Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 951 (MP)

Mukesh Chandra Sharma v. State of M. P.

2013-08-13

M.K.Mudgal, S.K.Gangele

body2013
ORDER 1. This appeal has been filed by the appellant against the order dated 24.11.2009 passed by the learned Single Judge in Writ Petition No.5239/2009 (S). 2. The appellant was initially appointed as Homeopathic Compounder on 12.2.1986. Another employee Mr. Ram Kumar Sharma was also appointed as Compounder on 31.5.1986. He was regularised giving him benefit of regular appointment from the date of initial appointment and he was granted promotion w.e.f. 5.1.1999. When the appellant was not given the benefit, he filed a writ petition before this Court. It was registered as Writ Petition No.877/2005. The writ Court vide order dated 8.12.2006 allowed the petition of the appellant and issued following directions : “7.Consequently, the petition of the petitioner is allowed. Respondents are directed to consider the case of the petitioner for promotion on the post of Assistant Homeopathic Medical Officer at par with respondent No.4 and if he found suitable he be given seniority prior to the respondent No.4 on availability of the post. No order as to costs.” 3. In pursuance to the directions issued by the writ Court, the department promoted the appellant on the post of Assistant Homeopathic Medical Officer w.e.f. 5.7.1999 in the pay-scale of 5000-150-8000. The promotion of the appellant was proforma and it is mentioned in the order that he would not be entitled arrears of salary from 5.7.1999 up to the date of assuming charge on the principle of ‘no work no pay’. The appellant again filed a petition for a relief that because he was denied the promotion arbitrarily, hence, he is entitled the arrears of salary also and the decision of the department in applying the principle of ‘no work no pay’ in regard to arrears of salary is arbitrary and illegal. 4. Learned Single Judge dismissed the writ petition on the ground that earlier the appellant filed a petition before this Court and this Court only ordered consideration of case of the appellant for promotion, but there is no mention of the fact about the arrears of salary, hence, the question has attained finality. 5. Learned counsel for the appellant has submitted that in earlier round of litigation relief of arrears of salary was not considered, hence, it would not be a bar in the present round of litigation. 6. 5. Learned counsel for the appellant has submitted that in earlier round of litigation relief of arrears of salary was not considered, hence, it would not be a bar in the present round of litigation. 6. Contrary to this, learned Panel Lawyer has contended that the order passed by the writ Court is in accordance with law. 7. The appellant filed petition earlier also and that was disposed of vide order dated 8.12.2006. In the aforesaid order, the writ Court has not discussed the fact that whether the appellant would be eligible for arrears after his promotion. The writ Court simply issued direction to consider the case of the appellant for promotion at par with respondent No.4 and if he be found suitable he be given seniority prior to respondent No.4. Thereafter, case of the appellant for promotion was considered and he was found suitable for promotion to the post of Assistant Homeopathic Medical Officer w.e.f. 5.7.1999. No reason has been assigned by the department that why earlier the case of the appellant for promotion was not considered. It means that the appellant was denied promotion without his fault. 8. Hon’ble Supreme Court in the case of Union of India v. K.V. Jankiraman, reported in AIR 1991 SC 2010 , has held that if the employee cannot discharge his work due to the arbitrary action of the employer, then employee is entitled consequential benefits including monitory benefits. Observations of the Hon’ble Supreme Court are as under : “There may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. Therefore to deny the salary to an employee would not in all circumstances be illegal. Supreme Court did not approve last sentence in the first sub-paragraph after Cl. (iii) of paragraph 3 of the said Memorandum, viz. “but no arrears of pay shall be payabvle to him for the period of notional promotion preceding the date of actual promotion”, and directed that in place of the said sentence the following sentence be read in the Memorandum : “However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Whether the authority denies arrears of salary or part of it, it will record its reasons for doing so.” 9. The aforesaid judgment has again been considered by the Hon’ble Supreme Court in the case of Babu Lal v. Haryana State Agricultural Marketing Board, reported in (2009)4 SCC 287 , and the Court has held as under : “8. At the risk of repetition, while dismissing the suit and setting aside the judgment of the appellate Court, the High Court relied on the decision of this Court in Jankiraman case and on a document being Ex.P-5, which shows that the appellant-plaintiff had only worked as Executive Officer of the respondent from 28.3.1997 to 31.7.1997. 9. A reading of the aforesaid decision of this Court would show that the authorities are vested with power to decide whether an employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. 9. A reading of the aforesaid decision of this Court would show that the authorities are vested with power to decide whether an employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. This decision also clearly suggests that there is no inflexible rule that in every case when an employee is exonerated from disciplinary/criminal proceeding, he should be automatically entitled to salary including all benefits for the intervening period. This decision of this Court would also show that where the acquittal of an employee in a criminal proceeding was on benefit of doubt, the employer has a right to decide whether or not such an employee deserves any salary for the intervening period.” 10. Janki Raman’s case (supra), has also been considered by the Division Bench of this Court in the case of Anand Mohan Saxena v. State of M.P., reported in 2009(III) MPWN 87 =2010(1) MPHT 81 (DB). 11. Principle of law emerges from the judgment of the Hon’ble Supreme Court is that if an employee is denied benefit of promotion arbitrarily and he was prevented to work, then he is entitled benefit of arrears of salary also. In the present case also the appellant was denied the benefit of promotion without any reason. Hence, in our opinion, he is eligible to get the arrears of salary but the question remains that whether the appellant is entitled the salary from the date of his promotion i.e. 5.7.1999 or from any subsequent date. In our opinion, the appellant is not entitled the arrears of salary from the date of proforma promotion i.e. w.e.f. 5.7.1999 because he did not approach to the Court within a reasonable time after promotion of his junior person. He approached the Court in the year 2005 and thereafter this Court passed the order on 8.12.2006 and directed the department to consider his case for promotion. Looking to these peculiar facts of the case, in our opinion, the appellant is entitled the arrears of salary from the date of passing of the order of this Court i.e. 8.12.2006 to the post of Assistant Homeopathic Medical Officer of the pay-scale 5000-150-8000. 12. Consequently, the appeal is partly allowed. The impugned order is hereby set aside. Looking to these peculiar facts of the case, in our opinion, the appellant is entitled the arrears of salary from the date of passing of the order of this Court i.e. 8.12.2006 to the post of Assistant Homeopathic Medical Officer of the pay-scale 5000-150-8000. 12. Consequently, the appeal is partly allowed. The impugned order is hereby set aside. It is held that the appellant shall be eligible of arrears of salary to the post of Assistant Homeopathic Medical Officer w.e.f. 8.12.2006. The order be complied within a period of three months from the date of receipt of copy of the order. 13. No order as to costs. .............