K.V.Georgekutty vs The State Of Kerala
2021 Latest Caselaw 6691 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

   THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942

                       WP(C).No.2044 OF 2021(E)


PETITIONER:

               K.V.GEORGEKUTTY
               AGED 60 YEARS
               S/O.VARKEY, KURISSUMOOTTIL HOUSE, KALADY P.O.,
               MATTOOR, ERNAKULAM - 683 574.

               BY ADVS.
               SRI.C.R.SYAMKUMAR
               SRI.SOORAJ T.ELENJICKAL
               SRI.P.A.MOHAMMED SHAH
               SRI.K.ARJUN VENUGOPAL
               SHRI.ASWIN KUMAR M J
               SMT.HELEN P.A.
               SHRI.ARUN ROY
               SRI.SHAHIR SHOWKATH ALI

RESPONDENTS:

      1        THE STATE OF KERALA
               REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
               THIRUVANANTHAPURAM, PIN - 695 001.

      2        THE KERALA STATE BAMBOO CORPORATTION
               REPRESENTED BY ITS MANAGING DIRECTOR, P.B.NO.20,
               ANGAMALY SOUTH, ERNAKULAM - 683 573.

      3        THE MANAGING DIRECTOR
               KERALA STATE BAMBOO CORPORATION, P.B.NO.20, ANGAMALY
               SOUTH, ERNAKULAM - 683 573.

               R2-3 BY ADV. SMT.LATHA ANAND

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-02-
2021, THE COURT ON 25-02-2021 DELIVERED THE FOLLOWING:
 WP(C).No.2044 OF 2021(E)

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                           ANU SIVARAMAN, J.
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                         W.P.(C).No.2044 of 2021
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                 Dated this the 25th day of February, 2021

                                  JUDGMENT

This writ petition is filed seeking the following reliefs:

"i) Call for the entire records leading up to Exhibit P9 relating to the proposed recruitments and to quash the same by the issuance of a writ of certiorari or other appropriate writ direction or order;

ii) To declare that the 2nd respondent may conduct the fresh recruitment process only after the improvement in its financial position and payment of the pending dues to all its employees, retired employees and the statutory authorities;

iii) To issue a writ of mandamus or other appropriate writ direction or order directing the 2nd and 3rd respondents to defer the recruitment process now initiated as per Exhibit P9 till the financial situation of the 2nd respondent is improved and the pending dues to its employees, retired employees and also the statutory payments and contributions are paid by the 2nd respondent;"

2. Heard the learned counsel for the petitioner, the learned

senior counsel appearing for respondents 2 and 3 and the learned

Government Pleader.

WP(C).No.2044 OF 2021(E)

3. It is submitted by the learned counsel for the petitioner that

the petitioner was a permanent employee of the 2 nd respondent-

Corporation and had retired from service on 31.03.2018. It is stated

that due to the huge losses suffered by the Corporation, the

Corporation has been unable to pay the Provident Fund

contributions as also the retirement benefits due to its employees. It

is stated that without making the statutory payments due to the

employees and the retired employees of the Corporation, the

Corporation has been taking steps for engaging more employees. It

is stated that notifications have now been invited for appointment

to the posts of Marketing Mangers, Finance Managers, Mechanical

Engineers, Civil Engineers as well as other workers in the

Corporation.

4. It is submitted by the learned counsel for the petitioner that

the issue with regard to the non payment of statutory dues has

obtained the attention of this Court and several writ petitions have

been disposed of directing the payment of amounts due to retired

employees of the Corporation. It is stated that the actions of the

respondents are completely vitiated by extraneous considerations as WP(C).No.2044 OF 2021(E)

would be evident from Ext.P12 newspaper report.

5. A detailed counter affidavit has been placed on record by the

respondents. It is submitted that the petitioner, who is a retired

employee of the Corporation would have no locus standi to maintain

a writ petition of this nature. It is stated that the question with

regard to payment of gratuity to the petitioner has been considered

by this Court and the Corporation had been directed to make the

payments to the petitioner and other employees, who were the

petitioners in WP(C) No.504 of 2021 within three months. It is

submitted that appropriate steps to make the payments are being

taken by the Corporation. It is further submitted that a public

interest litigation filed as WP(C) No.4149 of 2021 seeking the same

relief had been considered by a Division Bench of this Court and had

been dismissed. It is further submitted at paragraph 8 of the counter

affidavit of respondents 2 and 3 as follows:

8. While the matters stood so, the new Managing Director took charge

in the year 2017. After preliminary evaluation of the situation

prevailing in the corporation it was decided by the new management

that unless certain positive steps are taken in the 2 nd respondent WP(C).No.2044 OF 2021(E)

corporation the very sustenance of the corporation itself will be under

threat. But at the same time the corporation will have to clear all the

dues to the retired employees. These thoughts culminated in various

studies conducted by the 2nd respondent corporation at various levels.

