Karnataka High Court
The Executive Director And Reviewing ... vs Sri G Ramakrishnan on 18 July, 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
®
DATED THIS THE 18th DAY OF JULY, 2025
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE DR. JUSTICE K.MANMADHA RAO
WRIT APPEAL No.134 OF 2024
BETWEEN:
1. THE EXECUTIVE
DIRECTOR & REVIEWING
AUTHORITY BANK OF INDIA, HEAD OFFICE
STAR HOUSE, C-5, G BLOCK,
BANDRA, KURLA COMPLEX,
BANDRA EAST
MUMBAI - 400 051.
2. THE GENERAL MANAGER,
BANK OF INDIA, HEAD OFFICE,
STAR HOUSE, C-5, G BLOCK,
HUMAN RESOURCES DEPARTMENT BANDRA
KURLA COMPLEX, BANDRA EAST,
MUMBAI - 400 051.
3. THE ZONAL MANAGER
BANK OF INDIA, ZONAL OFFICE,
11, K.G.ROAD,
BENGALURU ZONE,
BENGALURU-560 009.
4. THE ASSISTANT GENERAL MANAGER
AND DISCIPLINARY AUTHORITY,
BANK OF INDIA, ZONAL OFFICE,
11, K.G.ROAD,
2
BENGALURU ZONE,
BENGALURU-560 009.
...APPELLANTS
(BY SRI. SYED KHASHIF ALI, ADVOCATE FOR
SRI. PRADEEP S. SAWKAR, ADVOCATE)
AND:
SRI G.RAMAKRISHNAN
S/O A GURUSAMY
AGED ABOUT 63 YEARS,
EX-STAFF OFFICER,
BANK OF INDIA, MATTUTHAVANI BRANCH,
TWAD BOARD BUILDING,
MADURAI-625 007.
TAMILNADU STATE AND
PRESENTLY R/A * T DOOR NO.3/162
MUKKAMPATTI VILLAGE,
AMOOR POST,
MELUR TALUK,
MADURAI DISTRICT:625 110.
(BY SRI G.RAMAKRISHNAN PETITIONER-
PARTY-IN-PERSON)
...RESPONDENT
(BY SRI. G.RAMAKRISHNA, FOR C/R - PARTY-IN-PERSON)
THIS WRIT APPEAL IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, 1908, PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 13.10.2023 IN WRIT PETITION
NO.4550/2022 AND AS A CONSEQUENCE THEREOF, DISMISS THE
WRIT PETITION NO.4550/2022 AND GRANT SUCH OTHER RELIEF
(S) AS MAY BE SEEN FIT IIN THE FACTS AND CIRCUMSTANCES OF THE
CASE, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.06.2025 AND COMING ON FOR PRONOUNCEMENT
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OF JUDGMENT, THIS DAY, DR. K.MANMADHA RAO, J.,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE DR. JUSTICE K.MANMADHA RAO
CAV JUDGMENT
(PER: HON'BLE DR. JUSTICE K.MANMADHA RAO) This Writ Appeal is filed by the appellant/employer-Bank challenging the Judgment dated 13.10.2023 passed by the learned Single Judge in W.P.No.4550/2022 (S-RES). The respondent herein had prayed as under in W.P.No.4550/2022, To quash the order ref No.BZO/HRD/PSV/2021-22/989 dated 17.09.2021 issued by the 3rd respondent (ANNEXURE-A) herein and consequently direct the respondents to release my Promotion w.e.f. 01.04.2013 and direct the respondents to implement the Joint Compromise Memo dated: 21.03.2016 (Annexure-F) filed in Writ Appeal No.2406/2015(S-R) on the file of this Hon'ble Court dated 31/03/2016(Annexure-G) and pass such further or other orders which may deem fit in the circumstances of the case and thus render justice.
2. The appellants herein are respondents in the writ petition and the respondent herein is the petitioner in the writ petition.
