Petitioner sought regularization as an Attender instead of a Worker challenging an order declining his claim. The court held that mere references in correspondence do not establish a right to a specific post, and without a legal provision conferring such right, the court dismissed the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 20TH DAY OF JULY 2016/29TH ASHADHA, 1938
WP(C).No. 9857 of 2014 (F)
PETITIONER:
P P KANNAN,
PUNNAVELIYIL, SOUTH ARYAD, AVALOOKUNNU P.O., ALAPPUZHA - 686 006.
BY ADVS.SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY
RESPONDENTS:
1. THE KERALA STATE CO-OPERATIVE COIR MARKETING FEDERATION LTD. NO.679 (COIRFED), P.B.NO.4616, ALAPPUZHA - 688 012, REPRESENTED BY ITS MANAGING DIRECTOR.
2. THE BOARD OF DIRECTORS (ADMINISTRATIVE COMMITTEE) THE KERALA STATE CO-OPERATIVE COIR MARKETING FEDERATION LTD. NO.679 (COIRFED), P.B.NO.4616, ALAPPUZHA - 688012, REPRESENTED BY ITS CONVENER.
3. THE MANAGING DIRECTOR, THE KERALA STATE CO-OPERATIVE COIR MARKETING FEDERATION LTD. NO.679 (COIRFED), P.B.NO.4616, ALAPPUZHA - 688012.
BY ADVS. SMT.V.P.SEEMANDINI (SR.) SRI.JOBY CYRIAC, SC, COIRFED
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/7/2016 THE COURT ON 20-07-2016,DELIVERED THE FOLLOWING:
PJ
WP(C).No. 9857 of 2014 (F)
APPENDIX
PETITIONER(S)' EXHIBITS
| ----------- EXHIBIT P1 |
---- : |
-------- TRUE PHOTOCOPY OF THE JUDGMENT DATED 21.12.2006 IN WP(C) NO.37271/2003 |
|---|---|---|
| EXHIBIT P2 | : | TRUE PHOTOCOPY OF THE REPRESENTATION DATED 20.06.2011 |
| EXHIBIT P3 | : | TRUE PHOTOCOPY OF THE JUDGMENT DATED 05.10.2012 IN WP(C) NO.21038/2011 |
| EXHIBIT P4 | : | TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 13.12.2012 |
| EXHIBIT P5 | : | TRUE PHOTOCOPY OF THE MINUTES OF THE MEETING OF THE 2ND RESPONDENT HELD ON 19.01.2013 |
| EXHIBIT P6 | : | TRUE PHOTOCOPY OF THE COMMUNICATION BEARING NO.CF/PD/E1/4225/12-13/1521 DATED 25.02.2013 |
| EXHIBIT P7 | : | TRUE PHOTOCOPY OF THE JUDGMENT DATED 31.05.2013 IN WP(C) NO.7807/2003(A) |
| EXHIBIT P8 | : | TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT BEARING ORDER NO.CF/PD/E1/4225/875 DATED 12.09.2013 |
| EXHIBIT P9 | : | TRUE PHOTOCOPY OF THE REPRESENTATION DATED 05.10.2013 BEFORE THE 3RD RESPONDENT |
| EXHIBIT P10 | : | TRUE PHOTOCOPY OF THE JUDGMENT DATED 26.11.2013 IN WP(C) NO.28473/2013(H) |
| EXHIBIT P11 | : | TRUE COPY OF THE ORDER BEARING NO.CF/PD/E1/4225/1524 DATED 22.02.2014 |
| EXHIBIT P12 | : | TRUE PHOTOCOPY OF THE APPLICATION DATED 19.01.2014 SUBMITTED BY THE PETITIONER THROUGH ONE OF HIS FRIEND |
| EXHIBIT P13 | : | TRUE PHOTOCOPY OF THE REPLY BEARING NO.C.F./I.O/4925/13-14/1406 DATED 27.01.2014 |
| EXHIBIT P14 | : | TRUE PHOTOCOPY OF THE ORDER BEARING NO.C.F/P.D/P.I/3071/819 DATED 05.09.2012 OF THE 2ND RESPONDENT |
| EXHIBIT P15 | : | TRUE PHOTOCOPY OF THE MEMO BEARING NO.E1/4849/66/93DATED 10/4/2006 ISSUED BY THE R2 |
| EXHIBIT P16 | : | TRUE COPY OF THE REPLY DATED 9/3/15 |
| EXHIBIT P17 | : | TRUE COPY OF THE ORDER DATED 1/12/11. |
| PJ | .....2/- |
..2..
