IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 28TH MAY 2009 / 7TH JYAISHTA 1931 WP(C).No. 115 of 2008(L) ------------------------ PETITIONER: -------------- P.K.JOHN, SENIOR BRANCH MANAGER (RETD) LIFE INSURANCE CORPORATION OF INDIA, RESIDING AT 29/1142, JUSTICE LANE, JANATHA ROAD, VYTTILA, COCHIN-19. BY ADV. SRI.GEORGE JACOB (JOSE) SMT.RESHMI POULOSE RESPONDENTS: ----------------- 1. THE LIFE INSURANCE CORPORATION OF INDIA, 'YOGAKSHEMA', JEEVAN BHIMA MARG, MUMBAI, REPRESENTED BY THE MANAGING DIRECTOR. 2. THE CHAIRMAN, LIFE INSURANCE CORPORATION OF INDIA, YOGAKSHEMA, JEEVAN BHIMA MARG, MUMBAI. 3. THE SECRETARY (PERSONNEL/ADMINISTRATION) LIFE INSURANCE CORPORATION OF INDIA CENTRAL OFFICE, YOGAKSHEMA, JEEVAN BHIMA MARG, MUMBAI. R1 TO R3 BY ADV. SRI.S.EASWARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 115/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE JUDGMENT DATED 4.3.99 IN OP 12519/95 EXT.P2 : TRUE COPY OF THE ORDER DATED 28.8.99 OF THE 2ND RESPONDENT. EXT.P3 : TRUE COPY OF THE JUDGMENT IN OP NO.26520/99. EXT.P4 : TRUE COPY OF THE JUDGMENT DATED 29.3.07 OF THE DIVISION BENCH. EXT.P5 : TRUE COPY OF THE ORDER DATED 6.10.07 OF THE SUPREME COURT. EXT.P6 : TRUE COPY OF THE LETTER DATED 29.11.07. EXT.P7 : TRUE COPY OF THE OFFICE ORDER DATED 29.11.07. EXT.P8 : TRUE COPY OF THE LETTER DATED 5.12.07. EXT.P9 : TRUE COPY OF OTHE HEARING NOTE SUBMITTED BY THE PETITIONER. EXT.P10 : TRUE COPY THE ORDER DATED 14.12.07 OF THE 2ND RESPONDENT. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 115 OF 2008 ------------------------------------------------- Dated this the 28th day of May, 2009 JUDGMENT By this writ petition, the petitioner is compelled to embark on the 9th round of litigation for certain service benefits in view of the adamant attitude of the respondents in refusing to grant the said benefits in accordance with the judgments of this Court. The facts necessary for the disposal of this writ petition may be summarised as under. 2. The petitioner entered the service of the 1st respondent Corporation as a Development Officer. He was promoted as Assistant Branch Manager on 20.05.80. While he was working so, criminal proceedings were initiated against the petitioner, which ended in his conviction on 13.11.92. He filed an appeal against that conviction. While so, he was placed under suspension based on the conviction in the criminal case on 19.12.92. Subsequently based on the very same conviction he was dismissed from service on 12.11.93. Later on, his appeal was allowed and the conviction was set aside and he was honourably acquitted, by judgment dated 22.11.93. After WPC : 115/08 -:2:- acquittal, he filed representations seeking reinstatement in service. But he was reinstated in service only on 08.04.94. Thereafter he requested for his due promotions on par with his juniors. That also fell on deaf ears. He approached this Court and obtained a judgment in his favour. Still the respondents did not find it necessary to give him promotion on par with his juniors. Therefore, he again approached this Court by filing OP No.26520/99. A learned Single Judge of this Court allowed that writ petition and directed the respondents to give promotions to the petitioner reckoning his seniority in the cadre of Branch Manager with effect from 06.05.88 on par with his juniors. It was further made clear that the respondents shall issue consequential orders granting monetary benefits to the petitioner. Ext.P3 is the judgment of the learned Single Judge. Respondents challenged that judgment in WA No.568/07. By Ext.P4 judgment, while confirming that part of the judgment of the learned Single Judge directing promotion on par with his juniors, the Division Bench set aside the other part directing payment of emoluments and directed the 2nd respondent to consider and pass orders on the question of monetary benefits arising from the orders to be passed WPC : 115/08 -:3:- as directed by the learned Single Judge. Pursuant to that Ext.P10 order has been passed, in which the petitioner’s claim for promotion as Divisional Manager was denied. He was given promotion as Senior Branch Manager with effect from 23.05.92. However, that was made notional up to 23.12.94 and monetary benefits were granted only with effect from 24.12.94. Petitioner is challenging Ext.P10 order to the extent it denies him promotion to the post of Divisional Manager and emoluments for the period from 23.05.92 to 23.12.94. 3. According to the petitioner, in so far as in Ext.P3 judgment of the learned Single Judge directing promotion to the petitioner reckoning his seniority in the cadre of Branch Manager with effect from 06.05.88 on par with his juniors has been upheld by the Division Bench, he should have been given every promotion which was given to his immediate junior in accordance with his seniority as on 06.05.88. Petitioner is entitled not only to promotion as Senior Branch Manager but also to the further promotion as Divisional Manager is the contention raised by the petitioner. He further submits that for denying him monetary benefits for the period from WPC : 115/08 -:4:- 23.05.92 to 23.12.94 no reason whatsoever has been given in Ext.P10. Therefore, according to him, he is entitled to monetary benefits arising from the promotion with effect from 23.05.92 also. The petitioner therefore seeks the following reliefs: “i) to issue a writ in the nature of certiorari quashing Ext.P7 order to the extent it denies to the petitioner promotion to the cadre of Divisional Manager during 1995-96 as had been done in the case of his juniors. i a) to issue a writ in the nature of certiorari or other appropriate writ or order to quash Ext.P10 to the extent the same denied the petitioner promotion