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2016 DIGILAW 1232 (ORI)

State of Orissa v. Gadadhar Parida

2016-12-14

S.N.PRASAD, SANJU PANDA

body2016
JUDGMENT : S.N. Prasad, J. This writ petition is against the order dated 20.2.2014 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A.No.497 of 2013 whereby and where under the learned Tribunal has directed to sanction and pay regular pension, gratuity and commuted value of pension to the applicant-opposite party no.1 from the date of his retirement, as applicable to the post of Orissa Administrative Service (SS), since the applicant-opp. party no.1 has been completely exonerated and as such, he is also to be paid arrears of salary and allowances as per G.A. Department Office memorandum dated 18.2.1994 as contained in Annexure-4 w.e.f. the date/dates from which he was retrospectively promoted to different promotional cadres. 2. The brief fact of the case is that opposite party no.1 had retired on superannuation w.e.f. 31.1.2011 from the rank of Orissa Administrative Service(OAS) while holding the post of Joint Secretary to Govt. Agriculture Department and thereafter promoted notionally to the posts of OAS (SG), OAS (SAG) and OAS (SS) grades w.e.f. 17.3.2007, 31.10.2007 and 22.5.2010 respectively at par with his junior Sri Purnendu Kumar Nanda, OAS (SS) (retd.) consequent upon conclusion of the disciplinary proceeding initiated against him vide General Administration Department Order No. 3517/Gen. dated 15.2.2011. Opposite party no.1 was not allowed to get arrear financial benefits on account of his notional promotion to OAS (SG), OAS (SAG) and OAS (SS) as per General Administration Department notification nos. 19278/Gen dated 26.8.2011 and No.11057/Gen. dated 15.5.2012 as he had not actually worked in the aforesaid ranks. Being aggrieved, he had filed one Original Application being O.A.No. 497 of 2013 before the Orissa Administrative Tribunal with a prayer for allowing such benefits like arrears of pay, D.A., HRA and pensionary benefits along with interest. Vigilance cases were also registered against him in which he was charge-sheeted and the matter is pending before the competent court of criminal jurisdiction. The Orissa Administrative Tribunal has passed order while allowing the Original Application vide order dated 20.2.2014 holding that the opposite party no.1 entitled to get all the money benefits with retrospective effect i.e. from the date of reinstatement in service. 3. The Orissa Administrative Tribunal has passed order while allowing the Original Application vide order dated 20.2.2014 holding that the opposite party no.1 entitled to get all the money benefits with retrospective effect i.e. from the date of reinstatement in service. 3. The State of Orissa being aggrieved with the said order is before this Court on the grounds that (i) opposite party no.1 since has not performed duty for the said period, he will not be entitled to get the actual monetary benefit; and (ii) criminal cases are also pending against him which are in the stage of trial before the competent court of criminal jurisdiction and as such, the authorities have taken decision not to disburse the arrears of differential salary from the date of revocation of the suspension awaiting for the out-come of the criminal case, but the Orissa Administrative Tribunal without appreciating these aspects of the matter, has passed order while allowing the Original Application with a direction to disburse the actual monetary benefit in favour of opposite party no.1. 4. On the other hand, learned counsel appearing for opposite party no.1 while refuting the argument advanced on behalf of the State of Orissa, has submitted that there is no infirmity in the order passed by the learned Tribunal for the reasons that the matter of promotion of the opposite party no.1 was kept in a sealed cover awaiting for the outcome of the Departmental proceeding and when he was exonerated from the charges after conclusion of the departmental proceeding, the authorities have opened the sealed cover and on the basis of the recommendation made by the Departmental Promotion Committee finding him fit to be promoted to the higher post from the date when the other juniors have been promoted, he became entitled to get the actual monetary benefits of the promotional post in place of the notional benefit and as such, the learned Tribunal after taking into consideration this aspect of the matter, has passed the impugned order. So far as pendency of criminal cases are concerned, it has been submitted that pendency of the criminal case has got nothing to do with the actual monetary benefit to be paid in consequence of the promotion after opening of the sealed cover because his case was considered for promotion and kept in sealed cover on the ground of only pendency of the departmental proceeding and not on the ground of pendency of the criminal case and after his exoneration from the charges in the departmental proceeding, the sealed cover was opened and found fit to be promoted, accordingly promoted also, but without any monetary benefit, which is not proper for the reason that once the matter of promotion has been kept in the sealed cover and subsequently opened, he will be entitled to get all the monetary benefit and if any criminal case has been instituted, it will not adversely affect the decision already taken by the Departmental Promotion Committee. 