In fact the core issues were discussed with the State Government as

well. It was found that the corporation was all along working with a

turnover of 12 crores for the past many years and the study also

revealed that if the turnover is not increased urgently, the

corporation will have to be shut down. The studies by the financial

experts brought out the fact that unless the turnover is increased to

27 crores, the corporation will not be able to sustain itself. For this

there should be various developmental activities to be undertaken by

the corporation in order to increase the turnover of the 2 nd

respondent. Accordingly, in the year 2018 the 2 nd respondent

submitted 11 new projects to Government of India through Kerala

State Bamboo Mission. Copy of the submission made by the

corporation to Government of India through Kerala State Bamboo

Mission is produced herewith and marked as Exhibit R2(b). The

Government of India sanctioned 11 projects giving the details of the

means of finance. Copy of the proceedings of the sanctioning order of WP(C).No.2044 OF 2021(E)

the Government of India is produced herewith and marked as Exhibit

R2(c). Among the 11 projects sanctioned, the 2 nd respondent started

high density bamboo plantation, establishment of processing units for

value addition for valued units CMWC'S, incense stick making unit,

establishment of bamboo bazaars. As regard other projects steps are

already afoot, with the financial assistance provided by the

government. Thus the corporation with the assistance of the funds

provided by the Central Government and the State Government have

substantially proceeded towards its developmental activities in order

to increase the turn over so that the 2 nd respondent can stand on its

own feet and at the same time look after the welfare of traditional

bamboo workers. Copy of the notice showing the inauguration of

Incense Stick Unit is produced herewith and marked as Exhibit

R2(d). Copy of the notice showing the product launch Bamboo Neem

tile is produced herewith and marked as Exhibit R2(e). Copy of the

notice showing the inauguration Kumarakam bamboo bazar Exhibit

R2(f). Community MAT weaving centre CMWC Cheranallor and

Chully is produced herewith and marked as Exhibit R2(g) and

Exhibit R2(h). Thus in short it is submitted that the 2nd respondent is

striving to increase the turnover by increasing the activities so as to WP(C).No.2044 OF 2021(E)

have a safe, self-sustained mode as suggested by various studies in

this regard. The government have also granted sanction to

manufacture office stationary using bamboo items. The Government

has also offered to purchase the bamboo-stationary. Copy of the order

of the State Government is produced herewith and marked as Exhibit

R2(i).

6. The learned Government Pleader would also contend that

the Bamboo Development Corporation was never intended as a

profit making organization and that the Corporation was intended

only to promote the welfare of the traditional workers in the

industry. It is submitted that the decision to make appointments

within the sanctioned strength of employees was taken after due

deliberations and after considering all relevant aspects. It is

submitted that the petitioner can have no locus standi to challenge

the said effort. Learned Government Pleader would also submit that

the petitioner's interest is only to see that the amounts due to him

as retirement benefits are paid. It is submitted that Ext.P11

judgment already governs the issue and that the petitioner can have

no further contentions with regard to the method of administration WP(C).No.2044 OF 2021(E)

of the 2nd respondent-Corporation. It is submitted that the

Government is taking all necessary steps to see that the Corporation

is conducted without incurring further losses and that the

appointments are absolutely essential for the functioning of the

Corporation.

7. Though the petitioner has placed a reply affidavit on record

raising allegations of mala fides in extraneous considerations, I find

that the substantial grievance of the petitioner stands redressed by

Ext.P11 judgment. The further issue with regard to making of

appointments in the Corporation is a matter which has to be

considered by the 1st and 2nd respondents in accordance with law.

8. The Division Bench of this Court had occasioned to consider

the issue in WP(C) No.4149 of 2021 which was filed by an Advocate,

who is the General Secretary of the Bamboo Board Factory Workers'

Union. After considering the identical contentions, it was found that

reduction of the work force in 2011 cannot be a reason to contend

that there should be no recruitment in 2021. Financial constraints of

the Corporation and litigations between the Corporation and its

employees would also not be a ground for seeking an interdiction WP(C).No.2044 OF 2021(E)

against appointment to sanctioned posts. With regard to the

allegations of bias in extraneous considerations also it was found

that newspaper reports cannot form the basis of any finding of bias

or extraneous consideration. It was therefore held that the finding

of bias is also not substantiated.

