IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 202 of 2009(Y) ----------------------------------- PETITIONER: ------------------- THE MELATTUR SERVICE CO-OPERATIVE BANK LIMITED NO.F.1183, MELATTUR P.O., MALAPPURAM, REPRESENTED BY ITS SECRETARY. BY ADVS. MR.V.G.ARUN, MR.T.R.HARIKUMAR. 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, SON OF LATE KUNJALAVI .V, VALAPPIL HOUSE, VELIYANCHERI P.O., MELATTUR (VIA), MALAPPURAM R1 & R2 BY GOVT. PLEADER MR. I.V. PRAMOD, R3 BY ADV. MR.K.MOHANAKANNAN, SMT.A.R.PRAVITHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.202/2009-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER DTD. 26/10/1987. EXT.P.2: COPY OF THE ACKNOWLEDGEMENT DTD. 27/10/87. EXT.P.3: COPY OF THE JUDGMENT DTD. 18/08/88 IN O.P. 8992/97. EXT.P.4: COPY OF THE RESIGNATION LETTER DTD. 29/06/2000. EXT.P.5: COPY OF THE RESOLUTION DTD. 30/06/2000. EXT.P.6: COPY OF THE LETTER NO. CRP(1) 10492/02 DTD. 08/01/2002. EXT.P.7: COPY OF THE RESOLUTION DTD. 07/03/2003. EXT.P.8: COPY OF THE APPLICATION FOR EMPLOYMENT ASSISTANCE UNDER RULE 188A DT. 28/02/2003. EXT.P.9: COPY OF THE ORDER NO. CRP(1) 3505/2005 DT. 18/11/05. EXT.P.10: COPY OF THE JUDGMENT IN W.P.(C).800/2006 DT. 01/08/06. EXT.P.11: COPY OF THE ORDER NO. CRP(1)3505/05. DT. 13/10/06. EXT.P.12: COPY OF THE ORDER NO. 570/08/CO-OP. DTD. 01/09/2008. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE APPLICATION FILED BY THE R.3. TO THE PETITIONER BANK ON 03/03/2001. EXT.R3.B: COPY OF THE PROCEEDINGS OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, MALAPPURAM DTD. 08/01/2003. EXT.R3.C: COPY OF THE PROCEEDINGS OF THE BOARD OF DIRECTORS OF THE BANK DTD. 07/03/2003. EXT.R3.D: COPY OF THE PROCEEDINGS OF THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, MALAPPURAM DTD. 19/05/2005. EXT.R3.E: COPY OF THE ORDER OF THE JOINT REGISTRAR OF THE CO-OPERATIVE SOCIETIES, MALAPPURAM DTD. 18/11/2005. W.P.(C). NO.202/2009-Y: EXT.R3.F: COPY OF THE PROCEEDINGS OF THE DIRECTOR BOARD OF THE BANK DTD. 09/12/2005. EXT.R3.G: COPY OF THE PROCEEDINGS OF THE DIRECTOR BOARD OF THE BANK DTD. 30/06/2000. EXT.R3.H: COPY OF THE INTERIM ORDER DTD. 19/01/2006 IN W.P.(C).NO.800/2006 OF THIS HONOURABLE COURT. EXT.R3.I: COPY OF THE PROCEEDINGS OF THE ADDL. REGISTRAR OF CO-OPERATIVE EMPLOYEES' WELFARE FUND BOARD, THIRUVANANTHAPURAM DTD. 27/07/2001. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC,J. --------------------- W.P.(C).No.202 OF 2009 ------------------------ Dated this the 10th day of June, 2009. JUDGMENT The prayer in this writ petition is to quash Exts.P11 and P12 and to direct respondents 1 and 2 not to insist on the appointment of the 3rd respondent under Rule 188A of the Kerala Co-operative Societies Rules. 2. In 1978, the 3rd respondent 's father Late Valappil Kunhalavi was appointed in the petitioner bank as a Watchman. Subsequently, with effect from 1.8.1981, he was appointed as Peon. On 2.8.1984 on the ground that he was an unqualified candidate, the Joint Registrar ordered his termination and ccordingly, the Bank terminated his services. He pursued the matter before the statutory authorities but was unsuccessful. Finally, he approached this court and filed O.P.No.8992/97. That Original Petition was disposed of by Ext.P3 judgment permitting him to WP(c).No.202/09 2 withdraw the writ petition with liberty to approach the Joint Registrar. 3. In the meanwhile, despite his termination, on the strength of an interim order passed by the statutory authorities and also this court, Sri. Kunhalavi continued in service throughout and even beyond the period specified in Ext.P3 judgment. 4. According to the Bank, while thus continuing to work, on 29.6.2000 Kunhalavi submitted Ext.P4 letter of resignation which was accepted by the Bank as per Ext.P5 resolution dated 30.6.2000. Sri. Kunhalavi expired on 1.7.2000. 5. According to the 3rd respondent, he being the son of the deceased, submitted Ext.R3(a) application dated 3.3.2001 claiming employment under Rule 188-A as the dependent of the deceased. Admittedly, by Ext.P6 dated 8.1.2002, in response to the representation dated 25.11.2002 submitted by the 3rd respondent's mother, the Joint Registrar informed him that one of the dependents is eligible for appointment WP(c).No.202/09 3 under Rule 188A and required him to submit a proper application. It is stated that accordingly, Ext.P8 application was submitted by the 3rd respondent claiming appointment under the petitioner. This application is dated 28.2.2003. On receipt of the application, the Bank passed Ext.P7 resolution dated 7.3.2002 resolving that the petitioner be appointed in the future vacancy, as at that point of time no suitable post was available to appoint 3rd respondent. In Ext.P7 there is no case for the Bank that the deceased had submitted Ext.P4 resignation or that by Ext.P5 the same was accepted and that there was any cessation of employment before the death of the deceased. 6. In spite of the resolution that was passed, appointment was not made and on a representation made by the 3rd respondent, the Joint Registrar issued Ext.R3(d) proceedings requiring the Bank to comply with its obligation under Rule 188A. It is also seen that the Joint Registrar thereafter issued Ext.R3(c) proceedings as well. In the WP(c).No.202/09 4 meanwhile, it would appear that the petitioner had a rethinking about its decision to appoint the 3rd respondent. It is stated that the matter was considered by the Bank in its meeting held on 9.12.2005 when it passed Ext.R3(f) resolution, where, taking note of the resignation of the deceased by Ext.P4 dated 29.6.2000 and its acceptance by Ext.P5 dated 30.6.2000, the Bank resolved that the claim raised by the 3rd respondent was unsustainable and therefore to review Ext.P7, its earlier decision. 