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3. The impugned Judgment passed by the learned Single Judge reads as under:
The respondents are, therefore, directed to grant the petitioner promotions to Middle Management Grade Scale-II with effect from 01.04.2013 and all consequential benefits thereof, and pay the same to the petitioner within a period of two months from the date of receipt of a copy of this order.
4. We have heard learned counsel appearing for the appellants and the respondent-party in person.
The facts of the case are as follows:
5. The petitioner was appointed as Clerk in the Bank of India in the year 1981, and later was promoted to the officer Cadre Scale-I. On 05.07.2007, petitioner was issued articles of charge for unauthorized absence from the duty for 169 days from 18.09.2006 to 05.03.2007. The petitioner was subjected to disciplinary proceedings in the year 2007 on allegations of unauthorized absence from duty and issuance of cheques on his Savings Bank Account without maintaining sufficient balance. An enquiry was conducted, and based on the enquiry report, the Disciplinary Authority, by order dated 06.06.2008, imposed the 5 punishment of compulsory retirement. The appeal filed by the petitioner/employee was dismissed.
6. Aggrieved by the same, the petitioner approached this Court in W.P.No.2192/2009, which was dismissed on 08.09.2011. The petitioner preferred W.A.No.17996/2011, wherein by order dated 03.07.2012, the Division Bench of this Court set aside the orders of the learned Single Judge and the punishment was imposed on the petitioner, granting liberty to the employer/Bank to proceed with the enquiry from where it had been interrupted.
7. Consequent to the said order, the petitioner was reinstated vide order dated 17.09.2012. A fresh enquiry was conducted, resulting in another report holding the charges proved and the Disciplinary Authority, by order dated 06.06.2013, once again imposed the punishment of compulsory retirement. The petitioner challenged the said order in W.P.No.24015/2013, which was disposed of with a direction to file a departmental appeal. The said appeal was dismissed, following which W.P.No.44159/2013 was filed, where liberty was granted to the petitioner to submit a representation with regard to the disproportionate nature of penalty. Pursuant to the order in W.P.No.44159/2013, a Review Petition was filed by the petitioner, which was dismissed and the 6 same was challenged in W.P.No.19572/2015. This Court, by setting aside the earlier orders and substituting the punishment with withholding of three increments with cumulative effect, allowed the writ petition by order dated 03.07.2015. Further, directions were also issued for reinstatement with continuity of service, 50% backwages and other consequential benefits.
8. In compliance with the said order, the petitioner was reinstated by order dated 03.08.2015, subject to W.A.No.2406/2015, preferred by the employer. During pendency of the appeal, a Joint Compromise Memo was filed, wherein the employer offered to pay 25% of the backwages from 06.06.2008 to 05.08.2015, instead of 50% as directed by the learned Single Judge and the petitioner agreed to the same. In the light of the joint compromise memo, the Division Bench of this Court accepted the compromise and disposed of W.A.No.2406/2015 accordingly. Thus, the petitioner who was under punishment of compulsory retirement was reinstated with continuity of service and 25% backwages in terms of the compromise. The employer agreed to pay consequential benefits in addition to the backwages within eight weeks from the date of the compromise memo. 7
9. Subsequently, the petitioner initiated contempt proceedings in CCC.No.709/2016 on the ground that the employer/Bank had failed to comply with the terms of the compromise. In that proceedings, the employer filed an affidavit asserting that amount payable to the petitioner including backwages and consequential benefits, has already been paid. The Division Bench dropped the contempt proceedings granting liberty to the petitioner to challenge the affidavit filed by Bank that all dues had been settled. Therefore, petitioner filed W.P.No.58800/2016 seeking to quash the affidavit filed in CCC.No.709/2016 and for a direction to implement the joint compromise memo. The learned Single Judge, by order dated 16.01.2021, held that quashing of an affidavit filed in contempt proceedings was untenable but granted liberty to the petitioner to challenge the decision of employer not to grant consequential benefits. The petitioner thereafter attained superannuation on 31.01.2021.