to the cadre of Divisional Manager, with consequential monetary benefits and monetary benefits from 23.5.1992 till 24.12.1994 in the cadre of Senior Branch Manager. ii) to issue a writ in the nature of mandamus or other appropriate writ order order directing the respondents to grant the petitioner all monetary benefits in the cadre of Senior Branch Manager from 23.5.1992 till the date of his promotion as Divisional Manager. iii) to issue a declaration that the petitioner is entitled to be promoted to the cadre of Divisional Manager during 1995-96 on a par with is juniors with reference to his seniority to the cadre of Branch Managers as on 6.5.1988 with all consequential and other monetary benefits. iv) to issue a writ in the nature of mandamus directing the respondents to recompute all the retiral benefits of the petitioner reckoning his promotions to the cadre of Senior Branch Manager and Divisional Manager and to grant the same to him within a WPC : 115/08 -:5:- stipulated time-frame.” 4. A counter affidavit has been filed by the respondents denying the claims of the petitioner. According to the respondents, the entitlement of the petitioner for promotion as Divisional Manager was specifically raised by the petitioner before the Division Bench and in Ext.P4 judgment the Division Bench had categorically held that the petitioner is not entitled to that promotion. That being so, the petitioner cannot now rake up that issue again for claiming promotion as Divisional Manager is the contention raised by the counsel for the respondents. So far as the claim for monetary benefits is concerned, the learned counsel for the respondents contends that in so far as the petitioner had not worked for the period in question as Senior Manager, he is not entitled to any monetary benefits arising from the promotion till 23.12.94 when he joined as Senior Manager. 5. I have considered the rival contentions in detail. 6. In so far as the rights of the parties have been finally concluded by Ext.P4 judgment, I am expected to consider in this writ petition only as to whether all benefits as directed by Ext.P4 judgment has so given to the petitioner by the respondents. The WPC : 115/08 -:6:- operative portion of Ext.P4 judgment reads as follows: “19. Though the petitioner had a contention that he is also entitled to promotion to the post of Divisional Manager, on such direction was issued by the learned Single Judge and in the absence of any appeal by the Officer concerned, we do not think that we will be justified to consider such claim raised on behalf of the respondent herein. 20. In the result, the writ appeal is partly allowed and the judgment of the learned Single Judge to the extent it directs payment of emoluments is set aside. The matter is required to be considered as directed above by the second respondent afresh and pass appropriate orders. The second respondent shall also consider and pass orders(after refixing the last drawn pay) on the retiral benefit payable to him on that basis. The above decision shall be complied with as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment.” 7. The contention of the learned counsel for the respondents is that paragraph 19 quoted above categorically deny the petitioner the promotion as Divisional Manager. On the other hand, the learned counsel for the petitioner submits that, that paragraph does not categorically deny promotion to the petitioner as Divisional Manager. It only said that in so far as there is no appeal by the petitioner against the judgment, the Division Bench was not justified in considering such a claim raised by the petitioner who was only a WPC : 115/08 -:7:- respondent in the writ appeal. According to him, the relief of promotion to the petitioner reckoning his seniority in the cadre of Branch Manager with effect from 06.05.88 on par with his juniors granted by the learned Single Judge has been upheld by the Division Bench. Therefore he is entitled to all promotions which his immediate junior had enjoyed before the date of retirement of the petitioner is the contention of the petitioner. I am unable to countenance the contention of the petitioner in that regard. Paragraph 19 of the judgment is very clear to the effect that the petitioner’s contention that he is also entitled to promotion to the post of Divisional Manager has been specifically rejected, since according to the Division Bench no such direction was issued by the learned Single Judge, against which the petitioner had not filed any appeal. As such, I do not think that the petitioner can, in view of paragraph 19 of Ext.P4 judgment now again claim promotion to the post of Divisional manager without getting a clarification of Ext.P4 judgment from the Division Bench, even if the Division Bench has misread Ext.P3 judgment of the learned Single Judge in that regard. 8. But it is a different question with regard to monetary benefits WPC : 115/08 -:8:- arising from promotion as Senior Branch Manager with effect from 23.05.92 to 23.12.94. I note that the learned Single Judge had in Ext.P3 judgment directed payment of monetary benefits arising from the order granting promotion. The Division Bench interfered with the said direction on the ground that at the first instance it must be left to the authority to consider whether or not valid reasons exist for denial of such emoluments and specifically directed the 2nd respondent to consider the question regarding entitlement of the petitioner for back arrears after affording an opportunity of being heard to the petitioner. Therefore, it was incumbent on the part of the 2nd respondent to give specific reasons if he decides to deny the petitioner the monetary benefits arising from the retrospective