R. Krishnamoorthy v. Cochin Port Trust and The Deputy Chairman, Cochin Port Trust

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 25TH DAY OF OCTOBER 2019 / 3RD KARTHIKA, 1941** ## **WP(C).No.23526 OF 2017(M)** ## **PETITIONER/S:** **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 SMT.APARNA SUKUMARAN** ## **RESPONDENT/S:** **1 COCHIN PORT TRUST REPRESENTED BY ITS CHAIRMAN, COCHIN PORT TRUST, ADMINISTRATIVE OFFICE, COCHIN 682 009 2 THE DEPUTY CHAIRMAN COCHIN PORT TRUST, ADMINISTRATIVE OFFICE, COCHIN 682 009** **R1 BY ADV. SRI.K.ANAND (SR.) R1 BY SMT.LATHA ANAND, SC, COCHIN PORT TRUST** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.09.2019, THE COURT ON 25.10.2019 DELIVERED THE FOLLOWING:** **WP(C).No.23526 OF 2017(M)** **2** ## **JUDGMENT** **Dated this the 25th day of October 2019** This writ petition is filed with the following prayers: “i. call for the records leading to Exhibit P18 order and quash the same by issuing a writ of certiorari; ii. issue a writ of mandamus or any other writ, order or direction directing the respondent to grant to the petitioner all monetary and non-monetary benefits as if he retired on superannuation on 31.5.2017 with all consequential benefits; iii. Issue a writ of mandamus or any other writ order or direction directing the Respondents to treat the suspension period of the petitioner as duty for all purposes and grant to him all consequential benefits including arrears of pay and allowances due to him during the period of suspension.” 2. Heard Sri. V.V.Sidharthan, the learned Senior Counsel appearing for the petitioner and Sri.K.Anand, the learned Senior Counsel for the respondents. 3. The petitioner had been dismissed from service by Ext.P13 order. The appeal preferred by the petitioner had been rejected by Ext.P15 order on 13.5.2016. The petitioner had approached this Court challenging the dismissal. By Ext.P16 judgment dated **WP(C).No.23526 OF 2017(M)** **3** 10.4.2017, this Court found that in view of the fact that the charges leveled against the petitioner had not been proved in the enquiry, the imposition of the ultimate penalty of dismissal was completely unwarranted. The orders imposing penalty and the order rejecting the appeal were therefore set aside. The respondents were directed to consider Ext.P14 appeal preferred by the petitioner and to pass orders imposing a lesser punishment after hearing him within three weeks from the date of receipt of a copy of the judgment. 4. It is stated that Ext.P16 judgment had been taken in appeal by the respondents. The Writ appeal was dismissed by Ext.P17 judgment dated 2.6.2017. Thereafter, the appeal was reconsidered and Ext.P18 proceedings were issued. The punishment of dismissal imposed on the petitioner was reduced to compulsory retirement under Regulation 10(7) of the Cochin Port Employees (Classification, Control & Appeal) Regulations, 1964. The period spent by the petitioner under suspension was treated as non duty for all purposes. This order is under challenge. **WP(C).No.23526 OF 2017(M)** **4** 5. The learned Senior Counsel appearing for the petitioner submits that Ext.P16 judgment contained a clear finding that there was no basis for the finding against the petitioner and that as such, the respondents were disabled from passing an order in the nature of Ext.P18 inflicting a penalty on charges which were not proved in any manner known to law. It is further stated that the petitioner retired from service on 31.5.2017 and that as such, there was no power or authority retained in the respondents to impose the penalty of compulsory retirement on the petitioner after the employer-employee relationship has ceased. It is contended that Exts.P13 and P15 orders having been set aside by this Court and the petitioner having been permitted to retire from service on 31.5.2017. There could have been no exercise of jurisdiction by the employer after the employee employer relationship had snapped and that as such, the imposition of penalty by Ext.P18 was completely without jurisdiction. 6. The respondents have placed a counter affidavit on record. It is contended that the petitioner had been dismissed from service after conduct of a due **WP(C).No.23526 OF 2017(M)** **5** enquiry and that the material placed on record in the enquiry was sufficient for imposing the penalty of dismissal on the petitioner. However, it is contended that in view of the directions contained in the judgment of this Court, the appeal was reconsidered by the respondents and a lesser penalty had been imposed on the petitioner. It is contended that the direction contained in the judgment was only to consider the award of a lesser penalty and that no appeal had been preferred by the petitioner against the said judgment. It is therefore contended that the appeal was reconsidered and Ext.P18 order was passed considering Exts.P16 and P17 judgments. It is stated that the compulsory retirement of the petitioner would take effect from 29.12.2015 and the question of retirement of the petitioner on 31.5.2017 therefore would not arise. 