S.N. Sobha v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **THURSDAY, THE 29TH DAY OF JUNE 2017/8TH ASHADHA, 1939** **WP(C).No. 8806 of 2016 (A) ---------------------------** **PETITIONER :** **S.N.SOBHA, W/O.SADASIVA SHENOY, L.D.CLERK (RETIRED), DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA, ERNAKULAM.** **BY ADVS.SRI.P.C.SASIDHARAN SRI.E.S.ASHRAF** **RESPONDENTS :** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE PRINCIPAL & CONTROLLING OFFICER GOVERNMENT HOMEOPATHIC MEDICAL COLLAGE, IRANIMUTTUM, MANAKKAD POST, THIRUVANANTHAPURAM-695 009.** **3. DR.PADIAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE REPRESENTED BY ITS SECRETARY, CHOTTANIKKARA, ERNAKULAM, PIN-682 312.** - **R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI. B.UNNIKRISHNA KAIMAL** - **R3 & R4 BY ADV. SMT.R.RANJINI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp** **WP(C).No. 8806 of 2016 (A) ---------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXT.P1:**|**TRUE COPY OF THE MEMO OF CHARGES ON**| ||**1/1/2014 TO THE PETITIONER**| |**EXT.P2:**|**TRUE COPY OF THE PROCEEDINGS DATED**| ||**6/2/2015 ISSUED BY THE 4TH RESPONDENT**| |**EXT.P3:**|**TRUE COPY OF THE JUDGMENT DATED 20/7/2015**| ||**IN WPC NO.5700/2015.**| |**EXT.P4:**|**TRUE COPY OF THE JUDGMENT IN WA**| ||**NO.2155/2015.**| |**EXT.P5:**|**TRUE COPY OF THE PROCEEDINGS DATED**| ||**14/12/2015.**| |**RESPONDENT(S)'**|**EXHIBITS**<br>**:**| |**-----------------------**|| |**EXT.R3(1):**|**COPY OF THE MINUTES, EVIDENCING THE**| ||**DECISION OF THE BOARD OF TRUSTEES.**| |**EXT.R3(2):**|**COPY OF THE ORDER DT 11/4/2014 IN WPC NO.**| ||**10251/2014.**| |**EXT.R3(3):**|**COPY OF THE ORDER DT 11/8/2014 IN WPC NO.**| ||**1051/14.**| |**EXT.R3(4):**|**COPY OF THE JUDGMENT DT 19/1/2015 IN WPC**| ||**NO. 10251/14.**| |**EXT.R3(5):**|**COPY OF THE COMMUNICATION DT 6/2/2015.**| |**EXT.R3(6):**|**COPY OF THE ORDER DT 24/22015 IN WPC NO.**| ||**5700/15.**| |**EXT.R3(7):**|**COPY OF THE ORDE DT 31/3/2015, INW PC NO.**| ||**5700/15.**| |**EXT.R3(8):**|**COPY OF THE ORE DT 4/2/2016.**| **WP(C).No. 8806 of 2016 (A) --------------------------** **EXT.R3(9): COPY OF THE COMMUNICATED DT 7/3/2016. EXT.R3(10): COPY OF THE COMMUNICATION DT 12/5/2016. EXT.R3(11): COPY OF THE PROCEEDINGS DT 13/6/2016. EXT.R3(12): COPY OF THE COMMUNICATION DT 18/6/2016.** **//TRUE COPY//** **P.A. TO JUDGE** ## **bp** ## **P.V.ASHA, J.** ## **W.P.(C) No.8806 of 2016** ## **Dated this the 29[th] day of June, 2017** ## **JUDGMENT** The petitioner who was working as Lower Division Typist under the third respondent College has filed this writ petition challenging Ext.P5 order by which a punishment of “reduction in the time scale by one stage for a period of one year, having the effect of postponing the future increments” was awarded. 2. The petitioner retired from service on 31.03.2015. While working as LD Typist, she was placed under suspension as per Ext.P1 order dated 22.10.2013. A memo of charge Ext.P1 was issued to her on 01.01.2014. An inquiry was conducted and a punishment of reduction in the time scale by four stages for a period of one year, having the effect of postponing future increments was awarded to her as per Ext.P2 order dated 06.02.2015. Petitioner challenged the same filing W.P.(C) No.5700 of 2015. By Ext.P3 judgment dated 20.07.2015, a learned single Judge set aside the order of suspension and the memo of charges as well as the order awarding punishment. Later by Ext.P4 judgment in W.A.No.2155 of 2015, the Division Bench upheld the finding regarding suspension; reversed the finding regarding the memo of charge; and agreed with the finding of the learned Single Judge that the punishment was disproportionate to the W.P.(C) No.8806/2016 **==> picture [14 x 10] intentionally omitted <==** charges and left the matter to the disciplinary authority for reconsideration on the question of punishment and directed to complete the proceedings within a period of two months. The Secretary of the College, the 4[th] respondent issued the revised final order Ext.P5 on 14.12.2015, awarding the petitioner a punishment of reduction in time scale by one stage for a period of one year, having the effect of postponing of future increments. This writ petition is filed at this stage . 