Kerala High Court
Sreeja K.K vs Kasaragod District Co-Operative ... on 1 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942
WP(C).No.2001 OF 2012(A)
PETITIONER:
SREEJA K.K.,
AGED 34 YEARS,
D/O.LATE KRISHNAN NAIR,
KOZHUMMAL HOUSE, MANGOD, KASARAGOD-671314.
BY ADV. SRI.KALEESWARAM RAJ
RESPONDENTS:
1 KASARAGOD DISTRICT CO-OPERATIVE RUBBER
MARKETING SOCEITY LTD.,
NO.C 325, REPRESENTED BY THE MANAGING DIRECTOR,
KASARAGOD DISTRICT CO-OPERATIVE RUBBER MARKETING SOCIETY
LTD.NO.C 325, KASARAGOD 671001.
2 THE MANAGING DIRECTOR,
KASARAGOD DISTRICT CO-OPERATIVE RUBBER,
MARKETING SOCIETY LTD.NO.C 325, KASARAGOD-671001.
3 THE PRESIDENT,
KASARAGOD DISTRICT CO-OPERATIVE RUBBER MARKETING SOCIETY
LTD.NO.C 325, KASARAGOD-671001.
4 THE JOINT REGISTRAR OF CO-OPERATIVE
SOCIETIES GENERAL, KASARAGOD-671 001.
5 REGISTRAR OF CO-OPERATIVE SOCIETIES,
THIRUVANANTHAPURAM-695001.
6 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF CO-OPERATION, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
R1 BY ADV. SRI.K.M.MUHAMMED HUSSAIN
R1 BY ADV. SMT.P.K.PRIYA
R1 BY ADV. SRI.K.V.SREE VINAYAKAN
R1 BY ADV. SRI.T.K.VIPINDAS
OTHER PRESENT:
GP SRI B HARISH KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.02.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.2001 OF 2012 -2-
JUDGMENT
Dated this the 1st day of February 2021
The present writ petition has been preferred on behalf
of Smt. Sheeja K.K., daughter of late Sri.Krishnan Nair,
claiming compassionate employment as her father, while
working as a regular employee in the Kasargod District Co-
operative Rubber Marketing Society, on 30.09.2005, died
in harness.
2. On account of the death of her father an
application for compassionate appointment was submitted
but she was not provided any regular employment on
compassionate grounds rather given an appointment only
for a period of 179 days to work as worker in Mangod
Farm of the Society. Awaiting compassionate regular
employment, under the impelling circumstances an
application dated 20.07.2010 was submitted. The 4 th
respondent issued a letter dated 18.12.2010 addressed to
the 2nd respondent by attaching a copy of the request of the
petitioner as evident from communication Ext.P1.
Expecting positive decision on the representation, which
did not yield any result, another representation dated
14.1.2011 was submitted, but it also followed the same
fate.
3. Learned counsel appearing on behalf of the
petitioner submits that the legal heirs of late Sri.Krishnan
Nair had given Ext.P4 affidavit pursuant to Ext.P3
communication, of no objection in case the petitioner was
given an employment under the compassionate
employment scheme.
4. To the utter surprise, the 1st and 2nd respondents
issued a letter dated 24.02.2011 informing that the Society
decided to close the Foam Factory under the Society at
Mangod. Document demanded in Ext.P8 i.e., the legal heir
certificate was supplied as evident from Ext.P9 but no
action had been taken after submission of representation
Ext.P10. This Court vide order dated 21.02.2012 directed
the respondents to consider the case of compassionate
appointment as expeditiously as possible within the period
specified therein, which was extended vide order dated 3 rd
of April, 2012.