7. The learned senior counsel for the petitioner would rely on the decisions of the Apex Court in _**Dev Prakash Tewari v. Uttar Pradesh Co-**_ _**operative Institutional Service Board, Lucknow and others [(2014) 7 SCC 260]**_ to contend that in the absence of any provision in the service rules providing **WP(C).No.23526 OF 2017(M) 6** for continuation of disciplinary proceedings after retirement, there is no authority vested in the employer to continue disciplinary proceedings after retirement. It is stated that even for the purpose of imposing any reduction in the retirement benefits there has to be power vested in the employer, failing which, no orders adverse to the rights of an employee can be passed after his retirement. The decision of the Apex Court in _**Bhagirathi Jena v. Board of Directors, O.S.F.C**_ _**[AIR 1999 (SC) 1841]**_ is also relied on to contend that where there is no provision for continuation of departmental enqiry after superannuation, the respondents have no power to continue such proceedings and the proceedings would stand lapsed. The decision of this Court in _**Prakash Chandran v. Kerala Gramin Bank and another [I.L.R 2018 (2) Kerala 1089]**_ is also relied on, where it is held that in the absence of any Rule or regulation of consent or at least an undertaking from the employee, the employer cannot even withhold retirement benefits. The decision of the Privy Council in _**R.T Rangachari v. Secretary of State [AIR 1937 Privy Council 27**_ **],** _**Ramdas Govind Bakhle v. Maharashta State**_ **WP(C).No.23526 OF 2017(M)** **7** _**Financial Corporation[2000 (85) FLR 59], C.L Verma v. State of Madhya Pradesh [AIR 1990 (SC) 463] and U.P State Ware Housing Corp. Lucknow through its M.D v. Sri Brish Bhan Singh and another [2011 (ILR) 2 (Allahabad)**_ _**Page 499]**_ are also relied on for the same purpose. 8. The learned Senior Counsel appearing for the Port Trust would contend that the Division Bench, by Ext.P17 judgment had affirmed the judgment of this Court only on 2.6.2017. It is therefore contended that the appeal being a continuation of the original proceedings, the decision taken pursuant to Exts.P16 and P17 judgments of this Court would relate back to the date of the order of dismissal and would therefore be completely competent and within jurisdiction. It is further contended that there is no embargo contained in the Service Rules or regulations with regard to continuation of disciplinary proceedings and that as such, the action of the respondents in having proceeded in accordance with the directions issued by this Court was perfectly in order. 9. I have considered the contentions advanced. It is not disputed before me that the petitioner had **WP(C).No.23526 OF 2017(M)** **8** retired from service on attaining the age of superannuation on 31.5.2016. The writ petition contains specific averments to the effect that there is no provision contained in the Service Rules permitting the continuance of the disciplinary proceedings after retirement. There is no denial of this aspect in the counter affidavit filed on behalf of the respondents. This Court in Ext.P16 judgment had directed the reconsideration of the appeal. The respondents had taken up the matter in writ appeal. The judgment of the Division Bench was rendered on 2.6.2017. The petitioner had retired from service by then. The respondents have taken no effort to inform the Division Bench as to the date of superannuation of the petitioner and to get any permission for the continuation of the disciplinary proceedings, if at all, such permission could have been granted by this Court. 10. In the absence of any provision in the Service Rules permitting the continuance of the disciplinary proceedings after retirement and the absence of any reservation in Ext.P17 judgment, I am of the opinion **WP(C).No.23526 OF 2017(M) 9** that the power of the respondents to impose penalty on the petitioner stood extinguished by the superannuation of the petitioner. The result would be that the petitioner would be entitled to all retirement benefits as if he had retired on superannuation on 31.5.2017. In the result, the writ petition stands allowed. Ext.P18 order is set aside. There will be a direction to the respondents to pay all retirement benefits due to the petitioner, taking note of his retirement on superannuation on 31.5.2017. The writ petition is ordered accordingly. ## **Sd/-** ## **ANU SIVARAMAN** sab **JUDGE** **WP(C).No.23526 OF 2017(M)** **10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 26-12-2014** - **EXHIBIT P2 A TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER TO THE SECRETARY,COCHIN PORT TRUST DATED 31-12-2014** - **EXHIBIT P3 A TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER REQUESTING AN INDEPENDENT INVESTIGATION IN TO THE INCIDENT DATED 3112-2014** - **EXHIBIT P4 A TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER TO THE CHAIRMAN OF THE 1ST RESPONDENT DATED 09-01-2015** - **EXHIBIT P5 A TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER TO THE CHIEF VIGILANCE OFFICE, COCHIN PORT TRUST DATED 13-01-2015** - **EXHIBIT P6 A TRUE COPY OF THE APPEAL SUBMITTED BY THE PETITIONER TO THE CHAIRMAN OF THE 1ST RESPONDENT DATED 13-03-2015** - **EXHIBIT P7 THE TRUE COPY OF THE MEMORANDUM OF CHARGES ALONG WITH STATEMENT OF IMPUTATION AND OTHER ENCLOSURES DATED 05-03-2015** - **EXHIBIT P8 A TRUE COPY OF THE REPLY OF THE PETITIONER DATED 31-03-2015** - **EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 13-05-2015 EXHIBIT P10 TRUE COPIES OF THE PROCEEDINGS OF THE ENQUIRY ALONG WITH THE BRIEF FINDINGS OF THE ENQUIRY OFFICER** - **EXHIBIT P11 A TRUE COPY OF THE MEMORANDUM ALONG WITH ENQUIRY REPORT DATED 13-11-2015** - **EXHIBIT P12 A TRUE COPY OF THE WRITTEN SUBMISSION DATED 23-11-2015** **EXHIBIT P13 A TRUE COPY OF THE ORDER NO.P/S/29/2014/S DATED 29-12-2015** **WP(C).No.23526 OF 2017(M)** **11** **EXHIBIT P14 A TRUE COPY OF THE APPEAL DATED 22-03-2016** **EXHIBIT P15** **A TRUE COPY OF THE ORDER NO.P/S/18/2016/S DATED 13-05-2016** **EXHIBIT P16** **A TRUE COPY OF THE JUDGMENT IN W.P(C) NO 19582 OF 2016 BEFORE THIS HONOURABLE COURT** **EXHIBIT P17 A TRUE COPY OF THE JUDGMENT IN WRIT APPEAL NO 1051 OF 2017** **EXHIBIT P18 A TRUE COPY OF THE ORDER NO P/S/20/2017/S DATED 15-06-2017** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1(A) TRUE COPY OF REPRESENTATION DATED 20.7.2013.**