In my opinion, the income of the
brothers who are married and who are
not staying with the family as alleged by
the petitioner in the rejoinder affidavit,
could not be included while calculating
the financial income of the family. So far
as the income of the widow is concerned,
the income received from the family
pension
and
interest
from
terminal
benefits cannot be included. Thus, if
these amounts are removed from the
total income shown, nothing would
remain nor can anyone come to the
conclusion that the financial position of
the family members was sound.
Case law discussed:
W.P.No. 34547 of 2000, decided on 9.8.2000
Spl. Appeal No. 447 of 1999, decided on
27.7.1999

## Text

http://www.allahabadhighcourt.nic.in
2 All] Krishna Kumar V. Assistant General Manager, S.B.I, Kanpur and another
617
lady who was alleged to have been raped
by the petitioner. This was definitely a
mis-conduct of serious nature committed
by the petitioner, who was a member of a
disciplined force. If one belongs to a force
of the type, he is supposed to maintain
that discipline everywhere whether on
duty or off duty. Such grave mis-conduct
having
been
found
to
have
been
committed by the petitioner, there was
hardly any occasion for the learned Single
Judge to hold that the decision for the
award of punishment of dismissal from
service taken by the disciplinary authority
was so unreasonable or irrational as can
be termed shockingly disproportionate.
The learned Single Judge has referred to
the decisions in Ram Awadh Vs. The Dy.
Inspector
General, Eastern Region,
C.I.S.F., Patna & others, 1997 (76) FLR
775 and Ranjeet Thakur Vs. Union of
India, A.I.R. 1987 S.C. 2386. The
aforesaid cases are distinguishable on the
facts and principles from the present case,
especially in the background of the
principles of law laid down by the Apex
Court in the cases referred to above.

16. Thus, while summing up the
entire facts and circumstances in the light
of the above observations recorded by us
in the judgement, we hold that the
petitioner was not entitled for the relief of
quashing the punishment order dated
30.1.1991 which had stood merged with
the appellate order as he had not sought
for the relief to quash the appellate order
dated 12.12.1993. We also find that the
learned Single Judge has strived in vain to
question
the
proportionality
of
the
quantum of punishment when there was
hardly any justification to exonerate the
petitioner of the charges of deliberate
concealment of important and sensitive
facts about his arrest etc in connection
with a criminal case.

17. On the facts and circumstances,
we find that the petition of the delinquent
employee does not have any force at all
and instead of granting relief in his favour
the petition itself should have dismissed.
We thus find that there is sufficient merit
in the appeal, which deserves to be
allowed.

18. This intra court appeal is
allowed with no order as to costs and the
judgment and order dated 10.9.2002
passed by the learned Single Judge is
hereby set aside. Respondent's petition is
hereby dismissed.
Appeal Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2004

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Writ Petition No. 9774 of 2002

Krishna Kumar

...Petitioner
Versus
Assistant General Manager, State Bank
of India Kanpur & others ...Respondents

Counsel for the Petitioner:
Sri R.S. Chaudhary

Counsel for the Respondents:
Sri Vipin Sinha
Sri Ashish Srivastava
S.C.

Dying in Harness Rules-S.B.I. Scheme for
appointment on Compassionate groundsObject-Income of married brothers not
staying with the family not to be
included in income of family-Further,
income received from family pension and
interest from terminal benefits, held, not
to be included in income of family-Hence
respondents
directed
to
reconsider
petitioner's application for appointment
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
618
on Compassionate ground.

Held: Para 7

In my opinion, the income of the
brothers who are married and who are
not staying with the family as alleged by
the petitioner in the rejoinder affidavit,
could not be included while calculating
the financial income of the family. So far
as the income of the widow is concerned,
the income received from the family
pension
and
interest
from
terminal
benefits cannot be included. Thus, if
these amounts are removed from the
total income shown, nothing would
remain nor can anyone come to the
conclusion that the financial position of
the family members was sound.
Case law discussed:
W.P.No. 34547 of 2000, decided on 9.8.2000
Spl. Appeal No. 447 of 1999, decided on
27.7.1999

(Delivered by Hon'ble Tarun Agarwala, J.)

