Kailash Chander Sharma vs State of Haryana and Others

Tejinder Singh Dhindsa, J.—In terms of an order dated 23.12.2010 issued by the Engineer-in-Chief, Irrigation Department, State of Haryana, the petitioner while working as Sub Divisional Clerk was granted deemed dates of promotion as Accounts Clerk w.e.f. 1.5.2006 and Deputy Superintendent w.e.f. 25.6.2010 i.e. with effect from the dates his immediate juniors had been so promoted. In the instant petition, challenge is to such order dated 23.12.2010, Annexure P5, limited to the extent whereby while granting deemed dates of promotion on the promotional posts only notional pay fixation has been directed and the benefit of actual arrears of salary has been denied.

Brief facts that would emerge from the pleadings on record are that the petitioner while serving as Sub Divisional Clerk under the Irrigation Department was served with a charge sheet dated 3.11.1997 under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987. The basic allegation formulated against the petitioner was with regard to having prepared bogus records to facilitate the back date entries made by Shri Zile Singh, SDO and Shri Vishnu Kumar, Junior Engineer. Vide order dated 25.4.2006, petitioner was promoted as Accounts Clerk. However, vide subsequent order dated 18.5.2006, petitioner was reverted back to the post of Sub Divisional Clerk on account of the pendency of the charge sheet. On 24.6.2010, petitioner was exonerated of the charges. The petitioner having represented to the respondent-Department to grant him promotion as Accounts Clerk and Deputy Superintendent, with effect from the date his juniors had been so promoted, such request was finally acceded to and the order dated 23.12.2010, Annexure P5, was passed by the Engineer-in-Chief, Irrigation Department granting to him the deemed dates of promotion as Accounts Clerk w.e.f. 1.5.2006 and Deputy Superintendent w.e.f. 25.6.2010 i.e. the dates when his immediate junior, namely, Virender Kumar had been so promoted. However, vide such order dated 23.12.2010, the petitioner had been held entitled to the notional pay fixation and the actual arrears of salary for the period in question have been denied.

Mr. DS Rawat, learned counsel appearing for the petitioner, has argued that if an employee had been deprived of his promotion without any fault, then such employee upon being promoted from the due date would be entitled to all consequential benefits. Learned counsel has further argued that the petitioner was exonerated of the charges and a clear cut finding was returned in his favour and deemed dates of promotion on the promotional posts having been granted, there would be no justifiable basis to deny to the petitioner the salary and actual wages for the period in question.

Per contra, learned State counsel would submit that the petitioner having been promoted to the post of Accounts Clerk was reverted back as Sub Divisional Clerk, vide order dated 18.5.2006, on account of pendency of departmental proceedings. Learned State counsel would argue that such order of reversion was never challenged by the petitioner and as such, the right to claim arrears of pay and other benefits on the promotional post on being granted deemed dates of promotion would be lost to him. That apart, State counsel has vehemently argued that the petitioner never worked on the promotional post of Accounts Clerk as also Deputy Superintendent and as such, he would have no right to claim arrears of pay on account of the application of the principle of ''no work no pay''. Learned State counsel has placed heavy reliance on the judgment rendered by the Hon''ble Supreme Court of India in State of Haryana v. OP Gupta, 1996 (2) SCT 294.

Learned counsel for the parties have been heard at length and the pleadings on record have been perused.

The applicability of the rule of ''no work no pay'' in a situation where departmental proceedings had been initiated against an employee, sealed cover procedure having been resorted to and such employee after exoneration having been promoted came up for consideration before Hon''ble Supreme Court of India in Union of India Vs. K.V. Jankiraman, etc. etc., and it was held 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."

It was further held that:

".........We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings."

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 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."

The Hon''ble Supreme Court in the matter of The Commissioner, Karnataka Housing Board Vs. C. Muddaiah, observed as under:

"The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. We are conscious and mindful that even in absence of statutory provision, normal rule is ''no work no pay''. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may, in the circumstances, direct the Authority to grant him all benefits considering ''as if he had worked''. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected."

