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2003 DIGILAW 154 (KER)

J. Simon v. Secretary to Government

2003-02-26

K.THANKAPPAN

body2003
Judgment :- The question raised in this Original Petition is whether an employee who is imposed with a punishment of reduction in rank should be demoted to the rank just below the post which he was holding at the time of punishment or can he be demoted to a further lower post. 2. The petitioner was found guilty of contain misconducts while he was working as Clerical Assistant in the Finance Department of the State Government. Consequently, as per Ext.P1 order, he was demoted to the post of Peon. Originally, the punishment was one of compulsory retirement from service. On review, the Government imposed the punishment of reversion to the entry post of peon for a period of three years with effect from 8.8.1988. After completion of three years in the demoted post, the petitioner was promoted as Attender with effect from 19.8.1991. Aggrieved by the action of the respondents in not promoting the petitioner to the post of Clerical Assistant, which he was holding at the time of imposition of the punishment, he submitted a representation dated 4.10.1995 requesting to post him as Clerical Assistant with effect from 19.8.1991. As his request was not considered, the petitioner approached this Court by filing O.P.No. 19541 of 1995 praying for a direction to post him as Clerical Assistant on the date on which he was promoted to the post of Attender. As per the direction contained in Ext. P3. Judgment, the case of the petitioner was considered again and as per Ext.P4 order of the first respondent dated 29.01.1996, the petitioner was promoted as Clerical Assistant with effect from 3.5.1995. Now, the present Original Petition is filed challenging Exts. P1 and P4 orders. The petitioner died during the pendency of the Original Petition and his wife and children who are the legal heirs are impleaded as additional petitioners 2 to 6. 3. Admittedly, the punishment of reduction in rank, from the post of Clerical Assistant to that of peon, was imposed on the deceased employee finding him guilty of the charges leveled against him. On completion of three years in the demoted post, the employee was promoted to the next higher post of Attender instead of Clerical Assistant, the post he was holding at the time of imposition of the punishment. On completion of three years in the demoted post, the employee was promoted to the next higher post of Attender instead of Clerical Assistant, the post he was holding at the time of imposition of the punishment. The contention of the petitioners is that as per Rule 11 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 (hereinafter referred to as the Rules) the demotion of the deceased employee to the post of peon is irregular and illegal and that demotion ought to have been to the next lower post, that is, Attender. It is also contended that after the completion of three years in the demoted post of peon, he should have been promoted as Clerical Assistant with effect from 19.8.1991 instead of Attender. 4. Part V of the Rules deals with the nature of penalties imposed on a Government employee on finding him guilty of any misconduct. Rule 11(i)(v) of the Rules reads thus: “Reduction to a lower rank in the seniority list or to a lower grade or post or time-scale whether in the same service or in any other service, state or Subordinate, or to a lower stage in a time-scale.” Note (1) to the above clause and the provisos attached to the Note would also indicate that the punishment of reduction in rank shall be to the grade or post immediately lower to the grade or post held by the employee and not to a grade or post lower than the one to which he was initially appointed. Proviso (4) to Note I of Rule 11 of the Rules reads as follows: “An Officer so reduced shall take his place in the lower grade or in the lower time-scale at the top of the list of officers in that grade or time scale. He shall be considered for promotion on the completion of the specified period of reduction. On promotion, he shall take his place at the bottom of the higher grade or higher time-scale.” This question was considered by this Court in the decision reported in Sreekantan Nair v. Hindustan Latex Ltd., 2001 (1) K.L.T. 447 and this Court took the view that imposition of penalty of reduction of rank to a post lower than the next lower post is irregular and illegal. The above decision is based on the decision reported in Nyadar Singh v. Union of India & Ors, AIR 1998 SC 1979. Hence, it is clear that as per the provisions of the rules, punishment of reduction in rank shall not be to a post lower than the next lower post. In this case, the punishment of reduction in rank was to the post of Peon, which was not the next lower post of the deceased employee. But after having completed three years in the demoted post, it is not proper for this Court to consider that aspect. The claim is hopelessly belated. 5. The next question to be considered is whether on completion of three years, the deceased employee should have been promoted to the post of Clerical Assistant instead of Attender. Admittedly, the deceased employee had completed three years of punishment on 19.8.1991. As per the rules, he ought to have been promoted to the post of Clerical Assistant on the completion of the period of three years. His promotion to the post of Attender is irregular and illegal. As per Ext.P4, the deceased employee was promoted to the post of Clerical Assistant only with effect from 3.5.1995. This promotion ought to have been with effect from 19.8.1991, the date on which he completed the period of three years. In the decision reported in S.J. Bhaskar v. T. Devaswom Board, 1993(1) K.L.T. 920, it was held that on competition of the punishment period of an employee, he should be promoted to the original post which he was holding at the time of imposition of the punishment. Hence, this Court is of the view that the promotion of the deceased employee to the post of Clerical Assistant ought to have been with effect from 19.8.1991. Ext.P4 is, therefore, illegal and it is hereby quashed. It is also declared that the deceased employee is entitled for promotion as clerical Assistant with effect from 19.8.1991. Hence, the respondents are directed to pass appropriate orders effecting notional promotion to the incumbent as Clerical Assistant with effect from 19.8.1991. 6. Ext.P4 is, therefore, illegal and it is hereby quashed. It is also declared that the deceased employee is entitled for promotion as clerical Assistant with effect from 19.8.1991. Hence, the respondents are directed to pass appropriate orders effecting notional promotion to the incumbent as Clerical Assistant with effect from 19.8.1991. 6. With regard to the consequential monetary benefits, it is held in the decision reported in Philomina v. State of Kerala, 1984 K.L.T. 59, That a person is not entitled to any monetary benefits which accrues between the period of notional promotion and the date of actual promotion, This is based on the principle of service jurisprudence “no work no pay”. The same view has been taken in the decision reported in State of Kerala v. Jacob, 2000(3) K.L.T. 558. In this decision, this court has categorically held that if an employee had not worked in a post, he is not entitled to any monetary benefit attached to that post. 7. In the light of the above decisions, the deceased employee is not entitled for any monetary benefits. But, he is entitled for promotion as Clerical Assistant with effect from 19.8.1991. The actual period which the deceased employee lost due to denial of promotion shall be reckoned for pension and other benefits. The Original Petition is allowed in part as above.