High Court of KeralaSingle Judge2019-08-16Writ petition allowed; Ext.P16 set aside; Bank ...

Jishnu G v Parakkadavu Service Co-operative Bank Ltd and Others

Case / Petition Number:WP(C).No.19510 OF 2019(K)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devān Ramachandran
Judgment Date: 2019-08-16
Court Decision / Holding: Writ petition allowed; Ext.P16 set aside; Bank directed to reconsider the petitioner’s request after affording an opportunity of hearing and requiring the production of sufficient documents, with the reconsideration to be completed not later than two months from the date of receipt of a copy of the judgment.
Final Disposition: Writ petition allowed; Ext.P16 set aside; Bank directed to reconsider petitioner's request after hearing and verification of documents, within two months.

Parties to the Case

Appellants / Petitioners

JISHNU G, S/O. GOPALAKRISHNAN, AGED 22 YEARS, RESIDING AT KANICHATTUPALLATH HOUSE, PAARAKKADAVU-683 579

Respondents

PARAKKADAVU SERVICE CO-OPERATIVE BANK LIMITED NO. 2843, PARAKKADAVU P.O, PIN-683 579, REPRESENTED BY ITS SECRETARY
THE MANAGING COMMITTEE OF THE PARAKKADAVU SERVICE CO-OPERATIVE BANK LTD. NO. 2843, PARAKKADAVU P.O, PIN-683 579, REPRESENTED BY ITS PRESIDENT
THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT, PIN-682 030
ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, ALUVA, ERNAKULAM DISTRICT, PIN-683 101

Legal Representation & Advocates

Counsels for Petitioners

• M.M.MO NAYE
• M.PAUL VARGHESE
• BINCY JOSE

Counsels for Respondents

• P.N.MOHANAN
• C.S.SHEEJA

Case Synopsis & Summary

The petitioner, Jishnu G, is the nephew of late P. D. Vijayakumar, who died while in service with the Parakkadavu Service Co-operative Bank. He seeks appointment under the Dying-in-Harness Scheme, relying on Rule 188A of the Kerala Co-operative Societies Rules, especially its Explanation, which contemplates dependents of a deceased employee. The Bank rejected the claim, observing that the widow of Vijayakumar is employed in another society and that the petitioner’s parents are reportedly employed, raising questions about the petitioner's dependency and the necessity of a protecting measure. The petitioner contends that he qualifies as a dependent through late Vijayakumar and that the widow’s employment does not preclude his entitlement; the respondent Bank argues that incapacitation of the widow is the trigger for another dependent to be considered, and that mere existence of alternative employment for the widow should not necessarily bar relief. The counsel for the petitioner asserts that Rule 188A aims to provide immediate succor to the family of the deceased, while the respondent’s counsel cites several judgments to buttress the stance that benefits are intended for those genuinely in need, not for well-protected dependents. The High Court, after analyzing Rule 188A and its sub-rule, sets aside the impugned Ext.P16 and directs the Bank to reconsider the petitioner’s request after due hearing, with relevant documents, and to decide expeditiously, but within two months from receiving a copy of the judgment.

Provisions of Law Cited

Rule 188A, Kerala Co-operative Societies RulesRule 188A(1), Kerala Co-operative Societies RulesExplanation to Rule 188A, Kerala Co-operative Societies Rules

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner’s counsel argued that Rule 188A is meant to extend immediate assistance to the family of a deceased employee. Since the petitioner is the nephew of late Vijayakumar and the widow is already employed, the beneficiary criteria should be read to include the dependent through the deceased’s line, especially where the petitioner’s own parents are employed and the family would otherwise be protected. The explanation to Rule 188A permits consideration of dependents in the event of incapacitation of the widow, but the applicant contends the widow’s employment does not automatically negate the nephew’s entitlement. The counsel cited decisions such as Amla v. Union of India and others, and related Kerala and Supreme Court judgments to emphasize that the scheme is meant for those in need rather than those who are already financially protected. The petitioner requests setting aside Ext.P16 and directing the Bank to reconsider with ample opportunity to adduce documents.

Contentions of Respondents

The Bank’s counsel argued that Rule 188A(1) requires incapacitation of the widow/widower to trigger eligibility for another dependent, and that the widow’s current employment indicates she is not incapacitated. Since the petitioner is not a dependent of the widow but of the deceased, the Bank cannot rely on the widow’s status alone to deny the claim; however, the respondent contends that the petitioner must prove lack of parental support and other status details. The defense also argues that the petitioner did not furnish convincing documentary proof of paternal or maternal financial insufficiency, and that the purpose of Rule 188A is to protect families in genuine need rather than extend a benefit to those already well protected. They urge dismissal or non-interference with Ext.P16.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Amla v. Union of India	2019(3) KLT 270	Mentioned Only	Cited to illustrate the policy intent behind Rule 188A to provide immediate succor to the family of the deceased; not explicitly adopted or distinguished in the decision.
Manager, Naduvathur U.P.School and Another v. Bijeesh K. and Others	2019(3) KHC 472	Mentioned Only	Cited to support the view that benefits under Rule 188A are for dependent family members, contextual to the need for protection.
State of Himachal Pradesh and Another v. Parkash Chand	[(2019) 4 SCC 285]	Mentioned Only	Cited as part of the jurisprudential backdrop for the welfare purpose of Rule 188A; not treated as binding or controlling in this case.
Bharat Sanchar Nigam Ltd v. Rajesh	2015(2) KLT 478	Mentioned Only	Cited to discuss the welfare objective of the scheme; not applied as a direct ratio in deciding the outcome.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 16TH DAY OF AUGUST 2019 / 25TH SRAVANA, 1941** ## **WP(C).No.19510 OF 2019(K)** ## **PETITIONER/S:** **JISHNU G, S/O. GOPALAKRISHNAN, AGED 22 YEARS, RESIDING AT KANICHATTUPALLATH HOUSE, PAARAKKADAVU-683 579** **BY ADVS. SRI.M.M.MONAYE SRI.M.PAUL VARGHESE SMT.BINCY JOSE** ## **RESPONDENT/S:** - **1 PARAKKADAVU SERVICE CO-OPERATIVE BANK LIMITED NO. 2843, PARAKKADAVU P.O, PIN-683 579, REPRESENTED BY ITS SECRETARY.** - **2 THE MANAGING COMMITTEE OF THE PARAKKADAVU SERVICE CO-OPERATIVE BANK LTD. NO. 2843, PARAKKADAVU P.O, PIN-683 579, REPRESENTED BY ITS PRESIDENT.** - **3 THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT, PIN-682 030** - **4 ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES, ALUVA, ERNAKULAM DISTRICT, PIN-683 101** **BY ADVS. SRI.P.N.MOHANAN SMT.C.S.SHEEJA, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 19510/19 2 ## **JUDGMENT** The petitioner claims to be the nephew of Sri.P.D.Vijayakumar, who unfortunately died while in the services of the 1[st] respondentSociety. According to him, wife of late P.D.Vijayakumar is already employed in a Society and therefore, that she cannot claim appointment under Rule 188A of the Kerala Co-operative Societies Rules and therefore that, going by the Explanation to the said Rule, since he is the nephew of late P.D.Vijayakumar, he is entitled to be construed as a dependent and therefore, granted an appointment under the Dying-inHarness Scheme. 2. The petitioner alleges that, however, the 1[st] respondent-Bank, without considering any of these facts, rejected his application merely saying that wife of late P.D.Vijayakumar does not require any employment and further that he is under the financial protection of his father WPC 19510/19 3 and mother, who are the brother and sister-inlaw of late P.D.Vijayakumar. He, therefore, prays that Ext.P16, which is the order impugned in this writ petition, be set side. 3. In answer to the afore submissions of Sri.M.M.Monaye-learned counsel for the petitioner, Sri.P.N.Mohanan–learned Standing Counsel for the respondent-Bank, submits