Dismissed

Vinu.v.v. v. the State of Kerala

Kerala HC10 Sept 2018WP(C)/2317/2018

Case brief

AI extract

What is this about?

The Court dismissed writ petitions challenging transfers of employees from Foreign Liquor shops to other units. It held that no statutory rule prohibited transfer and that rotation ensured equal access to extra allowances, dismissing claims of scheme violation or malafides.

What did the court decide?

Writ petitions dismissed; petitioners directed to approach the Respondent Federation regarding grievances about welfare benefits.

Vinu.v.v. Vs the State of Kerala — Service and Employment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY ,THE 10TH DAY OF SEPTEMBER 2018 / 19TH BHADRA, 1940

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WP(C).No. 2317 of 2018

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PETITIONER/S:

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1 VINU.V.V. AGED 32 YEARS, S/O. R. N. VIJAYAN, VALIYAPARAMBIL, JUNIOR JANATHA ROAD, VYTTILA, ERNAKULAM-19.

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2 SMITHOSH MOHAN

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AGED 32 YEARS, S/O. P. C. MOHANAN, PURATHU VASHATHU, NEHRU TROPHY WARD, AVALUKKUNNU P.O., ALEPPEY.

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3 ABHILASH T. P. AGED 37 YEARS, S/O. T. N. PURUSHOTHAMAN, THADATHIL HOUSE, MULANTHURUTHY P.O., ERNAKULAM.

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4 SAJEEVAN P. S. AGED 51 YEARS, S/O. SEKAHARAN, PANACHIKKAL, KUTTIPPARA, CHULLI P.O., ERNAKULAM.

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5 RADHAKRISHNAN S.

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AGED 46 YEARS, S/O. SABARI, VALIYAPARAMBIL HOUSE, KUMARANAIAN NAGAR, ERNAKULAM.

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6 BABU RAJ T. AGED 40 YEARS, S/O. N. THANKAPPAN NAIR, AAYILYAM, SASNATHANAPURAM P.O., KAITHAVANA, ALLEPPEY.

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7 MADHU N. R. AGED 50 YEARS, S/O. RAGHAVAN, MANATTU VELI, MAITHARA P.O., CHERTHALA, ALLEPPEY.

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8 RAJU N. AGED 37 YEARS, S/O. P. S. NARAYANAN, PUTHENPARMBIL, CMC-11, CHERTHALA.

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9 ANILKUMAR A. AGED 29 YEARS, S/O. P. ASOKAN, PUTHEN PARAMBU, AMBALAPUZHA P.O., ALLEPPEY.

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WP(C).No.2317/18 & C/C

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10 PRAMOD M. AGED 38 YEARS, S/O. R. MOHAN DAS, EWS 420, MAVELI ROAD, GANDHI NAGAR, KADAVANTHARA, ERNAKULAM-20.

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11 KALESH C. K. AGED 29 YEARS, S/O. P. N. KAVIRAJ, ALLEEACKAL HOUSE, KANNAMALY P.O., KOCHI-682008.

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12 ARAVINDAN D. B. AGED 37 YEARS, S/O. K. G. BHASKARAN, DWADASI MADAM, KATTOOR P.O., KALAVOOR, ALLEPPEY-688546.

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13 PEUS PICASO

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AGED 43 YEARS, S/O. VARGHESE, ERAVELI HOUSE, ASHOKA ROAD, KALOOR, ERNAKULAM.

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14 SHARATH KUMAR K. AGED 32 YEARS, S/O. V. K. KUNJUMON, OTTATHAIKKAL, CHAMBAKULAM P.O., ALEPPEY.

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15 RAJEEV K. R. AGED 33 YEARS, S/O. RANJENDRAN K.,RAJEEV BHAVANAM, MANJADI THARA, PALLIKKAL P.O., KAYAMKULAM-690503.

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16 ANEESH C. AGED 38 YEARS, S/O. K. G. CHANDRANANDAN, CHENNIKKAL VELI, VADAIKAL P.O., ALEPPEY-3.

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17 ANOOP A. K. AGED 29 YEARS, S/O. A. K. KUNJUMON, AYUMPARAMBU, PONGA P.O., NEDUMUDI, ALLEPPEY.

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18 JOSE PATH M. AGED 41 YEARS, S/O. MUTHUPILLAI, NEW FISHERMAN COLONY, SOUTH KOLLAMKODE, POZHIYOOR P.O., THIRUVANANTHAPURAM.

