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Himachal Pradesh High Court · body

2009 DIGILAW 497 (HP)

RAJ KUMAR GUPTA v. STATE OF H. P.

2009-05-25

RAJIV SHARMA

body2009
JUDGMENT Rajiv Sharma, Judge:-The disciplinary proceedings were initiated against the petitioner, vide memorandum dated 27.11.1992. The inquiry report was received by the department on 9.5.1994. The Departmental Promotion Committee met for the post of Animal Husbandry Assistant/Veterinary Supervisor on 27.9.1994. The case of the petitioner was though considered by the Departmental Promotion Committee, however the recommendations were kept in sealed cover. He was exonerated on 27.10.1997. He was promoted to the post of Animal Husbandry Assistant/Veterinary Supervisor, vide letter dated 5.12.1997 on the basis of the recommendations of Departmental promotion Committee in its meeting held on 27.9.1994. However, he has not been given any monetary benefits w.e.f. 28.12.1994. His pay was fixed notionally from 28.12.1994. 2. Mr. Neeraj K. Sharma, Advocate has strenuously argued that the action of the respondents of denying the petitioner actual monetary benefits w.e.f. 28.12.1994 is against the settled principles of law. 3. Mr. R.K. Sharma, learned Senior Additional Advocate General has argued that since the petitioner had not worked against the higher post, he is not entitled to actual monetary benefits on the principle of “no work no pay”. 4. I have heard learned counsel for the parties and perused the record carefully. 5. The disciplinary proceedings were initiated against the petitioner on 27.11.1992. The Disciplinary Authority had received the inquiry report on 9.5.1994. The decision was required to be taken by the Disciplinary Authority within a reasonable period immediately after the receipt of the inquiry report. The Departmental Promotion Committee met on 27.9.1994. The case of the petitioner though considered by the Departmental Promotion Committee for the higher post, the recommendations were kept in a sealed cover. The sealed cover was opened only on 5.12.1997 after the petitioner was exonerated of all the charges on 27.10.1997. The petitioner has been penalized for no fault on his part. In case the decision had been taken immediately after the receipt of the report by the Disciplinary Authority, there was no occasion - 3 for adopting the sealed cover procedure on 27.9.1994. The Disciplinary Authority sat over the inquiry report for three long years. He was exonerated on 27.10.1997 on the basis of disciplinary proceedings initiated vide memorandum dated 27.11.1992. He has not been held entitled to actual monetary benefits w.e.f. 28.12.1994. Mr. Kamal Dev junior of the petitioner was promoted w.e.f. 28.12.1994. He made representation on 15.11.2000 to the respondents seeking actual monetary benefits. He was exonerated on 27.10.1997 on the basis of disciplinary proceedings initiated vide memorandum dated 27.11.1992. He has not been held entitled to actual monetary benefits w.e.f. 28.12.1994. Mr. Kamal Dev junior of the petitioner was promoted w.e.f. 28.12.1994. He made representation on 15.11.2000 to the respondents seeking actual monetary benefits. The only explanation for not taking immediate action after receipt of the inquiry report by the Disciplinary Authority is administrative reason. This explanation cannot be accepted in view of the reasons mentioned above. The Disciplinary Authority was required to look into the matter within reasonable period after the receipt of the inquiry report. He had failed to exercise the jurisdiction vested in him by not taking any action immediately after the receipt of the report on 9.5.1994. He had no authority whatsoever under the law to sit over the matter for three years. In these circumstances, the petitioner was entitled to get actual monetary benefits w.e.f. 28.12.1994. The action of the respondents of fixing his pay notionally without releasing the actual benefits is declared arbitrary. It is a case where the petitioner was always ready and willing to work on the higher post. It is only due to the arbitrary action of the respondents which has deprived the petitioner of his right to work against the higher post. In fact he has been prevented by the respondents from working on the higher post by not taking decision immediately after the receipt of the inquiry report on 9.5.1994 itself. 6. Their Lordships of the Hon’ble Supreme Court have held in Union of India and Others versus K.V. Jankiraman and Others, (1991) 4 SCC 109 that the employee will be entitled to arrears of salary from due date if he has been prevented from discharging the duties of a higher post. Their Lordships of the Hon’ble Supreme Court have held as under:- “It was further contended on their behalf that the normal rule is “no work no pay”. Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension, When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of “no work no pay” is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.” 7. The Hon’ble Supreme Court has held in State of Kerala and Others versus E.K,. Bhaskaran Pillai, (2007) 6 SCC 524 that the principle of “no work no pay” cannot be accepted as a rule of thumb and full back wages in certain circumstances may be justified, particularly when promotion is wrongly denied. Their Lordships have held that where the administration has wrongly denied dues to an employee in that case he should be given full benefits including monetary benefit subject to there being any change in law or some supervening factors. Their Lordships of the Hon’ble Supreme Court have held as under:- “Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15-6-1972. Their Lordships of the Hon’ble Supreme Court have held as under:- “Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15-6-1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah v. Union of India, VirenderKumar v. Avinash Chandra Chadha, State of Haryana v. O.P. Gupta, A.K. Soumini v. State Bank of Travancore and Union of India v. Tarsem Lal. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Unionof India v. K.V. Jankiraman, State of A.P. v. D.V.L. Narasimha Rao, Vasant Rao Raman v. Union of India and State of U.P. v. Vinod Kumar Srivastava. We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hart-and-fast rule. The principle “no work no pay” cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.” 8. However, it is very difficult to set down any hart-and-fast rule. The principle “no work no pay” cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.” 8. In view of the definitive law laid down bytheir Lordships of the Hon’ble Supreme Court, it is declared that the petitioner is entitled to get actual monetary benefits from 28.12.1994. The principle of “no Work no pay” would not be applicable in the present case as argued by Mr. R. K. Sharma, learned Senior Additional Advocate General. 9. Accordingly, the writ petition is allowed. The respondents are directed to release the arrears of salary to the petitioner w.e.f. 28.12.1994 with interest at the rate of 9% per annum within a period of eight weeks from today. The petitioner is also held entitled to cost quantified at Rs.3000/-.