10. After attaining superannuation, the petitioner submitted a representation dated 25.06.2021 seeking release of all consequential benefits. The representation was rejected by the Bank vide order dated 17.09.2021, stating that the petitioner had 8 been paid requisite backwages and provident fund and that no further benefits were due. The petitioner submits that upon reinstatement on 17.09.2012, he had applied for promotion to Middle Management Grade Scale-II (MMGS-II), after successfully passing the examination and interview. However, due to unauthorized absence for a period of 169 days from 06.06.2013 to 05.08.2015, he was denied promotion. The petitioner had again applied for promotion in the year 2017, passed the requisite examinations and interview, but was again denied promotion. It is his contention that the consequential benefits agreed to under the compromise necessarily included the promotion that was withheld due to the disciplinary proceedings.
11. It is contended by the learned counsel appearing for the appellant/employer/bank that the learned Single Judge erred in law in directing the appellant to grant promotion to the respondent without appreciating that the respondent did not meet the eligibility criteria prescribed under the applicable Promotion Policy. As per IOM Circular No.HO:HR:PROM:KMU:08 dated 22.04.2013, read with Promotion Policy No.HO:BC:105/183 dated 15.02.2012, the eligibility for promotion under the merit channel required (i) a minimum service of 1 year and 9 months, 9 and (ii) an average of 75% in the Annual Performance Appraisal (APA) for the preceding five years, with minimum of 60% marks in APA each year. In so far as seniority channel is concerned, a service of 3 years and 9 months and a minimum average of 60% in APA were mandated. The petitioner having applied for promotion in 2013, was found ineligible as he failed to meet these stipulated benchmarks.
12. It is contended that though the petitioner was qualified for the written test and interview in the year 2013, he was denied promotion on account of not having the requisite APA scores. For the years 2005-06, 2006-07, and 2007-08, petitioner's APA average fell below the mandatory threshold of 60%. Further, for the years 2008-09 to 2010-11, the petitioner's APA was treated as "nil" due to his absence from service on account of disciplinary proceedings. which was in accordance with Clause 17 of the General Conditions of the Promotion Policy dated 15.02.2012, which provides that APA for periods of suspension or unauthorized absence shall be regarded as nil. Clause 17 of General Conditions of the Promotion Policy reads as under:
(i) Eligible officers in all Scales, willing to participate in Promotion Process will submit particulars as per the 10 prescribed format, to Head Office through Zonal Office.
The Zonal Office will verify and certify the correctness of the particulars submitted by the Officers.
(ii) if an eligible officer does not submit the application or does not participate in any of the promotion processes (i.e. does not appear for Test or for Interview before the Interviewing Committee), it shall be deemed that he has, of his own free will and volition, opted out of the promotion process. No correspondence in this regard will be subsequently entertained from him.
However, if an officer is unable to appear for an interview for reasons beyond his control, he should inform the Management well before the scheduled date for the interview, about his inability to appear for the same, giving reasons therefor. In such cases, he may be given only one more chance at the discretion of the Management for appearing for interview at such place and time as the Management may decide.
(iii) The Promotion Process will be conducted every year, subject to the availability of vacancies. The Officers, who had failed to get promotion in the previous promotion process in terms of (ii) above, will also be eligible to participate, in the subsequent processes.
(iv) Officers not selected for promotion will be advised the total marks obtained by them. In the event of an application by the officer for re-checking the marks, the Management shall have the marks re- checked for arithmetic accuracy, provided such an 11 application is made within 30 days from the date of advice to him.
(v) Fitment in the higher Scale of pay on promotion will be determined as per the guidelines issued by the Management from time to time.
(vi) Filling up of Vacancies in SMG Scale V and above, arising on account of retirement, resignation, death, voluntary retirement etc..
