IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 28TH MAY 2008 / 7TH JYAISHTA 1930 WP(C).No. 3232 of 2008(I) ------------------------- PETITIONER: ------------ K. PRABHAKARAN NAIR, 'SAYI GIFT', HOUSE NO.B105/1, SANTHI NAGAR, THIRUMALA, THIRUVANANTHAPURAM. (HEAD CASHIER, RT.CENTRAL BANK OF INDIA, KOVALAM BRANCH, THIRUVANANTHAPURAM). BY ADV. SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) RESPONDENTS: ------------- 1. CHAIR PERSON AND MANAGING DIRECTOR, CENTRAL BANK OF INDIA, CENTRAL OFFICE, MUMBAI. 2. THE REGIONAL MANAGER, CENTRAL BANK OF INDIA, REGIONAL OFFICE, THIRUVANANTHAPURAM. BY ADV. SRI.V.V.SIDHARTHAN FOR R1 & 2 SRI.D.G.VIPIN FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. GIRI, J. ------------------------------- WP(C).NO. 3232 of 2008 --------------------------------- Dated this the 28th day of May, 2008. JUDGMENT The petitioner was working as Head Cashier in the second respondent bank. Apparently on the premise that there was unauthorised absence from duty on the part of the petitioner, his services were terminated on 28.4.1993. Petitioner preferred an Industrial Dispute before the Industrial Tribunal, which led to Ext.P5 award. Paragraphs 11 and 12 of Ext.P5 award read as follows:- “ Admittedly the workman was not chargesheeted and no enquiry has been conducted after affording opportunity to the workman to defend his case. As per Ext.W11 clarifications the management ought to have initiated disciplinary action against the workman for unauthorised absence. But that was not done by issuing charge memo and conducting enquiry. There is thus clear violation of the constitutional protection under section 311(2) of the Constitution of India. On this ground also the action of the management is unsustainable. In the result, an award is passed holding that WPC. /2008 2 the action of the Central bank of India, Trivandrum in terminating the service of the workman Sri.K.Prabhakaran Nair, Head Cashier, is illegal and unjustified and he is accordingly entitled to be reinstated in service with all benefits including backwages and continuity of service. “ 2. The bank challenged Ext.P5 award in OP.No.21851/1997 which was disposed of under Ext.R2(a) judgment dated 27.11.2002. Paragraph 8 of th said judgment reads as follows:- “ This is a case where the employer was insisting the employee to join duty and time also had been granted to an extent. Yet the employee did not join duty and he was seeking time for joining duty. As there was nothing from the part of the employer preventing the employee from joining duty, the award of all benefits including backwages cannot be justified on any account. The above part of the award allowing all service benefits including backwages are liable to be set aside but he will be entitled to continuity of service.” 3. Ext.R2(a) judgment was challenged by the bank in WA.No.28/2003 and by the petitioner in WA.No.8/2003. When WA.No.8/2003 came up for admission, the division bench passed WPC. /2008 3 an interim order to the following effect: “ Learned counsel for the appellant submits that since the learned Single Judge has upheld the award of the Industrial Tribunal directing the management to reinstate the appellant with continuity of service and since the appellant has been paid wages under section 17B of the Industrial Disputes Act during the pendency of the original petition, the appellant is willing to forego the backwages for the period prior to 27.11.2002 if the management does not press W.A.No.28/2003. Prima facie, we are of the view that the stand taken by the appellant is just and reasonable. Learned counsel for the Bank seeks time to get instructions” 4. Subsequently by Ext.P1 judgment the Division Bench dismissed WA.28/2003 filed by the bank and disposed of WA.8/2003 in the following manner. “ Since we are dismissing WA.No.28/2003 on merits, interim order dated 27.1.2003 will stand in the way of the workman claiming backwages. We, therefore, hold that the workmen is not entitled to any backwages prior to 27.11.2002. It is submitted that the workman, during the period in which he was out of service, lost seniority and lawful promotion. We are of the view that this is a matter which the workman can take up with the management and the management can pass WPC. /2008 4 appropriate orders in accordance with law.” 5. Apparently, thereafter for the very same allegations as formed the subject matter of the original disciplinary action taken against the petitioner, a fresh memo of charge was issued as Ext.P18 and ultimately the said disciplinary proceedings were completed with an order that the petitioner be awarded a punishment of warning. The said order came to be passed on 27.4.2006. The petitioner retired from service on 31.8.2006. 