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Saturday, August 1, 2015

even in the absence of statutory provision, normal rule is “no work no pay”. In appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The principle of “no work no pay” would not be attracted where the respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the appellant was granted promotion w.e.f. 01.01.2000 with the ante-dated seniority from 01.08.1997 and maintaining his seniority alongwith his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar. 14. The impugned orders passed by the High Court are set aside and this appeal is allowed. The respondents shall release the arrears of pay and allowances to the appellant for the period from 01.08.1997 till the date of his actual promotion that is 13.11.2000 in the promotional post of Naib Subedar within eight weeks from today. No order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 811  OF 2007

RAMESH KUMAR                                          ...Appellant

                                   Versus

UNION OF INDIA & ORS.                               ...Respondents

                               J U D G M E N T


R. BANUMATHI, J.


Challenge in this appeal is the order of the High Court  of  Delhi  in  W.P.
(C) No.6466 of 2002 dated 02.12.2004, whereby the High Court  dismissed  the
writ petition filed against the order of denial of  pay  and  allowances  to
the appellant for the period from 01.08.1997 till the  date  of  his  actual
promotion i.e. 13.11.2000 and also the  order  dated  18.03.2005  dismissing
the Review Application No.55 of 2005.
2.          Background facts which led to the filing of this appeal  are  as
under:- The appellant got enrolled in the Indian Army on the post  of  Store
Keeper Technical/Sepoy on 19.03.1983 and was subsequently  promoted  to  the
rank of Havildar on 01.08.1989.  While  the  appellant  was  so  working,  a
Summary Court Martial (SCM) for the offences under Sections  41(i),  39  (a)
and 63 of the Army Act was initiated against him.  After completion  of  the
inquiry and on proved charges by an order dated  03.06.1992,  the  appellant
was sentenced to:- (i) reduction in rank; (ii) dismissal  from  service  and
(iii) rigorous imprisonment for one year in civil prison. Aggrieved  by  the
Order passed in Summary Court Martial, the appellant preferred  a  statutory
complaint under Section 164 of the Army Act.  The  Central  Government  vide
Order dated 17.08.1994 commuted  the  punishment  modifying  it  to  one  of
severe reprimand  and  further  remitted  the  sentence  of  dismissal  from
service directing reinstatement in service.  However, it was held  that  the
appellant was not entitled to any pay and allowances for the period  between
the date  of  dismissal  and  the  date  of  reinstatement  in  service.  In
compliance with the Order passed by the Central  Government,  the  appellant
was reinstated in service w.e.f. 29.10.1994.  The appellant  was  again  put
to Summary Court Martial for committing offence under Section 54(b)  of  the
Army Act and by an Order dated 18.02.1995; the appellant was awarded  severe
reprimand/red ink entry for the offence of loosing identity card.
3.          Case of the appellant for promotion to the rank of Naib  Subedar
came up for consideration before Departmental Promotion Committee  (DPC)  on
01.08.1997;  but  the  appellant  was  not  considered  for  promotion   and
according to the respondents, the appellant  did  not  meet  the  discipline
criteria for promotion as the appellant  was  having  two  red  ink  entries
during preceding five years. On  appellant’s  repeated  representations  for
his promotion as per his seniority, finally his claim was considered by  the
DPC held on 15.03.2000 and he was granted promotion w.e.f.  01.01.2000  with
ante-dated seniority w.e.f. 01.08.1997 alongwith his  batchmates.   However,
no direction was issued regarding any pay and allowances  to  the  appellant
in the higher rank of Naib Subedar from the back  date;  but  his  seniority
was maintained from 01.08.1997 when his batchmates have been promoted.
4.          Aggrieved by the order of the DPC, denying  pay  and  allowances
in the promotional post for the period  between  01.08.1997  to  13.11.2000,
the appellant filed     W.P.(C) No.6466 of 2002 before  the  High  Court  of
Delhi.  Vide impugned order dated 02.12.2004, the High Court  dismissed  the
writ petition observing that the  appellant  has  no  legitimate  claim  for
payment of pay and allowances from a retrospective date on the principle  of
“no work no pay”.  The Review Application No.55 of  2005  also  came  to  be
