IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WP(C).No. 4734 of 2011(N) ------------------------------------ PETITIONER(S): ----------------------- KUMARI KURIAKOSE, PAREKUDIYIL HOUSE, RAJAKUMARI SOUTH.P.O., IDUKKI DISTRICT. BY SRI.N.SUKUMARAN, SENIOR ADVOCATE BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT(S): ----------------------- 1. INDIAN OIL CORPORATION LTD., REPRESENTED BY CHIEF AREA MANAGER, INDANE AREA OFFICE, INDIAN OIL CORPORATION LTD., PANAMPILLY AVENUE, PANAMPILLY NAGAR.P.O., COCHIN- 682 016. 2. THE DEPUTY GENERAL MANAGER (LPG), INDANE AREA INDIAN OIL CORPORATION LTD., PANAMPILLY AVENUE, PANAMPILLY NAGAR.P.O.682 016. 3. NISHEEMA ANULAL, VADAKKEYIL HOUSE, KARIKODE VILLAGE, MUTHALAKODAM.P.O., THODUPUZHA. 685 584. R1 & R2 BY ADV. SRI.E.K.NANDAKUMAR, SRI.A.K.JAYASANKAR NAMBIAR , SRI.K.JOHN MATHAI, SRI.P.BENNY THOMAS, SRI.P.GOPINATH. R3 BY ADV. SRI.UNNIKRISHNAN.V.ALAPATT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/09/2011, THE COURT ON 13/10/2011 DELIVERED THE FOLLOWING: tss W.P.(C) NO.4734/2011 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PAPER PUBLICATION. P2:- COPY OF THE BROCHURE. P3:- COPY OF THE IST EMPANEL LIST. P4:- COPY OF THE COMPLAINT OF THE PETITIONER. P5:- COPY OF THE JUDGMENT IN WP(C) 30828/09. P6:- COPY OF THE FINAL EMPANEL LIST. P7:- COPY OF THE REPLY OF THE PETITIONER DTD. 15.7.10. P8:- COPY OF THE SHOW CAUSE OF THE 2ND RESPONDENT. P9:- COPY OF THE REPLY OF THE PETITIONER TO EXT.08. P10:- COPY OF THE JUDGMENT IN WPC. 37265/10. P11:- COPY OF THE ORDER OF THE 2ND RESPONDENT DTD. 4.2.11. P12:- COPY OF THE APPOINTMENT LETTER OF THE PETITIONER. P13:- COPY OF THE EXPERIENCE CERTIFICATE OF THE PETITIONER. P14:- COPY OF THE AFFIDAVIT IN ANNEXURE B RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss P.N. RAVINDRAN, J. ------------------------------- W.P (C) No. 4734 of 2011 ------------------------------- Dated this the 13th day of October, 2011 J U D G M E N T In this writ petition, the petitioner challenges Ext.P11 letter dated 4.2.2011 sent by the Chief Area Manager of the Indian Oil Corporation at Cochin informing her that she is ineligible for the award of LPG distributorship at Rajakkad/Santhanpara area in Idukki District. The petitioner also seeks a direction to respondents 1 and 2 to award the LPG distributorship to her. The brief facts of the case are as follows. 2. Pursuant to a notification issued by the Indian Oil Corporation Ltd. inviting applications from women candidates for appointment as Liquefied Petroleum Gas Distributor (hereinafter referred to as 'LPG distributor' for short) at Rajakkad/Santhanpara area in Idukki District, the petitioner, the third respondent and 14 others submitted applications. The applicants were interviewed on 19.12.2008 and thereafter on 4.9.2009. After interview, Ext.P3 empaneled list of candidates was published. Smt.Sheena Koshy who secured 88.45 marks was ranked first, the third respondent who secured 86.3 marks was ranked second and the petitioner who secured 86 marks was ranked third. Besides the basic educational W.P.(C) No.4734 of 2011 2 qualification, the petitioner also possessed a Diploma in General Nursing and Midwifery. She was however not awarded any mark on that count. She therefore filed a complaint before the Indian Oil Corporation. A copy thereof is produced as Ext.P4. In that complaint, she also contended that the first rank holder Smt.Sheena Koshy has offered land beyond the territorial limits of the area of operation and therefore she is ineligible to be awarded marks for ability to provide land/show room. She thereafter filed W.P.(C) No.30828 of 2009 in this Court mainly seeking a direction to the Indian Oil Corporation and its officers to consider Ext.P4 complaint and to keep in abeyance all further proceedings pursuant to the notification till a decision is taken on the complaint. By Ext.P5 judgment delivered on 5.11.2009, this Court directed the official respondents to hear the petitioner and respondents 3 and 4 therein and pass appropriate orders on Ext.P4 complaint. Pursuant thereto, Smt.Sheena Koshy, the first rank holder was declared ineligible. The petitioner was also awarded one mark for the additional qualification which she possessed and she thereby became the first rank holder with 87 marks. 3. Shortly thereafter, the Chief Area Manager of the Indian Oil Corporation Ltd. at Cochin sent a letter dated 5.7.2010 to the petitioner stating that there is a difference in the annual income in W.P.