IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 WP(C).No. 2671 of 2009(R) ------------------------------------- PETITIONER: ------------------- NIRMALA XAVIOUR , SENIOR CLERK, KARANNUR SERVICE CO-OPERATIVE BANK LTD NO. F 1244 ELATTOOR P.O, KOZHIKODE. BY ADV. MR.P.N.MOHANAN. RESPONDENTS: ------------------------ 1. KARANNUR SERVICE CO-OP.BANK LTD. F.1244 REPRESENTED BY PRESIDENT/SECRETARY ELATTOOR PO, KOZHIKODE. 2. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, SECRETARIAT,TRIVANDRUM. 3. JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (G) KOZHIKODE. R1 BY ADV. MR.P.P.JACOB, R2 & R3 BY GOVT. PLEADER MR. I.V. PRAMOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2009, ALONG WITH W.P.(C). NO. 36732 OF 2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.2671/2009-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE AWARD DTD. 28/01/2000 OF THE LABOUR COURT. EXT.P.2 & P3: COPIES OF THE ORDERS DTD. 16/08/2001 AND 06/02/2002 IN CMP.NO.58891/2000 IN O.P. 147892/2000. EXT.P.4: COPY OF THE PETITION DTD. 04/03/02 SUBMITTED BY THE PETITIONER BEFORE THE R.1. EXT.P.5: COPY OF THE RESOLUTION OF THE COMMITTEE DTD. 08/03/2002. EXT.P.6: COPY OF THE ORDER DTD. 11/03/2002 OF THE R.1. EXT.P.7: COPY OF THE MEMO OF WITH DRAWAL FILED BY THE BANK IN O.P. 14892/2000. EXT.P.8: COPY OF THE JUDGMENT DTD. 09/04/2002 IN O.P. 14892/2000. EXT.P.9: COPY OF THE LETTER DTD. 26/02/2003 OF THE JOINT REGISTRAR. EXT.P.10: COPY OF THE ORDER DTD. 02/05/2003 OF THE JOINT REGISTRAR. EXT.P.11: COPY OF THE LETTER DTD. 19/07/2005 OF THE REGISTRAR. EXT.P.12: COPY OF THE G.O.(RT).NO.773.08/CO. DT.D 22/11/08 OF THE GOVERNMENT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC,J. --------------------- W.P.(C)s.No. 36732/08 & 2671/09 ------------------------ Dated this the 12th day of June, 2009. JUDGMENT WP(c).No.36732/08 is filed by the Karannur SCB LTD and WP(c).No.2671/09 is filed by one of its workmen, Smt. Nirmala Xavier. 2. For convenience I shall refer to the exhibits marked in WP(c).No.2671/09. The employee joined the Society on 21.8.1986. On the allegation that she had committed certain misconduct, she was suspended on 22.9.1990 and was compulsorily retired from service by the order dated 31.5.1991. This dispute was the subject matter of ID. No.33/93 on the file of the Labour Court, Kozhikode. Labour Court passed Ext.P1 award directing the management to reinstate the employee with continuity of service and payment of Rs.25,000/- in lieu of backwages. The society filed O.P.No.14892/00 before this court WP(c).No.36732/08 & anor. 2 challenging the award and pursuant to the interim orders that were passed, Rs.25,000/- ordered to be paid in the award was paid to the employee in two instalments. 3. During the pendency of the original petition, the employee filed Ext.P4, before the President of the society, referring to certain discussions that she had with the President and Secretary of the Society and suggesting settlement of the dispute, subject to the terms and conditions in Ext.P2. Based on Ext.P4, the society passed Ext.P5 resolution dated 8.3.2002 in WP(c).No.2671/09 and it was resolved to appoint the petitioner, as a junior clerk, for the time being, with continuity of service. Accordingly, by Ext.P6 order dated 11.3.2002, the employee was reinstated in service as junior clerk. It is also seen that following her reinstatement, the counsel for the Bank who filed a memo in O.P.No.14892/00 challenged Ext.P1 award and accordingly by Ext.P8 judgment dated 9.4.2002 the original petition was dismissed as withdrawn. WP(c).No.36732/08 & anor. 3 4. While the employee was continuing in service, on 30.6.2000 one Sri. Balan, Secretary of the Society attained the age of superannuation and retired from service. Accordingly, consequential vacancies arose and petitioner contends that in the consequential vacancy of Accountant, she ought to have been promoted, having regard to the fact that the reinstatement was with continuity to