Anusree K.B. v. Fertilisers and Chemicals Travancore Limited and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941** ## **WP(C).NO.11234 OF 2018(D)** ## **PETITIONER:** **ANUSREE K.B.** **AGED 30 YEARS, W/O. ROOBAM.P, RESIDING AT KRRA. 36, MARIAMBIKA, EROOR SOUTH, THRIPPUNITHURAERNAKULAM DISTRICT- 682 306** **BY ADVS. SRI.M.V.THAMBAN SRI.ARUN BOSE SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN** ## **RESPONDENTS:** - **1 THE FERTILISERS AND CHEMICALS TRAVANCORE LIMITED REGISTERED OFFICE AT ELOOR, UDYOGAMANDAL.P.O., KOCHI, KERALA, PIN- 683 501 REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR** - **2 THE CHAIRMAN AND MANAGING DIRECTOR THE FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, REGISTERED OFFICE AT ELOOR, UDYOGAMANDAL.P.O., KOCHI, KERALA, PIN- 683 501** - **3 THE GENERAL MANAGER (HR) THE FERTILISERS AND CHEMICALS TRAVANCORE LIMITED, REGISTERED OFFICE AT ELOOR, UDYOGAMANDAL.P.O., KOCHI, KERALA, PIN- 683 501** - **BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR BY ADV. SRI.P.GOPINATH BY ADV. SRI.K.JOHN MATHAI BY ADV. SRI.JOSON MANAVALAN BY ADV. SRI.KURYAN THOMAS BY ADV. SRI.PAULOSE C. ABRAHAM** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.11234 OF 2018(D)** 2 ## **J U D G M E N T** The daughter of late K.S.Babu, who was employed in the FACT as a loading helper, has filed this writ petition challenging Ext.P7 order by which her application for compassionate employment was rejected. 2. Petitioner's father died on 19.04.1995 in an accident which occurred while he was on duty. Petitioner, who was then 7 years old, submitted Ext.P1 application on 16.03.2009 after attaining majority. It is stated that petitioner was subjected to an interview on 09.08.2010. As directed by the respondents, petitioner submitted Ext.P2 application in the proforma. Thereafter as per Ext.P3 letter dated 24.11.2011, petitioner's mother was asked to submit the details of the dependants of the deceased in the proforma forwarded. Petitioner's mother had furnished all the details including Ext.P4. Petitioner submits that as there was no further **WP(C).No.11234 OF 2018(D)** 3 action on her application, they approached the Deputy Chairman of the Rajya Sabha and thereafter submitted Ext.P6 representation followed by representations before various authorities. Thereafter the first respondent issued Ext.P7 order on 12.02.2008, rejecting her application on the grounds: (1) her name does not figure in the list of dependants submitted by the deceased and (2) the policy of the Company is to offer employment only to unmarried daughter of the deceased. It was also mentioned that the widow-petitioner's mother was understood to be employed in the State Health Service Department. Petitioner is challenging Ext.P7 order stating that both the grounds on which her application was rejected are unsustainable. It is pointed out that at the time when Ext.P1 application was submitted in 2009, petitioner was unmarried. She got married only in 2013. It is stated that the petitioner's mother had already produced Ext.P3 list **WP(C).No.11234 OF 2018(D)** 4 of dependants, in which the name of 2[nd] petitioner is also included. 3. Respondents have filed counter affidavit and additional counter affidavit. According to them the purpose of compassionate employment is to help the family of the deceased to tide over the sudden crisis caused by the bread winner; the person claiming appointment should prove that the family continues to be in penury; compassionate appointment is only an exception; it is not a right; the mother of petitioner was working at the time of death; application for compassionate employment was submitted after 14 years of the death; the family had coped without being given compassionate employment; therefore there was no necessity for employment. 4. Along with additional counter affidavit, the respondent have produced the scheme for compassionate employment and stated that petitioner **WP(C).No.11234 OF 2018(D)** 5 was not eligible for appointment as per the scheme. 5. Learned counsel for the petitioner relied on the judgments of this Court in **St.Ignatius High School v. State of Kerala and Other** [2005 KHC 968] in which it was held that the application for employment cannot be rejected on the ground that the applicant got married, when at the time of application she was unmarried. Learned counsel for the first respondent relied on the judgments of the Apex Court in State of **Himachal Pradesh and Another v. Shashi Kumar** [2019 (3) SCC 653], **State Bank of India & Ors. v. Sheo Shankar Tewari** [2019 (2) SC 248], **State Bank of India & Ors. v. Raj Kumar** [2010 (11) SCC 661] and argued that the eligibility of the applicant for compassionate employment has to be reckoned as on the date of consideration. It is also pointed out that the financial condition of the family has to be considered in the light of the scheme for employment and therefore when the widow **WP(C).No.11234 OF 2018(D)** 6 was already employed, petitioner cannot be granted employment. 6. Heard the learned Counsel on both sides. 