1. The petitioner's father was
working as a Messenger in State Bank of
India and died in harness on 28.3.2000.
An
application
was
moved
for
appointment of the petitioner bank on
compassionate
ground
which
was
declined by the competent authority vide
its order dated 8.1.2002. This order has
been challenged in the present writ
petition and the petitioner has prayed not
only for quashing of this order but also for
a direction commanding the respondents
to appoint the petitioner under the Dyingin-Harness Rules.

Heard learned counsel for the parties.

2. The application for appointment
of the petitioner on compassionate ground
has been rejected on the ground that the
financial condition of the family could not
be termed as penurious in view of the
terminal benefits, investments, savings,
family pension and monthly relief from
Staff Mutual Welfare Scheme.

3. The respondents have filed the
scheme
for
appointment
on
compassionate ground. The object of the
scheme is quoted hereunder:-

"The
object
of
granting
compassionate appointment is to enable
the family to tide over the sudden crisis
due to the death of the bread-winner. The
mere death of an employee in harness
does not entitle his family to such a
livelihood.
The
object
is
to
offer
compassionate appointment only when
the Bank is satisfied that the financial
condition of the family is such that, but
for the provision of employment the
family will not be able to meet the crisis."

Clauses 3 (l) and (m) of the Scheme
are quoted herein:-

"1) Financial condition of the family

Appointments in the public services
are made strictly on the basis of open
invitation of applications and merit.
However, exceptions are made in favour
of dependents of employees dying in
harness and leaving their family in penury
and without any means of livelihood.
Determining the financial condition of the
family is, therefore, an important criterion
for
deciding
the
proposals
for
compassionate
appointment.
The
following factors should be taken into
account of determining the financial
condition of the family:
i)
family pension
ii)
gratuity amount received
iii)
employee's/employer's
contribution to Provident Fund
iv)
any compensation paid by the
Bank or its Welfare fund
v)
proceeds of LIC Policies and
other investments of the deceased
http://www.allahabadhighcourt.nic.in
2 All] Krishna Kumar V. Assistant General Manager, S.B.I, Kanpur and another
619
employee.
vi)
income of family from other
sources
vii)
income of other family members
from employment, or otherwise
viii)
size of the family and liabilities,
if any.

m) Deviations

i)
Deviations
from
the
provisions of the scheme may be
considered by the Managing Director and
Group executive or by prior approval of
the Government.

4. From a perusal of the aforesaid it
is clear that the object for appointing
dependants on compassionate ground is to
tide over the sudden crisis due to death of
the bread winner. The bank is required to
give
appointment
on
compassionate
ground only, if it is satisfied that the
financial condition of the family is such
that, but for the provision of employment,
the family could not be able to meet the
crisis. The criteria for determining the
financial conditions have been given in
Clause (l) of the Scheme.

5. The learned counsel for the
respondents submitted that on the basis of
the information supplied by the petitioner,
as disclosed in Annexure 5 to the counter
affidavit, the monthly income of the
family members was Rs.9656/- which was
adequate and, therefore, the financial
condition of the family was not penurious
and the petitioner was, therefore, not
entitled for appointment.

