Allowed

The Cochin Port Trust v. a.P.Geetha

Kerala HC13 Nov 2017WA/1441/2017

Case brief

AI extract

What is this about?

In this appeal, the High Court of Kerala allowed the writ appeal filed by the Cochin Port Trust challenging a writ petition that granted voluntary retirement benefits to an employee. The court held that the trust validly rejected the application under the Special Voluntary Retirement Scheme because approving it would have abolished an indispensable post, causing detriment to the trust.

What did the court decide?

The judgment in W.P.(C) No.16923 of 2017 was set aside; the appellant Port Trust was allowed to deny the SVR retirement. An opportunity was granted to the respondent to regularise her absence as leave

The Cochin Port Trust Vs a.P.Geetha — Pension and Retirement Benefits | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 13TH DAY OF NOVEMBER 2017/22ND KARTHIKA, 1939 WA.No. 1441 of 2017 () IN WP(C).16923/2017 --------------------------------------------

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AGAINST THE ORDER/JUDGMENT IN WP(C) 16923/2017 of HIGH COURT OF KERALA DATED 15/6/2017

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APPELLANT(S):FIRST RESPONDENT

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THE COCHIN PORT TRUST REPRESENTED BY ITS SECRETARY, WILLINGTON ISLAND, COCHIN, PIN-682009. BY ADVS.SRI.K.ANAND (SR.) SMT.LATHA ANAND SRI.M.N.RADHAKRISHNA MENON SRI.JOSEPH SEBASTIAN (PARACKAL)

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RESPONDENT(S)/PETITIONER AND 2ND RESPONDENT:

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A.P.GEETHA AGED 59 YEARS, W/O PADMANABHAN P.,QUARTER NO.5/11, COCHIN PORT TRUST, WILLINGTON ISLAND,COCHIN, WORKING AS PERSONNEL SECRETARY TO CHAIRMAN, COCHIN PORT TRUST, WILLINGTON ISLAND, COCHIN, PIN-682009,GENERAL ADMINISTRATION DEPARTMENT.

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UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF SHIPPING, TRANSPORT BHAVAN, PARLIAMENT STREET, NEW DELHI, PIN-110001.

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R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R1 BY SRI.T.A.UNNIKRISHNAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.N. Ravindran & Devan Ramachandran, JJ.

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- - - - - - - - - - - - - - - - - - - - - -- - -

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W.A.No.1441 of 2017

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- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 13^th November, 2017

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JUDGMENT

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Devan Ramachandran, J.

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The appellant is the Cochin Port Trust, a major port trust as defined under the Major Port Trusts Act. In this appeal they impugn the judgment of the learned single dated 15.6.2017 in W.P.(C) No.16923 of 2017. The said writ petition was filed by the first respondent with a rather ubiquitous prayer that she be allowed to retire, under a Special Voluntarily Retirement Scheme (hereinafter referred to as “the SVR Scheme” for brevity adopted by the Cochin Port Trust, which was approved by the Government of India, Ministry of Shipping through Ext.P1 letter of concurrence.

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The first respondent/writ petitioner is working as the Personal Secretary to the Chairman of the Cochin Port Trust and she applied for voluntary retirement under the SVR Scheme as per Ext.P2 application. The Cochin Port considered the application but rejected the request of the first respondent as per Ext.P4 showing the following reasons:

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“(a) It has been stated under clause (ii) of Ministry's letter that “There will be no restriction to exclude persons with less than 5 years of residual service so long as the Port finds it financially beneficial to do so”.

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(b) Under clause (iii) of Ministry's letter it has been stated that “There will be no recruitment against vacancies arising due to SVRS. All posts falling vacant as a result of SVRS shall be abolished and they shall not be eligible for revival in any case”.

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The first respondent challenged Ext.P4 rejection letter on the ground that the Cochin Port Trust could not have done so in view of the specific mandate contained in Ext.P1 making the provisions of SVR Scheme applicable to all employees of the Port Trust who have completed 10 years of service and have attained 40 years of age at the time of submission of the written application. She asserts that she is qualified for availing the benefit under SVR Scheme under both these conditions and she predicates that the stand of the Cochin Port was illegal and unlawful.

