STATE BANK OF MYSORE BANGALORE Vs. SAROJA SHIVAKUMAR

JUDGEMENT

(1.) THIS appeal arises from the order made by the learned Single judge in Writ Petition No. 16598 of 1994. One Shivakumar was working in the establishment of the appellant. Disciplinary action was initiated against him by an order, made on 6-8-1992 and various charges were added to it or amended by letters dated 10-3-1993 and 28-10-1993. It is the contention of the appellant that the said Shivakumar had admitted by a letter written by him that he was forced to utilise the funds of the bank to meet his medical expenses. When the inquiry was still pending, the said Shivakumar expired on 26-11-1993 as a result of cancer the disease he was suffering from. It was stated that the said Shivakumar had misappropriated a sum of Rs. 59,000/-; that he was due to the appellant-Bank towards house building loan to an extent of Rs. 1,54,000/- and a consumer loan of rs. 7,400/- and Rs. 14,200/- towards the vehicle loan. The respondent claimed for payment of amounts due towards provident Fund and Gratuity and she also sought for appointment for her son on compassionate grounds. The appellant withheld the payment of the said amounts and also declined to pass any order on the application filed for the appointment of her son. Thereafter the respondent presented a writ petition before this Court. On an interim order being made in the writ petition, a sum of Rs. 44,237. 61 was paid to the respondent as amount due towards Provident Fund. The matter however was seriously contested. On behalf of the respondent, the first contention raised is that the principle of actio personalis moritur cum persona is applicable and therefore the disciplinary proceedings could not be pursued or any amount recovered for the amounts due to him in view of the decision in Heera Bai deshmukh and Another v State of Maharastra , that when the contract of employment comes to an end by reason of the death of an employee even though disciplinary proceedings may be pending, such proceedings may be deemed to have come to an end on the death of the employee and in as much as the liability if any comes out of contract of service -which is personal to that person, the respondent cannot be made liable to the same. On behalf of the appellant reliance is placed on the decision in d. K. Savithramma v Anantapur District Co-operative Central bank Limited and Another , that a disciplinary proceeding cannot be stated to have abated on the death of the employee in view of the language of Payment of Gratuity Act and that if an employee dies during the pendency of inquiry into the charges, no principle can be laid down that the employer has no authority to continue the proceedings. The proceedings with regard to misappropriation will have to be completed in the presence of the affected persons so that they may not claim in the event of any finding that any amount is due, that such action of the employer is arbitrary, capricious or made behind their back.

(2.) ON the question of claim for compassionate appointment, it is contended by appellant that respondent has no right while it is pointed out by the respondent that the authorities concerned should have a humanitarian approach and on account of death of an employee if respondent's son is eligible to employment, mere pendency of disciplinary proceedings should not come in the way of passing an order to give employment.

(3.) THE learned Single Judge directed the payment of terminal benefits to the legal heirs of deceased after making adjustments of the subsistence allowance and to pay balance of the amount to the legal heirs of deceased with 10% interest p. a. from the date of death upto the date of payment, after deducting the amounts due from the deceased towards the housing loan, vehicle advance and other dues. Another direction was also given that the employment should be provided to the respondent's son and if such an offer is made to him, the housing loan should be transferred to him and he should be made liable to pay such amounts.