that as is clear from Ext.P16, the petitioner cannot claim any employment under Rule 188A of the KCS Rules, because, as per Sub Rule (1) to it, it is only where a widow/widower is incapacitated to avail the benefits under the said Rule, can another dependent be granted the benefit. He adds that in this case, the widow of late P.D.Vijayakumar is not incapacitated from taking this job, but that she is employed in a different Society drawing a good salary. He says, therefore, that going by Sub Rule (1) of Rule 188A, there is no incapacitation for the WPC 19510/19 4 widow in this case, thus entitling the petitioner, who is only a nephew, to the benefits under it. He adds that, as has also been recorded in Ext.P16, the petitioner is under the protection of his own father and mother, who are also both employed and therefore, that he cannot, in any event, claim the benefits under Rule 188A of the KCS Rules. 4. Sri.P.N.Mohanan vehemently supports his contentions afore on the strength of various judgments of the Hon'ble Supreme Court and of this Court, namely, **Amla v. Union of India [2019(3) KLT 270], Manager, Naduvathur U.P.School and Another v. Bijeesh K. and Others [2019(3) KHC 472], State of Himachal Pradesh and Another v. Parkash Chand [(2019) 4 SCC 285] and Bharat Sanchar Nigam Ltd v. Rajesh [2015(2) KLT 478],** asserting that the purpose behind Rule 188A of the KCS Rules is to provide the family of the deceased immediate succour and that it is WPC 19510/19 5 not intended to give employment to a person who is otherwise well protected. He then says that the fact that the widow of late P.D.Vijayakumar is employed in another Co-operative Society clearly shows that her family does not require any protection through a financial arrangement; and that the petitioner did not produce any document before the Society to show that he is not under the care and protection of his father and mother, particularly when his client had received reliable information that both his parents are well employed. He thus submits that this Writ Petition is confutative in its nature and that none of the reliefs may be granted. 5. In reply to the afore submissions, Sri.M.M.Monaye submits that documents have been placed on record to show that the petitioner's parents are not employed as has been alleged in Ext.P16 and further that the fact that the widow of late P.D.Vijayakumar cannot accept this job, WPC 19510/19 6 because she is already employed, should be construed to be an 'incapacitation' under Sub Rule 1 of Rule 188A of the KCS Rules. He further says that the stand of the Society in Ext.P16 is flawed because he is the nephew of late P.D.Vijayakumar and not of his wife and therefore, that he can be only seen to be a dependent of late P.D.Vijayakumar; and consequently, that merely because the deceased's wife may be employed, he cannot be denied the benefit of Rule 188A of the KCS Rules because he is not her dependent. He, therefore, prays that this writ petition be allowed. 6. I have considered the afore submissions and have examined the provisions of Rule 188A of the KCS Rules very intently. 7. As is clear from the said Rule, it is only where a widow/widower is not in a position to avail of the benefits will the chance of a dependent arise and that too with the consent of WPC 19510/19 7 the widow/widower. There is no case for anyone that the widow of late P.D.Vijayakumar has not consented to the employment being offered to the petitioner, but the question is whether, because the widow is already employed, this benefit should be denied to the petitioner or to the family of late P.D.Vijayakumar. 