P P Kannan v. The Kerala State Co-operative Coir Marketing Federation Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 20TH DAY OF JULY 2016/29TH ASHADHA, 1938** **WP(C).No. 9857 of 2014 (F) ---------------------------** **PETITIONER:** ## **-----------** **P P KANNAN, PUNNAVELIYIL, SOUTH ARYAD, AVALOOKUNNU P.O., ALAPPUZHA - 686 006.** **BY ADVS.SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY** **RESPONDENTS:** ## **------------** **1. THE KERALA STATE CO-OPERATIVE COIR MARKETING FEDERATION LTD. NO.679 (COIRFED), P.B.NO.4616, ALAPPUZHA - 688 012, REPRESENTED BY ITS MANAGING DIRECTOR.** **2. THE BOARD OF DIRECTORS (ADMINISTRATIVE COMMITTEE) THE KERALA STATE CO-OPERATIVE COIR MARKETING FEDERATION LTD. NO.679 (COIRFED), P.B.NO.4616, ALAPPUZHA - 688012, REPRESENTED BY ITS CONVENER.** **3. THE MANAGING DIRECTOR, THE KERALA STATE CO-OPERATIVE COIR MARKETING FEDERATION LTD. NO.679 (COIRFED), P.B.NO.4616, ALAPPUZHA - 688012.** **BY ADVS. SMT.V.P.SEEMANDINI (SR.) SRI.JOBY CYRIAC, SC, COIRFED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/7/2016 THE COURT ON 20-07-2016,DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 9857 of 2014 (F)** ## **---------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** |**EXHIBIT P1 :**|**TRUE PHOTOCOPY OF THE JUDGMENT DATED 21.12.2006 IN**| |---|---| ||**WP(C) NO.37271/2003**| |**EXHIBIT P2 :**|**TRUE PHOTOCOPY OF THE REPRESENTATION DATED**| ||**20.06.2011**| |**EXHIBIT P3 :**|**TRUE PHOTOCOPY OF THE JUDGMENT DATED 05.10.2012 IN**| ||**WP(C) NO.21038/2011**| |**EXHIBIT P4 :**|**TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE 3RD**| ||**RESPONDENT DATED 13.12.2012**| |**EXHIBIT P5 :**|**TRUE PHOTOCOPY OF THE MINUTES OF THE MEETING OF THE**| ||**2ND RESPONDENT HELD ON 19.01.2013**| |**EXHIBIT P6 :**|**TRUE PHOTOCOPY OF THE COMMUNICATION BEARING**| ||**NO.CF/PD/E1/4225/12-13/1521 DATED 25.02.2013**| |**EXHIBIT P7 :**|**TRUE PHOTOCOPY OF THE JUDGMENT DATED 31.05.2013 IN**| ||**WP(C) NO.7807/2003(A)**| |**EXHIBIT P8 :**|**TRUE PHOTOCOPY OF THE PROCEEDINGS OF THE 3RD**| ||**RESPONDENT BEARING ORDER NO.CF/PD/E1/4225/875 DATED**| ||**12.09.2013**| |**EXHIBIT P9 :**|**TRUE PHOTOCOPY OF THE REPRESENTATION DATED**| ||**05.10.2013 BEFORE THE 3RD RESPONDENT**| |**EXHIBIT P10 :**|**TRUE PHOTOCOPY OF THE JUDGMENT DATED 26.11.2013 IN**| ||**WP(C) NO.28473/2013(H)**| |**EXHIBIT P11 :**|**TRUE COPY OF THE ORDER BEARING**| ||**NO.CF/PD/E1/4225/1524 DATED 22.02.2014**| |**EXHIBIT P12 :**|**TRUE PHOTOCOPY OF THE APPLICATION DATED 19.01.2014**| ||**SUBMITTED BY THE PETITIONER THROUGH ONE OF HIS**| ||**FRIEND**| |**EXHIBIT P13 :**|**TRUE PHOTOCOPY OF THE REPLY BEARING**| ||**NO.C.F./I.O/4925/13-14/1406 DATED 27.01.2014**| |**EXHIBIT P14 :**|**TRUE PHOTOCOPY OF THE ORDER BEARING**| ||**NO.C.F/P.D/P.I/3071/819 DATED 05.09.2012 OF THE 2ND**| ||**RESPONDENT**| |**EXHIBIT P15:**|**TRUE PHOTOCOPY OF THE MEMO BEARING**| ||**NO.E1/4849/66/93DATED 10/4/2006 ISSUED BY THE R2**| |**EXHIBIT P16:**|**TRUE COPY OF THE REPLY DATED 9/3/15**| |**EXHIBIT P17:**|**TRUE COPY OF THE ORDER DATED 1/12/11.**| |**PJ**|**.....2/-**| **..2..** **WP(C).No. 9857 of 2014 (F) --------------------------** **RESPONDENT(S)' EXHIBITS ----------------------EXHIBIT R1: TRUE COPY OF THE ORDER DATED 18/5/11.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C). No.9857 of 2014 ----------------------------------------------Dated this the 20[th] day of July, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P11 order passed by the 3[rd] respondent whereby the reliefs sought for by the petitioner to regularize the petitioner as Attender instead of Worker in the 1[st] respondent establishment is declined, and other related reliefs. 2. Necessary facts discernible from the writ petition for disposal are thus; petitioner was appointed as Attender in the service of the 1[st] respondent in 1999 on temporary basis. In 2008, petitioner entered leave on medical grounds. While the petitioner was on medical leave, 49 similarly situated persons like him were regularized in the service by the 1[st] respondent. Pointing out the above fact, petitioner moved respondents 1 to 3 claiming regularization in service as Attender. The 3[rd] respondent as per Ext.P4 proceedings favourably recommended the regularization of the petitioner as Attender in service. However, the 2[nd] respondent declined to regularize the service of the petitioner as per Ext.P5 W.P.(C). No.9857 of 2014 2 resolution, which was challenged in W.P.(C) No.7807/2013. As per Ext.P7 judgment, this court quashed Ext.P5 resolution and declared the right of the petitioner for regularization in service. 