K.M. Rai vs High Court of M.P. and Another

Arun Mishra, J.

Petitioner has claimed in this writ petition for fixation of the seniority, arrears of salary in the cadre of Higher Judicial Service. Petitioner has claimed for the benefits with effect from the date his juniors were promoted. Petitioner has also claimed for the relief of above super time pay scale w.e.f. 23.11.94, the order whereby the Petitioner has been given the above super time pay scale w.e.f. 1.2.95.

The case has chequered history, the Petitioner was appointed as Civil Judge Class II on 5.11.62 and was posted as CJM. Departmental enquiry was conducted which resulted in dismissal from service on 9.10.79. Petitioner filed a writ petition No. 107/1980 which was allowed by the single Judge on 31.10.85. Reinstatement was directed along with salary and consequential benefits attached to his post. An LPA No. 137/ 90 was preferred before Division Bench of this Court which was decided by the Division Bench on 5.10.90. The LPA was dismissed. Petitioner was reinstated on 3.8.91. An order P.3 was passed on 19th October. 1993 with respect to the period from 17.11.74 to 19.8.91. The period was ordered to be treated as spent on duty and it was further directed for payment of entire salary and allowances for the period of removal and reinstatement and arrears of salary was sanctioned.

It is averred that for fixation of the pay-scale of the Petitioner an order P.4 was passed. The Petitioner was given the benefit of notional promotion to the Higher Judicial service w.e.f. 9.8.81. Petitioner was posted as CJM vide order dated 3.8.91. Petitioner joined on 19.8.91 vide order dated 2.7.92. Petitioner was posted as ADJ and was given notional promotion in the Higher Judicial Service w.e.f. 9.8.81. Petitioner was confirmed on the post of ADJ w.e.f. 30th April, 1993. Petitioner was notionally granted junior administrative grade w.e.f. 9.8.86 and was given selection grade w.e.f. 1.8.92 and was given super time scale from 28.9.94. Above super time scale has been given to the Petitioner w.e.f. 1.2 95.

The grievance of the Petitioner is that Petitioner is entitled for full salary and allowances in the cadre of Higher Judicial Service w. e.f. 9.8.81 till 27.7.92 when he was actually promoted to the post of ADJ. As the Petitioner has retired, facts about fixation of seniority are not being mentioned as that relief has not been pressed by the learned Counsel for the Petitioner. Petitioner submits that salary and allowances have been paid from the date of removal till his reinstatement of the post of CJM which is incorrect and unjustified. Petitioner is entitled to actual salary and allowances in Higher Judicial Service w.e.f. 9.8.81 till the date of actual promotion and joining in 1992. As Petitioner has been given notional promotion w.e.f. 9.8.81 actual payment of salary ought to have been made w.e.f. the said date of notional promotion, normally rule of "no work, no pay" is not applicable as the Petitioner was kept away from the work for no fault on his part.

A return has been filed by the Respondent. High Court of M.P. contending that as Petitioner was found guilty of misconduct, in the departmental enquiry he was dismissed, writ petition was allowed is per order P.1 dated 31.10.85. An LPA was dismissed as per order P.2 on 5.10.90. Petitioner was dismissed from service when he was holding the post of CJM. Petitioner was reinstated and has been paid the salary and allowances of the post of CJM and has been given notional promotion in Higher Judicial Service w.e.f. 9.8.81 when his juniors were promoted, his pay was notionally fixed by counting his previous service in the Higher Judicail Service. Notional benefit of Higher Judicial Service pay-scale has been given w.e.f. 9.8.81. Salary of the post of CJM has been paid. Increments were also released, Junior administrative grade was granted w.e.f. 9.8.86 on notional completion of the service of 5 years in Higher Judicial Service. Selection grade, super time scale and above super time scale were given in the service in the year 1992, 1994 and 1995 respectively and Petitioner retired in the year 1997 on attaining the age of 60 years. Petitioner is not entitled for anything more. Pay and allowances have been paid even for the suspension period of the post of C.J.M. A sum of Rs. 4,09,703/- for the period 17.12.74 to 3.7.91 was paid as per order (R.2) dated 17.2.94. Since the Petitioner did not work in the promoted cadre till the date of his actual promotion in the intervening period 9.8.81 to 27.7.92 he was not entitled for salary to the promoted post on the basis of principle of "no work, no pay". The salary on the promoted post could not be given to him for the simple reason that promotion in Higher Judicial Service is based on meri cum(sic) seniority. When the Petitioner did not actually work in the promoted cadre prior to 27.7.92 there was nothing to judge his suitability for promoted cadre, therefore, notional promotion was given. Petitioner is misinterpreting the direction issued by this Court.

