IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 WP(C).No. 15106 of 2008(W) ---------------------------------- PETITIONER(S): ------------------- F.THOMAS, S/O FRANCIS XAVIER, 89, SBI COLONY, THIRUNELVELI, TAMILNADU , (RTD.ASSISTANT (ACCOUNTS) REGION-I,ZONAL OFFICE, SBI, THIRUVANANTHAPURAM) BY ADVS. SRI.H.HAMZA RAWTHER SRI.V.K.PEER MOHAMED KHAN RESPONDENT(S): -------------------- 1. STATE BANK OF INDIA, REPRESENTED BY ITS GENERAL MANAGER. 2. THE DEPUTY GENERAL MANAGER, STATE BANK OF INDIA, ZONAL OFFICE, THIRUVANANTHAPURAM. R1 & R2 BY ADV. SRI.GEORGE THOMAS(MEVADA), SC, SBI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ WP(C).No. 15106/2008(W) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE MEMORANDUM OF SETTLEMENT ENTERED BETWEEN PETITIONER AND RESPONDENT BANK. P2: COPY OF THE REQUEST MADE BY THE PETITIONER TO THE RESPONDENT BANK. P3: COPY OF THE REQUEST REGARDING THE SCHOLARSHIP AMOUNT OF THE SON OF THE PETITIONER. P4: COPY OF THE REPRESENTATION MADE BY THE PETITIONER TO THE 2ND RESPONDENT. P5: COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT OF KERALA IN WPC.NO.28891/2006 FILED BY THE PETITIONER. P6: COPY OF THE ORDER PASSEDD BY THE 2ND RESPONDENT ALONG WITH THE LETTER COMMUNICATED TO THE PETITIONER. P7: COPY OF THE REPLY LETTER SUBMITTED BY THE PETITIONER TO THE RESPONDENT. P8: COPY OF THE REPRESENTATION/REMINDER SUBMITTED BY THE PETITIONER. P9: COPY OF THE LETTER/ADVISE GIVEN BY THE 2ND RESPONDENT TO THE PETITIONER. P10: COPY OF THE CHARGE SHEET VIDE NO. DIS/CON/NO.64 ISSUED TO THE PETITIONER IN DISCIPLINARY PROCEEDINGS. P11: COPY OF THE SAVINGSBANK PASS BOOK OF THE PETITIONER WITH SB A/C NO.01190095081. P12: COPY OF THE LETTER NO. PER/ASK/5400, ISSUED FROM THE OFFICE OF THE GENERAL MANAGER (OPERATIONS) OF THE RESPONDENT BANK AND ADDRESSED TO THE DY. GENERAL MANAGER. RESPONDENTS EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs/ S.SIRI JAGAN, J. ----------------------------------------- W.P.(C) No.15106 OF 2008 ---------------------------------------- Dated this the 14th day of October, 2010. JUDGMENT The petitioner has joined the service of the respondent Bank as a clerk on 21.05.1969. He retired from service on 31.03.2001, after availing of benefits under the voluntary retirement scheme afforded by the Bank. In between, he was out of service from 02.03.1985 to 30.9.1994 on account of disciplinary proceedings and he was reinstated in service as per Ext.P1 settlement under the Industrial Disputes Act. After reinstatement on 1.10.1994, he worked for two years till 1.12.1996. Thereafter he was on leave without allowances on medical ground till 31.12.2000 and, thereafter, after three months he retired from service on 31.3.2001. Petitioner raises two grievances in this writ petition. The first is that the petitioner was not given his due promotion taking into account his past service in the Bank. Secondly, he would submit that he is entitled to have his gratuity calculated taking into account the period during which he was out of service on account of the disciplinary proceedings. 2. The respondents have filed a counter affidavit denying W.P.(C) No.15106 OF 2008 2 the claims of the petitioner. 3. I have considered the rival contentions in detail. The first prayer of the petitioner is that he became entitled to promotion in 1986 while he was out of service and, therefore, after reinstatement he should have been given due promotion taking into account his past service also. The petitioner has not produced before me the service rules regarding promotion but the counsel would argue that the promotion is by seniority-cum-merit. In support of his contention that his merit has been recognised by the Bank, he relies on Ext.P12 produced along with his reply affidavit, wherein it is stated that he can be considered for appointment in acting capacity. But that does not ipso facto mean that petitioner is meritorious enough to be considered for promotion. Seniority-cum-merit postulates that if a person comes within the parameters of minimum merit prescribed by the employer then he should be considered for promotion according to the seniority. The petitioner has not furnished any material to prove that when the vacancy to which the petitioner claims promotion arose and who has been given promotion overlooking the petitioner's claim. Even otherwise a person who was subjected to disciplinary proceedings and dismissed from service and who W.P.(C) No.15106 OF 2008 3 was reinstated only as per a settlement cannot be stated to be having the minimum merit prescribed by the Bank. The Bank contends that because of the penalty imposed on him he does not satisfy the minimum merit prescribed by the bank. I do not think the same can be faulted. The petitioner has not produced any material to decide as to the question whether the petitioner was entitled to promotion on any particular date and that on a particular vacancy he has been denied such promotion. Added to that after reinstatement he was in service for barely two years. Therefore I am not inclined to countenance the claim for promotion raised by the petitioner in this writ petition. 4. The next question is as to whether the petitioner is entitled to have the period during which the petitioner was out of service counted for the purpose of determining the qualifying service of payment of gratuity. According to the petitioner Clause 5 in Ext.P1 settlement under which the petitioner was reinstated covers the issue. That Clause reads thus:- “5. The period from the date of dismissal to the date of reinstatement will be reckoned as service only for purpose of pension and not for extension of any other benefits such as seniority. LFC, medical aid, promotion, etc.” The petitioner argues that in the said gratuity is not excluded and, W.P.(C) No.15106 OF 2008 4 therefore, petitioner is entitled to reckoned the period during which he was out of service also as qualifying service for the purpose of gratuity. He relies on the decision of the Supreme Court in Jarnail Singh v. Secretary Ministry of Home Affairs, ((1993) 1 Supreme Court Cases 47) wherein it has been held that conceptually pension includes gratuity. 5. In answer to that contention the standing counsel for the Bank would contend that as far as the bank is concerned pension does not include gratuity in so far as gratuity is paid under the Payment of Gratuity Act and pension is paid under the pension rules framed by the Bank. Further he submits that the language used in Clause 5 will exclude all other benefits except pension. 6. After considering rival arguments I am inclined to agree with the counsel for the Bank. The decision in Jarnail Singh's case (supra) is clearly distinguishable since in Rule 3 of the Central Civil Services (Pension) Rules, 1972), which was under consideration in that case, pension has been defined to include gratuity except when the term pension is used in contradistinction to gratuity. Here on the other hand pension and gratuity are covered by different Rules. Gratuity is covered by the Payment of Gratuity Act. Under that Act gratuity does not include pension. W.P.(C) No.15106 OF 2008 5 The Bank's rules regarding pension does not speak about gratuity. Therefore, I cannot hold that the word 'pension' used in Clause 5 in Ext.P1 includes gratuity also. If that be so, going by the language of Clause 5, all other benefits are expressly excluded except pension. Hence, I am of opinion that the words 'other benefits' read with the words 'only for purpose of' appearing in Clause 5, would certainly exclude gratuity. That being so, the petitioner cannot claim gratuity computed taking into account the period during which he was out of service also as qualifying service. In view of the above finding, I do not find any merit in this writ petition and accordingly the same is dismissed. S.SIRI JAGAN, JUDGE. mns