IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 WA.No. 1996 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.202/2009 Dated 10/06/2009 .................... APPELLANT(S): PETITIONER: -------------------------------------------- THE MELATTUR SERVICE CO-OPERATIVE BANK LTD.NO.F.1183, MELATTUR P.O., MALAPPURAM, REPRESENTED BY ITS SECRETARY. BY ADVS. MR.V.G.ARUN, MR.T.R.HARIKUMAR. RESPONDENT(S): RESPONDENTS: ---------------------------------------------------- 1. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), MALAPPURAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, CO-OPERATION DEPARTMENT, THIRUVANANTHAPURAM. 3. V.ABBAS, S/O. LATE KUNJALAVI V., VALAPPIL HOUSE, VELIYANCHERI P.O., MELATTUR(VIA), MALAPPURAM. R1 & R2 BY GOVERNMENT PLEADER MR. LAKSHMI NARAYANAN R3 BY ADVS. MR.K.MOHANAKANNAN, SMT.A.R.PRAVITHA. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOTTATHIL B.RADHAKRISHNAN & P.S.GOPINATHAN, JJ. = = = = = = = = = = = = = = = = Writ Appeal No.1996 of 2009. = = = = = = = = = = = = = = = = Dated this the 15th day of February, 2010. J U D G M E N T Gopinathan, J. The appellant is the petitioner in WP(C).No.202/2009. Late Kunjalavi, the father of the 3rd respondent, was working as a Peon under the appellant ever since 1.8.1981. On 2.8.1984, the first respondent ordered termination of Kunjalavi and others on the ground that they were not qualified. After three years, in 1987, the appellant terminated their services. Assailing that order, Kunjalavi and others filed petition as OP.No.8992/1997 before this Court. That petition was withdrawn with liberty to move representation before the first respondent. While disposing the petition the petitioners were allowed to continue in service till a decision is taken on such representation made by the petitioners therein. It is submitted that neither any Writ Appeal No.1996 of 2009. -: 2 :- representation was made by Kunjalavi and others nor their service was terminated. While continuing so, it is alleged that on 29.6.2000 Kunjalavi by Ext.P4 letter resigned from the service of the appellant on ground of ailment. The Board of Directors of the appellant accepted the resignation by a resolution on 30.6.2000. On the next day Kunjalavi expired. 2. On 3.3.2001, the 3rd respondent submitted an application claiming employment under compassionate ground. Thereafter, on 25.11.2002 his mother also submitted an application for such relief. In response to the representation made by the mother, the first respondent informed that one of the dependants of the deceased Kunjalavi is eligible for appointment under Rule 188A of the Kerala Co-operative Societies Rules. Thereafter, the 3rd respondent filed another application on 28.2.2003. On the said application the Board of Directors, on 7.3.2003 resolved to appoint the 3rd respondent in a future vacancy, Writ Appeal No.1996 of 2009. -: 3 :- as at that point of time no suitable vacancy was available to accommodate the 3rd respondent. However, no appointment was made at any time thereafter. Hence, on a representation made by the 3rd respondent, the first respondent directed the appellant to comply with the obligation under Rule 188A of the KCS Rules. In the meanwhile, the appellant had a rethinking and in the meeting of the Board of Directors on 9.12.2005, the claim of the 3rd respondent was declined with a reasoning that late Kunjalavi resigned from service on 29.6.2000 and that was accepted by the Bank on 30.6.2000 and in the circumstance claim for employment is not sustainable. 3. The 3rd respondent thereupon filed a petition as WP(C).No.800/2006 requesting to issue an order/writ directing the appellant to appoint the 3rd respondent. Taking note that the matter was then under the consideration of the first respondent, the petition was disposed directing the first respondent to take a decision Writ Appeal No.1996 of 2009. -: 4 :- with due notice to all concerned. The first respondent, by Ext.R3(e) produced in the writ petition in hand, directed the appellant to appoint the 3rd respondent. The appellant thereupon preferred an appeal before the 2nd respondent State. It was rejected by Ext.P12 order which was impugned in the writ petition. 4. The appellant took up a contention that the dependant had to make an application for employment under the compassionate ground within one year of the death as stipulated under Rule 188A(c) and that Kunjalavi resigned from the service before his death and that the resignation was also accepted and hence Kunjalavi was not in the service of the appellant on the date of death and it was by mistake the Board of Directors had earlier decided to appoint the 3rd respondent. It was further contended that the service of Kunjalavi was earlier terminated and the termination was assailed before this Court but unsuccessful and hence he had been continuing in service without any Writ Appeal No.1996 of 2009. -: 5 :- authority and such continuance of the service would not enure any benefit to the legal heirs for the purpose of appointment on compassionate ground. In appeal, the 2nd respondent had arrived a finding that as regards the resignation of Kunjalavi there was manipulation in the minutes. That finding was also assailed in the writ petition. The learned Single Judge didn't favour with the contentions and declined to interfere with Ext.P12. Now this appeal. 