IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN MONDAY, THE 15TH FEBRUARY 2010 / 26TH MAGHA 1931 WA.No. 954 of 2006(A) --------------------- AGAINST THE JUDGEMENT/ORDER IN RP.800/2004 Dated 08/03/2006 .................... APPELLANT(S): IST RESPONDENT IN RP./PETITIONER IN W.P.: --------------------------------------------------------------------------------------------- THE NEELOOR SERVICE CO-OPERATIVE BANK LTD., NO.K51, NEELOOR P.O. KOTTAYAM DISTRICT, REPRESENTED BY ITS SECRETARY. BY ADV. MR.K.G.ANIL BABU RESPONDENT(S): RESPONDENTS 1 & 2 AND PETITIONER IN RP: ----------------------------------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, CO-OPERATIVE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCEITIES, KOTTAYAM. 3. SRI.P.J.MATHEW, PLASSANAL HOUSE, NEELOOR P.O. KOTTAYAM DISTRICT. R1 & R2 BY GOVERNMENT PLEADER MR. LAKSHMI NARAYANAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/02/2010 ALONG WITH WPC NO. 30543 OF 2004 AND WA NO. 977 OF 2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOTTATHIL B.RADHAKRISHNAN, & P.S.GOPINATHAN, JJ. ------------------------------------------- W.A.Nos.954 OF 2006 & 977 OF 2007 & W.P(C).No.30543 OF 2004 ------------------------------------------- Dated this the 15th day of February, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.These writ appeals are filed by a co-operative bank, hereinafter referred to as the 'bank'. The writ petition is filed by one of its erstwhile employees, hereinafter, the 'employee', for short. 2.Going by the entire materials on record and after hearing learned counsel for the bank as also the employee, it needs to be stated at the out set that the employee had a fairly unblemished career until disciplinary proceedings were initiated against him on a count that he had been unauthorisedly absent for a period of two months without making any application for leave. He was the Accountant in WA.954/06 & con. cases 2 the bank. The disciplinary proceedings led to an enquiry, consequential findings by the sub committee and ultimately, decision by the employer bank to dismiss the petitioner from service. The employee challenged that before the officer exercising the powers of the Registrar invoking Rule 176 of the Kerala Co-operative Societies Rules. That application was allowed. The bank went up in appeal to the Government and got an unfavourable decision. The bank challenged those decisions of the Joint Registrar and the Government before this Court in W.P(C).36593/03. The learned single Judge dismissed that writ petition with certain observations. The bank carried an appeal as W.A.No.1279/04. The Bench decided that writ appeal on 20.7.2004 holding that there is nothing for the bank to be aggrieved of, as the entitlement of the employee, for backwages, is confined only to three months. The writ appeal was accordingly dismissed. Thereafter, the employee filed R.P.800/04 on 7.8.2004 on the premise that the learned single Judge had, in the judgment dated 4.6.2004, erroneously WA.954/06 & con. cases 3 omitted to clarify appropriately the application of that judgment in so far as the entire backwages are concerned. By order on R.P.800/04, the learned single Judge took the view that the judgment of the Division Bench dated 20.7.2004 did not affect the right of the employee to seek review of the earlier judgment of the learned single Judge and accordingly granted review and reopened the writ petition to a limited extent, for considering the impact of the judgment already delivered, in so far as it related to the award of backwages. Following that, on the same day, the writ petition was taken up and a different judgment was issued holding that the employee was entitled to the entire backwages. The bank has filed W.A.No.954/06 against the order in the RP and W.A.No.977/07 against the revised judgment in the writ petition. 3.In the mean while, having regard to the fact that the directions contained in the revised judgment of the learned single Judge had not been given effect to, the employee filed W.P(C). WA.954/06 & con. cases 4 30543/04 essentially seeking directions for compliance of the directions issued by the learned single Judge on 8.3.2006. There is an interim order issued in that case in favour of the employee. 4.With the aforesaid, learned counsel for the bank contended that the judgment of the learned single Judge delivered on 4.6.2004 had merged in the judgment of the Division Bench in W.A.1279/04 and therefore, the judgment of the learned single Judge was no more available to be reviewed in exercise of any power of review, either inherent in Article 226 of the Constitution of India or on provisions referable to Section 114 read with the different rules in Order 47 of the Code of Civil Procedure. It was further argued that the writ appeal judgment was delivered by the Division Bench dismissing the writ appeal, being conscious of the fact that the employee was entitled only to three months' backwages and in fact, that itself was the ground on which the writ appeal was dismissed. WA.954/06 & con. cases 5 Resultantly, it is argued that the learned single Judge had acted erroneously and without jurisdiction in ordering review of the earlier judgment and still further, in granting relief of backwages by passing a further judgment on 8.3.2006 in the writ petition. 