Sam K. Julius v. Shipping Corporation of India Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 21ST DAY OF JUNE 2018 / 31ST JYAISHTA, 1940 WA.No. 199 of 2018 IN WPC. 24194/2016 AGAINST THE JUDGMENT IN WP(C) 24194/2016 DATED 24-10-2017 ................... ## APPELLANTS/RESPONDENTS IN THE WP(C). - 1 CHAIRMAN & MANAGING DIRECTOR, SHIPPING CORPORATION OF INDIA LTD., - REGISTERED OFFICE AT SHIPPING HOUSE, NO.245, MADAME CAMA ROAD, MUMBAI-400 021 - 2 GENERAL MANAGER, - SHIPPING CORPORATION OF INDIA LTD., REGISTERED OFFICE AT SHIPPING HOUSE, NO.245, MADAME CAMA ROAD, MUMBAI-400 021 - 3 DIRECTOR (P&A), - SHIPPING CORPORATION OF INDIA LTD., REGISTERED OFFICE AT SHIPPING HOUSE, NO.245, MADAME CAMA ROAD, MUMBAI-400 021 - 4 CHIEF VIGILANCE OFFICER, - SHIPPING CORPORATION OF INDIA LTD., REGISTERED OFFICE AT SHIPPING HOUSE, NO.245, MADAME CAMA ROAD, MUMBAI-400 021 BY ADVS.SRI.JOY THATTIL ITTOOP, SC, SHIPPING CORPN. SRI.E.K.NANDAKUMAR (SR.) RESPONDENT/PETITIONER IN THE WP(C): SAM K.JULIUS, AGED 42 YEARS, S/O. K.J.JULIUS, RESIDING AT KALLUVEETTIL HOUSE, 'ANCHORAGE', HOUSE NO. 44/1051,D., POTTAKUZHY ROAD, KOCHI-682 017 R1 BY ADV. SRI.A.X.VARGHESE R1 BY ADV. SRI.A.V.JOJO THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ttb ## **C.T. RAVIKUMAR & MARY JOSEPH, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - ## W.A. No. 199 of 2018 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st] day of June, 2018 ## **JUDGMENT** ## **Ravikumar, J:** This appeal is preferred against a judgment dated 24.10.2017 in W.P.(C) No. 24194 of 2016. The respondents therein are the appellants. The writ petition was filed by the respondent herein seeking quashment of Ext.P11 order and issuance of a writ of mandamus commanding the respondents to reinstate him in service with immediate effect with all service benefits including monthly wages with effect from 19.02.2015, i.e. the date of Ext.P9 judgment. 2. The learned single Judge, as per the impugned judgment, set aside Ext.P11 order and issued consequential direction to reinstate the petitioner and also to grant him the scale of pay of Junior Engineer. As regard his entitlement to back wages it was ordered that, he is entitled to get 50% of the back wages for the period from the date of Ext.P9 judgment till the date of reinstatement. It is aggrieved by the said judgment that the captioned appeal has been preferred. W.A. No. 199 of 2018 ## -:2:- 3. We have heard Sri.Joy Thattil Ittoop, learned counsel appearing for the appellants and Sri.A.X. Varghese, learned counsel appearing for the respondent. 4. For appreciating the rival contentions it is only apposite to succinctly state the facts. As per Ext.P1 the respondent herein/writ petitioner was appointed as the 5[th] Engineer Officer with effect from 13.12.1999 in the service of the Shipping Corporation of India Ltd. While working so, he applied for study leave. Initially that was granted. However, the appellants declined to grant extension of study leave though it was requested for. The case of the petitioner is that while seeking extension of study leave he made a further request that in case of its rejection it may be informed so as to enable him to rejoin duty. According to him, he was not informed about the rejection of his leave application. Virtually there is no serious dispute regarding the said aspect. Be that as it may, on the ground that he was remaining absent for a considerably long period, the appellants terminated his service by resorting to Part III, Clause 29 of the agreement (Ext.P6) executed between the Indian National Shipping Owners' Association(for short 'INSA') and Maritime Union of India (for short 'MUI'). Going by the same, if an W.A. No. 199 of 2018 ## -:3:- officer on leave has failed to report to the Company for a maximum period of 12 months, a presumption could be drawn that he had abandoned the job. Evidently, Ext.P5 dated 18.04.2013 was passed invoking the said Clause. As per the same, his service was terminated with effect from 31.07.2012. 5. Aggrieved by Ext.P5, the writ petitioner had earlier approached this Court by filing W.P.(C) No.13665 of 2014. As per Ext.P9 judgment dated 19.02.2015, the said writ petition was disposed of. Evidently, the impugned order, was set aside and a direction was issued to reinstate the respondent herein in service with immediate effect. As per Ext.P9 it was further made clear that the setting aside of the impugned orders and the order for reinstatement would not stand in the way of the Corporation to proceed against the respondent herein/writ petitioner in accordance with law, for unauthorised absence from service. In compliance with Ext.P9 judgment the respondent herein was reinstated in service as per Ext.P10 order dated 09.03.2015. Subsequently, Ext.P11 order dated 28.04.2015 was passed. It is in fact described as a show cause notice. However, a scanning of its contents would reveal that it is not a show cause notice, whereas it W.A. No. 199 of 2018 -:4:- is a communication informing him that his service would be terminated on the expiry of three months' period under Clause 129 of the agreement. The petitioner, on its receipt, filed Contempt Case No.1546 of 2015. It was closed as per Ext.P15 judgment dated 15.06.2016. Without expressing anything on the legality of termination, the Contempt Case was closed with liberty to the respondent/petitioner therein to challenge the order of termination. Thereupon, the petitioner filed W.P.(C) No.24194 of 2016 challenging Ext.P11 order and also making the further prayer as mentioned hereinbefore. The said writ petition has been virtually allowed as per the impugned judgment and Ext.P11 was set aside with further consequential directions, as referred hereinbefore. 6. The learned counsel for the appellants contends that it is an erroneous appreciation of the facts and law that culminated in the impugned judgment, whereas the learned counsel appearing for the respondent submits that it is the proper and correct appreciation of the law and facts that culminated in the impugned judgment. 7. The appellants mount challenge against the judgment contending that the right and power available to terminate services W.A. No. 199 of 2018 ## -:5:- of employees invoking Clause 129 of the INSA-MUI agreement, with three months' notice, was not properly appreciated by the learned single Judge. It is further contended that a perusal of Ext.P11 order would reveal that the termination of the service of the respondent/the writ petitioner is due to a consequence of the abolition of the post of 5[th] Engineer in the Shipping Corporation. Such termination is permissible, according to the appellants, in terms of Clause 129 of the INSA-MUI agreement. The respondent/writ petitioner resisted the said contention and according to him, the said post still very much exists in the appellants' service. That apart, it is contended that in the light of Ext.P9 judgment, termination resorting to such a ground is impermissible. The learned counsel appearing for the respondent/writ petitioner further contended, in the light of the decision in **State of Uttar Pradesh v. Nawab Hussain** [AIR 1977 SC 1680] that, the aforesaid plea is barred by constructive _res judicata_ . It is contended that if the post of 5[th] Engineer Officer was actually abolished, it could not be said, that was a piece of information not within the knowledge of the appellants and had it been true, it could have been and ought to have been taken up W.A. No. 199 of 2018 ## -:6:- earlier. It is submitted that even at the time of disposal of W.P.(C) No.13665 of 2014 as per Ext.P9 judgment, this contention was not at all raised. Above all, the fact that the appellants had complied with the directions in Ext.P9, vide Ext.P10 dated 09.03.2015 and reinstated in service as 5[th] Engineer Officer, itself would reveal the hollowness of the said contention, it is submitted by the learned counsel for the respondent. This contention is raised in addition to the contention that it is barred by constructive _res judicata_ . 8. In the light of the facts expatiated and also the rival contentions raised, one crucial aspect that would emerge is that respondent's earlier termination from service with effect from 31.07.2012, under Ext.P5 by invoking Clause 29 of INSA-MUI agreement, for unauthorised absence was successfully challenged by him, by filing W.P(C) No.13665 of 2014. It came to be disposed of as per Ext.P9. Going by Ext.P9 liberty that was granted to the appellants herein/the respondents therein, was to proceed against the petitioner, in accordance with law, for unauthorised absence from service. A perusal of Ext.P11 would reveal that Ext.P9 judgment was referred to therein. Hence, the question is whether Ext.P11 was issued availing the liberty granted thereunder. or in W.A. No. 199 of 2018 ## -:7:- other words, the question is whether the decision to terminate the services of the respondent was taken pursuant to initiation of action for unauthorised absence, which alone was permitted under Ext.P9. No volume of argument is required to answer the said question. A bare perusal of Ext.P11 order of termination would reveal that termination ordered thereunder which is to take effect on completion of three months from the date of its receipt was not at all for the alleged unauthorised absence whereas it was ordered citing the reason that the post of 5[th] Engineer no more exists in the Shipping Corporation. It is further stated therein that the respondent/writ petitioner had failed to pass Clause IV Part B Examination and therefore he could not be assigned engine room duties as Independent Engine Room Watch Keeper. In short, he was found surplus for that reason. Evidently, it is such consideration that culminated in Ext.P11 order. As noticed hereinbefore, the appellant's attempts to get sustained Ext.P11 and at the same time the writ petitioner/respondent herein attempts to sustain the impugned judgment. 9. A perusal of paragraphs 8 and 9 of the impugned judgment would reveal that the learned single Judge had considered the W.A. No. 199 of 2018 ## -:8:- aforesaid contentions elaborately. The learned single Judge found that as per Ext.P9 judgment this Court held that termination on the ground of deemed abandonment of service was unwarranted and ordered for his reinstatement with liberty to the appellants to proceed against him for unauthorised absence, if so advised. Ext.P11 order was considered in detail by the learned single Judge and upon such consideration it is found that the same was issued on the ground of surplusage and that it is not an order passed pursuant to any disciplinary action initiated against him for unauthorised absence. Finding that the termination was ordered under Ext.P11 order resorting to Clause 129 of Ext.P24 INSA-MUI agreement of 2010-12, that aspect was also considered by the learned single Judge. What was envisaged thereunder is termination with three months' notice, if services of an officer became surplus to the requirement as a result of reduction in Company's fleet or for want of employment for ships. Evidently, it was found that the reason assigned is not one that reduction in Company's fleet or for want of employment for ships, but the precise reason discernible from Ext.P11 is the abolition of post of 5[th] Engineer in the Shipping Corporation. The learned single Judge, W.A. No. 199 of 2018 ## -:9:- in the said circumstances held that if that was the position, it should have been taken up before this Court in the proceedings which led to Ext.P9 judgment. Further the learned single Judge found that the appellants herein/respondents therein had allowed Ext.P9 judgment to become final. In such circumstances, the said contention could not be permitted to be taken up, it was held. In that view of the matter, it was observed that the attempt on the part of the appellants could be taken only as an attempt to defeat the rights of the petitioner which was crystalised under Ext.P9 judgment. Evidently, it is assigning such reasons that Ext.P9 was set aside and consequently directions were issued. From Ext.P11 as also from the arguments advanced before us it is evident that abolition of the post of 5[th] Engineer under the Shipping Corporation and the further fact that the respondent could not be permitted to carry out engine room duties as independent engine room watch keeper as he had not passed Class-IV, Part-B Examination, were given as the reason for termination of the services of the respondent under Ext.P11. 10. Before adverting to the reasons assigned by the learned single Judge to interfere with Ext.P11 order it is only proper to W.A. No. 199 of 2018 -:10:- refer to another crucial aspect. Despite our earnest endeavour, we could not find any material on record revealing abolition of the post of 5[th] Engineer in the ships belonging to the Shipping Corporation. The learned counsel appearing for the appellants attempted to establish that in fact the said post was abolished and he drew our attention to the statement in the counter affidavit that in the light of Ext.R1(a), Marine Engineers were holding the post of Marine Engineer Officers Class IV, Part A Certificates would be placed as trainees in the vessels. Taking note of the said submission, we have gone through Ext.R1(a). Upon