5. Learned counsel for the 1st respondent society
submitted that the petitioner was not a dependent as
provided in the explanation to Rule 188 A of the Kerala Co-
operative Societies Rules, 1969 (hereinafter referred to as
'the Rules', for short) nor an application for compassionate
appointment was submitted within one year from the date
of father's death. Despite that, was given work in the
Foam Factory as a workman. The 1st respondent Society
was running three factories, i.e., 1) Latex Factory at
Mangod, 2) Coconut Processing Centre at Kannivayal and
3) Foam Factory at Mangod. The workers of the Foam and
Latex factories were not the employees of the Society but
were appointed as workmen. They were seeking the
benefits given to 'employees' and had approached the
District Labour Officer, Kasargod. A settlement agreement
Ext.R1(b) was arrived at, thus petitioner's father cannot be
treated as an 'employee' but the status would be of a
'workman'. The financial status of the Society is not good
in as much as the Foam Factory on account of the
accumulation of losses had already been closed down and
even a request to the Registrar for exempting the Society
from implementing the pay revision was submitted vide
Ext.R1(d). There is no post of 'attender' lying vacant for
accommodating the petitioner nor of 'workman'. It was
also pointed out that in compliance of the orders of this
Court a decision was taken on 23.04.2012, copy of which
is placed on record by annexing in memo dated
12.06.2012, which shows that since two factories had
closed down, her employment would be taken into
consideration as and when any vacancy arises.
6. Learned counsel for the petitioner rebutted that
the Coconut Processing Factory and Foam factory are still
working. Even the 4th respondent Joint Registrar of Co-
Operative Societies, represented by the learned
Government Pleader, acknowledged that the father of the
petitioner was working in Mangod Rubber Factory and it is
not a genuine reason to deny the petitioner's claim for
appointment in view of the provisions of Rule 188 A of the
Rules.
7. I have heard learned counsel for the parties and
appraised the paper books.
8. Rule 188 A of the 1969 Rules as it was in vogue
before the amendment as on 15.02.2020 whereby, mother
and father have also been inserted, envisage an
employment assistance to the dependents of an employee
died in harness. It would be axiomatic to reproduce Rule.
"[188A. Employment assistance to dependants of employee
dying in harness:-It shall competent for the committee of a Society
to appoint a person, who is a dependant of an employee who dies
while in service, subject to the following conditions, namely:-
84A [XXXX]
(a) the employment assistance shall be given only to one
dependant of the deceased employee and the appointment offered
and once accepted shall under no circumstances be allowed to be
changed;
(b) the application for appointment under this scheme shall be
made by the dependant within one year from the date of death of
the employee. Where the dependant happens to be a minor, the
application shall be submitted within a period of three years from
the date of his/her attaining the age of majority;
(c) the appointment under this scheme shall be extended only to
a post in the lowest grade of the particular category in respect of
which the normal method of appointment involves direct
recruitment.
(d) the appointment shall be consistent with the qualifications
prescribed in the rules;
(e) subject to the age of superannuation, the upper age limit
shall not apply in the case of widow/widower, and mother/father and
in the case of other dependants age limit prescribed in the rules
shall strictly be followed;
(f) if the applicant is the widow/widower of the deceased
employee, he/she shall not have remarried on the date of
application;
(g) the Board of Directors of the Society concerned shall adopt a
resolution to give appointment to the dependant of the deceased
employee;
(h) appointment shall be made only with the prior concurrence of
the Registrar of Co operative Societies.
Explanation:-For the purpose of this rule, "dependant" means any
member of the family of a deceased employee of a society who has
no independent means of livelihood and who was dependant on the
earnings of the deceased employee at the time of his/her death, for
his/her maintenance and "family" means and include the following
relative of the deceased employee in the order of priority as
indicated below:
(I) Widow/Widower (v) Sister
(ii) Son (vi) Father
(iii) Daughter (vii) Mother
(iv) Brother (viii) Nephew/Niece
(1) Where the Widow/Widower is not in a position to avail of the
benefit and where the children of the deceased employee are
minor, employment assistance will be given to any of other
dependants only with the consent of the widow/widower and where
the widower is not alive, with the consent of the guardian of the
minor children.
(2) Sons and daughters shall not include adopted son and
adopted daughters.
(3) Brothers and sisters shall not include step brothers and step
sisters, half brothers/half sisters.