6. In effect therefore the petitioner was kept out of service from 28.4.1993 till 6.2.2003, when the petitioner was reinstated in service, taking note of the interim order passed by the Division Bench as has been referred to above. After retirement the petitioner sought for his retirement benefits by taking into account the period when he was kept out of service viz. 28.4.1993 to 6.2.2003. Ext.P4 representation has been filed by him in this regard. In the meanwhile, the bank had disbursed retirement benefits by computing the period of service in such a manner as to exclude the period from 28.4.1993 till 6.2.2003. The pension has been disbursed to the petitioner by computing his qualifying service, excluding the period from 28.4.1993 to WPC. /2008 5 6.2.2003 as is evident from Ext.R2(d). It is this action which has been challenged in this writ petition. The petitioner prays for a direction to the bank to recompute the retirement benefits due to the petitioner by treating the period from 28.4.1993 to 6.2.2003 as service and therefore qualifying service for the purpose of pension as also computing other retirement benefits. 7. A detailed counter affidavit has been filed by the bank resisting this. Essentially the contention taken is that the petitioner had remained out of service from 28.4.1993 to 6.2.2003 and that therefore obviously he has not received any wages for the said period. Only the period which qualifies for wages would be treated as qualifying service for the purpose of pension. The petitioner is not entitled to back wages owing by Ext.R2(a) judgment as affirmed in Ext.P1. The petitioner has received the benefits which is due to him, it is contended by the respondents. 8. I heard learned counsel for the petitioner Sri.Luiz Godwin and Sri.V.V.Sidharthan, learned counsel for respondents. 9. The only question to be considered is whether the bank is liable to take note of the period from 28.4.1993 to 6.2.2003 WPC. /2008 6 when the petitioner was kept out of service, for the purpose of calculating the retirement benefits due to the petitioner. In my view, the issue is settled by the direction issued by this court in Ext.R2(a) judgment. 10. The Industrial Dispute raised by the petitioner before the Industrial Tribunal was disposed of by Ext.P5 award directing reinstatement of the petitioner with all benefits including back wages and continuity in service. In Ext.R2(a) judgment this court had interfered with the award to a limited extent. This court held that the direction of the Tribunal to allow the petitioner all benefits including back wages is set aside. It is further found that the petitioner is not entitled to the service benefits and back wages. But this portion of the direction should be read in conjunction with the following specific direction contained in the operative portion of Ext.R2(a) judgment. “The award of the Industrial Tribunal directing the petitioner to reinstate the 2nd respondent with continuity of service is upheld”. This is only consistent with the last sentence in the penultimate paragraph in Ext.R2(a) judgment wherein it is held that “ but he will be entitled to continuity of service”. Therefore by Ext.R2(a) WPC. /2008 7 judgment, the award of the Industrial Tribunal to reinstate the petitioner with continuity of service has been specifically upheld. Ext.R2(a) judgment is affirmed by the Division Bench and at any rate WA.No.28/2003 filed by the bank was dismissed on merits. The operative direction is therefore to reinstate the petitioner with continuity of service but without back wages or any other benefits. I am of the view that once this court has held that the petitioner is entitled to continuity of service, then he is entitled to treat the period from 28.4.1993 till 6.2.2003 as period spent in service. But ofcourse he would not be entitled to back wages for the said period or any other service benefit for the said period as if he had been in service. But since the period is directed to be treated as service in the sense that reinstatement is directed along with continuity of service, the petitioner is entitled to insist that the said period should also be taken into account for the purpose of calculating his retirement benefits. 11. Learned counsel for the bank submits that as per the Pension Regulation clause 17 thereof, only the period spent on duty can be taken into account for calculation. This may be so. But here is a case where the employee had been kept out of WPC. /2008 8 service and the dispute had ultimately resulted in Ext.P5 award, which had been modified in Ext.R2(a) judgment. The inter se dispute between the parties should therefore be treated as having been settled by Ext.R2(a) judgment as affirmed in Ext.P1. If therefore the period from 28.4.1993 till 6.2.2003 is liable to be treated as continued service meaning thereby that it should not be treated as a break in service, then the regulations cannot stand in the way of it being so treated. For all these reasons, I am of the view that the petitioner is entitled to succeed. It is declared that the period from 28.4.1993 to 6.2.2003 when the petitioner was kept out of service is eligible to be treated as service rendered by the petitioner but only for the purpose of retirement benefits and no other purpose. The retirement benefits due to the petitioner shall be recalculated by taking into account the said period from 28.4.1993 to 6.2.2003. Consequential benefits shall be disbursed to the petitioner within three months from the date of receipt of a copy of this judgment. In so far as the petitioner's claim for back wages for the period from 27.11.2002 to 6.2.2003 is concerned, the said claim is left open and it is open to the petitioner to pursue the same before the bank. pmn/ V. GIRI, JUDGE. WPC. /2008 9