Anusree K.B vs The Fertilizers And Chemicals ...
2021 Latest Caselaw 2545 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

      FRIDAY, THE 22ND DAY OF JANUARY 2021 / 2ND MAGHA, 1942

                           WP(C).No.18886 OF 2020(I)


PETITIONER:

               ANUSREE K.B.
               AGED 32 YEARS
               W/O.ROOBAN P., RESIDING AT KRRA 36, MARIAMBIKA, EROOR
               SOUTH, THRIPPUNITHURA, ERNAKULAM DISTRICT - 682 306.

               BY ADVS.
               SRI.P.K.IBRAHIM
               KUM.SREEJI K.B.

RESPONDENTS:

      1        THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD. (FACT)
               REGISTERED OFFICE AT ELOOR, UDYOGAMANDAL (P.O.),
               KOCHI, KERALA, PIN - 683 501.
               REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR

      2        THE CHAIRMAN AND MANAGING DIRECTOR
               THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD. (FACT),
               REGISTERED OFFICE AT ELOOR, UDYOGAMANDAL (P.O.),
               KOCHI, KERALA, PIN - 683 501.

      3        THE GENERAL MANAGER (HR)
               THE FERTILIZERS AND CHEMICALS TRAVANCORE LTD. (FACT),
               REGISTERED OFFICE AT ELOOR, UDYOGAMANDAL (PO), KOCHI,
               KERALA, PIN - 683 501.

               R1-3   BY   ADV.   SRI.M.GOPIKRISHNAN NAMBIAR SC
               R1-3   BY   ADV.   SRI.K.JOHN MATHAI
               R1-3   BY   ADV.   SRI.JOSON MANAVALAN
               R1-3   BY   ADV.   SRI.KURYAN THOMAS
               R1-3   BY   ADV.   SRI.PAULOSE C. ABRAHAM
               R1-3   BY   ADV.   SRI.RAJA KANNAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD         ON
22.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.18886 OF 2020

                                      2




                                JUDGMENT

Dated this the 22nd day of January 2021

The petitioner says that she is the daughter of

Sri. K.S. Babu, who, while working as a Loading Helper in Cochin

Division of the respondent - Fertilizers And Chemicals Travancore

Ltd. (FACT), unfortunately died on 19-4-1995, due to an accident.

2. The petitioner says that at the time her father died,

she was only seven years in age, while her sister was three. She

says that she became a major on 4.1.2006, and that, though she

approached the FACT for employment under the Compassionate

Appointment Scheme, she was asked to study further to become

eligible for being appointed to a commensurate post; and that she,

therefore, made a further application on 16.3.2009, after

completing her studies - a copy of which has been placed on record

as Ext. P2. She says that along with this application, a proforma,

as required by the FACT, was also annexed - a copy of which is Ext.

P3 in this writ petition.

3. The petitioner submits that, thereafter, an

interview was conducted by the competent Authority of FACT in

2010 and that, through Ext. P4 letter, she was asked to fill up a WP(C).No.18886 OF 2020

format and return to the Deputy Chief Manager of the Company not

later than 30.11.2011. She says that she obeyed this direction and

submitted Ext. P5, but that, she was, thereafter, called by a certain

Shri. George Mathew, a Senior Officer of the FACT, on 4.3.2012 and

asked whether she will be willing to work on daily wages, to which

she replied in the affirmative, since her family was going through

extreme financial crisis even at that time.

4. The petitioner says that, since she received no

further communications from the FACT, she preferred several

reminders, including Ext. P7; but that, subsequently, Ext. P8 order

was issued to her, rejecting the claim saying that her name is not

included in the list of dependents furnished by her father; that she

was already married, thus being ineligible for being appointed; and

that her family was not suffering from any penury, because her

mother was working as a Junior Health Nurse.

