Karnataka High Court
Sri. G Ramakrishnan vs The Executive Director And ... on 13 October, 2023
Bench: N S Gowda
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WP No. 4550 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 4550 OF 2022 (S-RES)
BETWEEN:
SRI.G.RAMAKRISHNAN
S/O A GURUSAMY
AGED ABOUT 61 YEARS,
EX-STAFF OFFICER,
BANK OF INDIA,
MATTUTHAVANI BRANCH,
TWAD BOARD BUILDING,
MADURAI-625007
TAMILNADU STATE
AND PRESENTLY R/AT
DOOR No.3/162 MUKKAMPATTI VILLAGE
AMOOR POST, MELUR TALUK,
MADURAI DISTRICT:625 110.
...PETITIONER
(BY SRI.G.RAMAKRISHNAN PETITIONER-PARTY-IN-PERSON)
Digitally
signed by AND:
PANKAJA S
Location: 1. THE EXECUTIVE DIRECTOR & REVIEWING
HIGH
COURT OF AUTHORITY
KARNATAKA 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-400 501.
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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,
BENGALURU ZONE,
BENGALURU-560 009.
...RESPONDENTS
(BY SRI.ASHOK.G.V., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH
THE ORDER DATED:17.09.2021 ISSUED BY THE R-3
ANNEXURE-A HEREIN AND CONSEQUENTLY DIRECT THE
RESPONDENTS TO RELEASE MY PROMOTION W.E.F. 1.4.2013
AND DIRECT THE RESPONDENTS TO IMPLEMENT THE JOINT
COMPROMISE MEMO DATED:21.3.2016 ANNEXURE-F FILED IN
W.A.No.2406/2015 (S-R0 ON THE FILE OF THIS HON'BLE
COURT DATED:31.3.2016 ANNEXURE-G.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 22.09.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING :
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ORDER
1. In the year 2007, the petitioner was charged with
the allegation of unauthorized absence from duty and for
issuing certain cheques on his Savings Bank Account
without maintaining sufficient funds. An enquiry was
conducted and on the submission of an enquiry report, the
Disciplinary Authority on 06.06.2008 imposed the
punishment of compulsory retirement. An appeal preferred
against the said order was also dismissed.
2. The petitioner, thereafter, approached this Court by
filing a writ petition in W.P. No.2192 of 2009 which was,
however, dismissed on 08.09.2011. The petitioner,
thereafter, preferred a writ appeal in W.A. No.17996 of
2011 and the Division Bench of this Court set aside the
order of the learned Single Judge and also the order of
punishment imposed on the petitioner by its order dated
03.07.2012. The Division Bench granted liberty to the
Bank/Employer to proceed with the enquiry from where it
was interrupted.
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3. The petitioner was consequently reinstated by an
order dated 17.09.2012. Thereafter, an enquiry report
was submitted once again, holding that the charges
leveled against the petitioner had been proved. The
Disciplinary Authority, thereafter, for the second time,
proceeded to impose the punishment of compulsory
retirement under an order dated 06.06.2013.
4. The petitioner once again approached this Court in
Writ Petition No.24015 of 2013. This petition was disposed
of by directing the petitioner to file a departmental appeal.
Consequently, the petitioner filed an appeal, which was,
however, dismissed and being aggrieved by the said
dismissal, the petitioner filed Writ Petition No.44159 of
2013 and this Court disposed of the writ petition observing
that the petitioner would be at liberty to submit a
representation regarding the discretion exercised in the
matter of imposition of penalty by the Disciplinary
Authority has been disproportionate.
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5. Pursuant to this order, the petitioner preferred a
Review Petition and the same was dismissed by the
reviewing authority and consequently, the petitioner filed
one more writ petition in W.P. No.19572 of 2015. This
Court, by an order dated 03.07.2015, allowed the writ
petition and proceeded to substitute the punishment that
had been imposed on the petitioner in the following terms:
"Therefore, ends of justice would be
met if this court were to set aside the
impugned orders and substitute the
punishment with a major penalty, but
one which would not cause financial
death of the petitioner. Therefore, this
court sets aside the impugned order
dated 22.01.2015 and the punishment
order dated 06.06.2023; this court
substitutes the punishment with the
punishment of withholding of three
increments with cumulative effect. This
Court further directs the respondent to
reinstate the petitioner, and to grant
continuity of service, and directs them
to pay 50% of the backwages, and to
give any other consequential benefits
that the petitioner would entitled to."