service. This was not accepted by the Bank and Bank promoted and posted some other persons. There upon the employee moved the Joint Registrar, claiming promotion to the post of Accountant and that was rejected by Ext.P9 order. Her representation to the Registrar also was rejected by Ext.P10. It is stated that she moved the Government by filing Ext.P5 in WP(c).No.36732/08 and the Government by Ext.P12 order allowed her appeal. The Government held that the decision of the Joint Registrar was arbitrary and the Bank was directed to reinstate the employee in service with effect from 30.5.1991, the date on which she was given compulsory retirement, that her seniority should WP(c).No.36732/08 & anor. 4 be restored that she is entitled to continuous service. 5. In WP(c).No.36732/08 filed by the Bank they are challenging the aforesaid order of the Government ,which is produced as Ext.P5 in the writ petition. In WP(c).No.2671/09, the employee is praying for, extension of the benefit of the award, as confirmed in Ext.P5 referred to above, which is also produced as Ext.P12. 6. Admittedly, by the award rendered by the Labour Court, kozhikode in I.D.No.33/93 Bank was to reinstate the employee with continuity of service and to pay Rs.25000/- in lieu of backwages. It is true that, by Ext.P4 referred to above, the employee agreed to forfeit several benefits arising under the award but demanded that she should be reinstated as junior clerk with continuity of service. It was this request of the employee which was accepted by the Bank as can be seen from Ext.P5 restoration and it was resolved that the employee shall be reinstated as junior clerk for the present. This evidently means that the Bank has recognized its obligation to WP(c).No.36732/08 & anor. 5 accommodate the employee in a post higher to that of junior clerk but however had chosen to accommodate her as junior clerk for the present, “ in view of its ow exigencies.” If that be so, when a vacancy of a higher post to which the employee was eligible arose as a result of the retirement of the Secretary of the Bank, necessarily the Bank ought to have accommodated the employee in that vacancy. 7. A view different from this, will run counter to the terms offered by the employee in Ext.P4 and accepted by the Bank in Ext.P5 resolution. Moreover that will also result in forfeiture of all benefits that the employee derived under the award rendered by the Labour Court, Kollam which has become final and binding between the parties. If so, he refusal of the Bank in not accommodating the employee in the consequent vacancy of the Secretary is clearly erroneous and to that extent Ext.P12 order of the Govt. needs to be confirmed. WP(c).No.36732/08 & anor. 6 8. However, a reading of Ext.P12 which is challenged by the Bank in WP(c).No.36732/08 shows that the Government have directed restoration of the entire benefits which were granted in the award rendered by the Labour Court. From Exts.P4 and P5 it is evident that the employee has offered certain sacrifices which were accepted by the Bank. This is totally ignored by the Government which passing Ext.P12 order. In such circumstances the Government was not justified in granting entire benefits to the employee. Therefore Ext.P12 cannot be sustained in full. Accordingly, it is declared that the employee, petitioner in WP(c).No.2671/01 ought to have been promoted by the Bank in the consequential vacancy of Accountant which as a result of the retirement of the Secretary of the Bank with effect from 30.6.2000. The Government Order produced as Ext.P12 in WP(c).No.2761/09 and Ext.P6 in WP(c).No.36732/08 to the extent it orders restoration of the entire benefits awarded in I.D.No.33/03 will set aside to that extent and it is directed that WP(c).No.36732/08 & anor. 7 the employee will be given the benefits as provided in Exts.P4 and P5 referred to above. Writ Petitions are disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WP(c).No.36732/08 & anor. 8