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The learned Single Judge, after assessment of the various pleadings available on record and the materials presented before him, came to the conclusion that the reasons stated in Ext.P4 is untenable and thus allowed the writ petition directing the appellant herein to grant to the first respondent herein the benefits under the SVR Scheme. The Cochin Port Trust has assailed the said judgment in this appeal on various grounds.

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We have Sri K.Anand, assisted by Sri Joseph Sebastian, learned counsel appearing on behalf of the appellant, Sri T.A.Unnikrishnan, learned counsel appearing for the first respondent and learned Assistant Solicitor General appearing for the second respondent.

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The underpinning of the first respondent's claim in the writ petition are on the terms contained in Ext.P1 notification. Under Ext.P1, the SVR Scheme is made applicable to all employees who have completed 10 years of service and who have attained the age of 40 years at the time of submission of their application. However, the said notification also contains certain restrictions with respect to the grant of such benefits under the scheme. The primary among those restrictions are contained in clauses 3 and 4 of the said notification which reads as under:

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“(iii) There will be no recruitment against vacancies arising due to SVRS. All posts falling vacant as a result of SVRS shall be abolished and they shall not be eligible for revival in any case nor will be accounted for the purpose of computation of any matching savings while creating posts in the Port Trust. The order to accept Special Voluntary Retirement request and abolition of the post will be issued simultaneously.

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(iv) The Board should ensure that SVRS is extended to primarily such employees whose service may be dispensed without detriment to the Port Trust.”

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The tenor of Ext.P1 is ineluctable that in normal circumstances

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the Port Trust will consider and allow the applications under the SVR Scheme, but in exceptionable circumstances when it is against their interest or causes detriment to the various services under it, they would be entitled to reject it by recording reasons in writing. This option, available to the Port Trust, is contained in clause 12 which says that the Port Trust will have the right not to grant voluntary retirement by recording reasons in writing.

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The question therefore before us is whether Ext.P4 letter issued by the Port Trust obviously invoking clause (xii) of Ext.P1, is valid and tenable.

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The primary reason recorded in Ext.P4 for denying the first respondent's request for retirement under the SCR Scheme is on account of the specific condition of the Scheme that when an incumbent in a post is allowed to retire under the SVR Scheme, the post itself would stand abolished. The effect of this is that if the first respondent is allowed to retire from the services of the appellant Port Trust under the provisions of the SVR Scheme, the post of Personal Secretary to the Chairman of the Port Trust itself would stand abolished and it would not be possible for them to have that post in their services any further. The Port Trust says that the post of Personal Secretary to the Chairman is absolutely imperative and that if the first respondent is, therefore, allowed to retire under the SVR Scheme, it will lead to the post itself being abolished, causing great detriment to

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it. The appellant, therefore, relies on clause (iv) of Ext.P1 and contends that Ext.P4 has been issued denying the request of the first respondent because the post of Personal Secretary to the Chairman cannot be dispensed with and that it is essential to its service.

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Learned Senior Counsel Sri K.Anand appearing for the Port Trust submits before us that the Port Trust has rejected the application of the first respondent under valid cause and for the singular reason that the post that she is occupying cannot be abolished consequent on her retirement under the SVR Scheme. According to him, they have no problem in the first respondent seeking retirement but not under he SVR Scheme. The consequence of such retirement under the Scheme is that the post itself will stand abolished. According to him, this cannot be because the post is essential and it cannot be abolished merely because the first respondent wants to retire under the SVR Scheme.

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Sri T.A.Unnikrishnan, learned counsel for the first respondent vociferously refuted the above submission and says that the first respondent is entitled, as a matter of right, to retire under the SVR Scheme and that Ext.P1 does not show that any of the employees are taken away from its ambit and that it is applicable to all the employees.

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However, the question is whether there is a valid right for the first respondent to say that she should be permitted to retire under

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the SVR Scheme. Nothing in Ext.P1 would find favour with the contention that every employee of the appellant has such a right vested in them. The liberty available to an employee under Ext.P1 is to make an application and thereafter, it is for the Port Trust to consider it in terms of the clauses therein and nothing more, nothing else.

