IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 115 of 2008(L)
1. P.K.JOHN, SENIOR BRANCH MANAGER (RETD)
... Petitioner
Vs
1. THE LIFE INSURANCE CORPORATION OF
... Respondent
2. THE CHAIRMAN, LIFE INSURANCE CORPORATION
3. THE SECRETARY (PERSONNEL/ADMINISTRATION)
For Petitioner :SRI.GEORGE JACOB (JOSE)
For Respondent :SRI.S.EASWARAN
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :28/05/2009
O R D E R
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 cadreof 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 suchdirection 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 observationshereinabove, 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