Shri Rajesh Mehdiratta and Shri P. Chaturvedi learned Counsel appearing for the Petitioner submitted that the order of dismissal of the Petitioner was wet aside in the writ petition on merits and the Petitioner was totally exonerated of the charges way back in the year 1985. Petitioner became entitled forthwith, however, an LPA was preferred. Petitioner was not reinstated owing to the interim stay and after dismissal of the LPA Petitioner was reinstated. LPA was dismissed in the year 1990. Petitioner was reinstated in August, 1991 as CJM and was promoted on 27.7.92 in Higher Judicial Service though the Petitioner has been given the notional promotion in the Higher Judicial Service w.e.f. 9.8.81. The benefit of the salary of Higher Judicial Service has been deprived of for the period 9.8.81 to 27.2.92. The principle of "no work, no pay" is not applicable in the case of Petitioner as Petitioner was kept out of service due to order of dismissal which was ultimately set aside on merits not on technical grounds, thus, Petitioner is entitled for the back wages. The consequential benefit of the reinstatement which flows from the order (P.1) rendered in the previous writ petition which was affirmed in the LPA as per judgment (P.2) dated 5.10.1990.

Shri S.C. Sharma, learned Sr. counsel with Shri J.K. Pillai, appearing for the Respondent No. 1, submitted that as Petitioner has not rendered the duty for the period, Petitioner is not entitled for the salary of the promotional post. The relief which emanated from the order (P.1) passed in the previous writ petition, has been fully paid to the Petitioner. The entire salary of the post of CJM w.e.f. the date of suspension till the reinstatement has been paid, thus, Petitioner is not entitled for any further relief in this writ petition.

The only question for consideration is whether the Petitioner is entitled for the actual payment of salary of the post of ADJ in the Higher Judicial Service w.e.f. 9.8.81 to 27.7.92. The fact is not in dispute that salary of the post of CJM the post which Petitioner was holding at the time of his dismissal has been paid for the said period from the date of suspension till reinstatement. The fact is also not in dispute that Petitioner was actually promoted in Higher Judicial Service on 27.7.92 and he started rendering the duty as ADJ w.e.f. 27.7.92. In M.P. No. 107/80 which was filed by the Petitioner k was found that no charge against the Petitioner was proved, hence, the order of dismissal was set aside. The Petitioner was holding post of CJM. The reinstatement was directed along with the salary as if he was not dismissed and all consequential benefits attaching to the post were ordered to be paid. Paras 30 and 31 of the order P.1 are quoted above:

In view of the discussion aforesaid. I hold that no charge was proved against the Petitioner in the departmental enquiry. Hence the termination order dated 9.10.1979, Annexure A-1, dismissing the Petitioner from employment is illegal and is liable to be quashed.

I, therefore, allow the petition. I order that the Petitioner Shri K.M. Rai be reinstated and he be paid all his salary due to him as if he were not dismissed. He be also given all the consequential benefits attaching to his post. The security amount be refunded to him. There shall be no order as to costs.