5. Heard the learned counsel for the petitioner and perused the documents available on record. 6. The fact which is not dispute in this case is that the opposite party no.1 while working as Managing Director, Orissa State Handing Weavers Cooperative Society Ltd. (Boyanika), a departmental proceeding was initiated against him under Rule 15 of OCS (CCA) Rules, 1962 vide order passed in this regard on 9.5.2006. Proceeding was drawn on the basis of the audit report. On receipt of the charge, the applicant submitted his written statement of defence and Enquiry Officer as well as Marshalling Officer were appointed. The Enquiry Officer found him not guilty and exonerated him from all the charges as charges were not proved by him. The disciplinary authority vide order dated 15.2.2011 while accepting the enquiry report had closed the departmental proceeding exonerating him from all the charges framed against him. In the meantime while the departmental proceeding was pending, the matter of promotion of opposite party no.1 vis-à-vis similarly situated employees had been taken into consideration by the duly constituted Departmental Promotion Committee. The case of the petitioner after being considered by the Departmental Promotion Committee had been kept in a sealed cover. In the meantime while the departmental proceeding was pending, the matter of promotion of opposite party no.1 vis-à-vis similarly situated employees had been taken into consideration by the duly constituted Departmental Promotion Committee. The case of the petitioner after being considered by the Departmental Promotion Committee had been kept in a sealed cover. The opposite party no.1 being exonerated from the charges, vide order dated 15.2.2011 the sealed cover was opened and the applicant-opposite party no.1 was found fit to be promoted to O.A.S.(SG) in super time scale w.e.f. 17.3.2007 as per the order dated 26.8.2011. His pay was re-fixed on notional basis. Subsequently vide order dated 15.5.2012 opposite party no.1 was promoted to O.A.S.(SAG) w.e.f. 31.10.2007 and also to OAS (SS) w.e.f. 22.5.2010. Accordingly, his pay was fixed on notional basis in the promotional post. Opposite party no.1 being aggrieved with the decision of the authorities by which he has been deprived from the actual financial benefit after getting promotion to the post of O.A.S. (Sr.Grade Super Time Scale) w.e.f. 17.3.2007 on opening the sealed cover in consequence of exoneration in the departmental proceeding, had approached the Orissa Administrative Tribunal and the learned Tribunal after taking into consideration the fact that the opposite party no.1 was exonerated from the charges after conclusion of the departmental proceeding, basing upon which the matter of his promotion to the higher post was kept in a sealed cover, which subsequently was opened and directed to give promotion w.e.f 17.3.2007 along with actual monetary benefit. 7. The State of Orissa being aggrieved with the said order is before this Court by way of this writ petition on the ground that the learned Tribunal is erred in passing the order as because the opposite party no.1 had been given notional promotion and since he has not worked in the higher post, he is not entitled to get actual monetary benefit of the said post and taking into consideration this aspect of the matter, he has been given notional promotion without any actual monetary benefit and the second ground is that criminal cases are also pending against him. 8. 8. So far as the first ground is concerned, the Rule is settled that in case of retrospective promotion, actual monetary benefit will not be paid to the concerned employee on the basis of the principle of “no work no pay”, but the said principle will not be applicable in case of pendency of departmental proceeding and in course thereof, promotion of the said employee has been kept in sealed cover and on exoneration, after opening of the sealed cover, promotion is being given to the concerned employee on the basis of the recommendation made by the Departmental Promotion Committee since he has been deprived from discharging duties to the said post despite the fact that he was willing to do the duty. 9. We are aware of the settled principles of law as has been enunciated by the Hon’ble Apex Court in the case of Union of India etc. etc. v. K.V.Jankiraman and others, AIR 1991 SC 2010 wherein principle has been laid down taking into consideration the fact that during pendency of the departmental proceeding or judicial proceeding an employee may not be deprived of getting the benefit of promotion, rather the matter of promotion be considered and decision be kept in a sealed cover and that will be opened after conclusion of the departmental proceeding/judicial proceeding. In the said judgment, whether the employee will be entitled to get actual monetary benefit or not, the same has also been dealt