## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN**
**TUESDAY, THE 30TH DAY OF MARCH 2021 / 9TH CHAITHRA, 1943**
## **WP(C).No.4449 OF 2021(E)**
## **PETITIONER:**
**CAPT. ASWANI PRATHAP K., AGED 52 YEARS S/O. LATE NARAYANAN NAIR.K., PORT OFFICER, PORT OFFICE, BEYPORE, KOZHIKODE DISTRICT-673 015, RESIDING AT 'RAJASREE', CHELAMBRA P.O.,MALAPPURAM DISTRICT-673 634**
**SRI.M.R.ANISON SMT.V.BHARGAVI (PANANGAD) SMT.P.A.RINUSA**
## **RESPONDENTS:**
- **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVT. FISHERIES AND PORTS (E) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001**
- **2 KERALA MARITIME BOARD, REPRESENTED BY THE CHIEF EXECUTIVE OFFICER, 2ND FLOOR, WILMONT PARK, CHURCH LANDING ROAD, ERNAKULAM682 016**
- **3 THE DIRECTOR OF PORTS, OFFICE OF THE DIRECTORATE OF PORTS, VALIYATHURA, VALLAKADAVU, THIRUVANANTHAPURAM-695 008**
- **4 CAPT.ABRAHAM.V.KURIAKOSE,**
- **PORT OFFICER, ALAPPUZHA, RESIDING AT VALEMPARAMBIL, KILIROOR NORTH P.O., KOTTAYAM-686 020**
- **SRI.P.K.SURESH KUMAR (SR.) SRI.K.P.SUDHEER SRI.PRASAD CHANDRAN SRI.SUNIL KUMAR KURIAKOSE -GP.**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
## **Dated this the 30th day of March 2021**
A Port Officer presently working in Kozhikode under the services of the third respondent – Director of Ports, has approached this Court assailing Ext.P5 order – transferring him to Alappuzha - issued by the second respondent - Kerala Maritime Board (for short 'the Maritime Board').
2. According to the petitioner, the second respondent has no jurisdiction to effect his transfer and that such an exercise could have been done only by the Government, since Officers like him are directly under their control. The petitioner points out to Ext.P4, which is an order issued by the Government on 14.02.2020 with respect to the transfer of certain other similarly placed Officers and he asserts that the Government has taken a stand therein that they are the authorised Authority to effect such action. The petitioner, therefore, prays that Ext.P5 be set aside and that his transfer effected by the second respondent be interdicted.
3. Smt.V.P.Seemanthini, learned senior counsel, instructed by Sri.M.R.Anison, appearing for the petitioner, commenced her arguments saying that under the Kerala
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Maritime Board Act, 2017 (for short, 'the Act'), unless the transfer of undertaking is effected by the Government in favour of the Maritime Board, the employees working in the Port cannot be controlled, as far as their service conditions are concerned, by the said Board. She specifically relied on Ext.P1 Special Rules with respect to the Kerala Ports Service, pointing out that the appointments of all officers therein are to be done only by the Government. She submitted that since
the Special Rules have not been yet altered, even the provisions of the Act would not grant any jurisdiction to the second respondent – Board to effect transfer, as has been done in the case of the petitioner. She further showed me that, even pending this lis, the Government have issued a letter to the Maritime Board to freeze all transfers until the end of the financial year. She submitted that, therefore, it is clear that the Government themselves hold out that they are the competent Authority to effect transfer of officers like him and not the Maritime Board.
4. In response, Sri.P.K.Suresh Kumar, learned senior counsel, instructed by Sri.K.P.Sudheer, appearing for the Maritime Board, submitted that the afore submissions of the
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petitioner would hold no water because, once the Kerala Maritime Board Act came into force and since the provisions of Sections 16 and 17 thereof have already been enforced, all
the assets and liabilities of the Government, as also the employees of the Port Offices and Directorate of Ports stood transferred to the Maritime Board. He submitted that this position in law is uncontestable on account of the judgment of the Hon'ble Supreme Court in **Prasar Bharati and others v. Amarjeet Sing and others** [2007 (9) SCC 539]. He concluded his submissions by saying that the only contention of the petitioner, as is impelled in this writ petition, is that the provisions of the said Act cannot be put into operation unless Regulations are framed; but showed me that, in Ext.R2(b) judgment, a learned Judge of this Court has already found against this and has concluded that de hors such Regulations being framed, the Act would remain in operation. The learned senior counsel, therefore, prays that this writ petition be dismissed.
5. Sri.Prasad Chandran, learned counsel appearing for the fourth respondent, submitted that his client is supporting the case of the petitioner, since the transfer involved in this
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case affects him more than anyone else because he has not completed even one year at Alappuzha. He, therefore, prayed that this writ petition be allowed.
6. Noticing the afore rival contentions of the learned senior counsel, I had passed the following order on 25.03.2021:
“Smt.V.P.Seemanthini, learned senior counsel, instructed by Sri.M.R.Anison, argues that her client still continues to be an employee of the Government since the transfer of undertaking under Section 11, based on which the transfer of employees under Section 12 would take place, has not yet been completed.
Per contra, Sri.Suresh Kumar, learned senior counsel instructed by Sri.K.P.Sudheer appearing for the Kerala Maritime Board submits that what is important is the transfer of assets and liabilities of the Government under Sections 16 and 17 of the Act and that the same has now been completed.
The learned Government Pleader, however, seeks time to verify whether the transfer of undertaking and the transfer of liabilities has already been taken place as per the Kerala Maritime Board Act, 2017.
I, therefore, adjourn this matter to be called on 30.03.2021 within which the learned Government Pleader will obtain specific instructions in this matter.”