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6. Pursuant to the said order, the petitioner was
reinstated into service by Order dated 03.08.2015, but the
reinstatement was made subject to the writ appeal that
had been filed by the Bank in W.A. No.2406 of 2015.
7. In the writ appeal that had been preferred by the
Bank i.e., W.A. No.2406 of 2015, a compromise had been
arrived at between the Bank and the petitioner, and a joint
compromise memo was filed in the following terms:
" JOINT COMPROMISE MEMO
The Appellants and the Respondent
respectfully submit that they have agreed
to settle the dispute between them on
the following terms and conditions:
1. The Appellants have offered to pay
to the Respondent 25% of
the back wages from 06-06-2008 i.e.
the date of punishment to 05.08.2015
i.e. the date of reinstatement in
service, instead of 50% as directed by
the Learned Single Judge vide order
dated 03-07-2015 in Writ Petition
No.19572 / 2015 (S-R) and the
Respondent has agreed to the same.
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2. The above said 25% of back wages
and consequential benefits shall be
paid by the Appellants to the
Respondent within 8 weeks from
today.
WHEREFORE, the Appellants and the
Respondent pray that this Hon'ble Court
may be pleased to dispose of the above
Writ Appeal in terms of this Joint
Compromise Memo, in the interest of
equity and justice."
8. The Division Bench accepted the compromise and
disposed of the appeal in terms of the compromise.
9. Thus, the petitioner, who had been compulsorily
retired by way of punishment, was ultimately ordered to
be reinstated by this Court along with 50% backwages and
the employer and in the appeal filed by the Management
challenging the order of reinstatement, it offered the
petitioner 25% backwages from 05.08.2015, till the date
he was reinstated into service instead of 50% and this
offer was accepted by the petitioner. The employer also
stated that not only 25% backwages but also the
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consequential benefits would be paid to the petitioner
within eight weeks from that day.
10. Thus, not only was the petitioner reinstated with
25% backwages, but it was also agreed by the employer
that all consequential benefits would be given to the
petitioner within eight weeks.
11. The petitioner had initiated contempt proceedings in
CCC No.709 of 2016 against the Bank on the ground that
the terms of the compromise had not been complied with.
12. In the said contempt proceedings, this Court took
note of the affidavit filed by the Bank stating that the
petitioner had been paid whatever was due to him and
there was no amount payable to him either by way of
backwages or by way of consequential benefits. The
Division Bench dropped the contempt proceedings, but
granted liberty to the petitioner to challenge the stand of
the employer that it had paid the complainant all
backwages and consequential benefits.
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13. The petitioner, thereafter, filed Writ Petition in W.P.
No.58800 of 2016 seeking for quashing of the affidavit
that had been filed in CCC No.709 of 2016 and for a
direction to implement the joint compromise memo filed in
W.A. No.2406 of 2015. The learned Single Judge of this
Court, by an order dated 16.01.2021, disposed of the writ
petition holding that the prayer for quashing of an affidavit
that has been filed in the contempt proceedings was
untenable. However, the Court granted the petitioner
liberty to challenge the action of the respondent in not
paying the consequential benefits.
14. The petitioner, thereafter, attained the age of
superannuation and retired from service on 31.01.2021.
15. Thereafter, the petitioner submitted a representation
dated 25.06.2021 requesting them to release all
consequential benefits. This representation was rejected
by order dated 17.09.2021 stating that he had been paid
the requisite backwages and provident fund, and that no
other benefits were due to him.
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16. It is this endorsement which is challenged in this writ
petition.