5. The petitioner says that she was, therefore,

constrained to challenge Ext. P8, by filing W.P. (C) No.11234/2018

before this Court and that a learned Single Judge, after noticing the

applicable norms for appointment under the Dying-in-harness

Scheme of the Company, declared in Ext. P10 judgment that

merely because the petitioner was married at the time when WP(C).No.18886 OF 2020

Ext. P8 had been issued, it was no ground to reject her application,

since, concededly, at the time when she made her first application,

she was not. She says that the learned Judge, thereupon, directed

the FACT to consider the application treating her as a dependent of

the deceased, not withstanding the fact that she was married and

to pass orders within a period of one month from the date of

receipt of a copy of the said judgment. She points out that,

pertinently, while directing as afore, the learned Judge also found

that the contentions of the FACT-that the application of the

petitioner was belated and that her mother was employed-would be

not sufficient enough to deny her appointment and that the views

of this Court are available in Paragraphs 9 and 10 of the said

judgment.

6. The petitioner says that notwithstanding the

specific directions above, the FACT has now issued Ext. P11 order

rejecting the application, again saying that her mother was

gainfully employed with the Kerala State Health Services

Department at the time of her father's death; and further that

more than 24 years has elapsed after his death. The petitioner

asserts that Ext. P11 is contemptuous in nature and has been

issued in scant regard for the authority of this Court in Ext. P10 WP(C).No.18886 OF 2020

judgment. She, therefore, prays that this writ petition be allowed

and the FACT be directed to appoint her to an available vacancy.

7. I have heard Shri. P.K. Ibrahim, learned counsel

appearing for petitioner and Shri. Jay Mohan, learned counsel

appearing for the FACT.

8. Shri. Jay Mohan, in refutation of the submissions

made on behalf of the petitioner by Shri. P.K. Ibrahim as afore,

submitted that Ext.P11 is irreproachable, since it has been issued

strictly in terms of the norms applicable to the Company for

compassionate appointment, namely Ext. P9. He added that, in

fact, the directions in Ext. P10 judgment were to the effect that the

FACT must consider the petitioner's application in terms of the said

Scheme and therefore, that as long as Ext.P11 order has been

issued in strict adherence to the same, the petitioner cannot

challenge it. He explained that, as per the Scheme, the competent

Authority of the FACT was to apply the primary test whether the

employee was the sole bread-winner; and that since it is conceded

that the petitioner's mother was already working as a Nurse in the

Health Department, she would not be entitled to seek any relief

under the said Scheme. He then submitted that even though

Ext. P11 talks about 24 years of delay after the death of the WP(C).No.18886 OF 2020

petitioner's father, said aspect by itself was not the reason why her

application has been rejected, but that it has been mentioned only

as a corollary factor. He, therefore, prayed that this writ petition be

dismissed.

9. I have considered the afore submissions and have

also examined the materials available on record, especially

Ext. P10 judgment, very carefully.

10. It is luculent that Ext. P10 judgment had been

issued in a writ petition filed against Ext. P8 order issued by the

FACT, initially rejecting the petitioner's claim. The reasons stated

therein were that the petitioner was not included in the list of

dependents of late K.S. Babu and only the names of Ms.Sreekutty

Babu and Ms. Sreeji Balaji were shown in it; and that she is, in any

event, disentitled to the benefit of the Scheme because she had

already been married. However, while setting aside Ext. P8, the

learned Single Judge assessed Ext. P9 norms in detail to hold that

merely because the petitioner had been married when the

application was considered in the year 2018, it would not disentitle

her for being considered for employment under the Scheme; and

that her apparant non-inclusion in the list of dependents was not

tenable because she is called as "Sreekutty" by her parents and WP(C).No.18886 OF 2020

that there is no doubt that late K.S. Babu had no other children

other than she and her sister.