dismissed on 18.03.2005. This appeal assails the correctness  of  the  above
orders passed in the writ petition and also the review application.
5.          Contention of the appellant is that subsequently when the  fresh
DPC was held on 15.03.2000, the appellant was declared fit for promotion  to
the rank of Naib Subedar w.e.f. 01.01.2000 with ante-dated seniority  w.e.f.
01.08.1997 and  while  so,  the  appellant  was  arbitrarily  deprived  from
getting pay and allowances and other benefits from 01.08.1997 and hence  the
appellant is entitled to get his pay and  allowances  for  the  period  from
01.08.1997 till the date of his  actual  promotion  on  13.11.2000.  It  was
submitted that the respondents erroneously denied pay and allowances to  the
appellant when they themselves have granted him ante-dated seniority  w.e.f.
01.08.1997.
6.          Learned Senior Counsel for the respondents       Mr. A.K.  Panda
contended that although the order imposing punishment on the  appellant  was
passed by the Summary Court Martial on 03.06.1992 but the same was  commuted
only on 17.08.1994 and therefore  the  period  of  five  years  was  rightly
counted w.e.f. 17.08.1994 and therefore the appellant was  not  eligible  to
be considered for promotion prior to 17.08.1999.  It was  further  submitted
that on 01.08.1997, when the appellant’s case came up for promotion  to  the
rank of Naib Subedar, he did not meet the criteria for promotion as  he  had
incurred two red ink entries during preceding five  years  and  rightly  the
appellant was not  given  the  pay  and  allowances  from  01.08.1997  which
benefit was given to him w.e.f. 13.11.2000 when he actually joined the  said
rank of Naib  Subedar,  but  to  avoid  any  injustice,  his  seniority  was
maintained from 01.08.1997 alongwith his batchmates.
7.          We have  carefully  considered  the  rival  contentions  of  the
parties and perused the impugned judgment and the materials on record.
8.          By perusal of the  records  it  is  seen  that  considering  the
petition dated 31.08.1992 submitted  by  the  appellant  against  the  order
dated 03.06.1992 passed in the SCM, the Central Government  vide  its  order
dated 17.08.1994 commuted the punishment of reduction of rank and  one  year
rigorous imprisonment to severe  reprimand  and  remitted  the  sentence  of
dismissal  directing  reinstatement  of  the  appellant.   However,  it  was
mentioned in the said order dated 17.08.1994 the period between the date  of
dismissal and date of reinstatement in service will not be treated  as  duty
and the appellant will not be paid pay and allowances due  to  him  for  the
said period.  Order dated 17.08.1994 does not specifically  state  the  date
from which the commutation of punishment shall take effect.   The  appellant
rejoined the duty on 29.10.1994 and from that date he is taken to have  been
reinstated. In the  ASC  records  (Sup.),  letter  No.6442/  TB3/ST12  dated
23.07.1997, it is clearly mentioned that the punishment  was  set  aside  by
the Court and was reinstated into service and his name was again  placed  in
the original place in the seniority list. In the said letter it was  further
stated that the award  of  punishment  for  the  second  time  for  loss  of
temporary identity card will not affect the  appellant’s  promotion  to  the
rank of Naib Subedar.  However, as noticed  earlier,  in  the  DPC  held  on
01.08.1997, the appellant’s case was not considered, observing that  he  was
having two red ink entries during the last five years and the appellant  was
denied promotion to the rank of Naib Subedar w.e.f. 01.08.1997.
9.          It is pertinent to note that  the  case  of  the  appellant  was
again examined in consultation with Judge Advocate General (JAG)  Department
and vide  letter  No.77701/DPC/  Q/II/ST-12  dated  17.05.2000  of  the  DPC
proceedings,  the  Department  opined  that  the  date  of  commutation   of
punishment would only be from 03.06.1992, the date on which  punishment  was
announced and not from 17.08.1994. We may usefully  refer  to  the  relevant
portion of the said DPC proceedings which reads as under:
“The case was examined in consultation with JAG Deptt  this  HQ.  JAG  Deptt
has opined that Govt. order dated 17 Aug 94 does not specifically spell  out
the date from which the commutation of punishment  shall  take  effect.   In
the absence of any specific date, the order of the Govt. would be deemed  to
have been taken from the date of original sentence was  passed.   Therefore,
the date of commutation of punishment would be from 03 June 92 (the date  on
which punishment was announced) and not 17 Aug 94.”


