IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 WA.No. 398 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN OP.9394/2001 Dated 22/11/2007 .................... APPELLANT/PETITIONER IN OP: ----------------------------------------------- GEORDIE JOHN, S/O.LATE ULAHANNAN MAPPILA, CHIEF CONSTRUCTION ENGINEER (RETIRED) PLANTION CORPORATION OF KERALA LTD. BHARATHIVIHARAM, KURISUMMOOD, CHANGANASSERY, KOTTAYAM DISTRICT. BY ADV. SRI.E.K.MADHAVAN SMT.P.VIJAYAMMA SRI.V.KRISHNA MENON RESPONDENTS/RESPONDENTS 1 & 2 IN OP: ------------------------------------------------- 1. THE PLANTATION CORPORATION OF KERALA LTD KOTTAYAM, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE MANAGING DIRECTOR, PLANTATION CORPORATION OF KERALA LTD., KOTTAYAM. ADV. SRI.JOSEPH KODIANTHARA FOR R SRI.TERRY V.JAMES FOR R THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. --------------------------- W.A. No. 398 OF 2008 -------------------------- Dated this the 1st day of February, 2010 J U D G M E N T Balakrishnan Nair, J. The appellant was the writ petitioner. He was a Chief Construction Engineer under the first respondent. His date of super superannuation was 17.3.2001. On the eve of it, the petitioner had been served with Ext.P5 communication stating that he would not be allowed to retire from service as disciplinary proceedings were pending against him, as per charge sheet dated 2.3.2001. There was also a paper publication Ext.P4, stating that he would not be allowed to retire from service in view of the pendency of the proceedings. Yet another charge sheet dated 14.3.2001 was also served on him. Challenging Exts.P4 and P5 and also Rule 21A, which enabled extension of the service of an officer against whom disciplinary proceedings were pending, the original petition was filed. The challenge against Rule 21A was raised mainly on the ground that it was not in fact published and therefore it never took effect. During the pendency of the original petition, disciplinary proceedings were finalised. Because of the interim order in the original petition, final orders were passed, but not served on him. The learned Single Judge dismissed the original petition on 22.11.2007. Thereafter, the petitioner was sered with Annexure B order of dismissal, which was passed as early as on 26.9.2001. At the time of hearing the writ appeal, the learned counsel for W.A No. 398/08 2 the appellant raised certain other grounds against Rule 21A other than its non-publication. One of them is that it is highly arbitrary and discriminatory as the incumbent is compelled to remain in service for the purpose of receiving punishment without even paying subsisting allowance. Further, it is pointed out that Section 23 of the Indian Contract Act stands in the way of framing such a rule. 2. Now that the appellant is already dismissed, we think he is entitled to challenge the dismissal order raising all grounds available under law. Having regard to the new grounds raised against Rule 21A mentioned above, we think the appellant should be given an opportunity to canvass the validity of the Rule, while challenging the dismissal order. Therefore, we recall the judgment of the learned Single Judge and dismiss the original petition as withdrawn with liberty to challenge Annexure B order in accordance with law. The writ appeal is disposed of as above. K.BALAKRISHNAN NAIR, (JUDGE ) P.N.RAVINDRAN, (JUDGE) vps