Petitioners challenging transfers from Foreign Liquor shops to other shops alleged violation of welfare Scheme policy. The Court found no evidence that transfers were issued by incompetent authority or with malafides and that notices avail opportunity to state grievances.
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 SMT. JUSTICE P.V.ASHA
MONDAY ,THE 10TH DAY OF SEPTEMBER 2018 / 19TH BHADRA, 1940
WP(C).No. 2317 of 2018
PETITIONER/S:
2 SMITHOSH MOHAN
AGED 46 YEARS, S/O. SABARI, VALIYAPARAMBIL HOUSE, KUMARANAIAN NAGAR, ERNAKULAM.
WP(C).No.2317/18 & C/C
10 PRAMOD M. AGED 38 YEARS, S/O. R. MOHAN DAS, EWS 420, MAVELI ROAD, GANDHI NAGAR, KADAVANTHARA, ERNAKULAM-20.
AGED 43 YEARS, S/O. VARGHESE, ERAVELI HOUSE, ASHOKA ROAD, KALOOR, ERNAKULAM.
14 SHARATH KUMAR K. AGED 32 YEARS, S/O. V. K. KUNJUMON, OTTATHAIKKAL, CHAMBAKULAM P.O., ALEPPEY.
16 ANEESH C. AGED 38 YEARS, S/O. K. G. CHANDRANANDAN, CHENNIKKAL VELI, VADAIKAL P.O., ALEPPEY-3.
18 JOSE PATH M. AGED 41 YEARS, S/O. MUTHUPILLAI, NEW FISHERMAN COLONY, SOUTH KOLLAMKODE, POZHIYOOR P.O., THIRUVANANTHAPURAM.
19 SAJU SEBASTIAN
21 SINOJ V. S. AGED 38 YEARS, S/O. SHIVAN V. P., VADAKEDATH HOUSE,
WP(C).No.2317/18 & C/C
KUZHIPILLY, AYUPILLY, ERNAKULAM-682501.
AGED 38 YEARS, S/O. RAJENDRA BABU, CHITHIRA, S. L. PURAM, CHERTHALA, ALLEPPEY.
28 RAJEEV P. M. AGED 31 YEARS, S/O. P. C. MANI, MANNATHARAYIL HOUSE, PAINGARAPILLY P.O., THURUTHIKARA, MULANTHURUTHY, ERNAKULAM.
30 AKHIL T. S. AGED 28 YEARS, THULASEENDHARAN, PLAVILA HOUSE, ALAYAMAN P.O., ANCHAL, KOLLAM.
BY ADV. SRI.GEORGE POONTHOTTAM
RESPONDENT/S:
1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHPURAM.695001
WP(C).No.2317/18 & C/C
2 THE MANAGING DIRECTOR KERALA STATE CO-OPERATIVE CONSUMERS FEDERATION LTD., GANDHINAGAR, ERNAKULAM, KOCHI-20, KERALA.
3 REGIONAL MANAGER TRIVENI REGIONAL OFFICE, KERALA STATE CO-OPERATIVE CONSUMERS FEDERATION LTD., GANDHINAGAR, ERNAKULAM, KOCHI-20, KERALA. 'KERALA STATE CO-OPERATIVE CONSUMER FEDERATION LTD.'
4 REGIONAL MANAGER REGIONAL OFFICE, TRIVENI BUILDING, MUTHALAKULAM, KOZHIKODE, PIN-673638.
BY ADVS. SRI.M.SASINDRAN, SC, CONSUMERFED SMT.MARY BEENA JOSEPH, SR.GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.09.2018, ALONG WITH WP(C).1618/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.V.ASHA, J.
W.P.(C) Nos.1618 & 2317 of 2018
Dated this the 10th day of September 2018
JUDGMENT
The petitioners in both these writ petitions are
aggrieved by their transfer from FL-1 shop to other shops. The parties and documents referred to in this judgment are as described in W.P.(C) No. 2317 of 2018.
2. The petitioners in both these cases are working in Kerala State Consumer Federation Ltd (Consumer Fed) as Sales Helpers. Exts.P1 to P3 orders would show that some of them who commenced service on daily wages/contract were regularized in 2011 and are paid consolidated wages; some of the petitioners are working on daily wages and some on contract basis. It would show that the respective petitioners were engaged in Triveni shops. Apart from shops like Triveni, Consumer Fed is running Foreign Liquor (FL1) shops also. All the petitioners joined FL1 shops, on transfer from other shops/offices.