6. The learned counsel for the
respondents submitted that the widow of
the deceased received 3.73 lacs toward
terminal benefits by way of provident
fund, gratuity and leave encashment etc.
and that she was also receiving a family
pension of Rs.2,559/- and that the other
income of the remaining family members,
who were employed came to Rs.4100/-
plus interest from terminal benefits would
amount
to
sufficient
income
and,
therefore, there was no requirement to
appointment
the
petitioner
on
compassionate ground. In support of his
case, the respondent has relied upon a
decision in Jadawati Devi vs. State
Bank of India and others, decided on
27.7.1999, in Special Appeal No.447 of
1999, in which it was held that the
financial condition of the family was not
in such a distress condition to give
employment to a member of the family of
the deceased under the Dying in Harness
Rules. The conclusion drawn was on the
basis of the amount received from the
provident fund, gratuity and pension etc.
In Pushpendra Arora vs. State Bank of
India and others, decided on 9.8.2000, in
Writ Petition No.34547 of 2000, this
Court dismissed the writ petition on the
ground that the financial position of the
family of the deceased employee was
sound and that no ground was made out
for
appointment
on
compassionate
ground.

7. The claim of the petitioner has
been denied on the basis of the income
disclosed by him in his application for
appointment, which has been annexed as
Annexure 5 to the counter affidavit. From
a perusal of the said application it is clear
that the total income shown includes the
income of three brothers which comes to
Rs.4100/-. The application shows that the
three brothers are working as labourers. In
my opinion, the income of the brothers
who are married and who are not staying
with the family as alleged by the
petitioner in the rejoinder affidavit, could
not be included while calculating the
financial income of the family. So far as
the income of the widow is concerned, the
income received from the family pension
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
620
and interest from terminal benefits cannot
be included. Thus, if these amounts are
removed from the total income shown,
nothing would remain nor can anyone
come to the conclusion that the financial
position of the family members was
sound. In State Bank of India and
others
vs.
Ram
Piyarey,
2001(2)
ESC(Alld.)876, a Division Bench of this
Court held:-

"In our opinion, the learned single
Judge was correct in holding that the
receipt of family pension by the widow
and a sum of Rs.1.42 lacs paid to widow
after deducting the loan cannot be taken
to be a good ground for rejecting the case
for
appointment
on
compassionate
ground. It is common knowledge that the
widow is entitled to family pension and
other benefits in the event her husband
died in harness. If the plea of the Bank is
accepted then no appointment can be
made on compassionate ground and the
scheme of the Bank shall have no
meaning. We are of the view that the
learned single judge was quite justified in
allowing the writ petition."

8. The judgment in Ram
Piyarey case (supra), was decided on
17.4.2001 whereas the judgment passed in
Jadawati case was decided on 27.7.1991.
Since Ram Piyarey judgment is the latest
judgment, the same is binding upon me.

9. In view of the aforesaid, the writ
petition is allowed and the order dated
8.1.2002 is set aside. The respondents are
directed to reconsider the petitioner's
application
for
appointment
on
compassionate ground in the light of the
observations made above and after
considering the financial hardship, the
authority concerned shall pass appropriate
order in accordance with law within two
months
from
the
date
of
the
communication of this order.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.8.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE UMESHWAR PANDEY, J.

Special Appeal No. 968 of 2004

State
Urban
Development
Agency
(SUDA)

...Appellant
Versus
Dinesh Chandra Saxena and others

 ...Respondents

Counsel for the Appellant:
Sri Neeraj Tiwari

Counsel for the Opposite Parties:
Sri S.N. Singh
Sri R.D. Khare, C.S.C.

U.P. Industrial Dispute Act-Industrywhether
U.P.
State
Handloom
Corporation
is
within
meaning
of
Industry?-held- 'yes'.

Constitution
of
India
Article
226alternative remedy-employee working
with Handloom Corporation is workmantermination order challenged under writ
jurisdiction-held-
Petitioner
has
statutory
remedy-writ
held
not
maintainable.

Held: Para 10

U.P. State Handloom Corporation as well
as State Urban Development Agency and
District
Development
Agency
are
industries. Hence if the writ petitioners
wanted to challenge their retrenchment
they should have raised an industrial
dispute and requested the Government
to make a reference to the Labour
Court/Industrial
Tribunal.
The
High
Court should not ordinarily interfere
when there is an alternative remedy