WP(C).No. 9857 of 2014 (F)
RESPONDENT(S)' EXHIBITS
EXHIBIT R1: TRUE COPY OF THE ORDER DATED 18/5/11.
/ TRUE COPY /
P.S. TO JUDGE
PJ
SHAJI P. CHALY, J.
W.P.(C). No.9857 of 2014
----------------------------------------------Dated this the 20th day of July, 2016
JUDGMENT
This writ petition is filed by the petitioner seeking to quash Ext.P11 order passed by the 3rd respondent whereby the reliefs sought for by the petitioner to regularize the petitioner as Attender instead of Worker in the 1st respondent establishment is declined, and other related reliefs.
W.P.(C). No.9857 of 2014
2
resolution, which was challenged in W.P.(C) No.7807/2013. As per Ext.P7 judgment, this court quashed Ext.P5 resolution and declared the right of the petitioner for regularization in service.
W.P.(C). No.9857 of 2014
3
consider Ext.P9 on merits and to pass orders within a time frame. However, the 2nd respondent without considering the claims of the petitioner in a proper perspective rejected Ext.P9 representation vide Ext.P11 order. It is thus aggrieved by Ext.P11, petitioner has filed this writ petition.
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to his appointment as Attender and the absence allegedly on the basis of leave was denied by the respondents, and contended that the petitioner was unauthorizedly absent. It is contended that, the reliefs sought for by the petitioner is not on the basis of any statutory backing. Petitioner could not point out any of the statutory provisions of the Kerala Cooperative Societies Act and Rules in order to claim the regularization of service as an Attender. That, petitioner has not made out any case with respect to any breach of statutory or public duty and therefore, as per the judgment laid down by a Larger Bench of this court in Association of Milma Officers v. State of Kerala [2015(1) KLT 849], the writ petition is not maintainable. It is also contended that, petitioner is having an alternative statutory remedy in this regard as provided under the Act, 1969. According to the respondents, petitioner was appointed only as a Worker and therefore, the claim of the petitioner that, he was appointed as an Attender is a question of fact and the petitioner has not produced any evidence to substantiate his contention in this
W.P.(C). No.9857 of 2014
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regard. The averments of the petitioner with respect to continuous uninterrupted service in various offices of the 1st respondent in Alappuzha District is also disputed. As per the standing orders prevailed in the Federation, if the absence of an employee is for a period exceeding 3 days, production of a medical certificate is required and in case ESI schedule is applicable, a certificate is to be produced from the concerned ESI Doctor. Even though petitioner was eligible for ESI Scheme, he did not produce such medical certificate from the ESI Doctor. Therefore, absence of the petitioner can be treated only as an unauthorized absence with service break. Petitioner has not obtained any previous sanction from the respondents for such a long leave.
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the contention of the respondents that unintentional clerical mistake cannot be resorted to, to establish the right claimed by the petitioner. That apart, there is no approved post of Attender in the Unit, wherein petitioner now employed as a Worker. It is also submitted that the post of Watchman and Peon is not an entry level post and appointment to the post of Watchman can be made only through PSC. That direct appointment can be effected only to the post of Worker and Furnishing Worker by the Federation. Yet another contention raised by the respondents is that, petitioner has palpably failed to produce any documentary evidence to establish his claim and therefore, remedy available is to approach the Cooperative Arbitration Court, which is empowered to adjudicate this issue. Therefore, respondents seek dismissal of the writ petition.