3. According to the petitioner, in compliance with the direction in Ext.P7 judgment, 2[nd] respondent resolved to regularize the service of the petitioner. As per Ext.P8 consequential order issued by the 3[rd] respondent, service of the petitioner was regularized in the post as Worker and further declared that, the period of leave availed by him will not be counted for any purpose. Thereupon the petitioner has preferred Ext.P9 representation before the respondents requesting to regularize him in service as Attender, the post in which, he was appointed and worked earlier by making appropriate modification to Ext.P8 and also for such other reliefs. 4. Since Ext.P9 representation was not considered, petitioner has approached this court and secured Ext.P10 judgment, whereby this court directed the 2[nd] respondent to W.P.(C). No.9857 of 2014 3 consider Ext.P9 on merits and to pass orders within a time frame. However, the 2[nd] respondent without considering the claims of the petitioner in a proper perspective rejected Ext.P9 representation vide Ext.P11 order. It is thus aggrieved by Ext.P11, petitioner has filed this writ petition. 5. Respondents have filed counter affidavit refuting the allegations and claims and demands made by the petitioner in the writ petition. That apart it is contended that, petitioner is a worker of the respondent society, whose service was regularized by the 3[rd] respondent vide Ext.P8 order dated 12.9.2013. It was passed in compliance with Ext.P7 judgment of this court. Though petitioner was engaged on daily wage basis as early as on 6.9.1999, petitioner unauthorizedly absented from 14.1.2008 to 20.6.2011. In view of the unauthorized absence, his service was regularized only with effect from the date of joining duty as per Ext.P8 order. But after joining duty as a Worker, petitioner demanded to regularize him as an Attender with effect from the date of his initial appointment. The claim of the petitioner with respect W.P.(C). No.9857 of 2014 4 to his appointment as Attender and the absence allegedly on the basis of leave was denied by the respondents, and contended that the petitioner was unauthorizedly absent. It is contended that, the reliefs sought for by the petitioner is not on the basis of any statutory backing. Petitioner could not point out any of the statutory provisions of the Kerala Cooperative Societies Act and Rules in order to claim the regularization of service as an Attender. That, petitioner has not made out any case with respect to any breach of statutory or public duty and therefore, as per the judgment laid down by a Larger Bench of this court in **Association of Milma Officers v. State of Kerala** [2015(1) KLT 849], the writ petition is not maintainable. It is also contended that, petitioner is having an alternative statutory remedy in this regard as provided under the Act, 1969. According to the respondents, petitioner was appointed only as a Worker and therefore, the claim of the petitioner that, he was appointed as an Attender is a question of fact and the petitioner has not produced any evidence to substantiate his contention in this W.P.(C). No.9857 of 2014 5 regard. The averments of the petitioner with respect to continuous uninterrupted service in various offices of the 1[st] respondent in Alappuzha District is also disputed. As per the standing orders prevailed in the Federation, if the absence of an employee is for a period exceeding 3 days, production of a medical certificate is required and in case ESI schedule is applicable, a certificate is to be produced from the concerned ESI Doctor. Even though petitioner was eligible for ESI Scheme, he did not produce such medical certificate from the ESI Doctor. Therefore, absence of the petitioner can be treated only as an unauthorized absence with service break. Petitioner has not obtained any previous sanction from the respondents for such a long leave. 6. That apart it is also contended that, the averments contained in paragraph 6 to the effect, in Ext.P4, 3[rd] respondent has mentioned that petitioner entered in the service of the 1[st] respondent in the category of Attender is not fully correct. The comprehensive reading of Ext.P4 including its operative portion would prove otherwise. Therefore, it is W.P.(C). No.9857 of 2014 6 the contention of the respondents that unintentional clerical mistake cannot be resorted to, to establish the right claimed by the petitioner. That apart, there is no approved post of Attender in the Unit, wherein petitioner now employed as a Worker. It is also submitted that the post of Watchman and Peon is not an entry level post and appointment to the post of Watchman can be made only through PSC. That direct appointment can be effected only to the post of Worker and Furnishing Worker by the Federation. Yet another contention raised by the respondents is that, petitioner has palpably failed to produce any documentary evidence to establish his claim and therefore, remedy available is to approach the Cooperative Arbitration Court, which is empowered to adjudicate this issue. Therefore, respondents seek dismissal of the writ petition. 