IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 WA.No. 1736 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.36732/2008 Dated 12/06/2009 .................... APPELLANT(S): PETITIONER IN WPC.36732/08 ---------------------------------------- KARANNUR SERVICE CO-OPERATIVE BANK LTD.NO.F.1244, ELATTOOR P.O., KOZHIKODE, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.P.P.JACOB RESPONDENT(S): RESPONDENTS IN WPC 36732/08 ------------------------------------------ 1. NIRMALA XAVIER, SENIOR CLERK, KARANNUR SERVICE CO-OPERATIVE BANK LTD NO.F.1244, ELATTOOR P.O., KOZHIKODE. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM. 3. THE SECRETARY TO GOVERNMENT, CO-OPERATION @ DEPARTMENT, THIRUVANANTHAPURAM. ADV.SRI.P.N.MOHANAN FOR R1 ADV.SMT.N.SUDHA DEVI FOR R2, 3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ```````````````````````````````````````````````````` W.A. No. 1736 OF 2009 ```````````````````````````````````````````````````` Dated this the 6th day of August, 2009 J U D G M E N T Balakrishnan Nair, J. The appellant is the writ petitioner. It challenges Ext.P6 order of the government in favour of the 1st respondent, who was working as Senior Clerk under the writ petitioner Society, when the writ petition was filed. The brief facts of the case are the following:- The 1st respondent, while working as a junior Clerk, was compulsorily retired from service pursuant to disciplinary proceedings on 30.5.1991. She moved the Labour Court and the Labour court, by award dated 28.1.2000, ordered her reinstatement with continuity of service but without backwages. Towards backwages, it was ordered that she need be paid Rs.25,000/-. The said award was challenged by the Society before this court by filing O.P.No.14892/2000. During the pendency of the said original petition, the 1st respondent made WA.1736/09 : 2 : Ext.P1 submission before the Society requesting reinstatement subject to the terms therein. The Board of Directors accepted her submission and passed a resolution dated 8.3.2002 ordering her reinstatement, in terms of Ext.P1 submission. Disputes arose between the parties regarding her seniority and further promotion, when the existing Secretary retired from service on 30.6.2002. The matter was carried in appeal before the government and the government passed Ext.P6 order in favour of the 1st respondent. The relevant portion of Ext.P6 reads as follows:- “ The Registrar has not applied his mind while passing the impunged order and he has taken an arbitrary decision. The respondent Bank has not obliged to implement the conditions of the settlement bilaterally agreed to by the appellant and the respondent society. An agreement with the name has to be authenticated by both the signatories but in the instant case there is only a representation by the appellant submitted to the President of the Karannoor Co-operative Society said to have been WA.1736/09 : 3 : prepared at the behest of the President of the Society. The statement is full of contradictions but it specifically states that the appellant should be given promotion to the higher post as and when vacancies occurred. In the very same sentence it is also added “foregoing my claim for seniority”. Similarly it is stated in the next sentence that she should be given “continuity in service on condition that I shall not claim any monitory benefits for the period from 30.5.1991 till the actual date of reinstatement”. From the above it is very clear that she should forgo the monitory benefit but she should be given her due promotion and seniority. The other conditions in the statement filed by her are against her own interest which are against the principles of the natural justice. In the above circumstances and after the scrutiny of the records, the Government are pleased to allow the appeal with a WA.1736/09 : 4 : direction to the respondent bank that the appellant shall be reinstated in service w.e.f. 30.5.1991, the date on which she was given compulsory retirement and shall be accorded all due promotions restoring her seniority and continuity of service.” (Emphasis supplied) 2. During the pendency of this writ petition filed by the appellant challenging the above order, the 1st respondent preferred W.P.(C) No.2671/09 praying that the award of the Labour court may be implemented and she may be promoted as Branch Manager. The learned Single Judge heard the writ petitions together and disposed of them by the common judgment dated 12.6.2009. The learned single Judge held that the direction of the government cannot be upheld in toto in view of certain sacrifices agreed to be made by the 1st respondent in Ext.P1. But, it was ordered that she was liable to be promoted as Accountant in the vacancy which arose on 1.7.2002 as a result of retirement of the Secretary of the Bank on 30.6.2002 and the consequential promotions. Feeling aggrieved by the said direction, this writ WA.1736/09 : 5 : appeal is filed. 3. We heard the learned counsel for the appellant and also learned counsel for the 1st respondent. 4. Learned counsel for the appellant submitted going by Ext.P1, which has been approved by the learned single Judge by the judgment under appeal, the 1st respondent is entitled to join as junior Clerk only and she can claim promotions only based on her position in that post when subsequent vacancies arose. The 1st respondent, on the other hand, submitted that she is entitled to get continuity in service but without backwages from 30.5.1991 as per clause (2) of Ext.P1. If that be so, she is entitled to have her entire service in the cadre of junior Clerk reckoned, including the period which was out of service, for the purpose of seniority. If that be so, she is entitled to be promoted at least to the post of Accountant but the promotion need be ordered only when the vacancy arises. In other words, existing incumbent need not be reverted to accommodate her in the higher post, it is submitted. 5. We notice that the learned single Judge accepted the view canvassed by the 1st respondent and, therefore, it was WA.1736/09 : 6 : ordered that she was entitled to be accommodated as Accountant. 6. Going by general principles in industrial jurisprudence, it may not be possible to enforce settlements made in the derogation of the terms of the award if the plea is that, it was signed under coercion or owing to extreme financial difficulties faced by the incumbent concerned. Any way, in this case, we find that the learned single Judge has accepted the terms of Ext.P1, but gave an interpretation to it, which is favourable to the employee. Going by clause (1) of Ext.P1, she has agreed to join as junior Clerk. But, going by Ext.P2, she has claimed continuity in service without backwages. Therefore, the view that she is entitled to seniority in the post of junior Clerk and, therefore, she is entitled to consequential promotions as and when vacancy arises is a plausible view. We find no reason to take a different view from that of the learned single Judge. 7. Learned counsel for the appellant pointed out that even if she is promoted as Accountant, she can be given arrears of salary only with effect from the date on which arrears were given to other employees, who got promotion pursuant to the retirement WA.1736/09 : 7 : of the Secretary on 30.6.2002. We feel that the said claim of the appellant has to be accepted. The 1st respondent shall be promoted as Accountant from 1.7.2002 and she shall be paid arrears of salary with effect from the date, when other employees were paid arrears i.e., from 30.9.2003. With the above clarification, the writ appeal is dismissed. The benefits available from this judgment shall be released to the 1st respondent within one month from the date of production of the copy of this judgment. Sd/- (K.BALAKRISHNAN NAIR, JUDGE) Sd/- (C.T.RAVIKUMAR, JUDGE) aks // True Copy // P.A. to Judge