The State of Punjab and Another vs Raj Kumar and Others

Ram Chand Gupta, J.—The present revision petition has been filed u/s 115 of the Code of CPC by Petitioners for setting aside order dated

16.12.2002 passed by learned Executing Court.

I have heard learned Counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned

Executing Court.

Facts relevant for the decision of present revision petition are that a suit was filed by Respondents-Plaintiffs, namely, Raj Kumar and Sham Lal

against the present Petitioners, i.e., Defendants No. 1 and 2 and Defendants No. 3 to 12, which was decreed by learned trial Court vide judgment

and decree dated 5.3.1997, operative part of which reads as under:

In view of my findings on the above issues, the suit of the Plaintiffs succeed partly and a declaratory decree to the effect that the seniority of the

Plaintiffs has not been correctly fixed in the seniority list circulated by the Defendants on 7.6.83 and they are entitled to be pleased above

Defendants No. 4 to 6, 11 and 12 and are entitled to be considered for promotion from the dates on which any of these Defendants was

promoted and they will be given promotion if they are found fit for promotion from that date. However, the Plaintiffs will be entitled to get arrears

of salary, if any, only for a period of 38 months immediately preceding the date of filing of the suit. The relief of permanent injunction has not been

pressed by the learned Counsel for the Plaintiffs as Defendant Nos. 6 to 9 have already been given promotion during the tendency of the suit, as

such the suit qua permanent injunction is dismissed. Parties are left to bear their own costs.

Appeal filed by Respondents-Plaintiffs was partly accepted by learned Additional District Judge, Patiala, vide judgment and decree dated

29.4.1999, operative part of which reads as under:

As a result of my above discussion, the appeal is accepted partly. The judgment and decree under appeal are set aside and seniority list dated

7.6.83 (Ex.P12) qua the Plaintiffs and Defendants Nos. 3 to 5 and 7 to 12 is hereby quashed and Defendants Nos. 1 and 2 are directed to prefix

the seniority of the Plaintiffs qua Defendants Nos. 3 to 5 and 7 to 12 in accordance with the judgment and decree of this Court within three

months. They will also be entitled to consequential benefits like promotion etc. from the date their juniors got. In the circumstances of the case, the

parties are left to bear their own costs.

The judgment passed by learned Additional District Judge, Patiala, dated 29.4.1999 has become final as no appeal against the same was filed

by Petitioners. Execution petition was filed by Respondents-decree holders. Seniority of Respondents-decree holders was fixed by the Petitioners

as per the judgment and decree. They were also given promotion from the date their juniors were promoted. However, arrears regarding

retrospective promotion had not been given to Respondents-decree holders and hence, learned Executing Court directed issuance of warrant of

sale of the property, already attached vide impugned order.

It has been contended by learned Counsel for the Petitioners that it is settled law that an employee is not entitled to any pay and allowance

during the period he did not perform the duties on higher post by applying principle of no work no pay. It is further contended that Respondents-

Plaintiffs have been given their proper place in the gradation list and have also been given deemed promotion with effect from the date, their juniors

were promoted and, however, it is contended that they are not entitled for the salary in the grade of promoted post for the period for which they

had not worked on the promoted post and hence, it is contended that learned Executing Court has committed illegality in directing the Petitioners

to pay the salary of the promoted post for the period for which Respondents-Plaintiffs did not actually work on the promoted post. Learned State

Counsel have also placed reliance upon Union of India (UOI) Vs. B.M. Jha, , Union of India (UOI) and Another Vs. Tarsem Lal and Others, ,

Manohar Burde v. Union of India and Ors., decided on 31.1.2003 in Writ petition No. 5882 of 2000, State of Haryana and Others Vs. O.P.

Gupta, etc., , Union of India and Ors. v. C.A.T. and Ors. 2003 (4) SCT 949 and State of Kerala v. Jacob 2001 (2) SCT 30.

On the other hand it has been contended by learned Counsel for the Respondents-Plaintiffs that the judgments passed by learned Courts below

have become final as no appeal against the judgment passed by learned first appellate Court has been filed by Petitioners-State. It is further

contended that as per the said judgment, Respondents-Plaintiffs are entitled to all available benefits of the promotional post including salary. It is

further contended that the principle of `no work no pay'' is not being attracted in the case of Respondents-Plaintiffs as for no fault of them, they

were deprived of their rights to work on the promotional post, whereas their juniors were allowed to work on the same. It is further contended that

learned Executing Court cannot go beyond the decree and the Executing Court could not order that Respondents-Plaintiffs are not entitled for

salary of the promotional post from the date they were given notional promotion, as no such order was passed by learned first appellate Court.