Adverting back to the facts of the present case, it has gone uncontroverted that departmental proceedings were initiated against the petitioner by issuance of a charge sheet in the year 1997. For no fault of the employee i.e. the present petitioner, such proceedings were kept pending and not finalized for a period of 13 long years. Finally, vide order dated 24.6.2010, Annexure P3, a categoric finding came to be recorded that the charge levelled against him is not established and as such, the disciplinary case was dropped. Relevant finding recorded in the order dated 24.6.2010 passed by the General Manager, Irrigation Department, Haryana reads in the following terms:

"........On careful examination of the record, it does not establish at this stage that there was any back date entry any where in the Measurement Book. Therefore, the explanation given by the Sub Divisional Clerk seems to be tenable. This case was also considered at the Government level and on consideration Government decided to drop the disciplinary cases against the officers involved in the case. Record also reveals that the Junior Engineer who was also involved in this matter could not be charge sheeted because of his death. In such circumstances, when the officers who actually carried out the work and made entries and with whom the onus of the charges lies, have been exonerated after a thorough enquiry it will not be justifiable to punish a junior level staffer who just checked the entry arithmetically.

Keeping in view all the facts and circumstances of this case the defence stated by the Sub Divisional Clerk during the course of hearing, it is concluded that the charge against him is not established. It is therefore, decided to drop the disciplinary case against Shri Kailash Chander, Sub Divisional Clerk.

Ordered accordingly.

Sd/- (Tilak Raj) General Manager, Irrigation Department, Haryana, Panchkula."

Under such circumstances and by applying the dictum laid down by the Hon''ble Supreme Court in State of Haryana v. OP Gupta, State of Kerala and others v. E.K. Bhaskaran Pillai and The Commissioner, Karnataka Housing Board v. C. Muddaiah (supra), the petitioner cannot be denied the consequential benefit of actual arrears/salary for the period in question. It is not the case where the petitioner had declined to work on the promoted post, rather he was denied the opportunity to occupy the promotional posts on account of pendency of departmental proceedings and which were also dragged and delayed for no fault of his. The principle of ''no work no pay'' would have no applicability in the peculiar facts and circumstances of the present case.

The submission raised by the learned counsel as regards the petitioner having not challenged the order of reversion dated 25.4.2006, Annexure P2, in the year 2006 and as such having lost right to claim arrears is without merit. A perusal of order of reversion dated 25.4.2006, placed on record at Annexure P2 would, in itself, reveal that the petitioner was reverted from the post of Accounts Clerk to that of Sub Divisional Clerk on the basis that a charge sheet under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules was pending against him. The reversion order itself recited that a post had been kept reserved till the conclusion of the departmental proceedings and as and when the same are finalized he would be promoted to the post of Accounts Clerk. Reading of such reversion order dated 25.4.2006, Annexure P2, would, in itself, clarify that there would have been no justification for the petitioner to have raised a challenge thereto. It was only upon culmination of departmental proceedings leading to his exoneration vide order dated 24.6.2010, Annexure P3, that the petitioner rightfully staked his claim to be granted deemed dates of promotion on the promotional posts of Accounts Clerk and Deputy Superintendent with effect from the dates his immediate junior had been so promoted. Such claim having been accepted, the petitioner was also entitled to all consequential benefits including arrears of salary.

The reliance placed by learned State counsel upon the judgment of the Hon''ble Supreme Court in OP Gupta''s case (supra) case is wholly misplaced. In the facts of OP Gupta''s case (supra), promotion to the higher post as per mandate of statutory rules was only subsequent to preparation and finalization of a seniority list. In that case, the rival parties had agitated their right to seniority and it is only after the preparation of the seniority list in accordance with the rules that deemed dates of promotion had been granted. It is under such circumstances that the rule of ''no work no pay'' had been invoked so as to deny the arrears of salary for the period in question. The ratio of judgment rendered in OP Gupta''s case (supra) would have no applicability in the present case where the right to promotion to the petitioner had otherwise crystallized but was denied the same only on account of pendency of departmental proceedings and which ultimately have led to his exoneration.

For the reasons recorded above, the petition is allowed. The order dated 23.12.2010, Annexure P5, granting to the petitioner deemed dates of promotion as Accounts Clerk w.e.f. 1.5.2006 and Deputy Superintendent w.e.f. 25.6.2010 is modified to the extent that the petitioner would be entitled to the consequential benefit of actual arrears of salary/wages for the period in question.

Let such amount be computed within a period of four weeks from the date of communication of this order and be released to the petitioner immediately thereafter, failing which the petitioner would also be entitled to interest @ 6% per annum from the date such amount was due till the date of actual realization of the same. Petition allowed in the aforesaid terms.