stand taken in the writ petition. With respect to the statements made by the respondents concerning the Larger Bench of this court cited supra, it is contended that
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appointment of the petitioner as a Worker in the establishment of the 1st respondent was consequent to a direction issued by this court in Ext.P5 judgment, in which respondents herein were parties. The respondents were parties to Exts.P1 and P3 judgments also and therefore, after three judgments referred to above, the respondents cannot be heard to contend that a writ petition under Article 226 of the Constitution of India is not maintainable against them. That apart it is also contended that 1st respondent is an Apex Cooperative Society of the Coir Societies in the State, as defined under Rule 15(5) of the Kerala Co-operative Societies Rules, 1969. Therefore, as per the approved bye-laws of the 1st respondent, the Government has deep and pervasive control over its administration and management. That apart, a sizable number among the Board of Directors are the nominees of the Government. So also the Director of the Coir Board, who is incidentally the Registrar of Coir Co-operative Societies, is also a member of the Board of Directors of the 1st respondent society and the Secretary to Government, Industries Department is
W.P.(C). No.9857 of 2014 8
another Director of the 1st respondent. Therefore, it is contended that 1st respondent is an 'other authority' defined under Article 12 of the Constitution of India and therefore, amenable to writ jurisdiction.
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9
Attender. That in spite of having completed more than 1 year in the post, the respondents have not declared the probation and on enquiries made in this regard, it is revealed that the number of workers under the establishment of the 1st respondent exceeds the sanctioned strength of the workers and therefore, declaration of probation is withheld. It is also contended that, sanctioned strength of Attender is 36 and as evident from Ext.P13 communication there are only 17 Attenders working under the 1st respondent and therefore, there is no impediment for the respondents to regularize the petitioner in the post of Attender.
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petitioner cannot as of right claim that he is entitled to get regularized in the post of Attender. Petitioner has also produced Exts.P16 and P17 along with an affidavit to establish that recruitment rule was not approved by the PSC and further that appointments to various posts are made by the 1st respondent itself, evident from Ext.P17 dated 1.12.2011.
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Attender. It is further argued that Ext.P4 reveals that, petitioner was appointed as an Attender in the service of the Coir Fed on 6.9.1999 on daily wage basis. Therefore, taking into account the documents referring the petitioner as Attender, it is contended by the learned counsel that the same are conclusive proof for the claim made by the petitioner that petitioner is entitled to get regularization as Attender with the 1st respondent.
W.P.(C). No.9857 of 2014
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is further submitted that, even though in certain reference of the 1st respondent, status of the work carried out by the petitioner is shown as 'Attender', that by itself is not a conclusive proof to establish that, petitioner is entitled to get his service regularized as Attender. That, the nature of duty carried out by the petitioner is as that of a daily rated worker and if at all he is referred to as Attender, that by itself is not a decisive factor. The decisive factor is the nature of work carried out by the petitioner. That per Ext.P1 judgment, where petitioner was the 9th petitioner, only a direction was issued to the Government to consider the representation submitted by the petitioners seeking regularization. That apart it is also urged that, petitioner was absented from duty and while 49 workers were regularized the petitioner was not in the service of the 1st respondent. It is in that circumstances only petitioner has submitted Ext.P2 representation seeking to regularize the petitioner as that of 49 workers. It is also contended that, remedy available to the petitioner is under Section 69(2) of Act, 1969. Therefore, respondents seek dismissal of the writ petition.