7. Today, the learned Government Pleader, Sri.Sunil Kumar Kuriakose submitted that the actions under Sections 16 and 17 of the Maritime Act have already been completed and that this has been made clear in Ext.P8 order itself. He submitted that therefore, the Government has no control over the Port employees or with respect to their incidents of
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service, including transfer; but conceded that Ext.R4(a) had been issued, but explained that it was done only as a manner of conciliatory effort and not in exercise of their authority. To a pointed question from this Court, Sri.Sunil Kumar Kuriakose reiteratingly submitted that the Government has no role to play in this case and that it is up to the second respondent - Maritime Board to effect transfers, as they may please, in exigencies of service.
8. When I evaluate the afore submissions, it is evident that the contentions of the petitioner, that the Kerala Maritime Board Act, 2017 cannot operate in the absence of Regulations being framed, cannot be found tenable in view of the affirmative judgment of the Hon’ble Supreme Court in **Prasar Bharati** (supra), which has been followed by the learned Judge of this Court in Ext.R2(b) judgment. The surviving question is whether the action under Sections 16 and 17 of the Kerala Maritime Board Act, 2017 has already been taken by Government and it is clear from Ext.P8, as also the submissions of the learned Government Pleader, that the same has also been now completed. Obviously, therefore, the Government cannot have any control over the employees of the Board, as per the Act and
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therefore, any action that they take with respect to the same cannot be found to be tenable in law.
9. In that sense, Ext.R4(a) cannot be interpreted to mean that Government is retaining any control over issues like transfer of employees of the Board and, as has been submitted by the learned Government Pleader, the said order has not been issued by the Government in exercise of their Authority, but only to seek reconciliation between the employees and the Board.
10. Finally, as regards the question of jurisdiction raised by the petitioner against the 2[nd] respondent – Board, it is clear that, on account of the fact that action under Sections 16 and 17 of the Kerala Maritime Board Act has been now reportedly completed by Government, no such contention would also remain to be considered by this Court on its merits.
11. In the afore circumstances, it is evident that the petitioner cannot maintain this writ petition on the grounds which have been urged and that the reliefs sought for cannot be, therefore, granted by this Court.
Resultantly, this writ petition is dismissed; however, leaving liberty to the petitioner to invoke any other remedy that
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may be available to him in law, for which purpose, all other contentions are left open.
**Sd/- DEVAN RAMACHANDRAN**
stu
**JUDGE**
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## **APPENDIX**
## **PETITIONER'S EXHIBITS:**
- **EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE KERALA PORT SERVICE RULES 1998**
- **EXHIBIT P2 TRUE COPY OF THE KERALA MARITIME BOARD ACT 2017 (ACT 16 OF 2017) ISSUED BY THE 1ST RESPONDENT**
- **EXHIBIT P3 TRUE COPY OF THE ORDER BEARING G.O(P) NO.487/2016/F & P.D, DATED 06.08.2016 ISSUED BY THE 1ST RESPONDENT**
- **EXHIBIT P4 TRUE COPY OF GO(RT) NO.82/2020/F AND PD DATED 14.02.2020**
- **EXHIBIT P5 TRUE COPY OF THE TRANSFER ORDER BEARING NO.B11672/19 DATED 06.02.2021 ISSUED BY THE 2ND RESPONDENT**
- **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 08.02.2021 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT**
- **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 08.02.2021 SUBMITTED BY THE 4TH RESPONDENT BEFORE 1ST RESPONDENT**
- **EXHIBIT P8 TRUE COPY OF THE RECOMMENDATION LETTER BEARING NO.208/E2/2020/F AND PD DATED 11.01.2021 ISSUED BY THE 1ST RESPONDENT TO THE 11TH PAY COMMISSION**
- **EXHIBIT P9 TRUE COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM DATED 18/2/2021**
- **EXHIBIT P10 TRUE COPY OF THE RELEVANT PROVISIONS OF THE KERALA MARITIME BOARD ACT, 2017**
- **RESPONDENT'S EXHIBITS:**
- **EXHIBIT R2(A) TRUE COPY OF ORDER DATED 09.08.2019 IN OA NO.1642/2019 PASSED BY KERALA ADMINISTRATIVE TRIBUNAL**
- **EXHIBIT R2(B) TRUE COPY OF JUDGMENT DATED 26.08.2019 IN WRIT PETITION (CIVIL) NO.22231/2019 PASSED BY THIS HON'BLE COURT.**
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**EXHIBIT R2(C) TRUE COPY OF NOTIFICATION NO.20/2019 DATED 02.05.2019 ISSUED BY FISHERIES AND PORT DEPARTMENT, GOVERNMENT OF KERALA BY WHICH THE APPOINTED DAY WAS DECLARED.**
**EXHIBIT R2(D) TRUE COPY OF EMAIL DATED 08.02.2021 ISSUED BY THE PETITIONER. EXHIBIT R2(E) TRUE COPY OF LETTER DATED 10.02.2021 ISSUED BY THE PETITIONER TO THE CHAIRMAN, KERALA MARITIME BOARD.**
- **EXHIBIT R2(F) TRUE COPY OF LETTER DATED 11.02.2021 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT AND THE CHAIRMAN OF KERALA MARITIME BOARD**
- **EXHIBIT R2(G) TRUE COPY OF LETTER DATED 6.3.2021 ISSUED BY THE CHAIRMAN, KERALA MARITIME BOARD TO THE UNDER SECRETARY, FISHERIES AND PORT DEPARTMENT**
- **EXHIBIT R4(A) TRUE COPY OF LETTER BEARING NO.30/D1/2021/F&P.D DATED 26.02.2021 ISSUED BY THE 1ST RESPONDENT.**