11. It is in the above perspective that the learned

Single Judge directed the FACT to reconsider the petitioner's

application, treating her as the dependent of deceased K.S. Babu,

notwithstanding that she is married. However, while directing so,

the learned Single Judge had made it very clear that the delay

between the petitioner's father's death and when her application is

considered would be of no relevance, because the FACT had

delayed issuance of Ext. P8 for more than eight years, after the

petitioner had made the application; and further that, even if the

petitioner's mother had been gainfully employed at the time when

her father died, that by itself, would not be a reason to reject her

application, since, going by Ext. P9 norms, the imperative factors

like what is the extent of financial distress in the family, the

number of dependent family members, their age and employment,

are to be considered, for which purpose the primary test may be to

see whether deceased employee was the sole bread winner.

12. That said, the reasons now stated in Ext. P11 are

completely at variance to what had been directed in Exhibit P8. In

this order, even though the FACT maintains that deceased father of WP(C).No.18886 OF 2020

the petitioner was not the sole bread winner, it is also added that

the petitioner's application cannot be considered since it has been

now more than 24 years after he died.

13. I am afraid that I cannot find favour with what is

stated in Ext. P11, for the reasons that I will presently indite.

14. When one examines Ext. P9 norms applicable for

compassionate appointment, it is obvious - which is also admitted

by the FACT - that an assessment of the applications has to be

made in terms of the criteria mentioned therein, one of such being

available in Clause II (2), which reads as under:

"The extent of financial distress in

the family, the number of dependent family

members, their age and employment position

should be considered. The primary test will

be whether the employee was the sole

breadwinner or not."

15. It is, therefore, obvious that the norms are clear

that the FACT must assess the extent of financial distress of the

family, the number of dependent family members, their age and

employment position; and that while doing so, the primary test will

be whether deceased employee was the sole bread winner. There

can be little doubt that by these stipulations, what is intended is WP(C).No.18886 OF 2020

that financial distress of the family at the time when the employee

died is to be assessed, for which the above "primary test" will also

have to be applied. Therefore, when such assessment is made,

applying the test of "sole bread winner", the FACT ought to have

carefully evaluated whether, at the time when K.S. Babu died, his

family was in penury in spite of the employment of his wife, namely

the petitioner's mother. This is pertinently relevant because the

petitioner says that her mother was drawing only Rs. 1,500/- as

salary and therefore, that the family was in grave financial

distress, especially because there were two young children of

school going age to be taken care of. In fact, Shri. P.K. Ibrahim

adds that the family is still living in a rented house and that there

is also an aged grandmother to be looked after.

16. However, the above acme aspects have never been

considered while issuing Ext. P11; but, the General Manager has

found it very convenient to reject the petitioner's application

merely saying that, at the time when her father died, he was not

the sole bread winner.

17. I am afraid that, the contents of Ext. P11 order are

perilously in disregard to the directions in Ext. P10 judgment, since

even if the deceased father of the petitioner was not the sole bread WP(C).No.18886 OF 2020

winner, the FACT had been specifically directed to consider whether

the financial distress of the family, in spite of the fact that the

petitioner's mother was employed, was grave enough to warrant

grant of employment to her. This, not having been done in

Ext. P11, it cannot find my favour.

18. Moving on, the other reason stated in Ext. P11, as

already stated above, is that more than 24 years have elapsed

after the death of the employee and therefore, that the request of

the petitioner cannot be considered. Shri. Jay Mohan tried his best

to support this reasoning by citing several precedents in support of

the proposition that what is relevant, for the purpose of

compassionate appointment - which is not a regular mode of

appointment, is that the family should have been in severe distress

at the time when the application was made. Shri. Jay Mohan

submitted that the petitioner had made her application only in the

year 2009, more than 14 years after her father died in the year

1995 and therefore, that this by itself, would disentitle the

petitioner to any relief. He further submitted that what is stated in

Ext. P11 is only that since it is now more than 24 years after

K.S. Babu died, the family cannot be construed to be in distress

and therefore, that no employment can be given at this time. WP(C).No.18886 OF 2020

19. Even though, the submissions of Shri. Jay Mohan,

are - in an abstract sense - irrefutable, when it is applied to the

facts of this case, it certainly would obtain no support. I say this

because it has already been held in Ext. P10 judgment that the

objection of the FACT, edificed on the aspect of delay, would be of

no force because they themselves had taken about eight years to

reject the first petitioner's application through Ext. P8 order, after

she had been interviewed in the year 2008.

