Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE SMT. JUSTICE P.V.ASHA MONDAY, THE 30TH DAY OF SEPTEMBER 2019 / 8TH ASWINA, 1941 PETITIONERS: 1 VANAJA SAJEEVAN, AGED 62 YEARS, W/O. V.K. SAJEEVAN (LATE), C/O. P.SHYPU, CHITHRAMANNIL (H), CHATHAMANGALAM P.O., KOZHIKODE-673 601. 2 SANJAY SAJEEV, AGED 20 YEARS, S/O. V.K. SAJEEVAN (LATE), C/O. P.SHYPU, CHITHRAMANNIL (H), CHATHAMANGALAM P.O., KOZHIKODE-673 601. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921) RESPONDENTS:
1 STATE OF KERALA, REP. BY ADDITIONAL CHIEF SECRETARY, DEPARTMENT OF TAXES, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 PRINCIPAL SECRETARY DEPARTMENT FOR LABOUR AND EXCISE, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3 KERALA STATE BEVERAGES CORPORATION (MANUFACTURING AND MARKETING ) LIMITED, REP.BY ITS MANAGING DIRECTOR, BEVCO TOWER, VIKAS BHAVAN P.O., PALAYAM, THIRUVANANTHAPURAM-695 033. 4 THE MANAGING DIRECTOR, THE KERALA STATE BEVERAGES CORPORATION,(MANUFACTURING AND MARKETING) LIMITED, REP.BY ITS MANAGING DIRECTOR, BEVCO TOWER, THIRUVANANTHAPURAM-695 033.
BY ADV. SRI.NAVEEN.T., SC, KERALA STATE BEV.CO. M. AND M. SRI.SUNIL.K.KURIAKOSE, GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.09.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The widow and son of deceased Sajeevan have
filed this writ petition aggrieved by Ext.P4 order
by which Government informed them that his case can be considered only after the disposal of appeal filed by the Kerala State Beverages Corporation against the judgment in O.S.No.331/2011.
2. Late Sajeevan was working as a Helper in a FL-1 shop at Ravipuram under the Kerala State Beverages Corporation. He committed suicide on 31.01.2011, at a time when he had rendered service
of 27 years, 4 months and 11 days under the Corporation. It is stated the 2nd petitioner was a minor at the relevant time. Immediately after
attaining majority, he submitted Ext.P3 application in the prescribed form for compassionate employment, on 26.10.2016. In the meanwhile, the respondent Corporation had filed O.S.No.331/2011 before the Sub Court, Ernakulam against the petitioners and Divya Sajeev, the daughter of the deceased as well as Bank of India, Ernakulam branch, for realisation of a sum of Rs.47,53,388/- on the ground that the same was misappropriated by
the deceased. The suit was dismissed as per Ext.P5 judgment. It is stated that the Corporation filed R.F.A. No.22/2017 against Ext.P5 judgment in O.S.No.331/2011 and there is an order of
attachment.
3. The petitioners had approached the Chief
Minister with a representation requesting for employment under the dying in harness Scheme. The 1st respondent thereafter issued Ext.P4 letter stating that petitioners have to wait for the disposal of the appeal pending before this Court. This writ petition is filed in the above circumstances challenging Ext.P4 order and seeking a direction to the respondents to give appointment to the 2nd petitioner.
4. The respondents 3 and 4 have filed a
counter affidavit stating that the deceased Sajeevan was found to have misappropriated a huge amount without remitting the daily collections and through other methods, while working as a Shop-in- charge during the period from 24.08.2008 to 29.01.2011. The audit wing of the Corporation conducted an enquiry and found that the Corporation sustained a loss of Rs.47,53,388/- by the non- remittance of the sales collection in the Bank. He committed suicide on 31.01.2011 immediately after
the audit detected the misappropriation. It is stated that even though O.S.No.331/2011 was dismissed by the Sub Court, the Corporation has filed R.F.A. No.22/2017 and an interim order of
attachment of the properties is already in force. The Board of Directors of the Corporation, considered the application of the 2nd petitioner for compassionate employment, in its meeting held on 29.03.2017 and in view of the above circumstances decided to defer the matter in view of the huge liability incurred by late Sajeevan. It is stated that considering the gravity of the irregularities committed by the deceased, it was only just and proper to forfeit the right for compassionate employment. The claim for compassionate appointment is to be considered by the Board as well as the Government.
5. I heard the learned counsel for the petitioner, the learned Standing Counsel as well as the learned Government Pleader.
6. According to the respondents the request
for compassionate appointment would not be considered since the deceased employee has committed very serious irregularities of financial misappropriation on account of which the Corporation sustained huge loss.
7. At the same time, the learned counsel for the petitioner points out that the scheme for compassionate employment does not disqualify a deserving dependent of a deceased having liability.