7. At this stage, the 3rd respondent approached this court and filed WP(c).No.800/2006, in order to compel the petitioner Bank to appoint him. The case was disposed of by Ext.P10 judgment. Taking note of the fact that the proceedings pursuant to Ext.R3(f) is pending consideration of the Joint Registrar, it was directed that the Joint Registrar shall consider the matter afresh with notice to all parties. Accordingly, the Joint Registrar considered the matter and issued Ext.P11 proceedings directing the petitioner Bank to WP(c).No.202/09 5 appoint the 3rd respondent. Against Ext.P11, petitioner bank filed an appeal before the Government and that resulted in Ext.P12 order rejecting the appeal. It is in these circumstances the writ petition is filed by the Bank. 8. Several contentions have been raised in support of the writ petition. It is stated that the deceased had, prior to his death, resigned from his employment and that on account of the cessation of employment, the 3rd respondent is ineligible for the benefit of the employment under Rule 188A. Yet another contention is that, consequent on the termination following the directions of the Joint Registrar, even though the deceased had continued in service, it was an illegal continuance and that such an appointee or his legal representative cannot claim any benefit based on such continuance in service. Thirdly, it was contended that under Rule 188A(1)(c), application for appointment ought to have been made within one year of the death of the employee and that in this case the application made was Ext.P8, which was WP(c).No.202/09 6 received long after the prescribed period. It is also argued that in Ext.P10 this court directed the Joint Registrar to consider the matter in the light of Ext.R3(f) and that such consideration is not seen reflected in Ext.P11 or Ext.P12. 9. Reliance is placed by the 3rd respondent on Ext.R3(a) application dated 3.3.2001. It s stated that this application was made well within the period of one year and the plea of belated application is not factually correct. It is stated that the theory of resignation now put forward was projected by the Bank for the first time only in Ext.R3(f) dated 9.12.2005 when the Bank wanted to review Ext.P7 decision. It is stated that the deceased admittedly having continued in service till date of death, the Bank cannot raise this plea at this distance of time. In so far as the plea that the continuance of the deceased was illegal and therefore the legal representatives are ineligible to claim the benefit of Rule 188A is concerned, counsel for the 3rd respondent contend that after allowing the deceased to continue in service till 2000 and after having WP(c).No.202/09 7 settled the terminal benefits accepting the employment for the whole period, this plea is not available for the Bank. Finally it is argued that the 3rd respondent's family is in distress and that the entire burden of the family is on the 3rd respondent and therefore there is no justification to interfere with the impugned orders. 10. Having considered the respective contentions of both sides, I am inclined to think that this court will not be justified in interfering with the impugned orders. Even according to the Bank, the deceased continued in the employment of the bank till 29.6.2000 and the Bank has settled the terminal benefits of the deceased on the basis that he had continued service from 1981 to 2000. After having accepted the deceased as an employee for more than 19 years, it is not now open to the Bank to say that the service of the deceased after 2.8.1984 was illegal and on that basis cannot deprive the legal representatives of their legitimate claim. In so far as the theory of resignation is concerned, first of all, such a case is WP(c).No.202/09 8 not even mentioned in Ext.P7 passed on 7.3.2003, when the bank resolved to appoint the 3rd respondent in future vacancies. Even otherwise as is seen from Ext.P12, the Government found certain manipulations in the minutes of the meeting held on 30.6.2000 in which the resignation was allegedly accepted. In the light of these two facts, I am not inclined to accept the plea of the Bank that the deceased had resigned from service and that for that reason the 3rd respondent is ineligible for the benefit of Rule 188A. In so far as the plea that the application made was a belated one, a reading of Ext.P6 shows that as early as on 8.1.2003, the Joint Registrar himself had recognized the claim of the legal representatives for the benefit of Rule 188A and on that basis directed the 3rd respondent to submit application. Accordingly, application was made and Bank resolved to appoint the 3rd respondent. It is long thereafter, all these technical contentions are raised by the Bank to deprive the 3rd respondent of his legitimate claim. Apart from this, it is seen WP(c).No.202/09 9 from Ext.P11 and P12 that the statutory authorities including the Government have considered the entire aspects in the right perspective and I do not think that any ground has been made out by the petitioner to conclude that the findings in Exts.P11 and P12 are perverse, warranting interfere from this court. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.202/09 10