with and in detail and it has been held therein that the normal rule is “no work no pay’ and hence, a person cannot be allowed to draw the benefits of the 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, but this has been negatived by the Hon’ble Apex Court by holding therein that although the normal rule of “no work no pay” is there, the same is not applicable to the cases such as the present one where the employee, although he is willing to work, is kept away from the work by the authorities for no fault of his and this is not the case where the employee remains away from the work for his own reason although the work is offered to him. It has been laid down that in such a situation the fundamental Rule 17(1) will be inapplicable. The relevant part of the judgment is being quoted: “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. 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 is not a case where the employee remains away from work for his own reasons, although the work is offered to him. 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.” 10. The contention raised by the learned counsel for the State that on the basis of “no work no pay” principle, the opposite party no.1 is not entitled to get the actual monetary benefit, has got no force in the eye of law as per the law laid down by the Hon’ble Apex Court referred to hereinabove. The fact of the case is similar to that of the principle laid down in the case of K.V.Jankiraman (supra). In this case also when the opposite party no.1 is entitled to get higher promotion, departmental proceeding was pending and awaiting for the out-come, his case was considered by the Departmental Promotion Committee along with other similarly situated employees and his matter of promotion was kept in a sealed cover. But subsequently, when he was completely exonerated on the basis of the findings of the enquiry report vide order dated 15.2.2011, the sealed cover was opened giving effect from 15.2.2007, meaning thereby, if the employee would not have been implicated in the said departmental proceeding, he would have discharged his duties w.e.f. 17.3.2007, but it is due to the reason beyond his control, although he was willing to discharge, but could not able to discharge, and hence, the principle of “no work no pay” would not be applicable as has been held by the Hon’ble Apex Court in the case of K.V.Janakiraman (supra). 11. So far as the pendency of the criminal cases is concerned, Rule is settled that the departmental proceeding as well as the criminal proceeding can go together. It is also not in dispute that during the course of pendency of the criminal case in the instant case departmental proceeding has been initiated and concluded, resulting in exoneration of opposite party no.1 and on the basis of pendency of the departmental proceeding if the matter of promotion has been kept in sealed cover, it will not be proper for the authorities not to give effect to the recommendation of the Departmental Promotion Committee after unsealing the sealed cover because of pendency of the criminal case. The matter would have been different if the departmental proceeding would not have been initiated or if initiated, the Departmental Promotion Committee has kept the matter of the delinquent employee in sealed cover on the ground of pendency of both, i.e. the departmental as well as judicial proceeding, but that is not the case here, otherwise the employee, the opposite party no.1 would not have been granted promotion after conclusion of the departmental proceeding, while as on that date admittedly the criminal case was pending. 12. Since the sealed cover was opened after exoneration of opposite party no.1 from the charges, recommendation of the Departmental Promotion Committee has been given effect to w.e.f. 17.3.2007, which very much suggests that the Departmental Promotion Committee has kept the matter of promotion of the delinquent employee i.e. opposite party no.1 in a sealed cover awaiting for the out-come of the departmental proceeding and when it has resulted into exoneration and recommendation of the Departmental Promotion Committee has been given effect to, there is no reason to deny the actual monetary benefit to the delinquent employee merely on the ground of pendency of a judicial proceeding. 13. The provision for retired employee is under the Orissa Civil Service (Pension) Rules, 1992 for withdrawal of full or part of pension in case of finding in the departmental or judicial proceeding subject to the limitation as provided under the proviso and further the future good conduct will be relevant factor for disbursement of further pension. But admittedly, the provision of pension rule is not applicable at the moment since now it relates to the arrears of salary to be paid in consequence of promotion after unsealing the sealed cover. 14. We after taking into consideration these legal aspects and the factual position in the instant case, found that the learned Tribunal is not erred in passing the order. Accordingly, we decline from interfering with the writ petition. In the result the writ petition fails and the same is dismissed.