7. Petitioner has filed a reply affidavit reiterating his stand taken in the writ petition. With respect to the statements made by the respondents concerning the Larger Bench of this court cited supra, it is contended that W.P.(C). No.9857 of 2014 7 appointment of the petitioner as a Worker in the establishment of the 1[st] respondent was consequent to a direction issued by this court in Ext.P5 judgment, in which respondents herein were parties. The respondents were parties to Exts.P1 and P3 judgments also and therefore, after three judgments referred to above, the respondents cannot be heard to contend that a writ petition under Article 226 of the Constitution of India is not maintainable against them. That apart it is also contended that 1[st] respondent is an Apex Cooperative Society of the Coir Societies in the State, as defined under Rule 15(5) of the Kerala Co-operative Societies Rules, 1969. Therefore, as per the approved bye-laws of the 1[st] respondent, the Government has deep and pervasive control over its administration and management. That apart, a sizable number among the Board of Directors are the nominees of the Government. So also the Director of the Coir Board, who is incidentally the Registrar of Coir Co-operative Societies, is also a member of the Board of Directors of the 1[st] respondent society and the Secretary to Government, Industries Department is W.P.(C). No.9857 of 2014 8 another Director of the 1[st] respondent. Therefore, it is contended that 1[st] respondent is an 'other authority' defined under Article 12 of the Constitution of India and therefore, amenable to writ jurisdiction. 8. So also petitioner has produced Ext.P15 memo issued, while petitioner was working as Attender in RCP Unit, Alappuzha, in connection with an altercation with a fellow worker, which is an indicative factor to show that, petitioner was working as an Attender and entitled to get regularization in the said category. That apart it is also contended that, the person who filed a counter affidavit is not competent enough to interpret the statements of an order passed by the head of the institution, the 2[nd] respondent. That, the decision was taken as early as in 1995 to entrust the selection process to various posts under the 1[st] respondent, to the PSC. The said proposal has not been approved by the Government so far and therefore, the appointment to all the posts under the establishment of the 1[st] respondent is being done by the 1[st] respondent itself. It is also contended that, petitioner was regularized in the post of Worker, ignoring his rightful claim for regularization in the post of W.P.(C). No.9857 of 2014 9 Attender. That in spite of having completed more than 1 year in the post, the respondents have not declared the probation and on enquiries made in this regard, it is revealed that the number of workers under the establishment of the 1[st] respondent exceeds the sanctioned strength of the workers and therefore, declaration of probation is withheld. It is also contended that, sanctioned strength of Attender is 36 and as evident from Ext.P13 communication there are only 17 Attenders working under the 1[st] respondent and therefore, there is no impediment for the respondents to regularize the petitioner in the post of Attender. 9. Respondents have also filed Ext.R1 document along with a petition to accept the same. Relying on the said document, it is contended that, all the 49 persons referred to in the writ petition by the petitioner was regularized as Workers and therefore, petitioner is also entitled to get regularization only as a Worker. Learned counsel for the respondents have also brought my attention to the qualifications of various workers and relying on the same it is contended that even persons with degree qualifications were regularized only as Workers. Therefore, W.P.(C). No.9857 of 2014 10 petitioner cannot as of right claim that he is entitled to get regularized in the post of Attender. Petitioner has also produced Exts.P16 and P17 along with an affidavit to establish that recruitment rule was not approved by the PSC and further that appointments to various posts are made by the 1[st] respondent itself, evident from Ext.P17 dated 1.12.2011. 10. Heard learned counsel for petitioner, learned Standing Counsel appearing for respondents and perused the pleadings and documents. 