Haryana State Agricultural Marketing Board vs Ram Kumar Naidu

G.S. Sandhawalia, J.—The present appeal has been filed by the defendant-Board wherein it is aggrieved against the concurrent findings of

the Courts below whereby the suit of the plaintiff for declaration to the effect that he is entitled for arrears of pay on the promotional post from the

date he was given retrospective promotion was decreed. The facts in brief are that the plaintiff filed the suit that he was a regular employee of the

Haryana State Agricultural Marketing Board (hereinafter referred to as ""the Board"") and posted as Mandi Supervisor, Nilokheri and had been

given promotion as Arrival Recorder with effect from 1.4.1982 at par with the promotion which was allowed to his juniors vide order dated

18.1.2007 and he was also granted arrears of pay for 38 months prior to the date of his representation dated 1.8.2006 and therefore, he was

allowed arrears with effect from 1.6.2008. It was also pleaded that he was allowed arrears of the pay of the promotional post of the Auction

Recorder with effect from 22.6.1991 vide order dated 17.12.2007. Accordingly, it was pleaded that he was denied the arrears of the promotional

post by overlooking to the prevailing practice followed by the Board in the cases of his juniors and the principle of ""no work no pay"" had wrongly

been applied to him and also denied the benefit of special pay and accordingly, notice dated 5.11.2008 was served upon the Board and therefore,

he filed a suit on 19.1.2009.

In the written statement filed by the Board, preliminary objections regarding jurisdiction, maintainability, estoppel and lack of cause of action

was taken. Retrospective promotion of the plaintiff-respondent was admitted and contended that in view of the instructions issued by Financial

Commissioner & Principal Secretary to Government of Haryana vide order dated 27.1.2006, the plaintiff was not entitled to the arrears of pay

from the actual date of promotion because in case of notional promotion allowed from the deemed date, the concerned official was not entitled to

payment of salary on the principle of ""no work no pay"". Accordingly, it was prayed that suit be dismissed with costs.

On the basis of the pleadings, the trial Court framed the following issues:-

Whether the plaintiff is entitled for a decree of declaration as prayed for? OPP

Whether the jurisdiction of civil court to entertain and try the present suit is barred under the provisions of Section 42 of Punjab Agricultural

Produce Market Act, 1961? OPD

Whether the suit of the plaintiff is not maintainable in the present form? OPD

Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD

Whether the plaintiff has no cause of action to file the present suit? OPD

Whether the present suit is totally false, vexatious and the plaintiff has suppressed the material facts from the Court and has not come to the

Court with clean hands? OPD

Relief.

The plaintiff brought on record 32 documents (Ex. P 1 to Ex. P 32) while examining Ram Kumar as PW-1 and Raj Pal, SDC, HSAMB as

PW-2. Defendant-Board also examined Raj Pal, SDC, HSAMB as DW-1. The trial Court noticed that on the representation dated 1.8.2006, the

Board had paid the arrears with effect from 1.6.2003 and he was given notional benefits for the period with effect from 22.6.1991 onwards vide

order dated 17.12.2007. He was given promotion with effect from 1.4.1982 as Arrival Recorder and accordingly, his next promotion to the post

of Mandi Supervisor with effect from 7.10.2004 in view of order dated 8.3.2007. Accordingly, when once the defendant had chosen to give

promotion to the plaintiff with effect from the date his juniors were promoted, there was no question of denying him the pay to the promotional post

and thus, he was deemed to have worked for all intents and purposes on the higher post and is entitled to pay and wages. Accordingly, it was held

that the principle of ""no work no pay"" would not attract to the facts of the present case as he was willing to work on the promotional post but he

was kept away from work by the authorities for no fault of his and, therefore, he could not be denied financial benefits which would flow from the

retrospective promotion from the date he was given promotion.

The trial Court also noticed that in case of one Gurcharan Singh, class IV employee who had been promoted as Arrival Recorder vide order

dated 16.8.2004 had not worked on the promotional post with effect from 2.9.1986 to 31.12.1999 but was given all the benefits of the

promotional post. Similarly, one Rajbir Singh Dahiya who was promoted in the year 1997 with effect from 2.9.1986 and the Regular Second

Appeal No. 1526 of 2007 filed by the Board was dismissed and even SLP against the said judgment was dismissed. The promotion order dated

17.3.2006 of Sh. Ram Kumar Kaushik, Auction Recorder as Mandi Supervisor and pay fixation order of the said Ram Kumar Kaushik was taken

into consideration. Similarly orders of retrospective promotions of S/Shri Ramesh Kumar, Rajinder Kumar Sharma, Gurcharan Singh, Rajbir Singh

Dahiya, Auction Recorders and pay fixation order of S/Shri Gauri Shanker, Mam Chand Sharma, and Balbir Singh Dahiya, Mandi Supervisors

and payments made to them were also taken into consideration. Accordingly, it was held that a civil servant, who was not offered the work to

which he was legally entitled cannot be deprived of the wages of the post as it would amount to imposition of double penalty since the employee

was already deprived of the status of the work on the promotional post. Accordingly, the plaintiff was held entitled for arrears of pay and

allowances on the refixation of his pay on account of his retrospective promotions as Arrival Recorder with effect from 1.4.1982 to 21.6.1991 and

as Mandi Supervisor with effect from 7.10.2004 to 12.3.2007 along with interest at the rate of 12% per annum from the date the wages accrued

till the date of actual payment vide judgment and decree dated 19.1.2010.

That against the said judgment and decree, two appeals were filed before the Lower Appellate Court, Panchkula i.e. one by the plaintiff, who

was aggrieved and sought a higher rate of interest at the rate of 19% and also fixation of pay at Rs. 5450/- as on 7.10.2004 on promotion as

Mandi Supervisor and another filed by the Board as it was aggrieved against the grant of arrears by the trial Court plus interest. The Lower

Appellate Court dismissed both the appeals vide judgment and decree dated 22.12.2010 and came to the conclusion that the rate of interest was

not liable to be increased and neither the pay of the plaintiff would be refixed at Rs. 5450/- on the promotional post as Mandi Supervisor as it was

a new claim which requires proper evidence. The appeal filed by the Board on the ground of principle of ""no work no pay"" was dismissed on the

ground that in another Regular Second Appeal No. 1326 of 2007 decided on 11.12.2008, this Court did not interfere in the findings of the Courts

below where back wages were granted with effect from 2.9.1986. The reasoning of the trial Court was that respondent had not given timely

promotion and it was not the case that it was for the fault of the plaintiff that he had been denied promotion. Thus, it was held that the principle of

no work no pay"" would not apply to him and once the Board was giving him promotion from the date his junior was given promotion, it could not

withhold the arrears and only grant him notional promotion. The judgment in Regular Second Appeal No. 4070 of 2007 was relied upon while

dismissing the appeal.

Counsel for the appellant has contended that the plaintiff was not entitled to the arrears on the principle of ""no work no pay"" and have basically

relied upon the same submissions made before the Courts below. Reliance has also been placed on Regular Second Appeal No. 2077 of 2009

Haryana State Agricultural Marketing Board, Panchkula and another v. Maha Singh decided on 10.5.2010 to contend that the principle laid down

in Telecommunication Engineering Services Association v. Union of India 1994 (3) S.C.T. 804 should be followed. The said submission is not

acceptable because in RSA No. 2077 of 2009, the issue pertained to passing of type test of the employee and whether he was liable for arrears

on account of promotion as no rule was prescribed for passing of type test. Similarly in the case of Telecommunication Engineering Services

Association''s case (supra), the Hon''ble Supreme Court was dealing with 6000 persons, who were involved and it was in such circumstances it

was held that the principle of ''no work no pay'' should be applicable due to huge financial implication involved. In the present case, both the

Courts below have specifically noticed that similarly situated employees have been given the benefit and payments have been made regarding the

arrears with effect from 1.4.1982. The plaintiff was vigilant enough to produce on record all the said evidence showing the payments made to

Balbir Singh Dahiya, Rajinder Sharma and Ramesh Kumar. Once other similarly situated have been given the benefit then keeping in view the

provisions of Article 14 of the Constitution of India, the Courts below were justified to grant the benefit to the plaintiff also. The submission of the

counsel of the appellant is without any basis as in the present case there is no allegation that the punishment had been imposed upon the plaintiff or

that he had been suspended due to any criminal activity and reinstated thereafter and due to fault on his part he was denied the promotion and was

given promotion subsequently on exoneration. The Board on its own motion gave him retrospective promotion with effect from 1.4.1982 as Arrival

Recorder vide order dated 18.1.2007, taking into consideration the date from which his junior was promoted but had restricted the arrears for the

financial benefits to just 38 months preceding from the date of his representation. The Hon''ble Supreme Court in State of Kerala and Others Vs.

E.K. Bhaskaran Pillai, has held that principle of ''no work no pay'' cannot be accepted as a rule of thumb and where Administration has wrongly

denied his due, he should be given full benefits. The Hon''ble Supreme Court in E.K. Bhaskaran Pillai''s case (supra) has been laid down 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 per cent 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 benefit 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.

Keeping in view the above principle, no fault can be found with the view taken by the Courts below which is absolutely factual. The Courts below

have rightly granted interest at the rate of 12% per annum on the arrears since the plaintiff was wrongly denied the monetary benefits and no fault

can be found to the discretion exercised by the Courts below. Accordingly, in the absence of any substantial question of law arising for

consideration by this Court in present Regular Second Appeal, the present appeal is dismissed in limine. The judgments and decrees of the Courts

below are upheld.