B.H. Kempaiah and Others vs The General Manager (Personnel), B.M.T.C. and Others

Ashok B. Hinchigeri, J.—The petitioner has called into question the first respondent''s endorsement, dated 10.05.2014 (Annexure-A) refusing to take into account the petitioner''s service till 18.02.2004.

The facts of the case in brief are that the petitioner was appointed in the services of the respondents as a probationary conductor on 13.06.1990. On the ground of certain misconducts, he was dismissed from service on 25.02.2003. The dismissal order was challenged by the petitioner before the appellate authority, which by its order, dated 16.02.2004 scaled down the punishment from dismissal to reduction of one increment with cumulative effect. The appellate authority made it clear that the petitioner is not entitled to any monetary benefits from 25.02.2003 till the date of his reinstatement. However, it granted the relief of continuity of service. The petitioner was re-instated into service on 18.02.2004. The petitioner requested the respondents to consider his case for promotion to the cadre of traffic controller taking into account his services from 13.06.1990. The respondent No. 1 turned down the petitioner''s request by holding that the petitioner is entitled to have his case considered for promotion only with effect from the date of his reinstatement into service. It is this endorsement, which is called into question.

Sri L. Shekar, learned counsel for the petitioner submits that the issue is squarely covered by the Division Bench judgment, dated 13.08.2013 passed in W.A. No. 6472/2012, wherein the direction is given to consider the similarly placed employee''s past services from the date of his initial appointment till the date of his dismissal from service and thereafter, that is, from the date of his reinstatement.

Smt. H.R. Renuka, learned counsel for the respondents submits that the petitioner is not entitled to claim any benefit during the interregnum between the date of dismissal and the date of reinstatement. In support of her submissions, she relies on the Apex Court''s judgment in the case of J.K. Synthetics Ltd. Vs. K.P. Agrawal and Another, (2007) 112 FLR 1049 : (2007) 3 JT 1 : (2007) 2 LLJ 128 : (2007) 2 SCALE 382 : (2007) 2 SCC 433 : (2007) 1 SCC(L&S) 651 : (2007) 2 SCR 60 : (2007) 3 SLJ 101 . Last part of para 19, read out by her, is extracted hereinbelow:

"19. ....... Where the power under Article 226 or Section 11A 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. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). 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. 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 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."

The issue is no more res-integra. Following the Division Bench judgment in W.A. No. 6472/2012, I hold that the respondents are not justified in excluding the service rendered by the petitioner from 13.06.1990 till 25.02.2003 for the purpose of considering his case for promotion to the next higher cadre of traffic controller. The respondents are not justified in treating the petitioner as a fresh appointee with effect from 18.02.2004. The impugned endorsement is issued following the respondents'' circular, dated 12.12.2013. My perusal of the said circular reveals that it has no application for the facts of this case. The respondents ought not to have rejected the petitioner''s representation in its entirety following the said circular.

In the result, the petitioner is entitled to succeed in part. The respondents are directed to consider the length of service from 13.05.1990 till 25.02.2003 and again from 18.02.2004 onwards while examining the petitioner''s case for promotion. However at the risk of repetition, it is made clear that the petitioner is not entitled to have the period from 25.02.2003 till 18.02.2004 considered for the purpose of claiming promotion. The respondents are directed to consider the petitioner''s case for promotion as expeditiously as possible in any case within an outer limit of two months from the date of production of the certified copy of today''s order. No order as to costs.