The above order (P.1) was affirmed in LPA which was decided by the Division Bench of this Court on 5th October. 1990. A perusal of the order (P.3) passed on 19th October, 1993 by the Registrar of the High Court indicates that the period from the date of suspension 17.12.74 till the date of reinstatement 19.8.81 was ordered to be treated as spent on duty and Petitioner as held entitled for entire pay and allowances of the period. An order R4 was passed on 17th August, 1994; while pay was fixed in Higher Judicial Service from the date of his notional promotion w.e.f. 9.8.81. Pay was fixed giving benefit of notional pay and increments in Higher Judicial Service. Petitioner''s entitlement for the arrears of salary of post of CJM was fixed as per order(R.1) dated 13.12.92 for the period 17.12.74 to 19.8.91. Actual payment was made as per letter (R.2) dated 17.2.94. A sum of Rs. 4,09,703/- was paid for the above period. Petitioner submitted a representation (P. 15) on 30th August, 1994 claiming for the salary for the period August, 1981 to 27th July, 1992 of the Higher Judicial Service in accordance with the decision rendered in the previous writ petition.

It is clear that Petitioner was exonerated on merits by this Court in the previous writ petition and was not given the benefit of any technical flaw in the proceedings of departmental enquiry. Thus, the order of dismissal of the Petitioner was set aside on merits which decision was affirmed in LPA which has attained finality.

In Union of India Vs. K.V. Jankiraman, etc. etc., , the Apex Court has laid down that when the employee is completely exonerated in criminal/disciplinary proceedings and is not visited with the penalty even of censure indicating thereby that he was not blame�worthy in the least, he should not be deprived of any benefits including the salary of the promotional post. The normal rule of "no work, no pay" is not applicable to such cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his. There may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. It has been laid down that to ignore such circumstances when they exist and to lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. Therefore, to deny the salary to an employee would not in all circumstances be illegal. Supreme Court did not approve last sentence in the first sub paragraph after Clause (iii) of paragraph 3 of the Memorandum dated 30th January, 1982 "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", and directed that in place of the said sentence the following sentence be read in the Memorandum; however, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so. In Calcutta Iron merchants Association and another Vs. Commissioner of Commercial Taxes and another, , it has been observed that in a case of seniority dispute, the Supreme Court directed the Department to prepare fresh seniority list strictly in accordance with rules ignoring any inconsistent administrative instructions; fresh seniority list was prepared accordingly and thereafter, even in absence of any specific direction in that behalf, eligible persons given notional promotion from the deemed date; in such circumstances, the said promotees were held not entitled to arrears of pay from the deemed date to the date of ther posting in promotional posts as their had not worked during that period. Pay was denied on the basis of no pay for no work on notional promotion from deemed date. Reliance was placed by the Apex Court on its previous decision in Paluru Ramkrishnaiah and Others Vs. Union of India (UOI) and Another, , and in Virender Kumar, General Manager, Northern Railways, New Delhi Vs. Avinash Chandra Chadha and others, , in which similar view was adopted and on the basis of "no work, no pay" back wages were denied from the deemed date of promotion. The decision of Union of India Vs. K.V. Jankiraman, etc. etc., was considered in State of Haryana and Ors. v. O.P. Gupta and Ors. (1996) 7 SCC 535 and it was distinguished by the Apex Court in para 8 thus:

It is true, as pointed out by Shri Hooda. that in Union of India Vs. K.V. Jankiraman, etc. etc., this Court had held that where the incumbent was willing to work but was denied the opportunity to work for no fault of his, he is entitled to the payment of arrears of salary. That is a case where the Respondent was kept under suspension during departmental enquiry and sealed cover procedure was adopted because of the pendency of the criminal case. When the criminal ease ended in his favour and departmental proceedings were held to be invalid, this Court held that he was entitled to the arrears of salary. That ratio has no application to the cases where the claims for promotion are to be considered in accordance with the rules and the promotions are to be made pursuant thereto.

In Sarita Thakur (Km.) v. Union of India and another. 1995 (6) SLR 793, the Apex Court granted the benefit of the back wages from the date of the order of reinstatement passed by the Tribunal on 24.7.91 as there was delay in reinstatement. In H.M.T. Limited v. Labour Court, Ernakulam and others, 1994 (2) SCC 1993(8) SLR 539, the Apex Court has laid down that no party should suffer on account of the delay in the decision by the Court. Taking all facts into consideration, the Apex Court observed that it would meet the ends of justice in the present case, if instead of full back wages, the workman concerned is given 60 per cent of the back wages till he is reinstated. The workman will also be entitled to all other benefits on the footing that he had continued in service since July 30, 1979.

In Telecommunication Engineering Service Association (India) and Anr. v. Union of India and Anr. 1994(2) Supp SCC 222. considering the circumstances of the case and enormity of the problem dealing with large number of persons the decision was to give the back wages with effect from the date they actually worked on the higher post.

In Smt. Santosh Yadav Vs. State of Haryana and others, , while setting aside the termination and directing the reinstatement, the Petitioner was held entitled with back wages and other benefits such as seniority, promotion, increments as would have normally been issued to her. In J.N. Srivastava Vs. Union of India (UOI) and Another, , where the prayer for withdrawal of the notice of voluntary retirement was wrongly rejected. Appellant was held entitled to arrears of salary and other emoluments including increments because he was ready and willing to work. Plea of "no work, no pay" was rejected. In Food Corporation of India Vs. S.N. Nagarkar, . it has been laid down that Court cannot examine the correctness of the order once it has attained finality. In the order passed earlier in writ petition High Court held that writ Petitioner to be entitled to arrears of pay and allowances w.e.f. the date of promotion to higher post. Thus, it was not open to contend that employee was not entitled to the relief from the date of deemed promotion on the basis that he did not render the duty. The plea that from the date of actual joining on the promoted post employee would be entitled to the salary was rejected. In Raghunandan Prasad Sharma v. State of Madhya Pradesh and another, (1984) 29 MPLJ 422, it was directed that if the petitienor is found fit, he shall be deemed to have been promoted and the monetary benefits of the Petitioner will be settled on that basis. In State of M.P. and another Vs. Shankar Lal Sahu and another, , a Division Bench of this Court has followed the decision of K.V. Jankiraman (supra) and this Court held that as the sealed cover proceedings were resorted to in the criminal ease employee was totally exonerated, this Court held that principle of "no work, no pay" is not applicable. In the case when an employee could not be promoted because of pending disciplinary action in which he is exonerated later on and promoted retrospectively from the date on which he was entitled.

Though the prayer has been made in the instant case to grant the above super time pay-scale w.e.f. 23.11.94 but counsel for the Petitioner has not pressed the relief in that regard and it has not been shown how the grant of above super time pay-scale w.e.f. 1.2.95 was bad in law. Counsel for Petitioner has pressed for the relief of payment of actual salary of the post of Higher Judicial Service w.e.f. 1981.

In Union of India v. K.V. Jankiraman (supra) sealed cover proceedings were resorted to and in State of M.P. and Ors. v. Shankar Lal Sahu (supra) sealed cover proceedings were resorted to. In the instant case the facts indicate that Petitioner was suspended in the year 1974 and was removed on 9.10.79 pursuant to the departmental enquiry, hence, it is not a case where Petitioner''s case could have been considered in the year 1981. Petitioner''s service record could not have been considered in the year 1981 when the Petitioner became entitled for consideration of his case. No service record was available and in the facts & circumstances of the instant case, it is clear that writ petition was allowed by the single Bench of this Court on 31.10.1985. In the previous writ petition direction was made to make the payment of the salary. Petitioner was holding the post of CJM. The salary of the entire period of the post of CJM and along with allowances has been paid, is not in dispute.

As the decision was rendered in favour of the Petitioner in the writ petition on 31.10.85, as an LPA was preferred which was dismissed as per order (P.2) on 5.10.90 and the decision of the single Bench was affirmed. As the decision of the single bench has been affirmed, in my opinion, in the totality of the facts and circumstances of the case, as Petitioner has been found fit for grant of notional promotion w.e.f. 9.8.81 though he was actually promoted on 27.7.92 in Higher Judicial Service, it would meet the ends of justice if the actual payment of Higher Judicial Service is directed w.e.f. the date of decision of the single Bench which was rendered on 31.10.85 as the said decision was approved in LPA and the order of the Single Bench attained finality. Thus, Petitioner is held entitled for the actual arrears, pay and allowances of the post of Higher Judicial Service w.e.f. 1.11.85.

Resultantly, writ petition is allowed to the extent indicated above. No order as to costs.