IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 18865 of 1999 Between: V.S.Reddy, S/o. Bachi Reddy, R/o. Nagarkurnool, Mahabubnagar District. ..... PETITIONER AND 1 A.P.State Road Transport Corporation, Rep by its Managing Director, Musherabad, Hyderabad.-20. 2 The Executive Director, A.P.S.R.T.C., Hyderabad Zone, Hyderabad. 3 The Regional Manager, A.P.S.R.T.C., Mahabubnagar Region, Mahabubnagar. 4 The Personal Officer, A.P.S.R.T.C., Mahabubnagr. 5 Sri S.C.Pasha, Achampet Depot, Mahabubnagar District. 6 Sri R.K.Reddy, Nagarkurnool, Mahabubnagar District. 7 Sri Mohd Hussian, Nagarkurnool, Mahabubnagar District. .....RESPONDENTS Counsel for the Petitioner: MR.A.K.JAYAPRAKASH RAO Counsel for the Respondent Nos.1 to 4: Sri V.PADMANABHA RAO, for B.G.UMA DEVI The Court made the following: ORDER: This writ petition is filed for a writ of mandamus to declare the action of respondent Nos.2 to 4 in not considering the case of the petitioner for promotion to the post of Assistant Depot Clerk/Controller, as illegal, arbitrary and violative of Articles 14 and 16 of the Constitution of India. Heard Sri A.K.Jayaprakash Rao, learned counsel for the petitioner, and Sri V.Padmanabha Rao, learned counsel representing the learned Standing Counsel for the respondents. The petitioner was appointed as Conductor on 14.04.1972 in the service of respondent No.1-Corporation. For indulging in cash and ticket irregularities, he was removed from service on 27.03.1980 following initiation of disciplinary action. In the appeal filed by the petitioner, the order of removal was modified into one of appointment as a fresh Conductor by appellate order, dated 26.08.1980. Later on, the petitioner was selected as Driver on 23.10.1982. The petitioner, thereafter, raised industrial dispute by way of I.D.No.149 of 1989, which was renumbered as I.D.No.289 of 1992, before the Labour Court–III, Hyderabad. The said I.D. was disposed of by the Labour Court by award, dated 07.09.1994, wherein the Labour Court, while not interfering with the finding of guilt of the petitioner, however, held that the punishment of denial of past service is disproportionate to the proven misconduct. Accordingly, the Labour Court set aside the order denying the punishment of continuity of service to the petitioner and modified the punishment order by directing that the petitioner shall not be entitled to attendant benefits and back wages. The petitioner filed the present writ petition claiming promotion from the date on which his juniors were promoted to the post of Assistant Depot Clerks/Controllers with effect from 28.10.1997. While Sri A.K.Jayaprakash Rao, learned counsel for the petitioner, strenuously contended that denial of promotion to the petitioner is in violation of award of the Labour court, the learned counsel representing the respondents submitted that in view of the judgment of the Supreme Court in J.K.Synthetics Ltd., v. K.P.Agarwal[1], the petitioner is not entitled to promotion even if his continuity of service is restored by the Labour Court. I have carefully considered the judgment of the Supreme Court in J.K.Synthetics Ltd.(supra). In para-19 of the judgment, the Supreme Court has held as under: “But the cases referred to above, where back wages were awarded, related to termination/retrenchment which were held to be illegal and invalid for non-compliance with statutory requirements or related to cases where the Court found that the termination was motivated or amounted to victimization. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. 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. 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 even, 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.” In view of the above reproduced portion of the judgment, wherein the Supreme Court interpreted continuity of service in a case of proven misconduct as to mean that the same should be taken only for the purpose of pensionary/retirement benefits and not for other benefits like increments, promotions etc., the petitioner is not entitled to promotion. It is, however, submitted that though the petitioner was promoted as Controller at the fag end of the career, he was denied the benefit of promotion with effect from the date on which his juniors were promoted. By applying the law declared by the Supreme Court, denial of retrospective promotion to the petitioner cannot be said to be illegal. It is, however, admitted that the petitioner is given the benefit of continuity of service for the purpose of pensionary/retirement benefits. In view of the above, the writ petition is dismissed. As a sequel to dismissal of main petition, W.P.M.P.No.23600 of 1999 filed by the petitioner for interim relief is dismissed as infructuous. C.V.NAGARJUNA REDDY, J. Date: 19.12.2008 VGB [1] (2007) 2 SCC 433