our anxious consideration based on the aforesaid statement and crucial scrutiny of Ext.R1(a), we do not find anything revealing the abolition of the post of 5[th] Engineer Officer. It is evident from Ext.R1(a) that it pertains to placement of Marine Engineers as Trainees holding Marine Engineer Officer Class IV Part A certificates as trainees to meet the standard of competence specified in Section A-III/4 Para 3 to form part of an engine room watch or designated to perform duties in a periodically unmanned engine room on a sea going ship powered by main propulsion machinery of 750 KW propulsion power or more, as per the following stipulations: W.A. No. 199 of 2018 -:11:- - “1. The performance of duties shall be carried out - under the direct supervision of a qualified engineer/ officer. 2. Every candidate for certification shall : 1. have completed approved 4 years education and training as required by Meta Manual Section M-III/1 and the Directorate General of Shipping Circular/notices issued from time to time, to that effect. 2. have obtained MEO Class IV Part A either by exemption or by examination. 3. have under gone the appropriate engine room simulator course for watch keeping. 4. have completed all four mandatory STW safety training courses including AFF course. 3. Such candidates will be issued with certificate by D.G. Shipping, as per STCW 95 Convention Regulation III/4, based on the assessment (practical test) conducted by DGS approved Colleges/Training Institution. 4. Approved colleges/training institutions shall conduct oral examination of such candidates and forward the list of candidates to the Directorate General of Shipping, Mumbai for approval and issuances of the Certificates as per the details given in Annexure-I.” 11. According to us, Ext.R1(a) cannot be relied upon to canvass the position that the post of 5[th] Engineer Officer was W.A. No. 199 of 2018 ## -:12:- abolished. We find it difficult to accept the said contention for any reason as well. Ext.R1(a) is dated 30.09.2004. Evidently, after Ext.P9 judgment the respondent herein was reinstated in service. Ext.P10 order of reinstatement would reveal that he was so reinstated as 5[th] Engineer Officer. True that in paragraph 9 of the counter affidavit it is stated that, though the post of 5[th] Engineer Officer stood abolished, the petitioner was reinstated as per Ext.P10 on 09.03.2015 as 5[th] Engineer Officer only to comply with the judgment of this Court. If that was the actual state of affairs, to show the bonafide, the appellants could have approached this Court before implementing Ext.P9 judgment. They could have filed a Review Petition in W.P.(C) No. 3665 of 2014 seeking review of Ext.P9 judgment inasmuch as a direction was issued thereunder to reinstate him as 5[th] Engineer Officer. 12. There is yet another reason which persuades us to decline or repel the contention of the appellants. The materials on record including the very appointment order of the petitioner/respondent (Ext.P1) would reveal that the writ petitioner/respondent was appointed against a permanent post as a regular employee. Admittedly, he was appointed as 5[th] Engineer Officer. From the W.A. No. 199 of 2018 -:13:- very recital in Ext.P1 it is clear that on his appointment he was put on probation and that itself would reveal that the appointment was against a regular post. That apart, it is the very case of the appellants that he had been in the service of the appellants for a period of more than 14 years. True that they also get a contention that out of those periods, he had remained in unauthorised absence for a considerably long period. We may hasten to add that according to the respondent, the contention that he was on unauthorised absence was not correct. In service parlance, the concept of converting status of regular employees as trainees is impermissible. Therefore, the appellants cannot be heard to contend that the post of 5[th] Engineer Officer was abolished and it was converted as trainees. In fact, a perusal of Ext.R1(a) would reveal as held earlier, that the very purpose of the same is only to give adequate training to improve the competence of the officers holding permanent posts. Therefore, we can only understand the expression used in Ext.R1(a) viz, trainees only as persons sent for in-service training. This is because a perusal of Ext.R1(a) itself would reveal that it is not the fresh recruitees who were sent