(C) No.4734 of 2011 3 the income tax return submitted by her and the annual income stated in the application. By that letter, the petitioner was also called upon to explain the difference in the gross total income and also the source of salary. Upon receipt of the said letter, the petitioner sent Ext.P7 letter dated 15.7.2010 explaining the difference in the income mentioned in the application and the income disclosed in the income tax return. In that letter, the petitioner also stated that the source of salary was the payment made by M/s.Mathson Gas Service, Kothamangalam and that documents in that regard have already been produced along with the application. Upon receipt of Ext.P7 reply, the Chief Area Manager of the Indian Oil Corporation sent Ext.P8 letter dated 16.8.2010 to the petitioner informing her that M/s. Mathson Gas Service did not produce records to show that she was employed by them and that the proprietor of M/s. Mathson Gas Service has confirmed that she was doing only honorary service. The petitioner was also called upon to show cause why her application should not be rejected for making a false statement as regards payment of salary by M/s. Mathson Gas Service. The petitioner thereupon submitted Ext.P9 letter dated 30.8.2010 in reply. Along with it, she also enclosed the originals of Ext.P12 appointment letter dated 18.5.2006 and Ext.P13 experience certificate dated 21.1.2008 issued by the proprietor of W.P.(C) No.4734 of 2011 4 M/s. Mathson Gas Service. The petitioner contended that the appointment letter itself would show that she was appointed on a consolidated pay of Rs.4500/- with effect from 1.6.2006 and as the proprietor has himself confirmed in writing that she was appointed on a consolidated pay of Rs.4500/- per mensem, the non production of any document by M/s. Mathson Gas Service cannot be a ground to reject her application. The petitioner also stated that M/s. Mathson Gas Service has not disputed the fact that she had worked as Front Office Manager from 1.6.2006 and as her appointment is not disputed, there is no reason to proceed against her. The petitioner thereafter filed W.P.(C) No.37265 of 2010 in this Court for an order directing the official respondents to take a final decision pursuant to the show cause notice dated 5.7.2010 within a time limit to be fixed by this Court. By Ext.P10 judgment delivered on 21.12.2010, this Court directed the competent authority among the respondents to take a final decision in the matter, after considering the case set out by the petitioner in Ext.P9 reply and after affording her an opportunity of being heard, expeditiously and in any event, within one month from the date of receipt of a certified copy of the judgment. The Chief Area Manager thereafter heard the petitioner on 4.2.2011 and sent Ext.P11 letter dated 4.2.2011 informing her that she has W.P.(C) No.4734 of 2011 5 been declared ineligible for award of the LPG distributorship. Hence, this writ petition challenging Ext.P11 and seeking a direction to the respondents 1 and 2 to award the LPG distributorship at Rajakkad/Santhanpara area in Idukki District to the petitioner. 4. The main contention raised by the petitioner is that in view of Exts.P12 appointment letter wherein the former employer had declared that she is being appointed on a consolidated salary of Rs.4500/- per mensem and as her appointment as Front Office Manager is not disputed, the official respondents erred in proceeding on the basis that the petitioner had furnished incorrect information in the application as regards the source of her salary. It is also stated that the former employer appears to be nursing a grudge against the petitioner in view of the fact that she has been able to secure better marks than the third respondent, the second rank holder. The petitioner has also raised various other contentions. 5. Respondents 1 and 2 have filed a counter affidavit dated 28.3.2011. It is stated therein that by letter dated 10.6.2010, the proprietor of M/s. Mathson Gas Service has confirmed that he had not paid any salary to the petitioner, that the petitioner was doing only honorary service and that in view of that letter, the petitioner was given an opportunity to prove the fact that she had received W.P.(C) No.4734 of 2011 6 salary from M/s. Mathson Gas Service and in the absence of any proof regarding payment of salary by M/s. Mathson Gas Service, the petitioner's application was rejected for the reason that she had furnished wrong information in the application. It is stated that Ext.P9 reply submitted by the petitioner was found to be unsatisfactory as there was no evidence as regards payment of salary by M/s. Mathson Gas Service. 6. I heard Sri.N.Sukumaran, learned Senior Advocate appearing for the petitioner, Sri.E.K.Nandakumar, learned standing counsel appearing for respondents 1 and 2 and Sri. Unnikrishnan.V.Alappat learned counsel appearing for the third respondent. The learned Senior Advocate appearing for the petitioner contended that neither the official respondents nor the proprietor of M/s. Mathson Gas Service have a case that the petitioner was not employed as Front Office Manager in M/s. Mathson Gas Service or that Ext.P12 appointment letter and Ext.P13 experience certificate are not genuine and therefore, the stand taken by the official respondents in the impugned letter cannot be sustained. The learned Senior Advocate for the petitioner further contended that as the proprietor of M/s. Mathson Gas Service has not stated in the letter dated 10.6.2010 which is referred to in the second page of Ext.P11, that the statement W.P.