Gurdial Singh vs The Ambala Central Cooperative Bank Ltd. and Another

Permod Kolhi, J.—Keeping in view the controversy involved and with the consent of learned counsel for the parties, this petition is disposed

of at motion stage itself.

The petitioner was employee of respondent No. 2 --Naneloa Primary Agricultural Cooperative Society Ltd. where he worked as Clerk/

Salesman right from 1979. The employee of the Society could be promoted to the post of B Grade Secretary in respondent No. 1-Bank by way

of promotion, for which 50% posts were reserved. It is alleged that the petitioner, despite being at Sr. No. 6 in the seniority list, was ignored for

such promotion and persons at Sr. Nos. 33 and 155 of the Seniority List, namely, Jeet Ram and Rohtash Singh, respectively were promoted as B

Grade Secretary vide Resolution dated 6th July, 2005, The petitioner being aggrieved of his non-consideration for promotion filed a statutory

appeal before the Registrar Cooperative Societies, Haryana. The said appeal was allowed vide order dated 5th June. 2008 and the petitioner was

ordered to be promoted retrospectively with effect from the date his juniors named above were so promoted. On the basis of the order passed by

the Registrar, respondent No. 1---Bank promoted the petitioner vide order dated 21st August. 2008 (Annexure P-2) granting him retrospective

promotion. The relevant part of the order dated 21st August. 2008 granting retrospective promotion is reproduced here under:

In pursuance of the judgment dated 5th June. 2008 of the Registrar. Coop. Soes. Haryana, Panchkukla and the subsequent decision of the Board

of Administrator of the Bank vide reso. No. 16, dated 5th August, 2008, you are hereby promoted to the post of B Grade Seey, with

retrospective effect from 6th July. 2005 in the new pay scale of Rs. 4000-100-4800-EB-100-6000 on the following terms and conditions. You

arc, therefore, advised to report for duty to the undersigned by 5th Spetember, 2008.

When the petitioner did not receive the back wages on account of his restrospecitve promotion, he served legal notice for release of salary from

the date of his promotion. The legal notice was replied to by respondent No. 1 vide reply dated 18th June, 2009 sent through Advocate

(Annexure P-5). In the reply (Annexure P-5) the petitioner has been denied the back wages from the dale of promotion i.e. 6th July. 2005 to 10th

September, 2008 applying the principle of ""No Work No Pay"". It is against the aforesaid action of the respondents that the petitioner has filed this

petition.

I have heard learned counsel for the parties at length. It is admitted position on record that the petitioner was ignored while promoting his two

juniors named above. Petitioner''s appeal against his non-consideration for promotion, was accepted by the appellate authority and direction was

issued for his retrospective promotion from the date his juniors were promoted,--vide order dated 5th June, 2008 (Annexure P-1). The said order

of the appellate authority has been implemented by respondent no. 1 and the petitioner was granted promotion, -- vide order dated 21st August,

2008 (Annexure P-2). In both these orders, petitioner was granted retrospective promotion with effect from the date his juniors named above

were promoted in the new scale of Rs. 4000-6000. There was no stipulation that the petitioner shall not be granted back wages from the date of

his promotion. It is only when the petitioner claimed back wages from the date of his promotion, the respondents in the reply denied the wages to

the petitioner applying the principle of ""No work no pay"". This principle will not be attracted in the present case for two reasons-(1) The petitioner

was wrongly and illegally denied promotion when his juniors were promoted. There was no fault on behalf of the petitioner that he was not

promoted to the higher post. His claim for higher post and promotion was duly recognized and was accepted by the Appellate Authority and he

was given retrospective promotion with effect from the date his juniors were promoted; and (2) the appellate authority in exercise of quasi judicial

power, while deciding the appeal of the petitioner granted him retrospective promotion from the date his juniors were promoted without any

reservation for payment of the back wages from the date of promotion. Order of the Appellate Authority has been duly implemented by

respondent no. 1 -Bank and the petitioner was granted promotion retrospectively in the pay scale of Rs. 4000 6000. In both these orders, the

petitioner''s retrospective promotion has been acknowledged without any reservation. The respondents have no right to plead that the petitioner is

not entitled to the wages from the date of promotion, particularly, when the petitioner was illegally denied promotion. The issue has been duly

considered by Hon''ble Supreme Court in the case of Union of India Vs. K.V. Jankiraman, etc. etc., , wherein it has been observed as under :

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.

The aforesaid judgment has been followed by a Division Bench of this Court in CWP No. 12037 of 2005 (Sudesh Kumar versus Haryana

Power Generation Corporation Ltd. and another decided on 2nd February. 2006).

In view of the above, this petition is allowed. Impugned order dated 18th June, 2009 (Annexure P-5) is hereby quashed. Respondent no. 1 is

directed to release all the financial benefits attached to the promotional post from the date of promotion of the petitioner i.e. 6th July, 2005 within a

period of three months alongwith interest at the rate of 6% per annum.