A waitlist of candidates for promotion to Scale V and above will be prepared and promotions in respective Scales will be released as and when vacancies arise on account of expected retirements / elevation to higher Scales, if any. In addition to the said waitlist, the Chairman and Managing Director is authorized to release the promotion of candidates appeared for promotion but not selected in the main list or waitlist but standing immediately after the name of the last candidate in the waitlist, so as to fill the vacancies, if any, arising on account of resignation, death, voluntary retirement, superannuation etc, who was/were promoted in the main list/ wait list of the concerned promotion process.
(vii) An Officer, against whom a Major Penalty has been imposed, will not be eligible to participate in any promotion process initiated during a period of one year from the date of effect of such penalty. The date of issuance of circular inviting applications shall be the date of initiation of promotion process in respect of all such officers.
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(viii) The Chairman & Managing Director is the authority to issue the administrative guidelines/instructions for removal of any doubts and /or difficulties arising during the course of implementation of this policy.
(ix) The reservation and relaxation for SCs/STS/OBCs/Ex-Servicemen/Physically Handicapped
candidates, as the case may be, shall be provided as per the Government guidelines in force from time to time.
(x) Where APA marks of an Officer are not available due to i) sabbatical leave, ii) EOL, iii) unauthorized absence and iv) suspension, the APA marks shall be treated zero for that particular year/s. However, APA marks for the number of preceding years for which he rendered service and was rated for his performance excluding the period of Sabbatical Leave etc. will be included and taken into consideration for the purpose of promotion, subject to the condition that he has rendered minimum required service in that particular Scale, in terms of para 5 and 16 above.
(xi) In case an Officer employee is alleged to have resorted to unfair means/copying in the Written/On-line Test, his result will be withheld subject to the outcome of disciplinary action, if any, to be initiated against him.
(xii) If a candidate is selected in both Seniority Channel as well as Merit Channel, he will be treated as selected only in Seniority Channel.
(xiii) In order to be eligible for promotion, wherever provided the officer employee shall secure minimum 13 40% marks each in both Written/On-Line Test and Interview in case of Merit Channel, and minimum 30% marks in Written/On-Line Test in case of Seniority Channel.
(xiv) Marks for qualification will be given only for those qualifications which are above the basic criteria / Eligibility Criteria for service as an officer in that cadre. Further, qualifications obtained through distant learning program correspondence course by government / UGC recognized institute will also be considered for the marks.
(xv) An officer who applies for promotion and gets selected, cannot refuse promotion.
(xvi) In case more than one Officer secures marks equivalent to the cut-off mark, the final selection will be restricted to the exact number of vacancies and will be determined on the basis of inter-se seniority of such Officers, determined in terms of Regulation 18 of the Bank of India (Officers"), Service Regulations, 1979 (xvii) The Board reserves its rights to change, alter, amend, modify or vary in any manner whatsoever, from time to time, all or any of the terms and conditions incorporated in this policy, recording reasons thereof. The provisions of this policy are subject to changes in accordance with the guidelines received from the Government from time to time and such guidelines shall be deemed to be a part of this policy and given effect to subject to adoption by the Board of Directors. 14
13. It is further contended that the learned Single Judge failed to note that the petitioner was promoted in the year 2019, not as a consequence of the compromise in W.A.No.2406/2015, but because he had fulfilled all eligibility conditions under the Promotion Policy. At the time of his promotion under the Seniority Channel in the year 2019, petitioner had completed more than the requisite six years of service and had obtained an average APA score of 77.6%, which exceeded the 75% minimum. The petitioner never asserted a claim for retrospective promotion either in CCC No.709/2015 or in W.P.No.58800/2016. In the contempt proceedings, the grievance of petitioner was limited to non-payment of 25% backwages with consequential benefits, which were eventually paid, following which the contempt petition was disposed of. In W.P.No.58800/2016, and liberty granted was restricted to seeking "payment" of consequential benefits without any reference regarding promotion.
