IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2671 of 2009(R)
1. NIRMALA XAVIOUR , SENIOR CLERK,
... Petitioner
Vs
1. KARANNUR SERVICE CO-OP.BANK LTD. F.1244
... Respondent
2. GOVERNMENT OF KERALA
3. JOINT REGISTRAR OF CO-OPERATIVE
For Petitioner :SRI.P.N.MOHANAN
For Respondent :SRI.P.P.JACOB
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :12/06/2009
O R D E R
ANTONY DOMINIC,J.
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W.P.(C)s.No. 36732/08 & 2671/09
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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withdrawn.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