Krishnamoorthy, N. vs Abhijit Datta and Others

This contempt petition under Sections 10 and 12 of the Contempt of Courts Act, 1971 has been filed to punish respondent No. 1 Abhijit Datta,

Chief General Manager, State Bank of India, Local Head Office, College Road, Chennai-600 006; respondent No. 2/W. Chanti Bahu, Deputy

General Manager, State Bank of India, Zonal Office, Rajaji Salai, Chennai-600 001 and respondent. No. 3/Vidyavathi V. Chari, Chief Manager,

State Bank of India, Madras University Branch for wilful disobedience of the orders of this Court in W. A. No. 482 of 1995 dated September 16,

1997.

Heard the learned counsel for the parties, and perused the records.

The facts of the case, as mentioned in the petitioner''s affidavit, are that the petitioner was appointed on May 18, 1970 in the Madurai Branch of

the respondent State Bank of India as a temporary clerk-cum-typist. On February 28, 1971, his service was terminated. It is alleged that during

the period 1983 and 1984, the respondent bank offered employment to his juniors overlooking his claim. It is alleged that this was contrary to

Section 25H of the Industrial Disputes Act, 1947.

The petitioner filed W.P. No. 10086 of 1984 seeking re-employment. During the pendency of the writ petition, the respondent bank offered him

re-employment, but only from October 17, 1989. He joined duty on December 15, 1989. On October 18, 1994, the learned single Judge

dismissed W.P. No. 10086 of 1984 since the petitioner had been given re-employment. Aggrieved by the said order, the petitioner filed writ

appeal (W.A. No. 482 of 1995), which was heard along with W.A. No. 481 of 1995 and W.P. No. 6347 of 1986.

On September 16, 1997, a Division Bench of this Court allowed the writ appeal holding that the petitioner was entitled to continuity of service

from October 15, 1984 (being the date of filing W.P. No. 10086 of 1984), and not merely from October 17, 1989. The respondent bank

appealed to the Supreme Court, but the Supreme Court in Civil Appeal Nos. 86-88 of 1999 upheld the order of the Division Bench of this Court.

The petitioner then represented to the respondent bank that he should be given the benefit of continuity of service from October 15, 1984 and

not merely from October 17, 1989 and also to re-fix his salary. The petitioner also prayed that he is entitled for promotion as senior Assistant as

he has completed 17 years of service as on October 15, 2001. However, that representation was rejected by the second respondent as

communicated by the third respondent by his letter dated June 24, 2004. The petitioner then sent a lawyer''s notice on July 5, 2004 to the first

respondent stating that the stand taken by the respondents in the letter dated June 24, 2004 was contrary to the decision of the Division Bench

dated September 16, 1997 in W.A. No. 482 of 1995. Since no action was taken, this contempt petition has been filed.

There is no factual dispute in this case, and hence the entire controversy revolves on the correct understanding of the judgment of the Division

Bench dated September 16, 1997 in W.A. No. 482 of 1995. We have carefully perused the aforesaid judgment.

The petitioner was admittedly employed on a temporary basis only for a short period. The petitioner''s claim was that he had been employed for

over 240 days in the 12 months period immediately preceding the date on which his employment was terminated, though the claim of the

respondent bank was that he had worked only for 104 days purely on a temporary capacity.

Admittedly, the petitioner filed the writ petition 13 years after the termination of his service i.e., on October 15, 1984. His explanation for the

delay was that on coming to know of the fact of re-employment of former temporary employees, he chose to come before this Court challenging

the termination order.

The learned single Judge dismissed W.P. No. 10086 of 1984 by order dated October 18, 1984 holding that the petition was filed 13 years

after the termination of service, and without any satisfactory explanation for the delay, and thus clearly suffers from laches. However, the learned

single Judge had also noted at the end of his judgment the statement of the counsel for the bank that the petitioner has since been given employment

in the respondent bank and he has seen serving in the bank as a clerk-cum-typist from October 17, 1989 in which post he has also been

confirmed. The Division Bench in W.A. No. 482 of 1995 directed that since the appellant/petitioner got employment with effect from October 17,

1989, he will be entitled to continuity of service alone from October 15, 1984.