(C) No.4734 of 2011 7 in Ext.P12 appointment order as regards the payment of remuneration was incorrectly made, the version in the letter dated 10.6.2010 that no remuneration was paid to the petitioner during the training period cannot be believed or acted upon. The learned Senior Advocate also contended that being an LPG distributor of the Indian Oil Corporation, the official respondents are in a position to influence the will of the proprietor of M/s. Mathson Gas Service and for that reason also no reliance can be placed on the letter dated 10.6.2010. 7. Per contra, the learned counsel appearing for the respondents contended with reference to the letter dated 10.6.2010 referred to in Ext.P11, a copy of which was made available to me for perusal and is incorporated in the records, that the proprietor of M/s. Mathson Gas Service has stated therein in unequivocal terms that the petitioner was not a regular employee and was not paid any remuneration during the training period and therefore, the claim made by the petitioner in her application as regards receipt of salary cannot but be held to be a mis-representation of facts. The learned counsel for the respondents further contended that the petitioner has not produced any proof to show that she was paid salary during the period when she had worked as a Front Office Manager in M/s. Mathson Gas Service and therefore, the stand taken in Ext.P11 letter W.P.(C) No.4734 of 2011 8 cannot be said to be arbitrary or illegal. 8. I have considered the submissions made at the Bar by the learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. From the materials on record, it is evident that though after interview, the petitioner was ranked third, she having secured 86 marks, upon receipt of Ext.P4 complaint, she was awarded one more mark raising the marks secured by her to 87. She thereby became the second rank holder. Smt.Sheena Koshy, the first rank holder with 88.45 marks was declared ineligible for her inability to provide land/show room within the area of operation of the proposed LPG distributorship. The petitioner thereby became the first rank holder. Till that stage, the official respondents had no case that the application submitted by the petitioner way back in the year 2008 was in any way defective or that she had furnished incorrect information in the application. It was only after she became the first rank holder that a show cause notice dated 5.7.2010 was issued alleging a disparity in the income returned by her for the financial year 2007-2008 and the income set out in the application for appointment as LPG distributor. The petitioner explained the disparity by submitting Ext.P7 representation dated 15.7.2010. The officers of the Indian Oil Corporation had in the W.P.(C) No.4734 of 2011 9 meanwhile obtained a letter dated 10.6.2010 from the proprietor of M/s. Mathson Gas Service, the LPG distributor of the Indian Oil Corporation at Kothamangalam. In that letter, the proprietor of M/s. Mathson Gas Service stated that the petitioner was not a regular employee and was not paid any remuneration during the training period. The said letter reads as follows:- MATHSON GAS SERVICES LPG DISTRIBUTORS NH49-AM ROAD, Kothamangalam – 689 691, Kerala Tel: Off: 0485 2862533, 2862933, Fax: 0485 2860533 Res : 0485 2822833, 3290309. 10th June, 2010 To M/s.Indian Oil Corporation Ltd. Kochi – 36. Sir, Smt.Kumari Kuriakose was attending our office during the period 2006 to 2008 on honorary basis for obtaining experience in the field of LPG Distributer. She was neither a regular employee nor we have paid any remuneration to her during the training period. Thanking you, For MATHSON GAS SERVICES Sd/- proprietor 9. In the show cause notice dated 5.7.2010, no reference at all is made to the letter dated 10.6.2010. The proprietor of M/s. Mathson Gas Service has not in his letter dated 10.6.2010 W.P.