7. The application submitted by the petitioner for compassionate employment is rejected in Ext P7 on two grounds: (1) her name not included in the list of dependants; (2) the policy of the company is to give employment only to unmarried daughters. In this context it is necessary to have a look at the norms in Ext.R1(a) scheme for compassionate employment: - “At the CMC meeting on 07.12.1979 and 11.01.1980 we have decided the following norms as relevant for employment of dependant of an employee dying in harness: - I. When death is due to accident arising from and in the course of employment. - (1) Due consideration and priority may be given in providing employment to the dependant of the deceased employee subject to Clause II(2) below. If necessary, internal transfer could be made within the division to generate vacancy suitable to the qualification/experience of the **WP(C).No.11234 OF 2018(D)** 7 - candidate. However, no relaxation should be made in qualification. The requirement, if any, with regard to experience could be relaxed subject to suitability. - (2) Employment should be in a vacancy which is readily available or which can be made available with internal changes/transfers as may be necessary. - II When death is due to any other reason, e.g., natural cause, accidents which are not arising from or in the course of employment, the following criteria should apply: - (1) There must be a vacancy readily available where the dependant can be employed. - (2) The extent of financial distress in the family, the number of dependant family members, their age and employment position should be considered. The primary test will be whether the employee was the sole bread winner or not. - (3) No relaxation should be made in qualification. The requirement, if any, with regard to experience may be relaxed subject to suitability. - (4) If there are no immediate vacancies available, the application may be kept pending and consideration may be given for a period of one year, beyond which no such consideration may be shown.” 8. Petitioner's case comes under clause I as the death occurred due to an accident which occurred **WP(C).No.11234 OF 2018(D)** 8 while on duty i.e., during the course of employment. It is true that clause I is subject to clause II.2, as pointed out by the learned Standing Counsel. Clause II.2 provides that the extent of financial distress in the family, the number of dependant family members, their age and employment should be considered. It also provides that the primary test will be whether the employee was the sole bread winner or not. 9. Clause I provides for priority in the matter to the dependants of those who died while in service. The respondents have not even stated whether they considered the financial stress of the family, or the number, age, employment, etc., of the dependants were considered, before rejecting the application. The petitioner, who was a minor, could have submitted her application only when she became a major. After she submitted her application, respondents subjected her to an interview in 2010 **WP(C).No.11234 OF 2018(D)** 9 and called for the details of dependants in 2011. They chose to reject it after about 8 years of the application, after several representations. 10. The two reasons highlighted in Ext.P7 order for rejecting the application was the petitioner did not figure in the list of dependants and also that the policy is to give employment to unmarried daughter. Both reasons are unsustainable in the circumstances of the case. After keeping an application submitted by a person in 2009 pending for 7-8 years, there is no justification in rejecting an application on the ground that petitioner is married. Similarly the name of petitioner was available in Ext.P4. In the order Ext.P7, the respondents did not have a case regarding the delay in submission of the application. Though it was stated that widow of deceased employee appeared to be employed in the State Health Service, nothing was stated regarding **WP(C).No.11234 OF 2018(D)** 10 the financial status of the family or about any other factor. Therefore it is evident that the respondents have not considered the claim of petitioner in accordance with the scheme. The rejection is not on any ground with respect to the need of the family or the financial position of the family. The respondents cannot be permitted to supplement the reasons stated in Ext.P7, by filing a counter affidavit. Therefore, the judgments relied on by the learned Counsel for the respondents would not apply to the factual circumstances of the case. I am of the view that the respondents have to reconsider the application of the petitioner in accordance with clause I of Ext.R1(a) scheme. Ext.P7 is therefore set aside. There shall be a direction to the respondents to reconsider the application of the petitioner, treating her as a dependant of the deceased notwithstanding the fact that she is since been married, and pass orders **WP(C).No.11234 OF 2018(D)** 11 within a period of 'one month' from the date of receipt of a copy of the judgment. The writ petition is disposed of accordingly. Sd/- **P.V.ASHA, JUDGE** AS **WP(C).No.11234 OF 2018(D)** 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE APPLICATION DATED 16.3.2009 OF THE PETITIONER** - **EXHIBIT P2 TRUE COPY OF THE APPLICATION OF THE PETITIONER IN THE PRESCRIBED PERFORMA** - **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 24.11.2011** **EXHIBIT P4 TRUE COPY OF THE DETAILS OF THE DEPENDANTS OF DECEASED EMPLOYEE EXHIBIT P5 TRUE COPY OF THE LETTER DATED 24.12.2013 OF THE HON'BLE DEPUTY CHAIRMAN OF RAJYA SABHA EXHIBIT P6 TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 26.12.2013** - **EXHIBIT P7 TRUE COPY OF THE LETTER NO. GM(HR)CO-049 DATED 12.2.2018** - **EXHIBIT P8 TRUE COPY OF THE NOTIFICATION UPLOADED IN THE WEBSITE OF THE RESPONDENT COMPANY.** **EXHIBIT P9 TRUE COPY OF THE NOTIFICATION TO THE POST OF ASSISTANT.** **RESPONDENTS' EXHIBITS:** **EXHIBIT R1 A TRUE COPY OF THE GUIDELINES DATED 25/2/1980 OF THE COMPANY**