3. The main contentions of the petitioner is that the order awarding punishment is (1) not one which can be enforced (2) not issued by the competent authority and (3) not one enumerated in Statute 69 of the Kerala University First Statute, 1979. 4. The respondents have filed counter affidavit questioning the maintainability of the writ petition pointing out that petitioner has not availed the statutory remedy of appeal available to her under the University Act. Producing Ext.R3(1) resolution of the Board of Trustees, it is stated that the decision on the question of punishment was taken by the Board and the 4[th] respondent has issued Ext.P5 order on behalf of the Board. It is their case that even though Ext.P5 order was passed after the retirement of the petitioner, it was awarded in terms of Ext.P4 judgment revising the punishment W.P.(C) No.8806/2016 **==> picture [14 x 10] intentionally omitted <==** awarded on 06.02.2015. Even at the time when Ext.P4 judgment was rendered petitioner had retired from service and even then the Division Bench permitted to impose punishment. Apart from that it is pointed out that the petitioner had approached this court in W.P.(C) No. 10251 of 2014 challenging the suspension and memo of charge. That writ petition was admitted and an interim order was passed to the effect that disciplinary action would be subject to the result of the writ petition. After enquiry report was filed on 10.07.2014, the petitioner filed I.A.No.10245 of 2014 seeking a stay of further proceedings based on the enquiry report. By Ext.R3(2) order dated 11.08.2014, this court directed that implementation of punishment if any, on the basis of the enquiry report shall be subject to further orders to be obtained from this court. Thereafter that writ petition was disposed of only on 19.01.2015, permitting the management to impose penalty in accordance with law. Ext.R3(4) judgment in W.P.(C) No.10251 of 2014 was rendered on 19.01.2015. The petitioner thereafter filed W.P.(C) No.5700 of 2015 in which this court passed Ext.R3(6) order on 24.02.2015 staying the operation of the final order and thereafter when the retirement of petitioner on 31.03.2015 was brought to the notice of the court by the respondents, this court passed Ext.R3(7) order on 31.03.2015, to the effect that the W.P.(C) No.8806/2016 **==> picture [14 x 10] intentionally omitted <==** retirement of the petitioner shall not prejudice the right of the management to impose penalty against the petitioner, based on the order of this court. It is pointed out that the petitioner committed indiscipline and insubordination and the respondents were not able to impose punishment because of the interim orders passed by this court at the instance of the petitioner and therefore petitioner cannot be allowed to take advantage of the time lag which occurred at her instance. 5. I heard Sri.P.C Sasidharan, the learned Counsel for the petitioner and Sri.Lakshmi Narayanan, the learned Counsel for the respondents. 6. Sri.P.C.Sasidharan, the learned counsel for the petitioner argued that the reduction in scale of pay is not a punishment enumerated in the first Statute. But I find that reduction in time scale of pay is a punishment enumerated under clause iv of Statute 69 of the University First Statute. Relying on the judgment of the Full Bench of this court reported in **R.P.Nair and another vs. Kerala State** ## **Electricity Board and others : AIR 1979 Kerala 135 (Full Bench)** it was argued that the only punishment which can be imposed subsequent to retirement is reduction in pension. 7. The petitioner retired from service on 31.3.2015. Ext.P3 W.P.(C) No.8806/2016 **==> picture [14 x 10] intentionally omitted <==** judgment in W.P.(C) No.5700 of 2015 was rendered on 20.7.2015. Ext.P4 judgment in the writ appeal was rendered on 16.11.2015. By Ext.R3(7), order dated 31.03.2015, this court made it clear that the retirement will not prejudice the right of management to impose penalty. 8. The contention of the respondents is that disciplinary proceedings could not be continued on the basis of the interim order passed by this court. In WP(C) No.10251 of 2014, R3(2) interim order was passed on 11.08.2014 staying the imposition of punishment till permission was obtained from court. That writ petition was disposed of on 19.01.2015. Thereafter punishment was awarded to petitioner on 06.02.2015 reducing of pay of petitioner by four stages. That punishment was stayed as per Ext.R3(6) order dated 24.02.2015. Thereafter another interim order was passed by the learned single Judge making it clear that the retirement of the petitioner would not stand in the way of imposing penalty. However, the memo of charge itself was quashed by the judgment in WP(C) No.5700 of 2015. When the writ appeal was disposed of respondents were allowed to modify the punishment. 9. The contention of the learned counsel for the respondents is that in view of the interim order, the respondents could not finalise the W.P.(C) No.8806/2016 **==> picture [14 x 10] intentionally omitted <==** disciplinary proceedings except after disposal of the writ appeal. Therefore their contention is that the time lost by them on account of the interim order is liable to be compensated, treating the petitioner as having continued in service for that much period and the petitioner cannot be permitted to take advantage of the situation, after she herself got the orders of stay, disabling them to impose punishment. It is also argued that the action of the court shall not result in prejudice to a party. 10. It is therefore necessary to examine whether the respondents should be allowed to implement the punishment with effect from the original date of punishment or the period during which there was stay against passing final orders should be added from the date of his retirement. 11. The first order passed in the case of petitioner by this court is Ext.R3(2) on 19.08.2014, by which the respondents could not impose punishment till 19.1.2015. Punishment was awarded thereafter on 24.02.2015. That punishment was set aside in Ext.P3 judgment. In Ext.P4 judgement also it was found that the punishment awarded was disproportionate. It is true that the respondents were permitted to finalise the proceedings after reversing the judgment Ext.P3, to the extent it set aside the memo of charge. But the Division Bench has not W.P.(C) No.8806/2016 **==> picture [14 x 10] intentionally omitted <==** permitted the respondents to award any punishment, which cannot be implemented after retirement. Moreover the question regarding the retirement of the petitioner was not considered in Ext.P4 judgment. 12. Learned counsel for the respondents relied on the judgments in _**Union of India and others vs. P.Gunasekaran : 2015 (2) SCC 610**_ and _**Amarjeet Singh and others vs. Devi Ratan and others : 2010 (1) SCC 417**_ in support of his contention that the action of the court shall not cause prejudice to any party. Therefore the contention is that Ext.P5 order should be treated as one having passed at least on the date of original punishment i.e 24.02.2015 and that the respondents are entitled to be granted permission to invoke punishment on the petitioner notwithstanding her retirement considering the period during which the interim order was in force against imposing of the penalty on petitioner, as directed in _**Gunasekaran** 's_ case. 13. The judgment of the apex court in _**Amarjeet Singh** 's_ case (supra) was in respect of promotions granted on the basis of interim order in a case which was ultimately dismissed. In paragraphs 17 and 18 of the judgment, it was held as follows: > 17. No litigant can derive any benefit from mere pendency of case in a court of law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be W.P.(C) No.8806/2016 :8: allowed to take any benefit of its own wrongs by getting an interim order and thereafter blame the court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a fact situation the court is under an obligation to undo the wrong done to a party by the act of the court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the court. (Vide Shiv Shankar v. U.P. SRTC:(1995) Supp 2 SCC 726, GTC Industries Ltd. v. Union of India: AIR 1998 SC 1556 and Jaipur Municipal Corpn. v. C.L. Mishra: (2005)8 SCC 423) 18. In Ram Krishna Verma v. State of U.P.