B. Giridhar vs The State Bank of Mysore, Personnel Department

S. Sujatha, J.—This petition is directed against the communications dated 25.4.2014 and 22.8.2014 issued by the respondent at Annexures - D & G respectively to the writ petition.

The brief facts of the case are:

"That the petitioner was appointed as Cashier-cum-Clerk in the respondent bank with effect from 14.9.1999 and when he was working as Cashier at Sandur Branch on 16.11.2004 at about 6.30 pm while closing Branch cash transaction, there was some altercation with S.K. Kadam, the officiating Manager. A criminal complaint having been lodged by S.K. Kadam, FIR in Crime No. 197/2004 was registered by the Police. The charge sheet dated 24.1.2005 was issued by the respondent alleging that on 16.11.2004 at about 6.30 pm, while closing the cash, the petitioner was directed by the Branch Manager [Officiating] to initial the cash balance in the vault register and instead of complying with the instructions, he defied the instructions and hit him causing serious injuries and the petitioner was called upon to give his explanation. This was contested by the petitioner giving suitable reply denying allegations and requested for dropping further disciplinary proceedings.

After holding the enquiry, the petitioner was held guilty of the charges. The Bank proceeded to pass order of removing the petitioner from service with effect from 21.1.2006. The appeal filed by the petitioner was also rejected by the appellate authority. It is also contended that the case filed by the State against the petitioner also ended in acquittal as per order passed by this court in Criminal Appeal No. 2627/2010 dated 23.1.2012. Being aggrieved by the order passed by the disciplinary authority of the Bank, the petitioner raised an industrial dispute and upon failure of conciliation, the Government of India referred the dispute to the Central Government Industrial Tribunal cum Labour Court under section 10[1][d] of the Industrial Disputes Act, 1947 [hereinafter referred to as ''the Act'' for short]. The dispute was registered as CR No. 7/2009. On the validity of the preliminary issue, the parties led evidence and the Tribunal proceeded and answered the same against the petitioner. Thereafter, other issues were also taken into consideration by the Tribunal and after hearing both the parties and considering the oral and documentary evidence and the enquiry report, proceeded to pass order on 17.10.2013 allowing the reference in part holding that the imposing of punishment of removal from service is not in accordance with law in the background of the case. However, the labour court directed the management to reinstate the petitioner into service with continuity of service and other consequential benefits without back wages."

After the award became enforceable, the petitioner was reinstated into service and he was advised to report to the Bank''s regional office at Hyderabad for further posting and after some time, he was again posted to Kondapur Branch. It transpires that after the petitioner reported to duty, he was paid consolidated payment of Rs. 15,000/- per month for the months of February and March 2014. The petitioner submitted a representation on 14.4.2014 addressed to the Assistant General Manager, State Bank of Mysore, Hyderabad, claiming the benefits such as annual increment, revision of pay scales, benefit of fitment, grant of privilege leave etc., in view of the award passed by the Tribunal directing extension of consequential benefits while ordering reinstatement of the petitioner, to which the respondent issued a reply rejecting the claim of the petitioner stating that except holding that salary or wages as directed by the Tribunal in its award, no other benefits would be made available to the petitioner. Again a representation dated 16.6.2014 was made by the petitioner to the respondent to the Managing Director of the respondent Bank seeking intervention in the matter so as to resolve the issue in a just and proper manner. The respondent declined to grant the benefits like increments or leave etc., as claimed by the petitioner on the ground that the order of the Tribunal is clear that no such benefits are extended to the petitioner and where continuity of service is ordered, it should be understood that such continuity of service is to be reckoned only for pensionary and retirement benefits. Annexures - D & G are the letters of the respondent addressed to the petitioner rejecting the request made by the petitioner to grant the consequential benefits i.e., increments, leave and promotion etc. These Annexures-D & G are impugned in this writ petition.

Learned counsel appearing for the petitioner vehemently contended that the order passed by the labour court is very clear and it does not call for any further interpretation to interpret that the labour court has awarded the reinstatement of the petitioner only with continuity of service ignoring the other consequential benefits granted without back wages. It is submitted that reinstatement into service only with continuity of service stands on a different footing with reinstatement into service with continuity of service and other consequential benefits. If the reinstatement into service with continuity of service and other consequential benefits is pressed into service, the petitioner is entitled to increments, leave and promotion etc., as claimed by him which is rejected by the Management misreading the order of the labour court. The management having not challenged the order passed by the labour court, which has attained finality, the management cannot deny the benefits granted by the labour court vide Annexure-A. Accordingly, he seeks for a writ of mandamus to direct the respondent to extend consequential benefits such as grant of annual increments, revision of pay, pension and fitment of pay, leave etc., to the petitioner.

Per contra, the learned counsel appearing for the respondent contended that there is no direction in the award of the labour court to grant the annual increment, revision of pay, benefit of fitment, leave etc., to the petitioner. It is also contended that if there is any arrears of salary, it is for the petitioner to file appropriate application under section 33-C[2] of the Act and writ petition is not maintainable. It is also further contended that the relief now claimed by the petitioner are in the nature of back wages. It is neither benefits that would flow from the continuity of service or the consequential benefits and accordingly he seeks for dismissal of the writ petition.

Learned counsel for the respondent has placed reliance on the following Judgments:

"[a] Vasu Dev Singh and Others Vs. Union of India (UOI) and Others, .

[b] ''Bangalore Metropolitan Transport Corporation v. Shivabasavegowda'' in W.P. No. 10491/2008 DD 1.7.2013]."

Having heard the learned counsel appearing for the parties, the only question that requires to be decided in this writ petition is whether the petitioner is entitled to the consequential benefits besides reinstatement into service with continuity of service as awarded by the Tribunal?

On the reference made by the Central Government, the labour court has considered the case of the parties extensively and has arrived at a conclusion allowing the reference in part, holding that the action of the management of State Bank of Mysore, Hubli, in imposing punishment of removal from service to the petitioner is not legal and justified and that he is entitled for reinstatement into service with continuity of service and other consequential benefits without back wages. It is also significant to note that the respondent has not challenged this order and this has reached finality and the same has been complied by the respondent by reinstating the petitioner into service. The only dispute now raised by the respondent is that the petitioner is not entitled to the benefits that is claimed by him i.e., leave, increments etc., which are all in the nature of back wages and cannot be considered as continuity of service or consequential benefits.

The law is well settled that if an employee has been directed to be reinstated with continuity of service but without back wages, it does not mean that he can claim benefits of increment, promotions, special allowances etc., during the period when he was not in service or during the period when he was out of service but it is different in the case of reinstatement into service with continuity of service and consequential benefits without back wages.

The Apex Court in the case of Andhra Pradesh State Road Transport Corporation (A.P.S.R.T.C.) and Others Vs. Abdul Kareem, at paragraph-11 has held thus:

"11. Reverting to the facts of the case at hand, as already noticed, the Labour Court specifically directed that the reinstatement would be without back-wages. There is no specific direction that the employee would be entitled to all the consequential benefits. Therefore, in the absence of specific direction in that regard, merely because an employee has been directed to be reinstated without back-wages, he could not claim a benefit of increments notionally earned during the period when he was not on duty or during the period when was out of service. It would be incongruous to suggest that an employee, having been held guilty and remained absent from duty for a long time, continues to earn increments though there is no payment of wages for the period of absence."

The Judgment of the Apex Court in J.K. Synthetics Ltd., case cited supra is held to be no more good law in the subsequent Judgment of the Apex Court in the case of Deepali Gundu Surwase Vs. Kranti Junior Adhyapak Mahavidyalaya (D. Ed.) and Others, . The relevant paragraph reads thus:

"The observation made in J.K. Synthetics Ltd. v. K.P. Agrawal that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three-Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman."

Hence, J.K. Synthetics Ltd., case referred to by the respondent is not applicable to the facts of the case.

The Apex Court in the case of A.P.S.R.T.C. and Another Vs. S. Narsagoud, had the occasion to deal with identical controversy and has held thus:

"We find merit in the submission so made. There is a difference between an order of reinstatement accompanied by a simple direction for continuity of service and a direction where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential benefits, which necessarily flow from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the increments earned during the period of absence. In our opinion, the employee after having been held guilty of unauthorized absence from duty cannot claim the benefit of increments notionally earned during the period of unauthorized absence in the absence of a specific direction in that regard and merely because he has been directed to be reinstated with the benefit of continuity in service."

This court in the case of BMTC supra, placing reliance on the Judgment of the Apex Court in Abdul Kareem''s case supra, has held that even where continuity of service is directed, it should only be for the purposes of pensionary/retirement benefits and not for other benefits like increments, promotions etc. In view of the matter and the settled position of law, the workman shall not be entitled to consequential benefits in view of the order impugned therein.

In the case of BMTC supra, it was a mere case of giving benefit of continuity of service to the workman. In the said context, the Corporation had challenged the order of the Tribunal on the apprehension that in view of the order passed by the Industrial Tribunal, giving benefit of continuity of service to the workman, he is likely to claim consequential benefits. Considering the facts therein, it is very clear that no order was passed by the Industrial Tribunal directing the benefit of consequential benefits and being restricted only to the continuity of service, following the Judgment of the Apex Court in Abdul Kareem''s case supra, this Court has held that it was only an apprehension of the Corporation that the workman would seek for consequential benefits from the management, which was negated by the Industrial Tribunal and the matter having reached this court, this court has held that the workman is not entitled for leave increment etc., which is not applicable to the present facts of the case in view of the specific direction issued by the Tribunal that the workman is entitled to reinstatement with continuity of service and other consequential benefits without back wages. What is denied is only back wages. If any benefits are flowing from the continuity of service and other consequential benefits, it cannot be denied to the petitioner. However, the petitioner is not entitled for back wages. The management cannot give a colour and project the consequential benefits as the back wages to reject the claim of the petitioner without assigning valid reasons. This view is supported by the three Judgments referred to above to arrive at this conclusion.

Accordingly, this writ petition is allowed. Annexures - D & G to the writ petition are quashed. Petitioner is at liberty to work out his remedy in an appropriate forum for recovery of arrears of salary if any, if he is legally entitled to, other than the back wages.