IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 WP(C).No. 1848 of 2008(T) -------------------------------------- PETITIONER(S): ------------------------ BAIJU V.P., S/O. LATE V.P.SANKARAN, ELAYEDATH THAZHE HOUSE, PERUVATTUR P.O., KOYILANDY VIA., KOZHIKODE DISTRICT. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): -------------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, MINISTRY OF LABOUR, NEW DELHI. 2. ESI CORPORATION, KOTLA ROAD, NEW DELHI, REPRESENTED BY ITS DIRECTOR GENERAL, OFFICE OF THE ESI CORPORATION, KOTLA ROAD, NEW DELHI-110 002. 3. DIRECTOR GENERAL, ESI CORPORATION, KOTLA ROAD, NEW DELHI-110 002. 4. DEPUTY DIRECTOR (ADMINISTRATION), ESI CORPORATION, PANCHADEEP BHAVAN, NORTH SWARAJ ROUND, THRISSUR. BY ADVS.MR .P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1 MR.T.P.M.IBRAHIM KHAN, SC, ESI CORPN. FOR R2 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/03/2009 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.1848/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE IST PAGE OF THE SSLC BOOK OF THE PETITIONER. P2:- COPY OF THE MARK CARD OF THE PETITIONER. P3:- COPY OF THE PROCEEDING NO.54.A.20/11/2001. CA/VPS/ADM-1 DT. 28.2.01 ISSUED BY THE 4TH RESPONDENT. P4:- COPY OF THE PROCEEDING NO.54.A.20/11.2001.CA/VPS -ADM.1 DT. 31.3.03 ISSUED BY THE 4TH RESPONDENT. P5:- COPY OF THE COVERING LETTER DT. 23.4.03 SUBMITTED BY THE PETITIONER. P6:- COPY OF THE PROCEEDING BEARING NO.54.A.20/11/2001-CAVPS.ADM-1 DT. 14.5.04 ISSUED BY THE 4TH RESPONDENT. P7:- COPY OF THE REPRESENTATION DT. 14.8.04 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR LABOUR AND EMPLOYMENT, NEW DELHI. P8:- COPY OF THE REPRESENTATION DT. 14.8.04 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P8(a):- COPY OF THE REPRESENTATION DT. 10.8.05 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P9:- COPY OF THE REPRESENTATION DT. 2.7.07 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS R4(A):- COPY OF THE LETTER DT. 30.1.03 SENT BY SMT.V.V.LEELA ALONGWITH THE SUCCESSION CERTIFICATE ISSUED BY THE MUNSIFFS COURT, KOYILANDY IN SUCCESSION OP. NO.33/02. R4(B):- COPY OF THE LETTER NO.A-12/22/2/85-E. I(B) DT. 20.1.2000 ISSUED BY THE EMPLOYEES STATE INSURANCE CORPORATION, NEW DELHI. R4(C):- COPY OF THE OFFICE MEMORANDUM F.NO.14014/23 99-ESTT. (D) DT. 3.12.99 ISSUED BY THE MINISTRY OF PERSONAL, PUBLIC GRIEVANCES & PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING, NEW DELHI R4(D):- COPY OF THE APPLICATION DT. 4.2.03 SENT BY SMT.LEELA TO THE REGIONAL DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION, THRISSUR ALONGWITH THE PROFORMA APPLICATION. R4(E):- COPY OF THE LETTER NO.54.A.20/11/01.CA (VPS) ADM-I DT. 13.2.03 ISSUED BY THE 4TH RESPONDENT TO SMT.V.V.LEELA. R4(F):- COPY OF THE LAWYER NOTICE DT. 14.3.01 SENT BY SHRI.R.V.VIJAYAKRISHNAN, ADVOCATE, KOYILANDY, KOZHIKODE ON BEHALF OF ONE K.K.MANOJ. W.P.(C ) NO. 1848/2008 R4(G):- COPY OF THE LAWYER NOTICE DT. 4.5.01 ISSUED BY ADVOCATE SHRI.T.VAJAYAKUMAR. R4(H):- COPY OF THE SANCTION ORDER NO.A-40/15/3259/2001-A/CS.IV DT. 24.9.03 FROM THE EMPLOYEES STATE INSURANCE CORPORATION NEW DELHI IN RESPECT OF THE PETITIONER. R4(I):- COPY OF THE LETTER NO.A-12/22/12/2003.E.I(B) DT. 11.5.04 EMPLOYEES STATE INSURANCE CORPORATION, HEAD QUARTERS OFFICE, NEW DELHI. R4(J):- COPY OF THE LETTER NO.A-12/22/2003.E-I(B) DT. 8.12.04 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. R4(K):- COPY OF THE OFFICE MEMORANDUM F. NO.14014/11/2002-ESTT.(D) DT. 29.4.03 ISSUED BY THE MIN ISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING, NEW DELHI. R4(L):- COPY OF THE OFFICE MEMORANDUM NO.14014/19/02-ESTT(D) DT. 5.5.03 BY THE MINISTRY OF PERSONNEL PUBLIC GRIEVANCES & PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING, NEW DELHI. R4(M):- COPY OF THE LETTER NO.54-A/40/JV/I.I/KZD /2003 DT. 16.4.03 DT 16.4.03 ISSUED BY THE ESI INSPECTOR ALONG WITH THE INVESTIGATION REPORT. TRUE COPY P.S. TO JUDGE TSS V.GIRI, J. ----------------------------------------- W.P(C).No.1848 of 2008 ----------------------------------------- Dated this the 30th March, 2009 JUDGMENT The petitioner's father, V.P.Sankaran passed away on 19.11.2000, while working as Manager Grade-II in the office of the ESI Corporation. The circumstances, in which the family found itself at the time of death of V.P.Sankaran is narrated in paragraph 2 of the Writ Petition, which reads as follows: “2. While working as Manager Grade II at the office of the ESI Corporation, West Hill, Kozhikode, petitioner's father namely Sankaran V.P was died on 19.11.2000. At the time of death of the petitioner's father, his sister V.P. Molly was got married to an agricultural labourer and they live in a Lakshamveedu colony. The elder brother of the petitioner namely V.P. Shaji was also got married and he lives as a coolie/agricultural labourer in a Lakshamveedu colony and at the time of death of petitoiner's father, he along with his 2 younger sisters and mother were also living in a Kudikidappu property and the sole source of livelihood of the petitioner, his mother and sisters were the income of the father, and consequent to the death of the petitoiner's father, the sole WP(C).1848/08 2 earning member of the family on 19.11.2000, the life of the petitioner, his mother and sisters had become so miserable and pity.” 2. It is seen that V.P.Sankaran had married thrice. The first marriage ended in divorce. There was one issue in the said marriage. He then married petitioner's mother and there were five issues in the said matrimonial relationship. This included the petitioner. When the second wife died, V.P.Sankaran married V.V.Leela. Two children were born out of the said wedlock. V.P.Sankaran died on 19.11.2000 and thereupon V.V.Leela, the widow, had sent an application to the ESI Corporation on 26.2.2001 requesting that appointment under the compassionate appointment scheme may be offered to the petitioner, son in the second marriage. This was met with Exhibit P3 requiring the third wife to give a declaration that she will not claim appointment on compassionate grounds if she prefers such compassionate appointment to be offered to the petitioner. The application in the prescribed form was not submitted immediately after the death of V.P.Sankaran and it seems to have been on account of a dispute which crept up WP(C).1848/08 3 between the legal representatives of deceased V.P.Sankaran, in the matter of enjoying the terminal benefits of V.P.Sankaran. The Corporation insisted on a succession certificate and it seems that the succession certificate was issued by the competent munsiff's Court only on 30.11.2002. It was submitted on 30.1.2003 by Smt.Leela as evidenced by Exhibit R4(a) covering letter. It is admitted that the claim for pensionary benefits was settled only during the year 2003. It is also admitted that the details of the amount to be settled by way of pensionary benefits were also relevant as they were required to be stated in the application for appointment on compassionate grounds in the prescribed form. The application in the prescribed form for compassionate appointment requesting for appointment, submitted by V.V.Leela, was received in the office of the fourth respondent on 10.2.2003. Some more documents were required and such documents were later submitted. The claim of the petitioner was considered by a committee and it was rejected. By Exhibit P6 communication sent by the fourth respondent, petitioner was informed that the committee constituted for the purpose of WP(C).1848/08 4 dealing with the applications for compassionate appointment had registered the case of the petitioner in accordance with Government of India instructions and found that the case not fit for appointment on compassionate ground. Though the petitioner had thereafter submitted Exhibits P8(a) and P9 representations before the Director General, ESI Corporation, the same did not elicit any response and hence this Writ Petition praying for the following reliefs: “i. Issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P6; ii. issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 2 to 4 to appointment the petitioner under the dying in harness scheme; iii. Issue a writ of mandamus or any other appropriate writ, order or direction commanding the 3rd respondent to consider and dispose of Exhibits P8(a) and P9 representations, forthwith; iv. issue any such other writ, order or direction which may deem fit in the facts and circumstances of the case.” WP(C).1848/08 5 3. A detailed counter affidavit has been filed on behalf of respondents 2 to 4. I heard Mr.T.G.Rajendran, learned counsel for the petitioner and Mr.T.P.M.Ibrahim Khan, learned Standing Counsel for the E.S.I Corporation. 4. Though Exhibit P6 does not give any reason as to why the committee constituted for the purpose of dealing with the applications for compassionate appointment did not recommend the case of the petitioner, the stand taken in the counter affidavit is essentially to the effect that the application for compassionate appointment in the prescribed form was not submitted within six months from the date of death of the employee. It is contended that as per the Government of India instructions, the application for compassionate appointment is to be submitted within six months and appointment has to be given within one year. 5. I take note of the fact that in the present case after Sankaran's death on 19.11.2000, his legal representatives had sent an application without much delay, ie., on 26.2.2001. This is admitted in the counter affidavit. The fact remains that an application claiming appointment under the above scheme had WP(C).1848/08 6 been sent within three months from the date of death of the employee. Though as per Exhibit P3 it had been returned and the family was required to submit an application in the prescribed form, there was delay in doing so. But, it may not be possible to say that the delay was either deliberate or a reflection of the ineligibility of the legal heirs to claim appointment under the compassionate scheme. I have referred to the details regarding the time taken for settlement of the pensionary benefits due to deceased V.P.Sankaran. A succession certificate from the competent court had to be obtained and the order is seen to have been passed by the civil court only on 30.11.2002. It was submitted in January, 2003. The pensionary benefits were later disbursed. Details of such pensionary benefits were required to be given in the application in prescribed form and that position is admitted in the counter affidavit itself. Thereafter, the application in the prescribed form for compassionate appointment was submitted on 4.2.2001 and received by the fourth respondent on 10.2.2001. Delay in the process cannot be attributed to the claimant, in the circumstances. WP(C).1848/08 7 6. Counter affidavit does not set up a case of disability of the family, thereby rendering them ineligible for claiming appointment under the compassionate scheme. The petitioner belongs to a Scheduled Caste family. His late father married thrice. No assets or any substantial amount have been left by him. The deceased had five children in the second marriage and two children in the third marriage. There is nothing to show that the family had enough assets to tide over the bereavement. The amount received by way of pensionary benefits cannot, in the circumstances, be considered as substantial enough to offset the need for an appointment on compassionate grounds. 7. For all these reasons, I am of the view that denial of compassionate appointment to the petitioner, legal heir of deceased V.P.Sankaran, former employee of the ESI Corporation is unsustainable. Accordingly, the Writ Petition is allowed. Exhibit P6 is quashed. The third respondent is directed to take appropriate steps and pass orders offering appointment to the petitioner, son of late V.P.Sankaran, employed as Manager Grade-II in the WP(C).1848/08 8 office of the ESI Corporation, West Hill, Kozhikode in a suitable post to be determined as per the guidelines applicable to the ESI Corporation, within four months from the date of receipt of a copy of this judgment. V.GIRI, JUDGE vgs.