Bhupinder Sood vs State of Himachal Pradesh

Sanjay Karol, J.—Petitioner, while holding the charge of Junior Engineer, allegedly committed certain irregularities and misconducted himself, in relation to which disciplinary proceedings were initiated against him by which time he was promoted as Assistant Engineer, HPPWD. Memorandum and Articles of charge dated 8.12.2008 (Annexure P-2) were served upon him. On 22.12.2008, he submitted his statement of defence. The disciplinary authority, for unexplainable reasons did not complete the disciplinary proceedings. Noticeably, during the pendency of such proceedings, on 19.6.2009, the competent authority made certain promotions to the next higher promotional post of Executive Engineer. Case of the petitioner was not considered and persons junior to him i.e. Shri Nand Lal Verma and Shri Krishan Ram Saini, who were placed at Sr. Nos. 115 and 116 respectively in the final seniority list of Assistant Engineer (Civil) Diploma Holders circulated on 8.10.2010, were promoted.

Petitioner made a grievance of delay in finalization of disciplinary proceedings resulting into non consideration of his case for promotion. In the absence of any action, petitioner was left with no alternate but to approach this Court.

Vide judgment dated 26.7.2010, this Court disposed of Civil Writ Petition No. 4270 of 2010, titled as Bhupinder Sud vs. State of H.P., with the following observations:-

The petition has been filed with the following prayers:-

(i) That the impugned charge-sheet, Annexure P-2 and the disciplinary proceedings being conducted against the petitioner pursuant to Annexure P-2 may kindly be quashed and set-aside.

(ii) That the petitioner may be held entitled to all consequential benefits as a result of quashing of Annexure P-2.

(iii) That the respondent may be directed to treat the petitioner as on duty for the period of his suspension with effect from 30.6.2008 to 23.3.2009, with all consequential benefits including benefit of time bound promotional scale on completion of 4 years, annual increments and promotion to the post of Executive Engineer from the date juniors to the petitioner were so promoted, with all consequential benefits including arrears of salary and interest at market rate on the delayed payments.

The inquiry proceedings certainly is not satisfactory. We are informed that the petitioner is to retire on 31.10.2010. There will be a direction to the respondents to see that inquiry and disciplinary proceedings are finalized within a period of two months from today. The petitioner will produce the copy of this judgment alongwith the copy of the writ petition before the respondents. Needless to say that the petitioner to co-operate in the inquiry. The writ petition is disposed of, so also the pending applications, if any.

Subsequently, the Inquiry Officer completely exonerated the petitioner which report was also accepted by the disciplinary authority and vide order dated 25.10.2010 (Annexure P-5), petitioner was completely exonerated of the charges leveled vide memorandum dated 8.12.2008.

Subsequently vide order dated 22.6.2011 (Annexure P-8), authorities promoted the petitioner by considering the recommendations made by the Review DPC, but did not grant him any monetary benefits. Promotion made is purely on notional basis.

It is this action of the authorities which is impugned in the present petition. Also, benefit of stepping up has not been accorded to him.

In response respondents justify such action on the basis of instructions of Department of Personnel as contended in the Hand Book on Personnel Matters Vol. I. Also, it is averred that reason behind petitioner''s promotion to the post of Executive Engineer w.e.f. 31.1.2009 is not only his exoneration but also improvement in his seniority of final seniority list of Assistant Engineer (Civil) dated 8.10.2010.

In so far as factual matrix of petitioner''s seniority in the final seniority list of Assistant Engineer (Civil) is concerned, there is a factual error in the affidavit filed by the State. Even prior to passing of order (Annexure P-6), clearly evidencing petitioner to be senior to Shri Nand Lal Verma and Shri Krishan Ram Saini, petitioner was placed senior to them.

In so far as Hand Book of Personnel Matters is concerned, contention needs to be repelled in view of law laid down by the apex Court in Union of India Vs. K.V. Jankiraman, etc. etc., and State of Kerala and Others Vs. E.K. Bhaskaran Pillai, , wherein the apex Court, after taking into account its earlier decisions, has clarified that there cannot be any thumb rule on the issue of disbursement of monetary benefits. The Court observed as under:-

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% 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 benefits subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-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.

Now in the instant case, allegedly petitioner violated law in the year 1998. There is no allegation of corruption against him nor any criminal action ever initiated against him. Significantly, till the year 2008, no fault was found with such action of his. It was only in the year 2008 that disciplinary proceedings were initiated against him, to which he promptly responded. Despite that, authorities did not complete the disciplinary proceedings. Why so, has not been explained. Petitioner was forced to approach this Court. Only when this Court intervened, authorities concluded the disciplinary proceedings in which he stands completely exonerated on all counts. As such, petitioner cannot be faulted at all. Disciplinary proceedings ought and could have been completed prior to the date of promotion i.e. 24.6.2009. In the instant case, authorities failed to do so. As such, petition is allowed holding that petitioner''s promotion in terms of order dated 22.6.2011 (Annexure P-8), shall not be on notional basis and he shall be entitled to all consequential, including monetary benefits as a result of his promotion.

In so far as question of stepping up of pay is concerned, I find that petitioner''s case is squarely covered by the decision rendered by this Court in CWP(T) No. 16645 of 2008, titled as Shri J.K. Mohindru vs. State of Himachal Pradesh and others, on 9.3.2012 and directions issued therein shall mutatis mutandis apply to the present petition also. The respondents shall take all necessary actions, within a period of two months from today, failing which, petitioner shall be entitled to all admissible monetary benefits alongwith interest @ 9% per annum.

With the aforesaid observations, present petition stands disposed of, so also pending application(s), if any.