(1992)2SCC 620 this Court examined the similar issue while placing reliance upon its earlier judgment in Grindlays Bank Ltd. v. ITO: (19880)2 SCC 191 and held that no person can suffer from the act of the court and in case an interim order has been passed and the petitioner takes advantage thereof and ultimately the petition is found to be without any merit and is dismissed, the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised.” ## 14. In **Gunasekharan** 's case the apex court considered the effect of punishment and held that the modification of punishment shall have effect from the date of the original order of punishment. It was held as follows: 25. The last contention is with regard to date of effect of the punishment. According to the respondent, even assuming that compulsory retirement is to be imposed, it could be only with effect from the date of order viz. 28-2-2000. We are unable to appreciate the contention. The respondent stood dismissed from service as per order dated 10-6-1997. It was that punishment which was directed to be reconsidered. Consequent thereon only, the punishment was altered/substituted to compulsory retirement. Necessarily, it has to be from the date of dismissal from service viz. 10-6-1997. ## 15. In both of these cases, the question of retirement did not arise. The respondents in this case could have imposed a punishment which could be enforced after retirement. W.P.(C) No.8806/2016 **==> picture [14 x 10] intentionally omitted <==** 16. It is pertinent to note that the punishment awarded to petitioner was found illegal, in the judgments Exts.P4 and P5. The interim order of this court which restrained the respondents from imposing the punishment was from 18.08.2014 to 19.01.2015. In these circumstances, the respondents cannot seek any neutralization as against that period because the punishment awarded was set aside by this Court. Therefore, even if there was no order of stay, passed on 11.08.2014, the fate of that punishment would have been the same, in view of the judgments in Exts.P3 and P4. 17. By the time the judgment Ext.P3 was rendered, the petitioner had retired from service. The writ petition filed by the petitioner was allowed and the entire disciplinary proceedings were in Ext.P3. Therefore there is no question of neutralisation after the punishment was awarded. Permission was granted for consideration on the question of punishment within two months. Subsequent to the judgment Ext.P4, the respondents could have imposed a penalty which could be enforced. The permission for reconsideration was not granted for imposing a punishment which cannot be imposed after retirement. At any rate the question relating to awarding/imposing of punishment after retirement was not considered by this court while rendering Ext.P4 judgment. Petitioner retired from service on 31.03.2015 when W.P.(C) No.8806/2016 **==> picture [20 x 10] intentionally omitted <==** the stay order against implementation of punishment granted on 24.2.2015 was in force. But that writ petition was allowed setting aside the punishment. 19. Though reduction of time scale to a lower stage in the time scale is a punishment enumerated under clause (iv) of statute 69 of Chapter iv of the Kerala University First Statutes, the implementation of it after retirement is not provided under the rules. 20. A punishment, in modification of the first penalty of reduction in time scale by 4 stages postponing future increments, was awarded in Ext.P5. Though reduction in timescale by one stage for one year having the effect of postponement of increment, is one of the punishments enumerated, that cannot be enforced after retirement. Unlike in the case of recovery of pay and barring of increments, the provisions in the first statute do not provide for the implementation of reduction in pay scale, when it becomes unenforceable. When the petitioner was not drawing any pay subsequent to 31.3.2015, there could not have been any punishment of reduction in pay scale for a period of one year and there could not have been any punishment of postponement of future increment also. 21. The objection of the respondents as to maintainability cannot be accepted, as the respondents had not raised such an objection W.P.(C) No.8806/2016 **==> picture [19 x 10] intentionally omitted <==** when the writ petitions leading to Exts.P3 and P4 were filed. In the above circumstances, Ext.P5 order is set aside. As it is pointed out that the retirement benefits due to the petitioner are not disbursed, there will be a direction to the respondents to see that entire benefits due to petitioner are paid within a period of six weeks. Question of payment of interest to petitioner does not arise, in the circumstances of the case, where the respondents were restrained from imposing the punishment, while petitioner was in service. Sd/- **P.V.ASHA JUDGE** rkc