8. The scheme for compassionate employment of dependents of employees of State Public Sector
Undertakings is governed by Ext.P2 Government Order
issued on 07.06.2007. As per Clause 9 of this scheme “Dependents of State Public Sector Undertakings employees who die in harness irrespective of the circumstances of the death
(including suicide) will be eligible for employment assistance under the scheme.”
9. As per the scheme compassionate employment
is not admissible only to the dependants of those who opted for Voluntary Retirement Scheme/Social Safety Net Programme or in cases where the Public Sector Undertakings were under liquidation. Petitioner is not having any disqualification for consideration under the scheme. According to petitioner, the family income is within the permissible limits and he has submitted application within the permissible time limit provided in Clause 22, according to which the dependents who
were minors at the time of death can submit their application within a period of five years of their
attaining majority. As per the scheme the application is to be considered by the Administrative Department, and thereafter it has to be forwarded to the Government. No disqualification is attached to the dependents of the deceased employees who were either facing disciplinary proceedings or alleged to have committed misappropriation.
10. The purpose of compassionate employment is to protect the family in penury on the death of the breadwinner. In the absence of a provision which
prohibits consideration of the dependents for employment under the scheme even in cases where the employees are found to have sustained loss to the Public Sector Undertakings, the refusal to consider the application of petitioner on merits on the ground of pendency of the appeal or even the defering of the application till the disposal of the appeal against Ext.P5 judgment will only defeat the very purpose behind the scheme for compassionate employment.
11. The learned counsel for the petitioner
relied on the judgments of this Court in Archana.T.A. v. Travancore Devaswom Board, Thiruvananthapuram and Others [2015 (4) KHC 766] and National Insurance Co. Ltd v. Rekhaben and Others [2017 KHC 6428] in support of his contention that rejection or deferment of decision on his application was illegal. In Archana's case (supra) this Court held that the salary of the widow cannot be proceeded against towards realisation of the balance amount outstanding in the loan account of the deceased husband, since the widow got
employment on compassionate ground. In the judgment
in Amla R. v. Union of India and Others [2019 (3) KHC 540] the Division Bench of this Court held that the the authorites need only determine whether the applicant who claims appointment on compassionate ground is eligible for appointment in accordance with the scheme and in case she is found eligible to empanel her among the persons who have laid their claim for such appointment in accordance with the seniority among the claimants.
12. At the same time, the learned Standing Counsel relied on the judgment of the Apex Court in General Manager, State Bank of India and Others v. Anju Jain [(2008) 8 SCC 475] where the claim for compassionate appointment was rejected on the ground that the deceased employee was facing disciplinary action.
13. But as rightly pointed out by the learned counsel for the petitioner, the scheme for compassionate employment therein contained a specific provision under Clause (d) that in cases where disciplinary actions had been taken against the employee or were pending/contemplated, the claim for compassionate appointment can be considered only after obtaining prior concurrence
of the Government. The scheme Ext.P2 does not contain any such provision. Therefore the pendency of the civil suit/appeal or even a finding that the deceased had committed misappropriation, would not be a valid ground for denying its consideration. Even otherwise merely by refusing to consider the 2nd petitioner for compassionate employment, the respondents would not be able to realise any amount towards the alleged liability. The purpose behind the scheme is to help the destitute family irrespective of the reason for death.
Accordingly, Ext.P4 letter is set aside. There shall be a direction to the respondents 3 and 4 to process Ext.P3 application submitted by petitioner in accordance with law and to take a decision on it without any delay. There would be a further direction to the 2nd respondent to pass orders thereafter on the proposal if any of the respondents 3 and 4 without causing any further delay, at any rate, within a period of three months
from the date of receipt of a copy of this judgment. This writ petition is disposed of, accordingly. The claim for retirement benefits is left open. Sd/- P.V.ASHA JUDGE ww APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 THE TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE DATED 22.08.2011 ISSUED BY THE TALUK OFFICE, KANAYANNUR. EXHIBIT P2 THE TRUE COPY OF GO (P) NO.32/2007/PLG. DT.7-6-2007. EXHIBIT P3 THE TRUE COPY OF THE APPLICATION DATED 26.10.2016 SUBMITTED BY THE SECOND PETITIONER. EXHIBIT P4 THE TRUE COPY OF THE LETTER NUMBER TAXES -A3/86/2017-TAXES DATED 14.09.2017 OF THE 1ST RESPONDENT. EXHIBIT P5 THE TRUE COPY OF THE JUDGMENT DATED 23.08.16 IN O.S.NO.331/11 OF SUB COURT, ERNAKULAM. EXHIBIT P6 THE TRUE COPY OF THE REPRESENTATION DATED 20.07.2018 SUBMITTED BY THE FIRST PETITIONER.