8. There is no doubt, going by Sub Rule (1) of Rule 18A of the KCS Rules, that the widow/widower of a deceased person has to be found incapacitated before any other dependent is offered employment. Thus, the question really is whether the incapacitation means a factor other than having another employment and whether the factum of an existing employment for a widow/widower will have to be reckoned as beyond the rigour of Rule 188A(1). However, as Sri.M.M.Monaye rightly pointed out, the petitioner herein is not the nephew of the widow/widower but that of the deceased and WPC 19510/19 8 generally, therefore, he cannot be taken to be a dependent of the widow of late P.D.Vijayakumar. Therefore, even though the widow may not be in a position to take up the employment on account of her job, the claim of the petitioner being not routed through her, but directly through late P.D.Vijayakumar, whose nephew he concededly is going by the pleadings on record, the crucial point is whether he can be denied employment merely because the widow of late P.D.Vijayakumar is already employed. This certainly is a matter that has to be considered by the Bank again, particularly because the other limb of the order which is impugned, namely that the petitioner is under the protection of his parents-who are both employed, will also require to be factually tested, because the petitioner maintains that his parents are neither employed nor in a capacity to protect him. In the afore circumstances and in order to WPC 19510/19 9 have a proper appreciation of all these factors by the Bank, I set aside Ext.P16, hastening to add that I have not concluded against it affirmatively on any other account; and resultantly, direct the Bank to reconsider the petitioner's request, after affording an opportunity of being heard and to produce sufficient documents in substantiation of its assertions to the petitioner and then proceed to decide the matter again in terms of law and adverting to my observations above, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. This writ petition is thus ordered. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR ## **JUDGE** WPC 19510/19 10 ## APPENDIX ## PETITIONER'S/S EXHIBITS: |EXHIBIT P1|TRUE COPY OF THE DEATH CERTIFICATE| |---|---| ||DATED 19.1.2018.| |EXHIBIT P2|TRUE COPY OF THE RELATIONSHIP| ||CERTIFICATE DATED 2.8.2018 ISSUED BY| ||VILLAGE OFFICER, PARAKKADAVU.| |EXHIBIT P3|TRUE COPY OF THE APPLICATION DATED| ||28.2.2018.| |EXHIBIT P4|TRUE COPY OF THE PHYSICAL FITNESS| ||CERTIFICATE OF THE PETITIONER DATED| ||8.2.2018| |EXHIBIT P5|TRUE COPY OF THE CHARACTER AND| ||CONDUCT CERTIFICATE DATED 20.02.2018.| |EXHIBIT P6|TRUE COPY OF THE CHARACTER AND| ||CONDUCT CERTIFICATE DATED 7.2.2018.| |EXHIBIT P7|TRUE COPY OF THE SSLC CERTIFICATE OF| ||THE PETITIONER OF THE YEAR 0F MARCH| ||2012.| |EXHIBIT P8|TRUE COPY OF THE HIGHER SECONDARY| ||EXAMINATION CERTIFICATE OF THE| ||PETITIONER DATED 13.5.2014 OF THE| ||YEAR OF MARCH 2014.| |EXHIBIT P9|TRUE COPY OF THE LETTER ISSUED BY THE| ||SOCIETY DATED 3.7.2018.| |EXHIBIT P10|TRUE COPY OF THE REPLY SUBMITTED BY| ||THE PETITIONER DATED 14.8.2018.| |EXHIBIT P11|TRUE COPY OF THE LEGAL HEIRSHIP| ||CERTIFICATE ISSUED BY THE TAHSILDAR| ||ALUVA DATED 6.7.2018.| |EXHIBIT P12|TRUE COPY OF THE AFFIDAVIT OF THE| ||WIFE OF LATE VIJAYAKUMAR DATED| ||13.8.2018.| |EXHIBIT P13|TRUE COPY OF THE CONSENT LETTER DATED| WPC 19510/19 11 ||14.8.2018 SUBMITTED BY THE RELATIVES| |---|---| ||OF LATE P.D. VIJAYAKUMAR.| |EXHIBIT P14|TRUE COPY OF THE CIRCULAR 26/89 DATED| ||2.5.1989.| |EXHIBIT P15|TRUE COPY OF THE JUDGMENT IN W.P.(C)| ||NO. 34906/2018 DATED 05.03.2019.| |EXHIBIT P16|TRUE COPY OF THE REJECTION ORDER| ||DATED 3.5.2019.| |EXHIBIT P17|TRUE COPY OF THE REQUEST DATED| ||15.6.2019.| |EXHIBIT P18|TRUE COPY OF THE FIRST PAGE OF RATION| ||CARD CONTAINING THE NAME OF| ||GOPALAKRISHNAN.| |EXHIBIT P19|TRUE COPY OF THE MEDICAL CERTIFICATE| ||OF PETITIONER'S FATHER| ||GOPALAKRISHNAN.| |EXHIBIT P20|TRUE COPY OF THE CERTIFICATE OF ICDS| ||OFFICER DATED 6.12.2018.|