IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 WA.No. 1926 of 2008 ----------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.3232/2008 DATED 28/05/2008 .................... APPELLANTS/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 ADVS. MR.V.M.KURIAN, MR.MATHEW B. KURIAN, MR.K.T.THOMAS. RESPONDENT/PETITIONER: ---------------------------------------- K.PRABHAKARAN NAIR,`SAYI GIFT', HOUSE NO. 8105/1 SANTHI NAGAR, THIRUMALA, THIRUVANANTHAPURA, (HEAD CASHIER (RETD.) CENTRAL BANK OF INDIA, KOVALAM BRANCH, TIRUVANANTAPURAM). BY ADV. MR.P.SANTHOSH KUMAR (PANAMPALLI NAGAR). THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A. No. 1926 OF 2008 ------------------------------ Dated this, the 15th day of January, 2010 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in the Writ Petition are the appellants. The respondent herein was the writ petitioner. 2. The brief facts of the case are the following: The respondent joined the Central Bank of India as Clerk on 23.5.1974. He was promoted as Head Cashier on 2.11.1988. The respondent applied for leave from 24.11.1991 and before the same was sanctioned, he went on leave. The said leave was later sanctioned from 24.11.1991 to 30.4.1992. But, even thereafter, he did not join duty. Therefore, disciplinary proceedings were initiated against him for unauthorised absence and he was finally terminated from service on 28.4.1993. The respondent raised an industrial dispute and the same was finally referred to the Industrial W.A. No.1926/2008 - 2 - Tribunal Kollam, which was numbered as I.D.No.10/95. The Tribunal passed Ext.P5 award on 7.4.1997 holding that the termination was illegal and also ordering reinstatement with all benefits including backwages and continuity of service. The relevant portion of the said judgment reads as follows: “12. In the result, the award is passed holding that 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.” 3. The appellant challenged that award before this Court and this Court by Ext.R2(a) allowed the Original Petition in part. The relevant portion of the judgment, a copy of which is produced as Ext.R2(a), reads as follows: “In the result, this O.P. is allowed partly. The award of the Industrial Tribunal directing the petitioner to reinstate the 2 nd respondent with continuity of service is upheld. But the direction of the Tribunal to allow all benefits W.A. No.1926/2008 - 3 - including backwages is set aside and the 2 nd respondent is found not entitled to the service benefits and backwages.” 4. The appellants and respondent challenged the said judgment by filing Writ Appeals. Those appeals were heard together by the Division Bench. W.A.28/2003 filed by the appellants was dismissed. W.A.No.8/2003 was disposed of marginally modifying Ext.R2(a) judgment. The relevant portion of the said judgment reads as follows: “5. We find no reason to interfere with the award passed by the Tribunal and the order of the learned Single Judge in directing reinstatement. The management has already reinstated the workman. Further, this Court under Article 226 of the Constitution is not justified in interfering with the findings, since the same is supported by evidence. In such circumstances we are inclined to dismiss W.A.No.28/2003, though the counsel was reluctant to dismiss W.A.No.28/2003 as not pressed. Since we are dismissing W.ANo.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 W.A. No.1926/2008 - 4 - 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 appropriate order in accordance with law. W.A.No.8/2003 is disposed of and W.A.No.28/2003 is dismissed.” 5. During the pendency of the Writ Appeals itself, the respondent was reinstated in service on 6.2.2003. His claim for promotion, during the period he was out of service, was considered by the appellants and rejected. He retired from service on 31.8.2006. The Bank also took the stand that the said period cannot be counted for the purpose of pensionary benefits, as evident from the communication of the Assistant General Manager dated 21.2.2007. Therefore, the respondent filed Ext.P4 representation before the 1st appellant and thereafter, the Writ Petition was filed, praying for a direction to the appellants to consider his service from 23.5.1974 to 31.8.2006 for computing pensionary benefits. W.A. No.1926/2008 - 5 - 6. The appellants filed a detailed counter affidavit resisting the prayers in the Writ Petition. According to them, after Ext.R2(a) and Ext.P1, only the direction to give continuity of service for the period, the respondent was out of service, alone survived. In the absence of anything more, the respondent cannot claim that the said period should be counted for pensionary benefits. But, the learned Single Judge, taking into account the direction in Ex.R2(a) as affirmed in Ext.P1, took the view that the period from 28.4.1993 to 6.2.2003, the date on which the respondent was reinstated, is liable to be reckoned for the purpose of pensionary benefits. Feeling aggrieved by the said direction, the Writ Appeal is preferred by the bank. 7. We heard the learned counsel on both sides. The learned counsel for the appellants submitted that when Exts.R2(a) and Ext.P1 are read together, the respondent is entitled to have continuity of service for the period from 28.4.1993 to 6.2.2003. In the absence of any further direction regarding other benefits, the said period cannot be counted for pensionary benefits. The learned counsel for the W.A. No.1926/2008 - 6 - respondent, on the other hand, submitted that the direction in Ext.R2(a) has been diluted by Ext.P1. As a result, the aforementioned period of service could be considered for other benefits also. The Division Bench in Ext.P1 indicated that his claim for promotion during that period is liable to be considered. It means, he should be treated as on duty, otherwise, his claim for promotion cannot be considered. 8. Though by Ext.P5, the period of absence was to be treated as duty for all purposes, including all service benefits and arrears of salary, the learned Single Judge held that the respondent is not entitled to backwages or other service benefits, but, only continuity of service. The Division Bench by Ext.P1 did not dismiss the appeal filed by the respondent against that judgment. But, it was disposed of granting some more benefits to him for the above said period. The direction of the Division Bench, which we have already quoted above, would show that the respondent could claim promotion during that period and he was allowed to pursue that claim. That means, the appellants were bound to consider his claim for promotion. If, during that period he is not entitled to W.A. No.1926/2008 - 7 - promotion at all, then we have to take that the direction issued by the Division Bench is a futile writ. We cannot think the Division Bench has chosen to indulge in such an exercise. When the Division Bench said, he can pursue his claim for promotion, it means, he should be promoted if he is otherwise eligible. That means, at the relevant time, he should be treated as on duty for the purpose of promotion. When an order of reinstatement is passed with continuity of service, but, without backwages, normally, it implies the said period shall be counted for seniority and pensionary benefits, unless otherwise expressly stated. We need not import that the general principle here, because after the judgment of the Division Bench, Ext.P1, the said period has to be treated as duty for the purpose of considering the claim of the respondent for promotion. If that be so, there is no reason why that period should not be treated as duty for the purpose of pensionary benefits. We are sure, such is the effect of the direction issued in Ext.P1 by the Division Bench. W.A. No.1926/2008 - 8 - In view of the above position, this Writ Appeal is devoid of any merit and it is accordingly dismissed. (K. BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps