Karnataka High Court
The Executive Director And Reviewing … vs Sri G Ramakrishnan on 18 July, 2025
1
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
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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
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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.
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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
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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,
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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
10prescribed 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
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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
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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.
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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
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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
17employee 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
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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
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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
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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
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