Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 771 (HP)

Man Singh v. State of Himachal Pradesh

2012-10-31

V.K.AHUJA

body2012
Judgment V.K. Ahuja, J. The petitioner was working as a Junior Assistant. Disciplinary proceedings were initiated against him on 21.7.2001. Penalty was imposed upon the petitioner on 30.4.2005, as alleged by him. He was, however, exonerated from the charges on 28.4.2007. The petitioner served a legal notice upon the respondents and he was given promotion to the post of Senior Assistant. However, as per Annexure R-II, dated 10.1.2008, the petitioner was promoted to the rank of Senior Assistant with effect from 31.7.2003, when his junior Hoshiar Singh was promoted as such. However, period w.e.f. 31.7.2003 till his joining as Senior Assistant was to be treated as notional. 2. The department had refused to grant him the monetary benefits as per Annexure P-6 on the analogy that the petitioner was promoted on regular basis, but on notional basis, due to the reason that he has not actually worked against this post on 31.7.2003. It was also observed in the letter of the Principal Chief Conservator of Forests, H.P. in reply to the notice of the petitioner that the monetary benefits have to be allowed from the date when the official assumed the charge on higher post. As per F.R. 17(1), the petitioner was not entitled to the benefits of the post before the date he assumed the duties of that post. However, he was granted seniority in the cadre of Senior Assistant on this date. 3. Being aggrieved by such order, since the petitioner was denied the monetary benefits, he has filed the present petition. 4. I have heard the learned counsel for the petitioner and learned Deputy Advocate General for the respondents and have gone through the material placed on record. 5. Reply was filed by the respondents and they relied upon F.R. 17(1) that since the petitioner had not worked on the said post and as such he was not entitled to the monetary benefits before the date he assumed the duties of that post in pursuance of the order promoting him as Senior Assistant. 6. The learned counsel for the petitioner has relied upon the decision of the Hon’ble Supreme Court passed in Union of India etc. etc. versus K.V. Jankiraman, etc. etc. AIR 1991 Supreme Court 2010. 6. The learned counsel for the petitioner has relied upon the decision of the Hon’ble Supreme Court passed in Union of India etc. etc. versus K.V. Jankiraman, etc. etc. AIR 1991 Supreme Court 2010. The observations made in Para 7 are relevant and are being reproduced below: ”There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blameworthy in the least, he should not be deprived of any benefits including the salary of the promotional post. It was urged on behalf of the appellant-authorities in all these cases that a person is not entitled to the salary of the post unless he assumes charge of the same. They relied on F.R. 17(1) of the Fundamental Rules and Supplementary Rules which read as follows: “F.R.17(1). Subjects to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties: Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence.” 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 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 privatations 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. 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 default of his. This is 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 said decision was also followed by a Division Bench of this Court in Mani Chand versus H.P. State Forest Corpn. Ltd. 2009(1)Shim. LC 427. 8. It is clear from the above decision of the Hon’ble Supreme Court that once an employee has been exonerated of all the charges and has been given promotion, he cannot be deprived of the monetary benefits, since he was available to be posted and promoted, but was not promoted due to the inquiry pending against him and once he has been exonerated of all the charges, he was entitled to all the service benefits, including monetary benefits. Therefore, the provisions of F.R.17(1) as held in the above case, will be inapplicable to such cases. 9. The facts of the present case are not distinct from the facts of K.V. Jankiraman’s case (supra) and applying the said decision, I, accordingly hold that the petitioner is entitled to all service benefits, including the monetary benefits, from the date the petitioner was promoted as Senior Assistant i.e. 31.7.2003. Necessary arrears as per the rules shall be paid to him within a period of three months from today. 9. In view of the above, the petition stands disposed of, so also the pending miscellaneous application(s), if any.