3. By Exts.P5 and P6 orders the Regional Manager has transferred the petitioners from Foreign Liquor
W.P.(C) Nos.2317/18&C/C
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Shops to Triveni shops/Regional office/Go-downs/Head office etc. By the very same orders several persons are transferred from Triveni shops/Regional Office/Godowns, etc. to FL1 shops and vice versa. According to the petitioners they are not liable to be transferred; the transfers would be detrimental to them as they would be deprived of the benefits under the Abkari Workers Welfare Fund Scheme and the transfer is contrary to the policy of the respondents themselves. In support of this contention, petitioners rely on the
statement in Ext.P5 which reads as follows:
“As a matter of policy, it is a practice in Consumerfed to rotate the staff working in foreign Liquor shops, who have exceeded a period of six months. Moreover there are huge number of financial transactions, stock taking, accounting, liability etc. in foreign liquor shops, which required permanence in job, hence as far as possible posting of daily waged employees to FL Shops are to be avoided. Now govt. vide order no. G.O() No.128/2017/TD dated 27.10.17 has modified the Abkari Rules and there by women employees are also eligible to work as sales woman/sales helper/sales assistant etc. in various FL Shops. Options were invited from women employees who are willing to working in foreign liquor shops as per the normal schedule of 10AM to 9AM. 33 women employees had requested in writing their willingness to work in foreign liquor shops”.
4. Learned counsel for the petitioners submits that petitioners who were working in FL-1 shops are members of Abkari Workers Welfare Fund Scheme (the Scheme) and
W.P.(C) Nos.2317/18&C/C
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their transfer to other shops is not envisaged or permissible. It is pointed out that the Scheme mandates enrollment of workers on completion of 90 days work in FL-1 shops and on their engagement in FL1 shops for a period beyond 90 days, all the petitioners were enrolled under it and the monthly contributions are remitted in it and they ceased to be members of the Employees Provident Fund; therefore they cannot be sent to other shops. It is pointed out that while the petitioners were working in Triveni shops, Provident Fund contribution was being remitted in their PF Account. On their transfer to/posting in FL1 shops and on registration under the the Scheme, no remittance is made to the PF account. Petitioners further pointed out that the workers in FL1 shops are paid at the rate of Rs.275/- per month as extra shop allowance. Those working in other shops under Consumer Fed are not eligible for the same.
5. It is the contention of the petitioners that
their transfer takes away their rights under the Scheme as well as the extra allowance available to them. It is
W.P.(C) Nos.2317/18&C/C
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pointed out that Ext.P5 would show that permanence of personnel is required in FL1 shops and therefore their retention in FL-1 shops would only be in the interest of the Consumer Fed and the orders of transfer are issued contrary to the very policy of the Federation itself apart from the deprivation of the benefits.
6. The contentions raised by the petitioners are seriously objected by the respondents. According to them, it is necessary to rotate the staff within the various institutions like Triveni shops, regional offices, godown, FL1 shops, etc and all the employees under it are liable to work in any of the shops; transfer is ordered in public interest. It is pointed out that none of the petitioners are getting pay on scale of pay.
7. Having considered the contentions on either side, no material is seen produced to substantiate the claim of the petitioners that they are not liable to be transferred within institutions under the Consumer Fed or that once they are engaged in FL-1 shops they cannot be transferred to any other shops.
W.P.(C) Nos.2317/18&C/C
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8. It is relevant to note that the initial
engagement of petitioners were in Triveni/regional office/showroom. They started getting extra-allowance only on their posting in FL1 shops. Their counterparts working in Triveni shops/regional office/godown, etc would become eligible for such benefits of extraallowance only if they are getting an opportunity to work in FL1 shops. Therefore unless posting in FL1 shops are made on rotation basis their counterparts who are engaged on similar terms and conditions and qualification would not get an opportunity to enjoy the benefit of extra allowance.
9. At any rate, as long as the petitioners do not have a case that the orders of transfer are issued by an authority incompetent to transfer them or that it is issued in violation of any statutory rules, petitioners cannot insist that they should be allowed to work in the FL-1 shops itself. Petitioners do not have a case that the order of transfer is vitiated by malafides. However, there are no sufficient pleadings to substantiate any allegation of malafides. I do not find
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W.P.(C) Nos.2317/18&C/C
any substance in the contention that the transfer is against the policy stated in Ext.P5. I am unable to find anything in Ext.P5 which provides for retention of sales helpers in FL1 shops.
10. Apparently petitioners do not have any grievance against the stations to which they are transferred. Their grievance is only against the transfer from the FL-1 shops. Petitioners have not produced any material to show that they are engaged for any particular shop or that they are not liable to be transferred.
11. At any rate in case the petitioners have become eligible for any extra benefit under the Abkari Workers Welfare Fund Scheme, the respondents shall see that the petitioners are not deprived of such benefits admissible to them.
The learned standing Counsel for the respondents points out that their enrollment in Abkari Workers Welfare Fund Scheme is already cancelled. However, the version of the learned counsel for the petitioners is that such cancellation is set aside. At any rate, I am
W.P.(C) Nos.2317/18&C/C
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not going into any of those aspects. It will be open to the petitioners to approach the respondents pointing out their grievances, in which event the 2nd respondent or Consumer Federation shall consider the same.
Accordingly the writ petitions are dismissed.