(4) An unemployed married son or an unemployed married
daughter of the deceased employee, whose spouse is also
unemployed may also be considered for the assistance, provided
the other dependants of the deceased employee are being looked
after by him/her].
[(5) For employment assistance under this rule in respect of a
married son/a married daughter, the applicant shall produce a
certificate from the Tahsildar in whose jurisdiction the married son
or married daughter, as the case may be, resides to the effect that
he / she is devoid of any means of income and has been depending
on the deceased employee. But married son and married daughter
shall be included among dependants only if they are depending on
the deceased employee after their marriage also and on the
production of a certificate from the Tahsildar having jurisdiction over
the area to that effect]."
9. On a plain and simple reading of the
aforementioned Rule it is evident that an employee of the
Society would be given a compassionate appointment in
case earning member dies in harness. All the family
members have given an affidavit in favour of the petitioner
portrayed her to be dependent to claim employment.
There is no distinction of a 'worker' or any 'employee' as
sought to be projected on behalf of the respondents
particularly when two other factories are still in operation.
Respondents have not placed on record any material to
establish that the father of the petitioner was falling under
the definition of 'worker' as sought to be attempted for the
first time in writ petition nor have placed any additional
material in regard to the undertaking reflected in letter
dated 23.04.2012 attached to the memo dated 12.06.2012.
The highhandedness of the employer in not affording the
compassionate appointment and keeping it pending
cannot be appreciated by this Court rather is an act of
fallacy and aberration. The present writ petition for
claiming compassionate appointment is pending since
2012 and even the communication is of April, 2012, almost
eight years have gone by; but fate of the case is still
hanging fire, rather by this time there should have been an
appointment on compassionate ground and that the writ
petition should have been disposed of having rendered
infructuous but inaction on the part of respondents is writ
large.
10. For the reasons aforementioned, I am of the view
that it is a fit case where an appropriate writ in the nature
of mandamus is required to be issued commanding
respondents to employ petitioner on compassionate
employment in any one of the other two working factories
within a period of one month from the receipt of the
certified copy of the order and treat her appointment from
the date when application was submitted and kept
pending. The aforementioned direction is issued as this
Court is prevented of information regarding steps taken by
Society during the interregnum in filling the vacancies in
view of the workload or requirement. In case the
appointment letter is not issued within a period of one
month there shall be a cost of litigation of Rs.20,000/- to be
paid to the petitioner by the respondents.
Writ petition stands disposed of.
Sd/-
AMIT RAWAL
JUDGE
VV
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER DATED
18.12.2010.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED
14.1.2011.
EXHIBIT P3 TRUE COPY OF THE LETTER DATED
25.1.2011.
EXHIBIT P4 TRUE COPY OF THE DEED OF CONSENT DATED
17.1.2011.
EXHIBIT P5 TRUE COPY OF THE FAMILY MEMBERSHIP
CERTIFICATE DATED 11.2.2011.
EXHIBIT P6 TRUE COPY OF THE LETTER DATED
16.2.2011.
EXHIBIT P7 TRUE COPY OF THE LETTER DATED
24.2.2011.
EXHIBIT P8 TRUE COPY OF THE LETTER DATED
27.6.2011.
EXHIBIT P9 TRUE COPY OF THE LEGAL HEIR
CERTIFICATE.
EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED
3.8.2011.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1(A) THE TRUE COPY OF THE STAFF PATTERN
APPROVED BY THE REGISTRAR OF CO-
OPERATIVE SOCIETIES.
EXHIBIT R1(B) THE TRUE COPY OF THE SETTLEMENT ARRIVED
AT THE INSTANCE OF THE DISTRICT LABOUR
OFFICER, KASARAGOD.
EXHIBIT R1(C) THE TRUE COPY OF THE JUDGMENT IN WPC
23758/2011 DATED 4.4.2012.
EXHIBIT R1D TRUE COPY OF THE RESOLUTION OF THE
BOARD OF DIRECTORS DATED 4.8.2011.