From above referred proceedings, it is clear that the respondents  took  the
view that the date of commutation of punishment would  be  from  03.06.1992,
the date on which the punishment was awarded  and  not  on  17.08.1994,  the
date on which the punishment was commuted.
10.         As per the policy of the respondents, an  individual  cannot  be
considered for promotion to the rank of Naib Subedar, if he has earned  more
than three red ink entries during the entire service and more than  one  red
ink entry in the preceding five years of service.   It  is  noticeable  that
when the case of the appellant came up for consideration on 01.08.1997,  the
first punishment/red ink entry had already expired i.e.  on  03.06.1997  and
only one red ink entry made on 18.02.1995 was on the  record;  but  the  DPC
appears to have erred in ignoring the same. Considering the  genuineness  of
the representations made by the appellant, DPC again  considered  the  claim
of the appellant and granted him promotion w.e.f. 01.01.2000 to the rank  of
Naib Subedar with a further direction that the seniority  of  the  appellant
will  be  maintained  alongwith  his  batchmates  from   01.08.1997.    When
appellant was granted ante-dated seniority w.e.f. 01.08.1997  alongwith  his
batchmates, we find no reason  as  to  why  he  should  be  denied  pay  and
allowances in the promotional post as Naib Subedar  w.e.f.  01.08.1997  till
the date of his actual promotion on 13.11.2000.   The  High  Court  has  not
properly appreciated these aspects and erred in holding that on  01.08.1997,
the appellant was not eligible to be  considered  for  promotion.  When  the
respondents themselves have taken the view that the Order of the  Government
would be deemed to have taken from the date of original sentence was  passed
i.e.   03.06.1992   and   not   from   17.08.1994,   the   date   on   which
commutation/remission was granted by the Government, the High Court was  not
right in holding that the appellant was not eligible to  be  considered  for
promotion on 01.08.1997 and the impugned order cannot be sustained.
11.         The respondents have advanced the argument that  the  denial  of
pay and allowances is on the principle of “no work no pay” and no  injustice
has been done to the appellant since he  has  not  actually  worked  in  the
promotional post of  Naib  Subedar  during  the  aforesaid  period.  It  was
submitted that the benefit of pay and allowances was rightly awarded  w.e.f.
13.11.2000, the date on which the appellant actually  assumed  the  rank  of
Naib Subedar but his seniority was maintained so as to protect his  interest
in his further promotions.
12.          In  normal  circumstances  when  retrospective  promotions  are
effected, all benefits flowing therefrom, including monetary benefits,  must
be extended to an employee who has been denied promotion  earlier.   So  far
as monetary benefits with regard to  retrospective  promotion  is  concerned
that depends upon case to  case.   In  State  of  Kerala  &  Ors.  vs.  E.K.
Bhaskaran Pillai, (2007) 6 SCC 524, this Court held that  the  principle  of
“no work no pay” cannot be accepted as a rule of thumb and the  matter  will
have to be considered on a case to case basis and in para (4), it  was  held
as under:-
“… We have considered the decisions cited on behalf of both  the  sides.  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.”

13.          We  are  conscious  that  even  in  the  absence  of  statutory
provision, normal rule is “no work no pay”. In appropriate  cases,  a  court
of law may take into account all the facts in their  entirety  and  pass  an
appropriate order in consonance with law. The principle of “no work no  pay”
would  not  be  attracted  where  the  respondents  were  in  fault  in  not
considering the case of the appellant for promotion  and  not  allowing  the
appellant to work on a post of Naib Subedar carrying higher  pay  scale.  In
the facts of the  present case when  the  appellant  was  granted  promotion
w.e.f.  01.01.2000  with  the  ante-dated  seniority  from  01.08.1997   and
maintaining his seniority alongwith his batchmates, it would  be  unjust  to
deny him higher pay and allowances  in  the  promotional  position  of  Naib
Subedar.
14.         The impugned orders passed by the High Court are set  aside  and
this appeal is allowed. The respondents shall release  the  arrears  of  pay
and allowances to the appellant for the  period  from  01.08.1997  till  the
date of his actual promotion that is 13.11.2000 in the promotional  post  of
Naib Subedar within eight weeks from today. No order as to costs.

                                                                …………………………J.
                                             (T.S. THAKUR)


                                                                …………………………J.
                                             (R. BANUMATHI)
New Delhi;
July  31, 2015
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