W.P.(C). No.9857 of 2014
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question to be decided is, whether writ petition is maintainable under law ? The respondents are not having a case that the 1st respondent is not an establishment coming under Article 12 of the Constitution of India. But the argument is that, consequent to introduction of Section 69 of the Act, 1969, the remedy available to the petitioner in respect of any service matter is to approach the Arbitration Court. On the other hand, learned counsel for the petitioner contended that if there are situations projected by the petitioner enabling him to approach this court, the alternative remedy is not a bar for this court to entertain a writ petition under Article 226 of the Constitution of India. True, the question with respect to whether petitioner was working as Attender or Worker is a disputed question of fact. Merely because some references are made in certain correspondences issued by the 3rd respondent, that itself may not be an indicative factor to establish that petitioner worked as an Attender. That apart it is contended by learned counsel for the petitioner that, 1st respondent is an Apex Society with members representing the State Government in its Director Board and therefore, the 1st respondent society will come within the parameters of other
W.P.(C). No.9857 of 2014
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authorities provided under Article 12 of the Constitution of India. True, in the Large Bench judgment of this court in Association of Milma Officers cited supra, it was held that in the absence of breach of any statutory duty or public duty, a writ petition cannot be entertained against a Co-operative society. However this writ petition was admitted to the files of this court as early as on 3.4.2014 and more than two years have elapsed. Therefore, non-suiting the petitioner on the ground of alternative remedy at this belated stage will be doing injustice to the petitioner. Therefore, I am of the considered opinion that, the questions raised in this writ petition is to be considered in this writ petition itself.
W.P.(C). No.9857 of 2014
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documents, there is no proof to establish that petitioner was appointed by an order as Attender. It is an admitted case that, petitioner was a daily rated employee of the 1st respondent establishment. Petitioner could not point out the backing of any rule or other provisions of law or any scheme launched by the Government or the 1st respondent enabling the petitioner to get regularized.
W.P.(C). No.9857 of 2014
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has not founded his claim based on any provision of law or any statutes, Scheme or regulation, the question to be considered is whether petitioner is entitled as of right to make any claim that he should be regularized in a particular post. So also the nature of work that was carried out by the petitioner as daily rated worker is not discernible from any documents. That apart on a perusal of Ext.P7 judgment rendered by this court, this court has directed only to regularize the service of the petitioner. However, on a further probe into Ext.P7 judgment, it can be seen that petitioner is referred to as a similarly situated person as other 49 employees who have already been regularized. It is in that regard, a direction was issued to pass necessary orders regularizing the service of the petitioner.
W.P.(C). No.9857 of 2014
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get regularized in a particular post. Those references are not in my considered opinion a conclusive proof to establish that petitioner worked in the establishment as an Attender. That apart since there is no legal right conferred to the petitioner under any law passed by the Government or the 1st respondent, petitioner is not entitled as of right to insist that he should be regularized as an Attender. The management is vested with powers to decide in which post the petitioner should be regularized. All the other 49 employees were regularized as Workers, evident from Ext.R1(d). So also it is well settled in service jurisprudence that, in the absence of any rule, the provisions of a draft rule can be relied on to make appointments. Therefore, there is force in the contention of learned counsel for the respondents that, as per draft rules, post of Attender is a promotion post and not an entry level post.
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respondent has passed Ext.P11 order taking into account the contentions raised by the petitioner and has rendered findings assigning sufficient and cogent reasons. Petitioner also could not point out any arbitrary, illegal or illogical circumstances, enabling this court to exercise the power of judicial review.
Upshot of the above discussion is that, writ petition fails,
accordingly it is dismissed.
Sd/- JUDGE
smv 12.07.2016
3 issues framed by the court
Whether a writ petition is maintainable against a cooperative society when an alternative statutory remedy exists under Section 69 of the Kerala Co-operative Societies Act.
Whether the petitioner is entitled to regularization in the post of Attender based on references in correspondence despite the management's power to determine the post.
Whether references in correspondence constitute conclusive proof of the nature of an employee's appointment for the purpose of regularization.
Colour shows how this judgement treated each authority
Association of Milma Officers v. State of KeralaReferred¶51
Association of Milma Officers v. State of Kerala [2015(1) KLT 849]
P P Kannan
The Kerala State Co-operative Coir Marketing Federation Ltd.
The Board of Directors Administrative Committee The Kerala State Co-operative Coir Marketing Federation Ltd.
The Managing Director The Kerala State Co-operative Coir Marketing Federation Ltd.
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