Sd/-
P.V.ASHA
JUDGE
rkc
W.P.(C) Nos.2317/18&C/C
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDERS DATED 28.02.2011 ISSUED BY THE CONSUMERFEDKERALA STATE CO-OPERATIVE CONSUMERS FEDERATION LTD., TO CERTAIN PETITIONERS. EXHIBIT P2 TRUE COPY OF THE IDENTITY CARD ISSUED BY THE WELFARE FUND INSPECTOR, KERALA ABKARI WELFARE FUND BOARD. EXHIBIT P3 TRUE COPY OF THE PETITION UNDER SECTION 32 OF THE KERALA ABKARI WORKERS WELFARE FUND SCHEME TO TRANSFER THE EMPLOYEES PROVIDENT FUND TO THE ABKARI WELFARE FUND. EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN WP(C) 27944/2006 AND CONNECTED CASES DATED 10.06.2008. EXHIBIT P5 TRUE COPY OF THE TRANSFER ORDER DATED 10.01.2018. EXHIBIT P6 TRUE COPY OF THE ALLOTMENT ORDER DATED 12.01.2018. EXHIBIT P7 TRUE COPY OF THE GOVERNMENT NOTIFICATION DATED 23.09.1999. EXHIBIT P8 TRUE COPY OF THE WRIT PETITION OF WPC 2662/218 DATED 23.01.2018 EXHIBIT P9 TRUE COPY OF THE TRANSFER ORDER ANOOP.A.K. DATED EXHIBIT P10 TRUE COPY OF THE TRANSFER ORDER JOSE PATH DATED EXHIBIT P11 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 11.06.2018 ISSUED BY THE RESPONDENT FEDERATION
W.P.(C) Nos.2317/18&C/C
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EXHIBIT P12 TRUE COPY OF THE NOTICE ISSUED BY THE CHIEF WELFARE FUND INSPECTOR DATED 11.06.2018
RESPONDENT'S/S EXHIBITS:
| ANNEXURE R2 (A) | A TRUE OF FLI (RELEVA |
COPY SHOP NT PA |
OF AT GES) |
THE ATTENDANCE REGISTER BANERJI ROAD, ERNAKULAM |
|---|---|---|---|---|
| ANNEXURE R2(B) | A TRUE | COPY | OF | THE ATTENDANCE REGISTER |
| OF FLI (RELEVA |
SHOP NT PA |
NO GES) |
. 7021 AT THOPPUMPADY, |
|
| ANNEXURE R2(C) | A TRUE OF FLI |
COPY SHOP |
OF AT V |
THE ATTENDANCE REGISTER YTTILA (RELEVANT PAGES) |
| ANNEXURE R2 (D) | A TRUE OF FLI PAGES) |
COPY SHOP |
OF AT |
THE ATTENDANCE REGISTER GANDHI NAGAR (RELEVANT |
| ANNEXURE R2(E) | A TRUE OF FLI PAGES) |
COPY SHO |
OF P |
THE ATTENDANCE REGISTER AT KADAVANTHRA(RELEVANT |
| ANNEXURE R2(F) | A TRUE | CO | PY | OF THE LIST OF THE |
| EMPLOYE WHERE INCLUDI |
ES J THE P NG TH |
OIN ETI E JO |
ED IN THE SHOPS FROM TIONERS ARE TRANSFERED, INING DATE |
|
| ANNEXURE R2(G) | A TRUE ISSUED INSPECT |
COPY BY OR. |
OF TH |
THE ORDER DATED 9.1.2018 E CHIEF WELFARE FUND |
| EXHIBIT R2 H | A TRUE OF FL I |
COPY SHOP |
OF THO |
THE ATTENDANCE REGISTER PPUMPADY |
| EXHIBIT R2 I | A TRUE RESPECT |
COPY ISSU |
OF ED |
THE CERTIFICATE IN THAT BY THE REGIONAL MANAGER |
W.P.(C) Nos.2317/18&C/C
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| DA | TED 1 | .2.2018 | ||
|---|---|---|---|---|
| EXHIBIT R2 J | A IN OF |
TRUE RESP NOVE |
COPY OF ECT OF VI MBER OF 2 |
THE PAY ROLL STATEMENT JESH P.V. OF THE MONTH 017 |
| EXHIBIT R2 K | A OF P. |
TRUE JAN V. |
COPY OF UARY 2018 |
THE PAY ROLL STATEMENT IN RESPECT OF VIJESH |
| EXHIBIT R2 L | A OF |
TRUE THE |
COPY OF 12TH PETI |
THE PAY ROLL STATEMENT TIONER |
| EXHIBIT R2 M | A PE |
TRUE RTAIN |
COPY OF ING TO TH |
THE DESPATCH REGISTER E DATED 13.01.2018 |
3 issues framed by the court
Whether sales helpers of Kerala State Co-operative Consumers Federation Ltd. are liable to be transferred from Foreign Liquor shops to Triveni shops or Regional offices.
Whether the transfer orders violate the policy of the Abkari Workers Welfare Fund Scheme or constitute malafides.
Whether the transfer deprives petitioners of benefits under the Scheme or extra shop allowance.
Vinu.V.V.
Smithosh Mohan
Abhilash T. P.
Sajeevan P. S.
Radhakrishnan S.
Babu Raj T.
P.V. Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