20. That being said, the admitted fact remains that the

petitioner's application was accepted by the FACT, when it was

made in the year 2009 and that she was interviewed in the year

2010 and then asked to submit Ext. P5 proforma, through Ext. P4

letter, which was issued on 24.11.2011. While issuing the said

letter the FACT was certainly aware that the petitioner's father had

died on 19.4.1995 and they could have easily rejected her

application at that time for this reason. However, they did not do

so, but asked the petitioner to submit Ext. P5 proforma; and it is

stated by the petitioner that, on 4.3.2012, a certain officer by

name Shri. George Mathew called her and offered her employment

on daily wages, which also do not thereafter fructify. Of course,

Shri. Jay Mohan denies this, but the fact is that Ext. P8 order was, WP(C).No.18886 OF 2020

thereafter, issued only in the year 2018, more than eight years

after the petitioner had been concededly interviewed. When,

Ext.P10 judgment pejoratively found against the FACT and

directed them to reconsider the petitioner's application de hors the

objection of delay, I fail to understand how the General Manager

could have issued Ext. P11 saying that more than 24 years had

elapsed after the death of the employee.

Resultantly, I order this writ petition and set aside Ext.

P11 order; and direct the competent Authority of the FACT to

reconsider the petitioner's claim strictly in terms of the

observations and directions in Ext. P10 judgment and take a fresh

decision on her application for compassionate appointment as

expeditiously as is possible, but not later than one month from the

date of receipt of a copy of this judgment.

After I dictated this part of the judgment, Shri. P.K.

Ibrahim submitted that his client is even willing to accept a Class

III or Class IV post if it is offered to her. I, therefore, leave it to the

competent Authority of the FACT to keep this in mind when the

afore directed exercise is completed.

Sd/-

DEVAN RAMACHANDRAN JUDGE SMF/25.01 WP(C).No.18886 OF 2020

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE AWARD DATED 16/11/2001 IN OP(MV) NO.2224/1996.

EXHIBIT P2 TRUE COPY OF APPLICATION DATED 16/03/2009 SUBMITTED BY THE PETITIONER CLAIMING EMPLOYMENT UNDER DYING IN HARNESS SCHEME.

EXHIBIT P3 TRUE COPY OF THE PROFORMA SUBMITTED BY THE PETITIONER.

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 24/11/2011 RECEIVED FROM THE OFFICE OF THE 1ST RESPONDENT.

EXHIBIT P5 TRUE COPY OF THE DETAILS FURNISHED BY THE PETITIONER IN RESPONSE TO EXHIBIT P4 COMMUNICATION.

EXHIBIT P6               TRUE COPY OF THE LETTER OF
                         PROF.P.J.KURIAN, THE DEPUTY CHAIRMAN,
                         RAJYA SABHA ADDRESSED THE CMD OF THE 1ST
                         RESPONDENT DATED 24/12/2013.

EXHIBIT P7               TRUE COPY OF THE REPRESENTATION OF
                         PETITIONER TO 1ST RESPONDENT DATED
                         26/12/2013.

EXHIBIT P8               TRUE COPY OF THE COMMUNICATION DATED
                         12/02/2018 REJECTING THE CLAIM MADE IN
                         2009 FOR EMPLOYMENT UNDER DYING IN
                         HARNESS SCHEME.

EXHIBIT P9               TRUE COPY OF THE NORMS DATED 25/02/1980
                         FRAMED BY THE 1ST RESPONDENT.

EXHIBIT P10              TRUE COPY OF THE JUDGMENT DATED
                         13/11/2019 IN WP(C) NO.11234/2018.

EXHIBIT P11              TRUE COPY OF THE ORDER DATED 12/12/2019
                         PASSED BY THE 1ST RESPONDENT.

                              //TRUE COPY
                              PA TO JUDGE