In the light of the said judgment, the counter affidavit placed

on record by the respondents and the contention that the

Government is taking all appropriate steps to see that the

Corporation meets its financial obligations, I am of the opinion that

the prayers sought for in this writ petition cannot be granted.

The writ petition fails and the same is, accordingly, dismissed.

Sd/-

ANU SIVARAMAN JUDGE SVP WP(C).No.2044 OF 2021(E)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE JUDGMENT IN W.P.(C) 2624 OF 2019 DATED 29/01/2019.

EXHIBIT P2 THE TRUE COPY OF THE ORDER IN R.P.450 OF 2019 DATED 03/07/2019.

EXHIBIT P3 THE TRUE COPY OF THE STATEMENT FILED BY THE 3RD RESPONDENT DATED 12/03/2019.

EXHIBIT P4 THE TRUE COPY OF ONE SUCH REPORT AS APPEARED IN THE MATHRUBHOOMI DAILY ON 19/09/2020.

EXHIBIT P5 THE TRUE COPY OF HE REQUISITION FOR THE RECOVERY OF THE AMOUNT DUE TO THE PETITIONER DATED 15/12/2020 REQ.NO.2020/6964/07.

EXHIBIT P6 THE TRUE COPY OF REQUSIITION DATED 15/12/2020 REQ.NO.2020/6963/07.

EXHIBIT P7 THE TRUE COPY OF REQUISITION DATED 25/11/2020 REQ.NO.2020/6961/07.

EXHIBIT P8 THE TRUE COPY OF THE ADVERTISEMENT MADE IN THE MATHRUBHOOMI DAILY DATED 13/01/2021.

EXHIBIT P9 THE TRUE COPY OF DETAILS OF THE POSTS INCLUDING THE NUMBER OF PERSONS TO BE APPOINTED AS ALSO THE QUALIFICATIONS AND REMUNERATION ETC ARE AVAILABLE ONLY IN THE WEB SITE OF THE 2ND RESPONDENT.

EXHIBIT P10 PHOTOCOPY OF PROFILE OF THE 2ND RESPONDENT IN 2012

EXHIBIT P11 PHOTOCOPY OF THE JUDGMENT IN WP(C) 504/2021 DATED 25.01.2021

EXHIBIT P12 A PHOTOCOPY OF THE PRESS STATEMENT FURNISHED BY THE CHARIMAN PUBLISHED IN THE MALAYALA MANORAMA DAILY DATED 09.02.2021 WP(C).No.2044 OF 2021(E)

RESPONDENT'S/S EXHIBITS:

EXHIBIT R2A TRUE COPY OF THE LIST OF EMPLOYEES FROM 2010 TO 2020

EXHIBIT R2B TRUE COPY OF THE SUBMISSION MADE BY THE BAMBOO CORPORATION TO GOVERNMENT OF INDIA THROUGH KERALA STATE BAMBOO MISSION

EXHIBIT R2C TRUE COPY OF THE PROCEEDINGS OF THE SANCTIONING ORDER OF THE GOVERNMENT OF INDIA DATED 19.11.2018

EXHIBIT R2D TRUE COPY OF THE NOTICE SHOWING THE INAUGURATION OF INCENSE STICK UNIT

EXHIBIT R2E TRUE COPY OF THE NOTICE SHOWING THE INAUGURATION OF PRODUCT LAUNCH BAMBOO NEEM TILE

EXHIBIT R2F TRUE COPY OF THE NOTICE SHOWING THE INAUGURATION OF KUMARAKAM BAMBOO BAZAR

EXHIBIT R2G TRUE COPY OF THE NOTICE SHOWING THE INAUGURATION OF COMMUNITY MAT WEAVING CENTRE CMWC CHERANALLOR

EXHIBIT R2H TRUE COPY OF THE NOTICE SHOWING THE INAUGURATION OF COMMUNITY MAT WEAVING CENTRE CMWC CHULLY

EXHIBIT R2I TRUE COPY OF THE GOVERNMENT ORDER NO.1707/2020/LSGD DATED 22.9.2020.