11. Learned counsel for the petitioner reiterated the contentions raised in the writ petition. Counsel has invited my attention to Ext.P14 dated 5.9.2012 and contended that probation of two employees of the Unit was declared. So also counsel has brought my attention to Ext.P15 to canvass the proposition that, the 3[rd] respondent has referred the petitioner therein as 'Attender'. Therefore, it is the contention of the petitioner that, the reference to the petitioner as Attender itself is a conclusive indicative factor to establish that petitioner was working as Attender. The address portion of Ext.P4 was also brought to my notice wherein also, petitioner is shown as W.P.(C). No.9857 of 2014 11 Attender. It is further argued that Ext.P4 reveals that, petitioner was appointed as an Attender in the service of the Coir Fed on 6.9.1999 on daily wage basis. Therefore, taking into account the documents referring the petitioner as Attender, it is contended by the learned counsel that the same are conclusive proof for the claim made by the petitioner that petitioner is entitled to get regularization as Attender with the 1[st] respondent. 12. Per contra learned counsel for the respondent admitted that the recruitment rule is not approved by the PSC. However, as per the proposed rule, an Attender post is a promotion post and not an entry level post. It is also contended that, in Ext.P2 representation submitted by the petitioner, the request is to regularize the service of the petitioner as Worker. Learned counsel has invited my attention to the last two paragraphs of Ext.P2 representation and pointed out that petitioner seeks regularization in accordance with the regularization of 49 workers as provided under Ext.R1(a). Therefore, according to the counsel, the claim raised by the petitioner in the basic representation viz., Ext.P2 is only for regularization of service in accordance with the regularization of 49 persons as Workers. It W.P.(C). No.9857 of 2014 12 is further submitted that, even though in certain reference of the 1[st] respondent, status of the work carried out by the petitioner is shown as 'Attender', that by itself is not a conclusive proof to establish that, petitioner is entitled to get his service regularized as Attender. That, the nature of duty carried out by the petitioner is as that of a daily rated worker and if at all he is referred to as Attender, that by itself is not a decisive factor. The decisive factor is the nature of work carried out by the petitioner. That per Ext.P1 judgment, where petitioner was the 9[th] petitioner, only a direction was issued to the Government to consider the representation submitted by the petitioners seeking regularization. That apart it is also urged that, petitioner was absented from duty and while 49 workers were regularized the petitioner was not in the service of the 1[st] respondent. It is in that circumstances only petitioner has submitted Ext.P2 representation seeking to regularize the petitioner as that of 49 workers. It is also contended that, remedy available to the petitioner is under Section 69(2) of Act, 1969. Therefore, respondents seek dismissal of the writ petition. 13. On an evaluation of the facts and circumstances, the 1[st] W.P.(C). No.9857 of 2014 13 question to be decided is, whether writ petition is maintainable under law ? The respondents are not having a case that the 1[st] respondent is not an establishment coming under Article 12 of the Constitution of India. But the argument is that, consequent to introduction of Section 69 of the Act, 1969, the remedy available to the petitioner in respect of any service matter is to approach the Arbitration Court. On the other hand, learned counsel for the petitioner contended that if there are situations projected by the petitioner enabling him to approach this court, the alternative remedy is not a bar for this court to entertain a writ petition under Article 226 of the Constitution of India. True, the question with respect to whether petitioner was working as Attender or Worker is a disputed question of fact. Merely because some references are made in certain correspondences issued by the 3[rd] respondent, that itself may not be an indicative factor to establish that petitioner worked as an Attender. That apart it is contended by learned counsel for the petitioner that, 1[st] respondent is an Apex Society with members representing the State Government in its Director Board and therefore, the 1[st] respondent society will come within the parameters of other W.P.(C). No.9857 of 2014 14 authorities provided under Article 12 of the Constitution of India. True, in the Large Bench judgment of this court in **Association of Milma Officers** cited supra, it was held that in the absence of breach of any statutory duty or public duty, a writ petition cannot be entertained against a Co-operative society. However this writ petition was admitted to the files of this court as early as on 3.4.2014 and more than two years have elapsed. Therefore, non-suiting the petitioner on the ground of alternative remedy at this belated stage will be doing injustice to the petitioner. Therefore, I am of the considered opinion that, the questions raised in this writ petition is to be considered in this writ petition itself. 