U. Divakaran Nair v. Travancore Cements Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **THURSDAY, THE 29TH DAY OF MARCH 2012/9TH CHAITHRA 1934** **WP(C).No. 18903 of 2008 (A)** **-------------------------** **PETITIONER(S):** **-------------** **U.DIVAKARAN NAIR, JHAYA, VARA 491, SWAGATH NAGAR, ARAPPURA, VATTIYURKAVU, TRIVANDRUM.(ASST.SPECIAL OFFICER RETD.) TRAVANCORE CEMENTS LTD., KOTTAYAM-13.** **BY ADV. SRI.J.HARIKUMAR** **RESPONDENT(S): --------------** **TRAVANCORE CEMENTS LTD., NATTAKOM, KOTTAYAM-686013, REP. BY ITS MANAGING DIRECTOR.** **BY ADVS.SRI.K.ANAND,S.C. SRI.B.S.KRISHNAN SMT.LATHA KRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** **WP(C).No. 18903 of 2008** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **EXT.P1 : COPY OF JUDGMENT IN W.P.C.NO.10709/2006-Y.** **EXT.P2 : COPY OF JUDGMENT IN W.A.NO.1239/2007.** **EXT.P3 : COPY OF REPRESENTAION OF THE PETITIONER TO RESPONDENT.** **EXT.P4 : COPY OF THE JUDGMENT IN O.S.209/2005 OF THE PRINCIPAL SUB COURT, KOTTAYAM DATED 29.01.2010.** ## **RESPONDENT(S) EXHIBITS : NIL** **NS** **/ TRUE COPY / P.A. TO JUDGE** **K. SURENDRA MOHAN, J. -----------------------------------------------------------W.P(C) NO: 18903 OF 2008 ----------------------------------------------------------Dated this the 29[th] March, 2012.** ## **JUDGMENT** The petitioner, an employee of the first respondent company had been charge sheeted along with other employees for alleged misappropriation of funds of the company. A domestic enquiry was ordered into the incident. The petitioner was placed under suspension. While under suspension, the petitioner retired from service on attaining superannuation. When the enquiry was attempted to be continued after his retirement, the petitioner challenged the same before this Court in WP(C) 10709/2006. As per Ext.P1 judgment, it was held that no disciplinary action would be taken against the petitioner after his retirement. However, it was made clear in Ext.P1 that the rights of the first respondent to proceed against the petitioner in any civil or criminal proceedings or to recover any amount found to be misappropriated by him would remain unaffected. Ext.P1 judgment was challenged in writ appeal No: 1239/2007 by the first respondent. As per Ext.P2 judgment, the writ appeal was also dismissed. Meanwhile, the first respondent had filed a suit against the other employees who were WPC 18903/2008 2 alleged to have misappropriated the first respondent's funds. The petitioner was impleaded in the said suit, O.S.209/2005 of the Principal Sub Court, Kottayam. The suit was filed for realisation of the amount that was allegedly misappropriated, with interest. Though the petitioner was not a party to the original suit, as initially framed, he was subsequently impleaded as an additional defendant. After trial, though the suit was decreed against the first defendant, the same was dismissed against additional defendants 2 and 3. The petitioner was the additional third defendant. The judgment of the Sub Court is Ext.P4. The petitioner has filed this writ petition aggrieved by the non-payment of his salary for the period during which he was placed under suspension after deducting the subsistence allowance already paid to him. In view of the fact that the proceedings against the petitioner have all come to an end, he seeks the issue of appropriate directions for payment of the salary due to him. The counsel for the petitioner also places reliance on the decision of the Honourable Supreme Court reported in **Bhagirathi Jena v. Board of Directors, O.S.F.C {1999 KHC 1097}** in support of his contentions. 2. Adv. K.Anand who appears for the respondent submits that though a domestic enquiry had been ordered into the allegations WPC 18903/2008 3 against the petitioner, the same was stalled at the instance of the petitioner who had approached this Court by filing a writ petition challenging the said proceedings. Thereafter, the petitioner was taking time, delaying the enquiry proceedings on the ground that all the documents that he wanted to rely on in support of his case were produced before this Court in the writ petition. It was in the said circumstances that the petitioner had retired from service before completion of the enquiry. Since the petitioner has been paid subsistence allowance during the period that he was placed under suspension, it is contended that he is not entitled to salary for the said period. 3. I have heard Adv.J.Harikumar who appears for the petitioner and Adv. K.Anand who appears for the respondent. I have also considered the rival contentions anxiously. 4. The main ground put forward by the respondent for denying the salary claimed by the petitioner is that, he was instrumental in delaying the proceedings of the domestic enquiry that was ordered into the allegations against him. However, it is clear from Exts.P1 and P2 judgments that the disciplinary proceedings were directed to be terminated on the retirement of the petitioner, without any conditions. Ext.P1 shows that the WPC 18903/2008 4 respondent had been given the liberty to pursue the civil or criminal remedies available to the respondent for taking action against the petitioner. Pursuant to the said direction, the petitioner was impleaded as an additional defendant in the original suit O.S.209/2005 of the Sub Court, Kottayam. After a full fledged trial the petitioner has been exonerated by the Civil Court as per Ext.P4. In view of the judgment Ext.P4, there is absolutely no scope for the contention of the respondent that the petitioner is not entitled to claim his salary for the period that he was placed under suspension for the reason that he was instrumental in delaying the disciplinary proceedings. Since the petitioner has been found to be free of guilt by the Civil Court, it has to be held that the disciplinary proceedings initiated against him were not justified. In a similar situation, the Apex Court has in Bhagirathi Jena v. Board of Directors, O.S.F.C. (cited supra) at paragraph 9 of the judgment held as follows:- “The question has also been raised in the appeal in regard to the payment of arrears of salary and other allowances payable to the appellant during the period he was kept under suspension and up to the date of superannuation. Inasmuch as the enquiry had lapsed, it is, in our opinion, obvious that the WPC 18903/2008 5 appellant would have to get the balance of the emoluments payable to him after deducting the suspension allowance that was paid to him during the above said period.” In view of the above dictum, the petitioner is entitled to succeed. 5. This writ petition is accordingly allowed. The respondent is directed to pay to the petitioner the full salary and allowances due to him for the period that he was placed under suspension, till the date of his retirement after deducting the amount of subsistence allowance already paid to him. Payment as indicated above shall be made as expeditiously as possible and at any rate within a period of two months from the date of receipt of a copy of this judgment. Sd/K. SURENDRA MOHAN Judge jj /True copy/ P.s.to Judge WPC 18903/2008 6