for such training, whereas who are to be sent for such training W.A. No. 199 of 2018 ## -:14:- contemplated under Ext.R1(a), are Marine Engineering Officers holding MEO Class IV Part Time. Therefore, at the most one can accept that there occurred re-designation of the post mentioned therein. In short, we have no hesitation to hold that the materials on record are absolutely insufficient to hold that the post of 5[th] Engineer Officer was abolished. There is nothing in the counter affidavit as also in the materials on record which would reveal that the services of all other persons holding the post of 5[th] Engineer Officer were terminated from service pursuant to the abolition of the said post or that upon such abolition they were absorbed in any other category. At any rate, in the light of Ext.P9 judgment and also in the light of the decision in **Nawab Hussain** 's case (supra) appellants cannot be heard to raise such a contention of non-availability of the post of 5[th] Engineer Officer as it is barred by the principles of constructive _res judicata_ inasmuch as Annexure R1(a) is dated 30.09.2004 and its existence was very much within their knowledge on 19.02.2015, the date of Ext.P9 judgment. 13. In the earlier writ petition which culminated in Ext.P9 judgment, no such contention had been taken by the appellants. The position canvassed by the appellants is that the post of 5[th] W.A. No. 199 of 2018 ## -:15:- Engineer Officer was abolished in the year 2004 as per Ext.R1(a) cannot be accepted for other reasons as well. If that be so, we are at a loss to understand as to why instead of issuing Ext.P5 relying on Clause 29 of INSA MUI agreement, his services were not terminated assigning this reason. Ext.P5 was issued on 18.05.2013. Evidently, as on that date Ext.R1(a) dated 30.09.2004 was in existence. That apart, paragraph 2 in Ext.P5 also assumes reliance in this context, which reads as follows: “2. You were on unauthorised leave for five months from 26.10.2009 to 31.03.2010 which was regularised along with your paid leave from 06.06.2009 to 25.10.2009, which all officers are entitled as examination leave.” 14. Thus it is evident from Ext.P5 itself that the alleged unauthorised leave of the respondent for five months from 26.10.2009 to 31.03.2010 was regularised by the appellants themselves along with his paid leave from 06.06.2009 to 25.09.2009. Definitely, if he was not holding the post of 5[th] Engineer Officer then, the appellants ought to have stated in what manner and as against which post, leave was granted and the payment was effected on prior and subsequent periods. W.A. No. 199 of 2018 -:16:- 15. For all the above reasons we do not find any _bona fides_ in the contention that the post of 5[th] Engineer Officer was abolished. In the light of the principle of constructive _res judicata_ and also in the light of the decision in **Nawab Hussain** 's case (supra) and above all taking into account the fact that in compliance with Ext.P9 judgment the respondent herein was reinstated into the post of 5[th] Engineer Officer, the appellants cannot be heard to contend that the said post was abolished and owing to his failure to pass Class IV, Part-B Examination, he became surplus as he could not be permitted to carryout engine room duties as independent engine room watch keeper. It is assigning such reasons that he was terminated. That apart, the question is whether in the light of Ext.P9 an order in the nature of Ext.P11 could have been passed. The appellants themselves admit the fact that they had allowed Ext.P9 to become final. When Ext.P9 had become final and the only liberty granted based on the alleged misconduct from the part of the respondent herein was to initiate appropriate action for unauthorised absence, legally the appellants could have initiated disciplinary proceedings only, that too, for the misconduct of remaining unauthorisedly absent. Evidently, that is W.A. No. 199 of 2018 -:17:- not what was done by the appellants, as can be seen from Ext.P11 itself. In the light of the foregoing reasons, we find no reason at all to hold that the judgment of the learned single Judge is infected with any illegality or error of law warranting appellate interference. The upshot of the discussions is that there is no merit in this appeal and it is liable to fail. Consequently, it is dismissed. Sd/- ## **C.T. RAVIKUMAR, JUDGE** Sd/- **MARY JOSEPH, JUDGE** ttb/25.05.