Similar point arose before this Court in Ram Dass and Ors. v. State of Punjab and Ors. 2009(3) SCT 11: 2009(5) SLR 359 and it was

observed that where the Court specifically granted all the consequential benefits, Respondents cannot nullify the said judgment, which has become

final, even if on the facts of some other case, some other view was taken by the Courts. It is also clarified that consequential benefits includes

monetary benefits unless excluded by the Court by a specific direction. In this case O.P. Gupta''s case (supra) on which reliance has been placed

on behalf of the Petitioners, was also considered. The relevant paragraphs of the judgment read as under:

In so far as the proposition of law laid down in the judgment referred to above is concerned, there can not be any dispute. In the present case,

this judgment is not applicable. The right of the Petitioners flows from the judgment dated 06.01.2003 passed in CWP No. 7586 of 1999 wherein

this Court specifically granted all consequential benefits. The expression consequential benefits includes monetary benefits unless excluded by the

Court by a specific direction. The judgment dated 06.01.2003 stands affirmed in SLP which fact has been admitted by the Respondents even in

the reply filed. The Respondents cannot nullify the judgment of this Court which is affirmed by the Hon''ble Supreme Court. Even if in another case

the Hon''ble Supreme Court has taken a different view that will have no application where the judgment stands concluded between the parties. This

is settled proposition of law.

In view of the above circumstances, the impugned order is hereby quashed. The Respondents are directed to release all consequential benefits

including the arrears of salary in implementation of the judgment dated 06.01.2003 from the retrospective date of promotion granted to the

Petitioners, within a period of four months from the date a certified copy of this order is served upon the competent authority. No costs.

Moreover doctrine of ''no work no pay'' cannot be applied, where the competent authority was at fault in not promoting the employee at its due

date without any sufficient reason or fault of the employee.

Hon''ble Apex Court in State of Kerala and Others Vs. E.K. Bhaskaran Pillai, has held that principle of `no work no pay'' cannot be regarded

as a rule of thumb and grant of full back wages in certain eventualities is permissible particularly when promotion is wrongly denied, after making

reference to various judgments rendered by Hon''ble Apex Court in cases of Paluru Ramkrishnaiah and Others Vs. Union of India (UOI) and

Another, ; Virender Kumar, General Manager, Northern Railways, New Delhi Vs. Avinash Chandra Chadha and others, ; CCI Chambers Co-op.

Hsg. Society Ltd. Vs. Development Credit Bank Ltd., ; Union of India (UOI) and Another Vs. Tarsem Lal and Others, Union of India Vs. K.V.

Jankiraman, etc. etc., State of Andhra Pradesh Vs. K.V.L. Narasimha Rao and Others, Vasant Rao Roman Vs. Union of India (UOI) through the

Central Railway, Bombay and Others, ; State of U.P. v. Vinod Kumar Srivastava (2006) 9 SCC 621; and O.P. Gupta''s case (supra) and held 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 of 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.

In the present case, nothing has been shown by learned Counsel for the Petitioners that there was any default on the part of Respondents-

Plaintiffs in pursuing their case of promotion with effect from the date their juniors were promoted. Hence, it cannot be said that Respondents-

Plaintiffs are not entitled for pay on higher post from the date their juniors were promoted. On the point reliance is also placed upon Kanwaljeet

Singh v. State of Haryana and Ors. 2008 (4) SCT 326 : 2008(6) SLR 212.

Moreover the judgment passed by the Courts below have become final and hence learned Executing Court is bound to implement the said

judgment. At the execution stage the judgment and decree passed by learned trial Court and affirmed by learned appellate Court, which have

become final, cannot be modified.

It has been clarified by learned first appellate Court that Respondents-Plaintiffs are entitled for all the benefits of retrospective promotion etc.

after fixing their seniority and after granting them promotion from the date their juniors were promoted. There is no such order excluding payment

of arrears of salary on the promotional post from the date their juniors were promoted.

In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned Executing Court

in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.

Hence, the present revision x petition is, hereby, dismissed being devoid of any merit.