14. Therefore, now the prime question is whether the petitioner is entitled to get regularization in the 1[st] respondent as an Attender ? As discussed above, in Exts.P4 and P15 issued by the 1[st] respondent, petitioner is referred to as Attender. Whether the said references can be treated as a conclusive proof to arrive at a finding that petitioner is entitled to get regularization as an Attender ? Apart from the statements made in the writ petition and the references made in the aforesaid W.P.(C). No.9857 of 2014 15 documents, there is no proof to establish that petitioner was appointed by an order as Attender. It is an admitted case that, petitioner was a daily rated employee of the 1[st] respondent establishment. Petitioner could not point out the backing of any rule or other provisions of law or any scheme launched by the Government or the 1[st] respondent enabling the petitioner to get regularized. 15. Right of the petitioner starts with Ext.P1 judgment rendered by this court, wherein petitioner along with others were directed to approach the Government by making suitable representations. Admittedly petitioner absented from duty. There are no enabling circumstances established by the petitioner to show that petitioner entered on long leave after securing prior permission or has produced any document to establish that due to medical reasons he absented from duty. The claim of the petitioner that he is to be regularized as Attender is not based on any provision of law. 16. Learned counsel for the respondents in that regard submitted that the 49 daily rated employees were regularized as Workers while discharging various duties. Since the petitioner W.P.(C). No.9857 of 2014 16 has not founded his claim based on any provision of law or any statutes, Scheme or regulation, the question to be considered is whether petitioner is entitled as of right to make any claim that he should be regularized in a particular post. So also the nature of work that was carried out by the petitioner as daily rated worker is not discernible from any documents. That apart on a perusal of Ext.P7 judgment rendered by this court, this court has directed only to regularize the service of the petitioner. However, on a further probe into Ext.P7 judgment, it can be seen that petitioner is referred to as a similarly situated person as other 49 employees who have already been regularized. It is in that regard, a direction was issued to pass necessary orders regularizing the service of the petitioner. 17. Taking note of the above fact situations and the documents on record, I am of the considered opinion that, merely because certain references are made in the correspondence of the 1[st] respondent, that by itself will not secure a right to the petitioner much less any legal rights to W.P.(C). No.9857 of 2014 17 get regularized in a particular post. Those references are not in my considered opinion a conclusive proof to establish that petitioner worked in the establishment as an Attender. That apart since there is no legal right conferred to the petitioner under any law passed by the Government or the 1[st] respondent, petitioner is not entitled as of right to insist that he should be regularized as an Attender. The management is vested with powers to decide in which post the petitioner should be regularized. All the other 49 employees were regularized as Workers, evident from Ext.R1(d). So also it is well settled in service jurisprudence that, in the absence of any rule, the provisions of a draft rule can be relied on to make appointments. Therefore, there is force in the contention of learned counsel for the respondents that, as per draft rules, post of Attender is a promotion post and not an entry level post. 18. In the light of the above discussion, I am of the considered opinion that petitioner has failed to establish that, he is entitled to get regularization as Attender. The 3[rd] W.P.(C). No.9857 of 2014 18 respondent has passed Ext.P11 order taking into account the contentions raised by the petitioner and has rendered findings assigning sufficient and cogent reasons. Petitioner also could not point out any arbitrary, illegal or illogical circumstances, enabling this court to exercise the power of judicial review. Upshot of the above discussion is that, writ petition fails, accordingly it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** smv 12.07.2016