(C) No.4734 of 2011 10 disputed the fact that the petitioner had worked in his establishment. He has also not disputed or denied having issued Ext.P12 appointment order and Ext.P13 certificate of experience. He has also not stated in his letter dated 10.6.2010 that the statement regarding payment of remuneration in Ext.P12 was erroneously or incorrectly made or that such a letter was issued solely for the purpose of enabling the petitioner to submit an application pursuant to the notification inviting applications which itself was issued only in December, 2007. By Ext.P12 appointment order issued on 18.5.2006, the petitioner was appointed as Front Office Manager on probation with effect from 1.6.2006 on a consolidated remuneration of Rs.4500/- per mensem. In Ext.P13 experience certificate dated 21.1.2008, the proprietor of M/s. Mathson Gas Service has certified that the petitioner is an employee of his establishment since June, 2006 as Front Office Manager, that she is very good at work and has pleasing manners and very good conduct. The official respondents have no case that the proprietor of M/s. Mathson Gas Service has disowned Exts.P12 and P13. As a matter of fact, even in the letter dated 10.6.2010, the proprietor of M/s. Mathson Gas Service has in categorical terms stated that the petitioner had attended his establishment during the period 2006-08. He has however chosen to qualify such attendance W.P.(C) No.4734 of 2011 11 as temporary for obtaining experience in the field of LPG distributorship and has also stated that the petitioner was not paid any remuneration during the training period. From the facts set out above and the attendant circumstances, especially the lack of a plea to the effect that Exts.P12 and P13 have not been issued by the proprietor of M/s. Mathson Gas Service, I am persuaded to agree with the learned counsel for the petitioner that no reliance can be placed on the letter dated 10.6.2010 given by the proprietor of M/s. Mathson Gas Service to the Indian Oil Corporation. 10. From a reading of Ext.P11 letter, it is evident that the petitioner has been declared ineligible on account of her inability to prove that she has received Rs.45,000/- as salary from M/s. Mathson Gas Service during the financial year 2007-08. Ext.P12 appointment order discloses that the petitioner was appointed as Front Office Manager on a monthly consolidated remuneration of Rs.4,500/- with effect from 1.6.2006. Apart from the fact that Ext.P12 supports the said claim, there also a further fact that in the income tax return, the petitioner had disclosed that she had received the sum of Rs.45,000/- by way of salary from M/s. Mathson Gas Service. From the materials on record and the attendant circumstances, it is evident that there was a deliberate attempt to deny the distributorship to the petitioner. W.P.(C) No.4734 of 2011 12 Initially she was ranked third by not awarding one mark for the additional qualification which she possessed. After one additional mark was awarded, she became the second rank holder and on the first rank holder being found ineligible, she became the first rank holder. The distributorship should have been awarded to the petitioner, the first rank holder. But, at that stage, a disparity in the annual income disclosed in the income tax return and the annual income claimed in the application was put forward to deny appointment. When the petitioner explained that by submitting Ext.P7 reply, reliance was placed on a letter dated 10.6.2010 given by the proprietor of M/s. Mathson Gas Service to the Indian Oil Corporation to contend that the petitioner has not produced any document to prove that she was paid salary by M/s. Mathson Gas Service and was working only on a honorary basis. From the very letter dated 10.6.2010, it is evident that the petitioner was working as Front Office Manager in M/s. Mathson Gas Service. Such being the situation, in the absence of any challenge by the proprietor of M/s. Mathson Gas Service to the authenticity and genuineness of Ext.P12 appointment letter and Ext.P13 experience certificate, I am of the opinion that no reliance at all can be placed on the letter dated 10.6.2010, to hold that the petitioner was not paid any salary. Further, the person who W.P.(C) No.4734 of 2011 13 wrote the letter dated 10.6.2010 is himself an LPG distributor of the Indian Oil Corporation and it will not be unreasonable to presume that pressure would have been brought to bear on him to write out such a letter. The finding in Ext.P11 that the petitioner had furnished wrong information as regards her gross annual income, thereby rendering her ineligible for award of the distributorship cannot be sustained. The respondents have no case that the petitioner is otherwise ineligible to be appointed as distributor. I am therefore of the opinion that the petitioner is entitled to succeed. I accordingly allow the writ petition, set aside Ext.P11 and direct the respondents to appoint the petitioner as LPG distributor at Rajakkad/Santhanpara area in Idukki District. Proceedings in that regard shall be finalised and the Letter of Indent issued expeditiously and in any event within one month from the date on which the petitioner produces a certified copy of this judgment before the Chief Area Manager of the Indian Oil Corporation at Cochin. P.N. RAVINDRAN, JUDGE. nj. P.N.RAVINDRAN, J. -------------------------------------- W.P.(C) No.4734 of 2011 JUDGMENT Dated:- 14th October, 2011 --------------------------------------