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19 SAJU SEBASTIAN

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AGED 38 YEARS, S/O. SEBASTIAN, UTTUKULATHIL, THOTTUMUKKAM P.O., ARIKODE, KOZHIKODE-673639.

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20 SIVANKUTTY K. M. AGED 42 YEARS, S/O. MANI, VELITHAYIL, EROOR P.O., THRIPUNITHURA, ERNAKULAM-06.

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21 SINOJ V. S. AGED 38 YEARS, S/O. SHIVAN V. P., VADAKEDATH HOUSE,

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WP(C).No.2317/18 & C/C

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KUZHIPILLY, AYUPILLY, ERNAKULAM-682501.

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22 NISHANTH V. J. AGED 28 YEARS, S/O. JOSHY, MUNEPILLY PARAMBU, WEST KADANGALLUR P.O., ERNAKULAM-683110.

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23 RAJESH R.

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AGED 35 YEARS, S/O. K. RAJAN, CHOOLATHERUVU P.O., MUTHUKULAM NORTH, ALEPPEY-690506.

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24 LENIN V. AGED 29 YEARS, S/O. K. VIJAYAN, KANDATHIL PARAMBIL, CMC 23, CHERTHALA P.O., ALEPPEY.

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25 VINEESH BABU

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AGED 38 YEARS, S/O. RAJENDRA BABU, CHITHIRA, S. L. PURAM, CHERTHALA, ALLEPPEY.

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26 VINOD KUMAR M. AGED 42 YEARS, S/O. MURALEEDHARAN NAIR, PARAVAIKAL, MARUTHOORVATTOM P.O., CHERTHALA.

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27 JAYESH U. M. AGED 37 YEARS, S/O. MANIKANDAN V, ULLADAM PARAMBIL, KALAVOOR P.O., ALEPPEY.

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28 RAJEEV P. M. AGED 31 YEARS, S/O. P. C. MANI, MANNATHARAYIL HOUSE, PAINGARAPILLY P.O., THURUTHIKARA, MULANTHURUTHY, ERNAKULAM.

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29 BICHU P. AGED 28 YEARS, S/O. PREMKUMAR, CHERUCHERRIL HOUSE, MAHADEVIKADU P.O, KARTHIKAPPALLY.

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30 AKHIL T. S. AGED 28 YEARS, THULASEENDHARAN, PLAVILA HOUSE, ALAYAMAN P.O., ANCHAL, KOLLAM.

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BY ADV. SRI.GEORGE POONTHOTTAM

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RESPONDENT/S:

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1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHPURAM.695001

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WP(C).No.2317/18 & C/C

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2 THE MANAGING DIRECTOR KERALA STATE CO-OPERATIVE CONSUMERS FEDERATION LTD., GANDHINAGAR, ERNAKULAM, KOCHI-20, KERALA.

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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.'

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4 REGIONAL MANAGER REGIONAL OFFICE, TRIVENI BUILDING, MUTHALAKULAM, KOZHIKODE, PIN-673638.

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BY ADVS. SRI.M.SASINDRAN, SC, CONSUMERFED SMT.MARY BEENA JOSEPH, SR.GOVT. PLEADER

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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:

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P.V.ASHA, J.

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W.P.(C) Nos.1618 & 2317 of 2018

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Dated this the 10^th day of September 2018

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JUDGMENT

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The petitioners in both these writ petitions are

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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.

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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.

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3. By Exts.P5 and P6 orders the Regional Manager has transferred the petitioners from Foreign Liquor

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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

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statement in Ext.P5 which reads as follows:

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“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”.

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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

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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.

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5. It is the contention of the petitioners that

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their transfer takes away their rights under the Scheme as well as the extra allowance available to them. It is

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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.

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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.

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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.

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W.P.(C) Nos.2317/18&C/C

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8. It is relevant to note that the initial

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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.

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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

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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.

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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.

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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.

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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

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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 2^nd respondent or Consumer Federation shall consider the same.

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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

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PETITIONER'S/S EXHIBITS:

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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

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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

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RESPONDENT'S/S EXHIBITS:

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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

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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

Vinu.v.v. v. the State of Kerala

Case brief

What is this about?

What did the court decide?

Vinu.v.v. v. the State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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