5. Though formal orders were passed by the 2nd respondent on an application dated 28.2.2003, it is seen that as early as 3.3.2001 the 3rd respondent had submitted an application, copy of which was marked as Ext.R3(a) claiming employment under Rule 188A as a dependant of the deceased Kunjalavi. Probably that might not be in the form prescribed or there may not be sufficient datas for issuing an order of appointment. In the event such petition was defective it was for the appellant to return the same to cure the defects and to file an application in the proper Writ Appeal No.1996 of 2009. -: 6 :- form. But that was not done and no action was taken on the application submitted by the 3rd respondent on 3.3.2001. It is feeling aggrieved by the inaction, the mother of the 3rd respondent filed another representation on 27.2.2002. On that representation the first respondent informed the appellant by Ext.R3(b) that one of the dependants of Kunjalavi is entitled to get appointment under Rule 188A. It is in pursuance of that information, the third application for employment was filed on 28.2.2003. So, it could not be said that there was no application for employment under compassionate ground within one year of the death of Kunjalavi. Adding to that the learned Single Judge had taken note that on the representation made by the 3rd respondent, the Board of Directors had taken a decision on 7.3.2003 evidenced by Ext.R3(c) to give appointment to the 3rd respondent in a future vacancy as there was no existing vacancy at that time to accommodate the 3rd respondent. On 7.3.2003, there was no case that there was no Writ Appeal No.1996 of 2009. -: 7 :- application from the 3rd respondent in time seeking employment under Rule 188A. We find that the learned Single Judge had correctly considered all these materials and rightly rejected that defence. 6. The next contention that was advanced is that Kunjalavi had resigned from service before his death and as on the date of death he was not in service. The second respondent had considered that contention and found that there was suspicious circumstances behind the so called resignation. The second respondent had also found that there was some manipulation in the minutes of the meeting held on 30.6.2000 which accepted the resignation made by Kunjalavi on 29.6.2000. It is not disputed that late Kunjalavi was a last grade servant. Exts.P4 and P5 produced in the writ petition would show that the reason for resignation is the physical ailment. In the normal course, if late Kunjalavi was so ailing he would have sought for a voluntary retirement with all retiremental benefits. Instead Writ Appeal No.1996 of 2009. -: 8 :- of that he had sought for resignation. It appears very odd. It is also crucial to note that the so called resignation dated 29.6.2000 was placed before the Board of Directors as an additional agenda on the next day, ie. On 30.6.2000 and it was accepted. Undue haste is evident. The bye-laws of the appellant society admittedly do not contain any procedure for resignation of an employee or acceptance of the same. In the above circumstance, it would be appropriate to look into the procedure prescribed by the Kerala Service Rules Government decision under Rule 23(c), Part I KSR would show that the resignation from service should be accepted after settling all the outstanding liabilities against the government servant. 7. Here, there is no case for the appellant that before accepting the resignation, the liabilities, if any, were verified and settled. That fact itself would show that there is some suspicious circumstance. We find that the second respondent had well considered the attendant Writ Appeal No.1996 of 2009. -: 9 :- circumstances and arrived a finding in favour of the 3rd respondent. All materials were correctly analysed by the learned Single Judge. We fail to find that the conclusion arrived by the learned Single Judge is any way erroneous, illegal or arbitrary. The learned Single Judge was right in rejecting that contention. 8. The next contention that was advanced is that Kunjalavi was not qualified to hold the post and as directed by the first respondent the service of Kunjalavi was terminated as early as 26.10.1987 and that though late Kunjalavi assailed the same by filing writ petition OP.No.8992/1997, he was unsuccessful. Therefore, his continuation in service was illegal. It is crucial to note that though the earlier writ petition filed by Kunjalavi and others was dismissed, Kunjalavi was allowed to file a representation to reconsider the order of termination and the appellant was directed to reconsider the order terminating the service of late Kunjalavi. Though Kunjalavi Writ Appeal No.1996 of 2009. -: 10 :- had not given any representation he was permitted to continue in service till 30.6.2006, when it is alleged that the resignation submitted by Kunjalavi was accepted by the Board of Directors. On the next day, he expired. What was the lack of qualification is not revealed out. However, it is to be noted that Kunjalavi had been continuing in service as peon ever since 1.8.1981. The impugned judgment of the learned Single Judge would show that before he was appointed as a Peon in 1981, he was working as a Watchman since 1978. After the appellant having allowed Kunjalavi to continue in service as Peon since 1981 till 2000, there is no bonafides and merit in the contention that Kunjalavi was not qualified and that he had been continuing in service illegally. The appellant has no case that the service of Kunjalavi was any way unsatisfactory. So, even if it is admitted that Kunjalavi lacked documentary qualification, his service throughout was satisfactory. Even though he was terminated earlier, in 1987, that was not Writ Appeal No.1996 of 2009. -: 11 :- pursued and Kunjalavi was allowed to work as Peon till his death. Acquiescence is evident from the materials on record. So, there is no justification in contending that Kunjalavi was continuing in service illegally. The learned Single Judge had considered that contention also on merits and rightly arrived a conclusion against the appellant. We find no merit in the Writ Appeal. Accordingly it is dismissed with no order as to costs. THOTTATHIL B.RADHAKRISHNAN (JUDGE) P.S.GOPINATHAN (JUDGE) Kvs/-