Smt. Sita Das and Another vs The State of West Bengal and Others

Hon''ble Mr. Justice Jayanta Kumar Biswas

The petitioners in this WP under art. 226 dated August 6, 2009 are questioning a decision of the chairman, Balageria Central Co-operative Bank Ltd., Contai, Purba Medinipur (WP p.55). The first petitioner''s husband was working in the bank as an assistant general manager. He died-in-harness on April 17, 2002. He was survived by the first petitioner and two sons. The older son is the second petitioner.

In view of the provisions of sub-r.(2) of r.69 of the West Bengal Co-operative Societies Rules, 1987 the petitioners could request the bank for an appointment on compassionate grounds. The request, if made, was to be decided by the society ascertaining whether the dependants of the deceased employee had any other means of sustenance, and employment was to be offered, subject to availability of vacancy, depending on qualifications.

The first petitioner submitted an application dated May 6, 2002 (WP p.34) requesting the bank to offer the second petitioner an employment on compassionate grounds. It was stated in the application that the sudden death of the employee jeopardized the very existence of the family, and that unless the employment was provided, the younger son, doing his medical course, would not be able to complete the course.

By a decision dated July 12, 2002 the board of directors of the bank rejected the request citing absence of vacancy. The petitioners approached the arbitrator, a wrong forum, and were ultimately given liberty to question the decision according to law. This Court passed an order dated April 23, 2009 directing the authorities of the bank to consider the case once again. It is in compliance with such order that the chairman gave the impugned decision.

The chairman rejected the request on the grounds that the second petitioner''s wife is an employee of the state government. It was recorded in the proceedings that the lady was in employment at the date of death of the employee. According to the chairman, because of her employment it could not be said the dependants of the deceased employee had no other means of sustenance.

The impugned decision cannot be sustained for the simple reason that the chairman of the bank was not empowered to give a decision on behalf of the society. The provisions of r.69 of the rules created an obligation of the society to consider the request. The argument that this Court directed the chairman to give a decision is unacceptable; for this Court directed the authorities of the bank to give the decision.

I do not think Mr. Bhattacharjee appearing for the bank is right in saying that since the decision has not been questioned on the grounds that the chairman was not empowered to give it, this Court cannot interfere with it on such ground.

The absence of power of the chairman is evident and the Writ Court cannot ignore the patent jurisdictional error revealed by the decision itself, simply because the point has not been taken in the WP. The Court noticing the incurable defect cannot ignore it. In my opinion, it is the duty of the Court to set aside such a decision that is just a nullity.

It is also to be noted that the society never decided the question whether the deceased employee''s wife and two sons were his dependants. This was to be decided by the society first; and thereafter, if necessary, the society was to decide whether the deceased employee''s wife and two sons had any other means of sustenance.

It is wrong to say that income of the wife of the older son could be treated as the other means of sustenance of the deceased employee''s wife and the two sons. It is not correct either to say that the lady''s income was the income of her husband. In ordinary course the second petitioner would not have been entitled to seek maintenance from his wife. Hence the society was under an obligation to decide the question of sustenance independently. It was never done.

There is no merit in the argument that since today the second petitioner is overage, the question of employment on compassionate grounds has become academic. The request is not to be decided considering his today''s age, but the age at the date the request was made. At that date he was eligible and entitled to be considered for an employment on compassionate grounds. On the facts, I think it will be appropriate to remand the matter to the society for a decision. For these reasons, I set aside the impugned order, allow the WP to this extent and direct the society to decide the request dated May 6, 2002 keeping in mind the observations made hereinbefore. Compliance within eight weeks from the date this order is served. No costs. Certified xerox.