IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 8TH DAY OF OCTOBER 2014/16TH ASWINA, 1936 WP(C).No. 20869 of 2010 (G) ----------------------------
PETITIONER :
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EDNAD KANNUR SERVICE CO-OPERATIVE BANK LTD, P.O.EDNAD, (VIA)KUMBLA, KASARAGOD, REPRESENTED BY ITS PRESIDENT SRI.H.SHIVARAMA BHAT.
BY ADVS.SRI.K.SHRIHARI RAO SMT.N.SHOBHA SRI.K.S.BALAKRISHNAN RESPONDENTS :
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1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT CO-OPERATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.
2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), KASARAGOD.
3. P.GANGADHARAN, ACCOUNTANT, EDNAD KANNUR SERVICE CO-OPERATIVE BANK, EDNAD.P.O., (VIA)KUMBLA, KASARAGOD DISTRICT.
R1 & R2 BY GOVERNMENT PLEADER SRI. R. RANJITH R3 BY ADV. SRI.M.SASINDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
bp
WP(C).No. 20869 of 2010 (G)
APPENDIX
PETITIONER'S EXHIBITS :
P1: COPY OF THE ORDER DT 16/4/2002 OF THE PETITIONER SOCIETY. P2: COPY OF THE ORDER DT 10/7/02 OF THE R2.
P3: COPY OF THE ORDER DT 5/9/2003 OF THE R1.
P4: COPY OF THE JUDGMENT DT 28/2/2007 IN WPC NO. 1681/04 OF THIS HON'BLE COURT.
P5: COPY OF THE ORDER DT 23/7/2007 OF THE R1.
P6: COPY OF THE LETTER DT 2/11/2007 OF THE PETITIONER TO THE R1. P7: COPY OF THE ORDER DT 12/4/2010 OF THE R1.
P8: COPY OF THE LETTER DT 27/11/2007 OF THE R1 TO THE PETITIONER. P9: COPY OF THE ORDER DT 26/2/2008 OF THE PETITIONER BANK.
P10: COPY OF THE LETTER DT 10/10/2008 OF THE 1ST PETITIONER TO THE BANK.
RESPONDENT'S EXHIBITS : NIL.
//TRUE COPY// P.A. TO JUDGE bp K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C) No.20869 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 08th day of October, 2014
J UD G M E N T
The petitioner is a Co-operative Bank which is aggrieved with Ext.P7 order passed in favour of the 3rd respondent. According to the petitioner, by Ext.P7 substantial deviation was made to the earlier order, thus conferring seniority on the petitioner, which was not intended by the earlier orders passed, with respect to the service of the 3rd respondent.
2. Briefly stated, the 3rd respondent joined the petitioner Bank as a Clerk on 27.01.1984 and continued as such till 23.01.1995. In the year 1995 the 3rd respondent was selected as an in-service candidate from the primary society to the apex bank viz: Kasaragod District Co-operative Bank. Admittedly, the selection was challenged before this Court and the same was set aside which was ultimately confirmed by the Hon'ble Supreme Court. As a consequence of the setting aside of the selection, the 3rd respondent and more than 100 persons who were similarly situated, who had resigned from the primary societies, to join the apex society, were rendered unemployed. Taking into account the consequences which visited on such persons, who were rendered unemployed for reasons not within their control, the Hon'ble Supreme Court also directed the Registrar to take appropriate action in the matter. It was in such circumstances that Ext.P2 order was passed by the Joint Registrar. In fact, even before Ext.P2 order was passed, the 3rd respondent was reemployed in the petitioner Bank on 31.10.1997 in compliance with the direction of the Hon'ble Supreme Court.
3. The question of how the service of the 3rd respondent has to be treated, was answered by Ext.P2, where in, the Join Registrar following the decision of the Registrar, in the other cases, directed regularisation of the break-in-service treating such break as entitled to be treated as leave without allowances. Hence, what was essentially directed by Ext.P2 is the continuance of the service of the petitioner; treating the break-in-service as leave without allowance.
4. The petitioner bank appealed against Ext.P2 order which was set aside by Ext.P3. The petitioner challenged Ext.P3 before this Court and this Court directed reconsideration, only in the context of a Division Bench of this Court having considered a similar issue but, however, in a different context in W.A No.3693/01 by judgment dated 21.03.2003.
5. Therein the petitioners were claiming entitlement to be considered for selection to the apex body, on a subsequent notification issued in the year 1999.The Kerala Public Service Commission took objection to the consideration of the petitioners as in service candidates, on the ground that at the time of notification they were not in the employment of the of the primary societies. The Division Bench of this Court found that it is only on the direction issued by the Hon'ble Supreme Court that the petitioners therein were re-employed in the petitioner Bank and necessarily the fact that such persons who were sent out on the selection being found to be vitiated, was left in such a situation by reasons beyond their control. In the circumstances the break-in-service which had occassioned only for the reasons afore cited was directed to be reckoned as service for the purpose of entitlement to be considered in the selection. Whether the said consideration could be applied in the case of the 3rd respondent also would be a matter which has to be considered and answered by the Government itself.
6. In any event, the writ petition filed by the 3rd respondent was disposed of by Ext.P4, ordering a remand and directing consideration of the issue by the Government itself on the basis of the principle in the judgment delivered by the Division Bench. Ext.P5, consequential order, directed that the break-in-service of the 3rd respondent would be considered as leave without allowance for the purpose of pension. A query was raised by the petitioner, as to what could be included within the ambit of pensionary benefits. Representations were also made by the 3rd respondent to the Government. The query made by the petitioner Bank as also the representations made by the 3rd respondent concluded in Ext.P7 order, which is impugned herein. As per Ext.P7, it has been directed that the period of break-in-service of the 3rd respondent would be reckoned as leave without allowance and the petitioner's employment would be reckoned for consideration of all benefits.
7. The learned counsel for the 3rd respondent submits that Ext.P7 is passed based on a Government Order, referred to as item No.1 in Ext.P7. The learned counsel for the petitioner however, would urge that the order has been passed without hearing the petitioner and substantially deviated from Ext.P5 order; which cannot be permitted. The earlier order confines the regularisation of the break-in-service only for the purpose of granting pension, and nothing further could be granted on a mere query made, is the contention.
8. Taking into account the ground of violation of principles of natural justice, it may not be proper for this Court to enter into any findings as to the sustainability of Ext.P7, on merits. Ext.P7 is set aside only for the reason of violation of principles of natural justice. The petitioner shall be issued with a copy of the representations submitted by the 3rd respondent and the first respondent shall issue notice to the petitioner Bank as also the 3rd respondent and arrive at a fresh decision, in accordance with law and taking into account the Government Orders passed in the case of similarly placed individuals, within a period of six months from the date of production of a certified copy of this judgment. Needless to say that the petitioner and the 3rd respondent shall be afforded with an opportunity of personal hearing.
The writ petition is disposed of with the above directions.
Sd/-
(K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge