C. Balakrishnan and others v. State of Kerala and Kasaragod District Co-operative Bank Ltd. and The Managing Committee of Kasaragode District Co-operative Bank Ltd. and The Registrar of Co-operative Societies

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **MONDAY, THE 11TH DAY OF JUNE 2018 / 21ST JYAISHTA, 1940** ## **WP(C).No. 19586 of 2017** ## **--------------------------------** **PETITIONERS : ------------1 C. BALAKRISHNAN, S/O.AMBU, AGED 58, ASHADAM, KARAKUZHI, AJANOOR P.O., KASARGODE DT. 2 K.V.BALAKRISHNAN, S/O.V.RAMAN, VELASWARAM, HARIPURAM P.O., KASARGODE DT. 3 K.K.RAJAN, ORKALAM, THURUTHI (P.O.), KASARGODE DT.** **4 T.RAGHAVAN, S/O.AMBU, KANNAMKULAM, CHERUVATHUR (P.O.), KASARGODE DT. 5 VIJAYAKUMAR P., "NANDANAM", KOTTUMPARAM VAYAL, CHERUVATHUR (P.O.), KASARGODE DT. 6 CHANDRAMOHAN P.V., S/O.K.V.KRISHNAN, THENKAYAM, TRIKARIPUR (P.O.), KASARGODE DT. 7 A.GOPALAN, S/O.A.KUNHAMBU, ANUSREE, UDINUR (P.O), KASARGODE DT. 8 P.DAMODHARAN NAIR, S/O.CHANDU NAIR, 'KAIRALI', KOTTAKANNI ROAD,KASARGODE DT. 9 LAKSHMANAN K., S/O.KUNHAMBU, MADAKAL, UDUMPATHALA(P.O), KASARGODE DT. 10 C.V.CHANDRAN, S/O.C.V.SANKARAN, KANIYANKUNDU, AJANUR (P.O), KASARGODE DT. 11 K.M.NARAYANAN, S/O.K.M.KUNHIKANNAN, PADINHATTAM KOZHUWAL, NILESHWARAM P.O., KASARGODE DT. BY ADVS.SRI.K.S.PRAVEEN SMT.P.SHEEBA** **WP(C).No. 19586 of 2017** **:2:** ## **RESPONDENTS :** - **-------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, CO-OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001** **2. KASARGODE DISTRICT CO-OPERATIVE BANK LTD., REP. BY ITS GENERAL MANAGER, P.B.NO.48, NAYAK'S ROAD, KASARGODE, 671121** **3. THE MANAGING COMMITTEE OF KASARGODE DISTRICT CO-OPERATIVE BANK LTD., OPERATIVE BANK LTD., P.B.NO.48, NAYAK'S ROAD, KASARGODE, 671121** **4. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, THIRUVANANTHAPURAM-695001** - **R2 BY ADV. SRI.M.SASINDRAN, SC, KASARAGOD DISTRICT CO-OPERATIVE BANK LIMITED** - **R BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 19586 of 2017 (W)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS : ------------------------** - **EXHIBIT P1 TRUE COPY OF THE G.O.(MS) 145/2005-CO. DATED 21.06.2005 EXHIBIT P2 TRUE COPY OF THE G.O.(MS) 251/05 DATED 05.10.2005 EXHIBIT P3 TRUE COPY OF THE G.O.(MS) 21/2007 CO. DATED 06.01.2007 EXHIBIT P4 TRUE COPY OF THE G.O.(MS) NO.96/07 DATED 20.03.2007 EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 15.12.2016 IN WP.(C) NO.34683/09 EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 08.03.2017 IN W.P.(C) NO.7146/2017 EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 28.03.2017 IN W.P.(C) NO.10454/2017** ## **RESPONDENTS' EXHIBITS : NIL** ## **-----------------------** ## **/TRUE COPY/** **P.A TO JUDGE** **AV/12/6** ## **ANIL K.NARENDRAN, J.** **-----------------------------------** W.P.(C).No.19586 of 2017 **----------------------------------** Dated this the 11[th] day of June, 2018 ## **J U D G M E N T** The petitioners, who retired from service of the 2[nd] respondent Bank since 2009, have filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 Government order dated 20.03.2007 and seeking a writ of mandamus commanding respondents 2 and 3 to pay arrears of salary from 01.07.2002 to 30.06.2003 with interest within a time frame to be fixed by this Court following the dictum laid down in Ext.P5 judgment dated 15.12.2016 in W.P.(C).No.34683 of 2009 and Ext.P6 judgment dated 08.03.2017 in W.P.(C).No.7146 of 2017. The petitioners have also sought for a declaration that they are entitled to get arrears of salary from 01.07.2002 to 30.06.2003 with interest within a time frame to be fixed by this Court. 2. The issue raised in this writ petition as to the entitlement of the petitioners for arrears of salary for the period from 01.07.2002 to 30.06.2003 has now been settled by the judgment of a Division Bench of this Court dated 25.05.2018 in W.A.No.1222 of 2017 and connected cases. Paragraphs 19, 20 and the operative portion of the said judgment reads thus : _“19. The case on hand is covered by the observations in paragraph 22.3, where the Apex Court has held that_ W.P.(C).No.19586 of 2017 2 _if the judgment of the court was in personam holding that benefit of the said judgment shall accrue to the parties before the court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delay or acquiescence. The appellants in W.A.No.1231 of 2017 have no case that W.P.(C)No.34683 of 2009 is liable to be dismissed on the ground of delay and laches. The challenge in that writ petition is on the merits of the claim. It is in the connected cases that the ground of delay and laches is put forward. The judgment in W.P. (C)No.34683 of 2009 was delivered on 15.12.2016. The other writ petitions were filed immediately thereafter namely in March and April, 2017. It is no doubt true that none of the petitioners had challenged Ext.P5 Government order dated 20.3.2007 as soon as it was passed. They accepted it and retired from service. It was only after the petitioners in W.P.(C)No.34683 of 2009 succeeded in getting relief that the other writ petitions were filed. As the dispute is about denial of arrears of salary and allowances, which stood revised with effect from 1.7.2002, for a period of 12 months commencing from 1.7.2002 and ending with 30.6.2003 and as the petitioners had moved this court within three months after W.P.(C)No.34683 of 2009 was allowed by a learned single Judge of this court, we find no reason or justification to deny relief to the petitioners on the ground that there was delay and laches and acquiescence on their part._ W.P.(C).No.19586 of 2017 3 _20. We however notice that the learned single Judge has directed disbursement of arrears of salary and allowances during the period from 1.7.2002 to 30.6.2003 with 6% interest. Except the petitioners in W.P.(C)No.34683 of 2009, the others had not moved the Government or this court in time. The petitioners in the connected writ petitions moved this court only in the year 2017. The Apex Court has in_ _**Union of India v. Tarsem Singh** [2009 (1) KLT 101 (SC)] held that where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay as it does not affect the rights of third parties. It was also held that in such cases interest on arrears should be declined. In the instant case, if the claim made by the petitioners is granted it would not affect the settled rights of third parties. It will also not result in the reopening of issues already concluded. It would not also affect the seniority of employees in service or their promotions. In the light of these facts, we find no reason or justification to deny relief to the petitioners on the ground of delay and laches. However, as the petitioners in W.P.(C)Nos.7146, 11337, 11344, 20741, 22430, 26955 and 27455 of 2017 moved this court only after W.P.(C)No.34683 of 2009 was heard and allowed, in the light of the principles laid down by the Apex Court in_ _**Union of India v. Tarsem Singh** (supra) we are of the opinion that they are not entitled to interest. The petitioners in W.P.(C)No.34683 of 2009, from which W.A.No.1231 of 2017 arises, stand on a different footing. They had moved the Government claiming arrears of salary and allowances in the year 2008. They had thereafter moved this court on two occasions and it_ W.P.(C).No.19586 of 2017 4 _was in the last occasion that relief was granted to them. Merely for the reason that they were granted interest the petitioners in the other cases be granted that benefit. We are therefore of the opinion that except the petitioners in W.P.(C)No.34683 of 2009, the petitioners in the other writ petitions are not entitled to interest on the arrears of salary and allowances during the period from 1.7.2002 to 30.6.2003._ _For the reasons stated above, we dismiss W.A.No.1231 of 2017, allow W.A.Nos.1222, 1247 and 1538 of 2017 and W.A.Nos.162, 163, 380 and 390 of 2018 in part to the extent it relates to the award of interest and vacate the direction issued by the learned single Judge in the respective writ petitions to pay interest on the amounts due and payable to the petitioners therein towards arrears of salary and allowances during the period from 1.7.2002 to 30.6.2003. The judgments impugned in W.A.Nos.1222, 1247 and 1538 of 2017 and W.A.Nos.162, 163, 380 and 390 of 2018 shall stand affirmed in all other respects. No costs.”_ _(underline supplied)_ 4. In the judgment dated 25.05.2018 in W.A.No.1222 of 2017 and connected cases the Division Bench held that as the dispute is about denial of arrears of salary and allowances, which stood revised with effect from 1.7.2002, for a period of 12 months commencing from 1.7.2002 and ending with 30.6.2003 and as the petitioners had moved this court within three months after W.P. (C)No.34683 of 2009 was allowed by a learned single Judge of this court, there is no reason or justification to deny relief to the W.P.(C).No.19586 of 2017 5 petitioners on the ground that there was delay and laches and acquiescence on their part. It is also held that if the claim made by the petitioners is granted it would not affect the settled rights of third parties. It will also not result in the reopening of issues already concluded. It would not also affect the seniority of employees in service or their promotions. In the light of those facts, the Court find no reason or justification to deny relief to the petitioners on the ground of delay and laches. However, as the petitioners in W.P. (C)Nos.7146, 11337, 11344, 20741, 22430, 26955 and 27455 of 2017 moved this court only after W.P.(C)No.34683 of 2009 was heard and allowed, in the light of the principles laid down by the Apex Court in **Union of India v. Tarsem Singh** (supra), they are not entitled to interest. In view of the judgment of the Division Bench referred to above, the petitioners are entitled for arrears of salary during the period from 01.07.2002 to 30.06.2003. However, they shall not be entitled for payment of interest for the aforesaid arrears. 5. In the present writ petition, the petitioners moved this Court in June 2017 challenging Ext.P4 Government order dated 20.03.2007, after Ext.P5 judgment of this Court dated 15.12.2016 in W.P.(C).No.34683 of 2009. In view of the judgment of the Division Bench referred to above, the petitioners in this writ petition are entitled for arrears of salary during the period from 01.07.2002 to W.P.(C).No.19586 of 2017 **==> picture [8 x 9] intentionally omitted <==** 30.06.2003. However, the petitioners shall not be entitled for payment of interest for the aforesaid arrears. Respondents are directed to disburse the arrears of salary payable to the petitioners, within a period of two months from the date of receipt of a certified copy of this judgment. The writ petition is disposed of as above. Sd/- **ANIL K.NARENDRAN JUDGE** AV/20/6