Thus, a perusal of the judgment in W.A. No. 482 of 1995 shows that the appellant/N. Krishnamoorthy was only directed to be given

continuity of service alone from October 15, 1984.

Thus, the question in this case is about the meaning of the expression ""continuity of service alone from October 15, 1984"". Learned counsel for

the contempt petitioner states that the above direction means that the petitioner is entitled to get refixation of his salary from October 15, 1984,

which means that he is entitled to get increments from October 15, 1984, and also promotion as senior Assistant. This contention has been refuted

by the learned counsel for the respondent/bank.

In our opinion, there is a difference between the direction ""for reinstatement with continuity of service with consequential benefits such as

increments, promotion etc."", and ""reinstatement with continuity of service alone"". In our opinion, these are two different kinds of directions. If the

first direction is given, then the employee would be entitled to all increments, promotion etc., but when the second direction is given, it only means

that he will get the terminal benefits at the time of retirement as if he had been in continuity of service.

A perusal of the order of the Division Bench dated September 16, 1997 shows that the Court did not order continuity of service with attendant

benefits such as increments, promotion etc. As held by the Supreme Court in A.P.S.R.T.C. and Another Vs. S. Narsagoud, :

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 where reinstatement is accompanied by a specific direction that the employee shall be entitled to all the consequential

benefits, which necessarily flows from reinstatement or accompanied by a specific direction that the employee shall be entitled to the benefit of the

increments 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 unauthorised absence in the absence of a specific direction in that regard and

merely because he has been directed to be reinstated with benefit of continuity of service.

Learned counsel for the contempt petitioner has sought to distinguish the aforesaid decision of the Supreme Court by pointing out therein the

case the employee had been found guilty of unauthorized absence from duty, and hence he could not claim the benefit of notional increments

earned during the period of unauthorized absence. We cannot agree with the said submission of the learned counsel for the employee/petitioner.

Merely because in the aforesaid decision of the Supreme Court the employee had been found guilty of unauthorized absence it will not make any

difference in the legal principle laid down by the Supreme Court namely, that there is a difference between an order of reinstatement accompanied

by a simple direction for continuity of service, and a direction for reinstatement with continuity of service with a specific direction that the employee

shall also be entitled to all the consequential benefits e.g. increments, etc.

In the judgment of the Division Bench dated September 16, 1997 in W.A. No. 482 of 1995, there is no direction that the employee will in

addition to continuity of service be entitled to consequential benefits such as increments, etc.

Mr. N.G.R. Prasad counsel appearing for the contempt petitioner has relied on the decisions of the Supreme Court in Deep Chandra Vs. State

of U.P. and Another, ; Surendra Kumar Verma and Others Vs. Central Government Industrial Tribunal-Cum-Labour Court, New Delhi and

Another, , as well as the decisions of the Andhra Pradesh High Court in T. Narayana v. M.D., A.P.S.R.T.C., 1999 LIC 1273 and A.P. State

Road Transport Corporation and Others Vs. P. Srinivas and Another, . In our opinion, these decisions are distinguishable because in none of them

is there any discussion about the difference between an order of reinstatement with continuity of service alone, and an order of reinstatement with

continuity of service with consequential benefits like increments, etc.

It must be realized that we are sitting in contempt jurisdiction, and we have to only see whether the direction of the Court in W.A. No. 482 of

1995 has been complied with or not. We cannot add or delete anything from the aforesaid judgment dated September 16, 1997 while sitting in

contempt jurisdiction. If we accept the contention of the learned counsel for the contempt petitioner, we will be adding the words ""along with

consequential benefits including increments, promotion etc."" after the words ""continuity of service"" and will be deleting the word ''alone'' in that

judgment. This surely cannot be done in contempt jurisdiction.

In view of the above, there is no merit in this contempt petition and accordingly, the same is dismissed.