14. The learned counsel for the appellants has mainly placed reliance on the Apex Court judgment in the case of J.K. Synthetics Ltd. v. K.P. Agrawal, reported in (2007) 2 SCC 433;
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"17. There is also a misconception that whenever reinstatement is directed, "continuity of service" and "consequential benefits" should follow, as a matter of course. The disastrous effect of granting several promotions as a "consequential benefit" to a person who has not worked for 10 to
15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits supplied automatically." As per the above ruling retrospective promotion cannot be granted as a matter of course upon reinstatement. It has been specifically cautioned against conferring several promotions as consequential benefits upon an employee who has not discharged duties in the promotional post. The rationale is that such a person lacks the requisite experience and exposure to handle higher responsibilities for which experience is fundamental to administrative efficiency.
15. It is also contended that the respondent, having been out of service during crucial years due to misconduct, lacked both the APA scores and the foundation of experience necessary for promotion. The learned Single Judge failed to appreciate that performance evaluation through APA is not a mere procedural formality, but an essential requirement for determination of merit and service continuity. The very purpose of maintaining service 16 quality and accountability would be frustrated if APA benchmarks are diluted. The eligibility for promotion involves a composite assessment of both duration of service and the quality of performance. The appellant/employer was never under a legal or contractual obligation to waive off the eligibility criteria, and the direction given by the learned Single Judge amounts to a direction to the employer to extend retrospective promotion to the petitioner in breach of policy. The Apex Court in J.K. Synthetics's case (supra) has clearly held that continuity of service, even when granted, is limited to pensionary benefits and cannot be stretched to include promotions or increments.
16. It is contended that even assuming that the petitioner was entitled to "continuity of service" by virtue of an order passed in W.P.No.19572/2015, such continuity does not entail a right of retrospective promotion to the petitioner. The relevant portion of decision in J.K. Synthetics's case (supra), the relevant portion of which is extracted below:
"In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the delinquent 17 employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions etc."
As per the above ruling, continuity of service granted following lesser punishment is meant solely for computing pensionary/retirement benefits and not for career advancement or monetary gain during the period when the employee was not actually discharging duties.
17. Further, the Promotion Policy categorically provides that employees facing disciplinary proceedings shall be assessed for promotion only after final outcome of such proceedings. If misconduct is proved, the competent authority has every right to reject such application for promotion regardless of the penalty imposed. As the petitioner was found guilty of misconduct, he had no enforceable right to be promoted. This is reinforced by the Apex Court's decision in the case of Union of India v. K.V. Janakiram reported in (1991) 4 SCC 109, wherein it was held that denial of promotion to a delinquent employee is not penal but 18 a legitimate administrative decision as a consequence of his conduct.
18. The learned counsel would also contend that the order of the learned Single Judge if upheld, would compel the employer to treat the petitioner/delinquent employee found guilty of misconduct at par with employees possessing blemishless service records. This violates the principle of equality under Article 14 of the Constitution of India as it amounts to granting preferential treatment to delinquent employee at par with employees having blemishless records. Promotion policies exist to uphold merit, integrity, and fairness in public administration and the impugned order undermines these principles. Therefore, on all legal and factual grounds delineated above, the impugned order is liable to be set aside.
19. It is argued by the learned counsel for the appellants that the respondent filed W.P.No.4550/2022 seeking a direction to the employer/Bank to promote him to the post of Officer in MMGS-II with effect from 01.04.2013, along with consequential monetary benefits, relying on the continuity of service granted under the Joint Memo dated 21.03.2016 filed in 19 W.A.No.2406/2015 and disposed of on 31.03.2016. The respondent asserted that, owing to such continuity, he must be deemed to have been in uninterrupted service from 06.06.2008 to 03.08.2015, thereby entitling him to promotion from 01.04.2013, when the Bank conducted the relevant promotion process. The appellant argued that the respondent was initially imposed with the penalty of compulsory retirement by order dated 22.01.2015, which was modified by the learned Single Judge in W.P. No.19572/2015, vide order dated 03.07.2015, to withholding of three increments with cumulative effect, with a direction for reinstatement, continuity of service, consequential benefits, and 50% back wages. The appellant challenged the same in W.A.No.2406/2015, which culminated in a compromise wherein the parties agreed to 25% back wages with continuity of service and consequential benefits, without any agreement regarding automatic promotion. It is emphasized that the Joint Memo did not contemplate or confer any right to promotion as a consequence of continuity of service.
20. The appellants further submits that continuity of service does not automatically confer a right to promotion, which must be earned by fulfilling the eligibility criteria under the 20 Promotion Policy. The respondent was considered for promotion to MMGS-II in 2013 and 2017 but was not found eligible under either merit or seniority channels. As per Rule 17(x) of the Promotion Policy, in the absence of APA marks for the preceding five years, earlier years' marks are considered; however, the respondent's APA average fell below 60%, disqualifying him from meeting the 75% threshold. Having participated in the promotion processes of 2013 and 2017 without objection, the respondent could not seek promotion through W.P.No.4550/2022 after a delay of nearly nine years. The Apex Court has consistently held that stale claims should not be entertained under Article 226 of the Constitution of India. Additionally, the respondent neither made out a case for relaxation of criteria nor was he wrongly denied promotion. He was subsequently promoted in 2019 after fulfilling the eligibility conditions, retired on 31.01.2021, and accepted all terminal benefits. The writ petition filed in 2022 is, therefore, liable to be dismissed on grounds of delay and laches, and lack of merit, and the learned Single Judge erred in granting promotion w.e.f. 01.04.2013.
21. The learned counsel appearing for the appellants have placed reliance on the following judgments:- 21
• J.K. Synthetics Ltd. v. K.P. Agrawal, reported in (2007) 2 SCC 433
19. xxx Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid.
xxx What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages nor continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement.
xxx Similarly, in such cases, even where continuity of service is directed, it should only be for purposes of pensionary/retirement benefits, and not for other benefits like increments, promotions, etc. • Union of India and others v. K.V.Janakiraman and others reported in (1991) 4 SCC 109;
29. xxx 22 We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank.
xxx An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently.
xxx A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct.
xxx
• P.S. Sadasivaswamy v. State of Tamil Nadu
reported in (1975) 1 SCC 152
2. xxx
A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to 23 put forward stale claims and try to unsettle settled matters. xxx • State of Uttaranchal and another v. Shiv Charan Singh Bhandari and others reported in (2013) 12 SCC 179
19. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time.
22. The learned counsel appearing for the appellants have also placed reliance on the following judgments:-
• State of Mysore v. C.R.Sheshadri and others reported in (1974) 4 SCC 308 • Union of India and others v. S.P.Nayyar, reported in (2014) 14 SCC 370 • G.S.Rangaswamy and others v. The Inspector General of Police, Mysore state, Bangalore, reported in AIR 1966 SC 175 • K.R.Tyagi v. National Textile Corporation and another reported in (1997) 3 LLN 226 • K.R.Tyagi v. National Textile Corporation and another by order dated 01.06.1999 passed in W.A.No.9185/1996.24
• The General Manager Vijaya Bank, Bengaluru v. H.C.Jayaprakash reported in ILR 2020 KAR 1783 • R.K.Palani v. The Superintendent of Police, Kancheepuram and another by order dated 06.08.2008 passed in W.P.No.29520/2007 • Vijay Kumar Kaul and others v. Union of India and others reported in (2012) 7 SCC 610; and • A.P SRTC and another v. S. Narsagoud reported in (2003) 2 SCC 212
23. The learned counsel for the respondent would contend that on 23.04.2024, during the hearing of IA No. 2/2024 in the connected Stay Petition, the learned counsel for the appellants misled this Court by contending that the learned Single Judge, in W.P.No.4550/2022, had straightaway directed promotion to the respondent. Based on such misleading submission, the Appellants secured an interim order staying the operation of para 40 of the impugned judgment. In truth, the learned Single Judge granted promotion based on the Affidavit filed by appellant No.3 in the said Writ Petition. It is further contended that the appellants, with deliberate intention, suppressed this crucial Affidavit, raising grave doubts about their bonafides, thereby rendering the present Writ Appeal liable to be dismissed. The respondent prays for 25 calling for the entire records of W.P. No.4550/2022 to establish the factual correctness of his case.
