Kerala High Court
Cochin Port Trust vs R.Krishnamoorthy on 7 February, 2024
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
WA NO. 51 OF 2020
AGAINST THE JUDGMENT DTD 25.10.2019 IN WP(C) 23526/2017 OF HIGH
COURT OF KERALA
APPELLANTS/RESPONDENTS:
1 COCHIN PORT TRUST
REPRESENTED BY ITS CHAIRMAN, COCHIN PORT TRUST,
ADMINISTRATIVE OFFICE, COCHIN - 682 009
2 DEPUTY CHAIRMAN,
COCHIN PORT TRUST, ADMINISTRATIVE OFFICE,
COCHIN - 682 009
BY ADV LATHA ANAND, SC
RESPONDENT/PETITIONER:
R.KRISHNAMOORTHY
HOUSE NO.697/23, BHARANI, CLASSY ENCLAVE,
TRIKKAKARA, COCHIN - 682 021
BY ADVS.SRI.V.V.SIDHARTHAN (SR.)
SRI.D.G.VIPIN
SRI.KAROL MATHEWS SEBASTIAN ALENCHERRY
THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON
07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2
Writ Appeal No.51 of 2020
AMIT RAWAL & C.S.SUDHA, JJ.
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Writ Appeal No.51 of 2020
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Dated this the 7th day of February, 2024
JUDGMENT
C.S.Sudha, J.
This writ appeal has been filed by the respondents in W.P.
(C)No.23526/2017 against the judgment dated 25/10/2019. The respondent
herein is the petitioner in the writ petition. The parties and the documents
will be referred to as described in the writ petition.
2. Disciplinary proceeding was initiated against the petitioner
who was working as Assistant Administrative Officer, Cochin Port Trust, on
the ground that he had assaulted his superior officer. Pursuant to the
incident, the petitioner was suspended as per Ext.P1 order dated 26/12/2014.
Subsequently disciplinary proceedings was initiated which resulted in
Ext.P13 order dated 29/12/2015, by which penalty of 'dismissal from
service which shall ordinarily be a disqualification for future employment',
was imposed. The appeal filed against Ext.P13 order before the appellate
authority concerned, ended in dismissal as per Ext.P14 order dated
22/03/2016. W.P.(C)No.1952/2016 filed by the petitioner seeking quashing
of Exts.P13 and P14 was allowed as per Ext.P16 judgment dated
10/04/2017. The respondents were directed to consider the appeal preferred
by the petitioner and to pass orders imposing a a lesser punishment after
hearing him within a period of three weeks from the date of receipt of a
copy of the judgment. The respondents filed W.A.No.1051/2017, which
was dismissed by Ext.P17 judgment dated 02/06/2017 confirming Ext.P16.
Thereafter, Ext.P18 order dated 15/06/2017 was passed by the appellate
authority concerned, by which the penalty of dismissal was reduced to
'compulsory retirement'. Challenging Ext.P18, the writ petition was filed.
3. The learned single Judge by the impugned judgment allowed
the writ petition holding that in the absence of any provision in the Service
Rules permitting continuance of disciplinary proceedings after retirement
and in the absence of any such reservation in Ext.P17 judgment, the power
of the respondents to impose penalty stood extinguished by the
superannuation of the petitioner and hence Ext.P18 order was set aside with
a direction to the respondents to pay all retirement benefits due to the
petitioner taking note of his retirement on superannuation on 31/05/2017.
Aggrieved, the respondents have come up in appeal.
4. Heard both sides.
5. It was submitted by the learned counsel for the
respondents/employer relying on the dictums in Engineering Laghu Uyog
Employees' Union v. The Judge, Labour Court and Industrial Tribunal,
(2003)12 SCC 1 ; U.P.State Sugar Corporation Ltd v. Kamal Swaroop
Tondon, (2008)2 SCC 41 and Union of India (UoI) v. P.Gunasekaran,
(2015)2 SCC 610 that the impugned judgment warrants interference. Per
contra it was submitted by the learned counsel for the petitioner/employee
that Ext.P18 order is apparently after the superannuation of the petitioner
and hence not permissible as there is no provision for the same in the Rules
governing the parties. In support of this argument, reference was made to
the dictums in Bhagirathi Jena v. Board of Directors, OSFC, (1999) 3
SCC 666 ; Dev Prakash Tewari v. U.P.Co-operative Institutional
Service Board, (2014) 7 SCC 260 ; Satheesan v. Kannur District Co-
operative Bank, 2020(4) KLT 236 and V.Prakash Chandran v. The
Kerala Gramin Bank, 2018(3) KLJ 475.
6. In Bhagirathi Jena and in Dev Prakash Tewari (Supra),
though the disciplinary proceedings were initiated while the employee
concerned was in service, the same was not completed before
superannuation of the employee. In Satheesan (Supra) it was after the
retirement of the employee, the memo of charges had been issued. In
V.Prakash Chandran (Supra), the question that arose was whether the
employer could effect any recovery from the arrears of salary which had
become due to the employee after his retirement, consequent to pay revision
with retrospective effect alleging that the employee had caused loss to the
bank even without conducting any enquiry holding him liable for the loss
and without quantifying such liability with notice to him. Therefore in first
two cases cited on behalf of the petitioner/employee, though the disciplinary
proceedings had been initiated much before the superannuation of the
employee, the same had not been concluded before the employee
superannuated. In the third decision, the proceedings was initiated only
after retirement and in the fourth case even without conducting an enquiry,
recovery was attempted to be effected from salary much after the
superannuation of the employee. But that is not the position in the case on
hand.
7. Admittedly, when the disciplinary proceedings commenced and
thereafter, Ext.P13 and Ext.P14 orders were passed on 29/12/2005 and
22/03/2016 respectively, the petitioner was very much in service. It is
during the period of pendency of W.A.No.1051/2017, which resulted in
Ext.P17 judgment dated 02/06/2017, the petitioner/employee superannuated
on 31/05/2017, at which time the disciplinary proceeding apparently was
not pending. The proceeding was over and penalty had also been imposed
long back. Therefore it cannot be contended that the disciplinary
proceeding was not over or that it was pending or that any proceeding had
been initiated after the superannuation of the petitioner. Hence the
decisions cited on behalf of the petitioner/employee are not applicable to the
facts of the present case.
8. Now coming to the question as to the date from which the order
of compulsory retirement would take effect. In the light of the dictums laid
down by the Apex Court cited on behalf of the respondents/employer, it can
only held that it would relate back to the date on which the order of
dismissal had initially been passed which is on 29/12/2015. That being the
position, the respondents/employer is entitled to succeed in the appeal.
In the result, the appeal is allowed and the impugned judgment
is set aside. The penalty imposed as per Ext.P18 is confirmed, which would
take effect from 29/12/2015.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
C.S.SUDHA
JUDGE
ami/