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Sri T.A.Unnikrishnan, learned counsel for the first respondent further submits that the contention of the Port Trust that the services of the first respondent is indispensable is untenable for the reason that she was transferred from the post of Personal Secretary to the Chairman, to the Traffic Department on 5.7.2016. According to him, this shows that her services are absolutely necessitous. We are afraid, Sri T.A.Unnikrishnan has misread the stand taken by the appellant Port Trust. They do not say that the services of the first respondent is imperative but that the post occupied by the first respondent is essential to them and, therefore, that if the first respondent is allowed to retire under the SVR Scheme, the post itself would become abolished. The contention of the appellant is thus evident and it is not that the services of the first respondent is indispensable, but that the post she is holding is indispensable and, therefore, that she cannot be allowed to retire under the SVR Scheme. The learned Senior Counsel clarifies that they have no objection against the first respondent obtaining retirement otherwise or if she is retires on superannuation

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but not under the SVR Scheme, because if she is allowed to retire under the Scheme, it will lead to abolition of the post occupied by her.

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We have considered the dialectical contentions. We have no doubt that the appellant Port Trust is justified in saying that since the post of Personal Secretary to the Chairman is an indispensable post, the first respondent cannot be allowed to retire under the SVR Scheme because that would entail abolition of the post itself. The contentions of Sri T.A.Unnikrishnan, learned counsel for the first respondent that she has a vested right to retire under the SVR Scheme is not supported by the terms of the scheme and we are unable to see any such entrenched right being offered by the Port Trust any employee.

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It is ineluctable from the way Ext.P1 reads that every employee qualified under its prescriptions can apply for retirement under it. However, such application is, as per Ext.P1, to be considered by the appellant Port Trust and allowed only if such retirement is beneficial to it. In fact, clause (iv) of Ext.P1 mandates that the benefits of the Scheme be only granted without any detriment to the Port Trust. Viewed thus, it become indubitable that the first respondent cannot claim or contend that her application be allowed automatically and that the appellant can reject it, after recording reasons in writing, if such retirement causes detriment to it. In this case, the application of the first respondent has been rejected because the post she is holding is essential for the appellant and we find favour with the

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submissions of Sri Anand, learned senior counsel for the appellant Port Trust, when he says that it is not the services of the first respondent that is indispensable but that it is the post.

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In such circumstances and for the reasons that we have recorded above, we hold the reasons, stated in Ext.P4 order to be valid and in terms of the discretion vested with the appellant Port Trust in Ext.P1, and that it has been issued for tenable reasons. In such circumstances, we find no other option but to allow this appeal and to set aside the judgment of the learned single Judge in W.P.(C) No.16923 of 2017.

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At this time Sri T.A.Unnikrishnan, learned counsel for the first respondent makes a submission that pending this appeal, the first respondent was on leave from 1.10.2017 and that she may be given an opportunity to approach the authorities to have her leave regularised since she is to retire on superannuation by the end of this month. We understand from the submissions of the learned counsel that the first respondent is presently keeping herself out of service without a proper leave application. However, taking into account the fact that the first respondent is retiring by the end of this month and since we have already found that she cannot seek retirement under the Scheme, we deem it appropriate to grant an opportunity to her to approach the competent Authorities of the Port Trust to apply for regularisation of her absence as eligible leave in terms of the law and

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in terms of the applicable Rules and Regulations relating to the Port Trust. This of course will be on condition that the first respondent rejoins duty on 16.11.2017. We fix this date because Sri T.A.Unnikrishnan, learned counsel for the first respondent submits that his client is presently undergoing some treatment in Thiruvananthapuram and that she requires two or three days to rejoin duty. We are certain that the Competent Authority of the Port Trust will consider the application of the first respondent for regularisation of absence sympathetically and consider her request taking into account the fact that she is due to retire on superannuation on 30.11.2017 and also because she is stated to be a differently abled person.

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The appeal is thus allowed.

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(P.N. Ravindran, Judge)

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(Devan Ramachandran, Judge)

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kav/

The Cochin Port Trust v. a.P.Geetha

Case brief

What is this about?

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The Cochin Port Trust v. a.P.Geetha

Case brief

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