24. The learned counsel for the respondent would further contend that this Court had earlier allowed W.P.No.19572/2015 by order dated 03.07.2015 (Annexure-D), wherein, after setting aside the impugned punishment order dated 06.06.2008; the Court substituted the punishment with withholding of three increments with cumulative effect. The Court further directed reinstatement of the respondent with continuity of service, 50% backwages and all consequential benefits. Pursuant thereto, subject to the outcome of W.A.No.2406/2015 filed by the Bank (Annexure-E), the respondent was reinstated on 03.08.2015. Subsequently, a compromise was entered into between the appellants and the respondent in W.A.No.2406/2015, which was reduced into a Joint Compromise Memo (Annexure-F), wherein the parties agreed that the respondent would be paid 25% of the backwages instead of 50% as ordered by the learned Single Judge, along with other consequential benefits. The Division Bench accepted the said compromise and disposed of the appeal accordingly by order dated 31.03.2016 (Annexure-G). 26
25. It is also contended that despite the aforementioned compromise, the appellants failed to comply fully with order of the Division Bench dated 31.03.2016, which compelled the respondent to file Contempt Petition-CCC No.709/2016. This Court, while disposing of the Contempt Petition, granted liberty to the respondent to pursue his remedies in accordance with law (Annexure-C). Consequently, the respondent filed W.P.No.58800/2016 seeking relief against non-payment of consequential benefits. By order dated 13.10.2018 (Annexure-B), the learned Single Judge dismissed the prayer for quashing of the affidavit filed in the contempt proceedings but granted liberty to the respondent to challenge the action of the appellants in not paying consequential benefits in a manner known to law. The respondent attained the age of superannuation and retired from service on 31.01.2021. Despite submitting a representation dated 25.06.2021 seeking the release of all consequential benefits, the same was rejected by order dated 17.09.2021 on erroneous grounds that all dues had been settled.
26. Having considered the contentions advanced and after perusing the materials on record, we are of the opinion that the respondent who has been found guilty of misconduct and further, 27 the appellant has considered and complied the orders of the Hon'ble High Court and the petitioner/respondent was reinstated. In reliance of the Judgment in 'Janaki Ram's case' supra and considering the various authorities of the Appellate Court that while considering an employee for promotion, his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustifiable. Accordingly, in the present case, the petitioner/ respondent has suffered with a punishment of 25% of backwages and thereafter, reinstated him into service in the year 2017 and further, complied the orders of this Court for granting consequential benefits to the petitioner/respondent.
27. It is further observed that on relying the Judgment of 'J.K.Synthetic's case', in the present case, the misconduct on the part of the respondent/employee was held to be proved, the appellants have imposed lesser punishment/award of 25% of backwages for the period when the employee has not worked. Further, even where continuity of service is directed, it should only be for the purpose of pensionary/retirement benefits and not for other benefits, that is, increments, promotion etc. 28
28. It is observed that the learned single Judge construed the case of the petitioner that the settled law is not applicable in this case where the employer had categorically agreed by way of settlement for granting all benefits arising out of the order of reinstatement and by way of joint compromise memo.
29. In view of the above observation of the learned single Judge, we are of the opinion that though there is a joint compromise memo between the parties for settlement of the claims are concerned, the settled law cannot be disturbed and it will not confer equal treatment to the unequals, that is, employees suitable for promotion free of blemish of misconduct and the respondent who is guilty of misconduct.
30. For the above reasons, the Judgment dated 13.10.2023 passed by the learned Single Judge in W.P.No.4550/2022 (S-RES) is set aside and the Appeal is allowed.
Sd/-
(ANU SIVARAMAN) JUDGE Sd/-
(DR. K.MANMADHA RAO) JUDGE BNV Ct-adp