promotion with effect from 23.05.92. In Ext.P10 all what the 2nd respondent has said is this: “On careful consideration of the facts, as have emerged from the available records and on the basis of my observations hereinabove, as also there being no significant difference in the assignments of Branch Manager and Senior Branch Manager, I hereby Order that Shri.P.K.John, SR No.208720, is granted notional re-fixation in the scale of Senior Branch Manager from 23.05.92, the date from which he has been promoted to the cadre of Senior Branch Manager vide officer Order ref:Per.Admn./07- 08/PO-PKJ dated 29.11.2007. Further, he would be paid WPC : 115/08 -:9:- consequential benefits in the scale of Senior Branch Manager with effect from 24.12.94, the date of his joining as Branch Manager. Accordingly, I hereby direct the Divisional Office, Ernakulam to settle the back arrears and re-calculate the retirement benefits latest by February 29,2008. ” 9. The only reason given therein is that the petitioner joined in the scale of Senior Branch Manager with effect from 24.12.94 only. I am not satisfied that, that constitutes a valid reason for not giving the petitioner the monetary benefits arising from the promotion retrospectively with effect from 25.05.92. 10. Of course, the learned counsel for the petitioner relies on the decisions of the Supreme Court in Baldev Singh v. Union of India[(2005) 8 SCC 747] and Union of India v. Jaipal Singh [(2004) 1 SCC 121]. He particularly refers to paragraph 4 of Jaipal Singh's(Supra) case which reads as follows: “xxxxxx On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by th trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges a person convicted of an offence to be so kept out and not to be WPC : 115/08 -:10:- retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing reinstatement cannot be sustained and the respondent has to be reinstated in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court insofar as it directed payment of back wages is liable to be and is hereby set aside.” The counsel would further submit that in so far as the petitioner has not worked as Senior Manager till 23.12.94 the 2nd respondent was justified in denying monetary benefits arising from the retrospective promotion till 23.12.94. 11. I am unable to fully agree with the learned counsel for the respondents. Petitioner was dismissed from service only on WPC : 115/08 -:11:- 12.11.93. He was acquitted on 22.11.93. Therefore, going by the above judgment, if at all, the petitioner could have been denied monetary benefits only for the period from 12.11.93 to 22.11.93. Learned counsel for the respondents would contend that pursuant to the conviction on 13.11.92, petitioner was suspended from service from 19.12.92 and therefore he is not eligible for monetary benefits for the period of suspension also. I specifically asked the counsel for the respondents as to why after the conviction on 13.11.92 the respondents choose only to suspend the petitioner and waited till 12.11.93 to dismiss him. The counsel could not give me a plausible answer. It is settled law that when a person is suspended from service pending disciplinary proceedings or criminal proceedings, once he is ultimately acquitted, he would be entitled to back wages also, unless for specific other cogent reasons, he could have been denied the said benefit. In this connection it should be noted that, the Division Bench has, in Ext.P4 judgment, in the matter of monetary benefits to the petitioner retrospectively, given the 2nd respondent an opportunity in the first instance to consider whether any valid reasons exist for denial of emoluments to the petitioner. WPC : 115/08 -:12:- Despite granting such opportunity in Ext.P10 order, the 2nd respondent was not able to come up with a plausible valid reason for the denial except that the petitioner joined as Senior Manager only with effect from 24.12.94, which is hardly a reason for denying back wages and it is interesting to note that the 2nd respondent himself observes in Ext.P10 that there is no significant difference in the duties of Branch Manager and Senior Branch Manager. If there was no change of duties, it is all the more reason to give monetary benefits arising from the retrospective promotion, failing which the retrospectivity would be meaningless. That being so, I am of opinion that the petitioner is entitled to the monetary benefits arising from the promotion given to the petitioner with effect from 23.05.92 till 23.12.94 also except for the period from 12.11.93 to 22.11.93, i.e. the period between the date of dismissal of the petitioner from service and the date of his acquittal in the criminal case. In this connection I also note that the Division Bench had in Ext.P4 judgment noted that in appeal the petitioner was honourably acquitted. Needless to say, if subsistence allowance had been paid to the petitioner on the period of suspension, the amount paid as WPC : 115/08 -:13:- subsistence allowance is liable to be deducted while computing the arrears to which the petitioner is entitled. Accordingly the writ petition is allowed on the following terms: Ext.P10 order is quashed to the extent of denying monetary benefits arising from his retrospective promotion as Senior Manager from 23.5.1992. The 2nd respondent is directed to pass fresh orders granting the petitioner arrears of monetary benefits arising from the promotion as Senior Branch Manager with effect from 23.5.1992 till 23.12.1994 except for the period from 12.11.1993 to 22.11.1993, also within one month from the date of receipt of a copy of this judgment. The amounts payable to the petitioner shall be disbursed immediately thereafter. S. SIRI JAGAN, JUDGE ttb