17. The petitioner contends in this writ petition that on
his being reinstated on 17.09.2012, he had applied for
promotion to the post of Middle Management Grade Scale-
II and had successfully passed the examinations as well as
the interview, and he was, therefore, entitled to be
granted the said order of promotion, which was denied by
virtue of the fact that he was out of service from
06.06.2013 till 05.08.2015. It is also his case that on
being reinstated on 05.08.2015, he had once against
applied for promotion to the post of Middle Management
Grade Scale-II in 2017 and had successfully passed
examinations as well as the interview. However, he was
not granted promotion. It is, therefore, his case that the
consequential benefits that was agreed to be given to the
petitioner would necessarily include the promotion that he
was entitled to in the year 2013.
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18. It is the case of the respondents that the petitioner's
promotion was not released since it was found that he did
not fulfill the required Annual Performance Appraisal
marks ("APA marks", for short) criteria for both merit
and seniority channels, which is in respect of the
promotion for which the petitioner applied in the year
2013.
19. It is also stated as regards the promotion, which the
petitioner claimed in the year 2017, that it was found that
the petitioner was ineligible for promotion as he did not
fulfill the required APA marks criteria for both merit and
seniority channels.
20. It is, thus, clear that the case of the Bank is that the
petitioner was not eligible for promotion for both years
(2013 and 2017), since he did not fulfill the APA Marks
Criteria. It is, however, admitted by the Bank that the
petitioner did appear for the examinations and has also
passed the same. It is also admitted that he appeared for
the interview and was successful.
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21. In fact, in the affidavit dated 20.09.2023, the Zonal
Manager has admitted that the petitioner had appeared for
the written examination as well as the interview in the
year 2013-14 and had qualified in both. It is also
admitted that in the year 2017-18, the petitioner had
appeared for both written examination as well as for the
interview and had qualified in both. It is further stated
that on consideration of his APA Marks, it was found that
the petitioner had not secured the requisite marks
prescribed and therefore, he had not been promoted in the
year 2013-14. It is further stated that in the year
2018-19, the petitioner was absent for both written
examination as well as for the interview. It is also stated
that for the year 2012-13, the petitioner had secured
60.00 marks; for the years 2015-16 and 2016-17, he had
secured 75.00 marks; for the year 2017-18, he had
secured 88.00 marks; for the year 2018-19, he had
secured 90.00 marks; and for the year 2019-20, he had
secured 90.10 marks and that the APA Marks secured by
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the petitioner would not render him eligible for
consideration for promotion.
22. It is also averred that since the petitioner was
imposed with punishment and was found guilty of
misconduct, he would not be entitled for promotion,
notwithstanding the fact that the joint memo conferred
him all consequential benefits and continuity of service. It
is the case of the respondents that the respondents
possessed the right to withhold promotions in the event of
a punishment being imposed upon the petitioner.
23. Reliance is sought to be placed on the judgment
rendered by the Hon'ble Supreme Court in the cases of
K.V. Jankiraman1 and J.K.Synthetics Ltd2.
24. As already extracted above, the dispute between the
petitioner and the respondents was settled in the Writ
Appeal that had been preferred by the Bank challenging
the order of reinstatement and this Court granted
Union of India (UOI) and others vs. K.V.Jankiraman and others, AIR 1991 SC 2010.
J.K.Synthetics Ltd. vs. K.P.Agarwal and others, (2007) 2 SCC 433.
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continuity of service and also a direction to pay 50% of the
backwages. The learned Single Judge, in fact, directed that
the petitioner was also entitled to any other consequential
benefits that he is entitled to. This indicates that this Court
had specifically granted the petitioner an order of
reinstatement and more importantly, an order of
continuity of service.
25. By virtue of this order of "continuity of service", it
presupposes that the petitioner was never terminated and
continued in service. In other words, the period during
which, the petitioner had not actually worked i.e., from
06.06.2013 till 03.08.2015 would have to be construed as
a period during which the petitioner was in service.
26. However, it is contended that the Hon'ble Supreme
Court in the case of K.V. Jankiraman (supra) has stated
that in order to qualify for promotion, it was necessary for
an employee to have an unblemished record and in a case
where an employee was penalized, the employer would be
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justified to disregard the case of the employee for
promotion.
27. It has to be noticed here that the Hon'ble Supreme
Court, in the said case, was not considering a factual
situation where an order of dismissal was set aside and a
specific order of reinstatement, continuity of service and
grant of all consequential benefits had been granted, apart
from awarding backwages, was granted.
28. It may also be pertinent to state here that the order
of the learned Single Judge granting reinstatement,
continuity of service, all consequential benefits and 50%
backwages was challenged and only the order of granting
backwages to the extent of 50% was modified and
reduced to 25%, and thus, the specific relief of
reinstatement coupled with continuity of service and all
consequential benefits, was not interfered with.
29. The employer, having accepted the relief of
reinstatement with continuity of service and all
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consequential benefits cannot be permitted to contend
that the employee was nevertheless liable to be penalized
and therefore, the promotion can be withheld.
30. It is also to be noticed that once the employer agrees
for all consequential benefits to be conferred on the
employee on his reinstatement, it is obvious that the
employee would also be entitled for consideration of his
case for promotion and there would be no question of the
employer contending that it had arrived at a decision to
withhold or deny promotions to him.
31. Reliance is also placed on the judgment of the
Hon'ble Supreme Court in the case J.K.Synthetics Ltd.
(supra), in which it is stated that where misconduct is held
to be proved and reinstatement was itself a consequential
benefit arising from imposition of a lesser punishment, the
award of backwages for the period when the employee had
not worked, would amount to rewarding the delinquent
employee and punishing the employer for taking action for
the misconduct committed by the employee, which should
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be avoided. It is contended that the decision also states
that the same principle would also be applicable where
continuity of service was directed and it would only be for
the purposes of pensionary / retirement benefits and not
for other benefits like increment, promotions, etc.
32. It has to be noticed here that in the aforesaid
judgment, the Hon'ble Supreme Court was not dealing
with the case where the employer had categorically
agreed, by way of a settlement, for granting all
consequential benefits arising out of the order of
reinstatement.
33. Once the employer, by way of a compromise, agrees
with the decision of the Court to impose a lesser
punishment and thereby, not only reinstates the employee
but also agrees for granting continuity of service and all
consequential benefits apart from backwages, it is obvious
that the petitioner would be entitled for consideration of
his promotions.
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34. An argument is also advanced placing reliance on
paragraph No.17 of the said judgment stating that
continuity of service and consequential benefits should not
fall as a matter of course, and granting of service
promotions as consequential benefits to a person who had
not worked for ten to fifteen years would be disastrous for
the employer.
35. However, in this case, as already noticed above, the
employer was aware of the fact that the petitioner was out
of service from 06.06.2013 till 03.08.2015 i.e., for a
period of two years and yet, it agreed before the Division
Bench that the petitioner was entitled for all other
consequential benefits. In light of this particular factual
situation, the observations made by the Hon'ble Supreme
Court in the aforesaid case would have no application to
the present case.
36. Since, in the present case, it is admitted on oath by
the respondents that the petitioner had appeared for the
examinations in the years 2013 and 2017, and was
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successful in both examinations as well as in the interview,
it is obvious that the petitioner was entitled for promotion.
37. The argument advanced by the learned counsel for
the respondent--employer that the petitioner did not fulfill
the requisite APA Marks and therefore, cannot be
promoted, cannot be accepted.
38. It has to be noticed here that the APA score of 60.00
was required, even according to the objections filed by the
respondents. The affidavit filed by the respondents
indicates that the petitioner did possess 60.00 marks in
the year 2012-13. It is, therefore, clear that for the
preceding one year, the petitioner did posses 60.00 marks
as stated in the Statement of Objections. Since it is also
undisputed that the petitioner was out of service from
06.06.2013 till 03.08.2015, obviously, the APA scores for
that period would not be available.
39. Having regard to the fact that the petitioner had
scored 60.00 marks for the year preceding the order on
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which he passed the examination in the year 2013, in my
view, the petitioner would be entitled for grant of
promotion, keeping in mind the manner in which the
petitioner has been subjected to an enquiry proceeding on
the charges of unauthorized absence and for not
possessing sufficient balance in his Savings Bank Account
for dishonouring cheques that he had issued.
40. 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.
41. The Writ Petition is accordingly allowed in part.
Sd/-
JUDGE
RK/
CT: SN