5.Per contra, learned counsel for the employee argued that on facts, it is a case where the employee has discharged his duties and responsibilities to the establishment to the best of his abilities. He would even say that at the time of retirement, he had, to his credit, leave of more than 450 days. He points out that though an accountant, he had never invited any disciplinary proceedings against him and a faithful servant of the establishment should not be further mulcted with liability of loosing any financial support that the judgment granted by the learned single Judge would provide him. It is pithily contended that the Division Bench in W.A.1279/04 did not give its seal of approval to the correctness or otherwise of that part WA.954/06 & con. cases 6 of the judgment of the learned single Judge relating to backwages as contained in the first judgment dated 4.6.2004 and therefore, the learned single Judge was well within jurisdiction under Article 226, including with the power of review to grant complete relief and settle the entire disputes between the parties and render complete justice interpartis. He further contended that by virtue of the available rules, the employee had the right to enjoy full pay as subsistence allowance after six months of his placement under suspension and he is entitled to one half of such support during the first six months of suspension. Therefore, it is pointed out that even if the judgment of the learned single Judge was given effect to, after deducting the subsistence allowance which had been already released, the remaining financial content would not be a hefty sum for an establishment like a bank to feel pinched and therefore, the writ appeal ought to be dismissed since the learned single judge had exercised the writ jurisdiction, which is essentially discretionary. WA.954/06 & con. cases 7 6.On the basis of the rival contentions and submissions, at the outset, it needs to be noticed that the limits of power under Rule 176 of the KCS Rules and the extent of intervention that could be made by an officer exercising the powers of the Registrar may not include the power to grant any relief of backwages as may be referable to be available to an adjudicating authority dealing with disputes between the employer and the employee under different legislations, including by way of arbitration under the KCS Act and Rules, Industrial Disputes Act etc. The power of the officer exercising the powers of the Registrar under Rule 176 is to interfere with a resolution. Therefore, the appellate power of the Government also did not contain any element of compensatory or restitutionary power. Both those authorities were primarily concerned only with the sustainability or otherwise of a resolution that the bank had taken. With this, we need to notice that the appellate authority and the WA.954/06 & con. cases 8 Government having decided in favour of the employee, it was the bank which had moved this Court. At that time, the decision of the Joint Registrar and the Government did not contain any direction for payment of backwages. In the absence of any clear directions by those authorities for backwages, the question is whether the learned single Judge had overstepped the jurisdiction to grant backwages. At the first blush, it may appear to be so. But, as of now, it needs to be noticed that the learned single Judge had granted a direction for payment of backwages for three months initially by the first order dated 4.6.2004. The Division Bench had affirmed that approach. Obviously therefore, technically speaking, interpartis, the judgment in W.A.1279/04 stands affirming the course adopted by the learned single Judge in granting backwages, which, at that time, was only for a period of three months. With this in view, we would notice that, as already stated, the correctness or otherwise of the grant of backwages was not particularly considered by the Division WA.954/06 & con. cases 9 Bench but was used only as a reason to dismiss the writ appeal of the bank. The doctrine of merger would stand to advise that even as regards a party who had not filed an appeal, the Division Bench having finally decided the appeal, the judgment would stand merged. But, still, the portion of the judgment which was never part of the lis considered by the Division Bench may provide sufficient room in exceptionally exceptional cases for the exercise of review jurisdiction at least as part of the writ jurisdiction under Article 226. We need not, however, further express categorically on that question of law, having regard to the fact that the discretion exercised by the learned single Judge in issuing the order dated 8.3.2006 in W.P(C). 36593/03, following the review order dated 8.3.2006 in W.A.800/04, has ultimately, in our considered view, resulted in complete justice between the parties rather than relegating them for any further litigation before any other authority, be it the arbitration court, civil court or otherwise. Therefore, we are satisfied that the impugned judgment, on merits, did not WA.954/06 & con. cases 10 deserve to be contradicted by an appellate judgment. The writ appeals therefore fail. 7.With the aforesaid, turning to W.P(C).30543/04, it is directed that the total amount that the bank has to pay to the employee would be only all such amounts less the entire subsistence allowance which has been already paid. All amounts remaining unpaid on such reconciliation shall be paid by the bank to the employee within an outer limit of two months from the date of receipt of a copy of this judgment. In the result, the writ appeals are dismissed and the writ petition is ordered as above. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- P.S.GOPINATHAN, Judge. kkb.16/02.