Central Administrative Tribunal - Chandigarh
Unknown vs The Director General on 29 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH ORIGINAL APPLICATION NO.1026-HP of 2009 Chandigarh, this the 29th day of March, 2012 (Full Bench) CORAM:HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J) HONBLE SMT. SHAYAMA DOGRA, MEMBER(J) HONBLE MR.KHUSHI RAM, MEMBER(A) Rattan Singh Rana son of Sh.Prabhu Ram Rana, age about 56 years, R/o H.No.189/5, Near Ram Temple, Palace Colony, Mandi, Himachal Pradesh. APPLICANT BY ADVOCATE: SHRI M.K.BHANDARI VERSUS The Director General, Sports Authority of India, Jawahar Lal Nehru Stadium, New Delhi. RESPONDENT BY ADVOCATE: SHRI ARVIND MOUDGIL (Reserved on 27.2.2012) ORDER
HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
Whether an employee, granted promotion with effect from a retrospective date, could validly clamour for the grant of monetary benefit for the period promotion was denied to him ?
This is the exact contour of the bone of contention which is the subject of the present adjudicatory endeavour.
2. The surfacing of difference of opinion, as between the two Honble Members constituting the Division Bench of this Tribunal, impelled constitution of this Full Bench.
3. There being hardly any significant controversy about the factual scenario, the dates of appointment of the affected persons and also the duration of their functioning, we do not feel called upon to state the factual stances indicated by the parties. We would, accordingly, confine the discussion to the legal aspect of the controversy.
4. In reiterating the validity of the claim for the grant of monetary benefit, the learned counsel appearing on behalf of the applicant, drew implicit sustenance from the view obtained by the Honble Apex Judicial dispensation in the celebrated authority by three Judges Bench in UNION OF INDIA VS. K.V.JANKIRAMAN : 1991(3) SCT317. Reliance was also placed upon two D.B. judgments of the Punjab & Haryana High Court, reported as SUDERSHAN KUMAR VS. STATE OF HARYANA : 1997(2) SCT 278 and KANWALJEET SINGH VS. STATE OF HARYANA & OTHERS : 2008(4) SCT 326.
5. On the other hand, the learned counsel appearing on behalf of the respondents relied upon the judgment rendered by the Honble Supreme Court in TELECO0MMUNICATION ENGINEERING SERVICES ASSOCIATION VS. UNION OF INDIA : 1994(3) SCT 804 and a Single Bench judgment of Punjab & Haryana High Court in HARYANA STATE AGRICULTURAL MARKETING BOARD, PANCHKULA & ANOTHER VS. MAHA SINGH : RSA No.2077 of 2009 (O & M), decided on 10.5.2010.
6. It was canvassed on behalf of the applicant that promotion to the applicant having been unjustly denied for a period of about 14 years, it is he only who had been wronged for no fault of his and the respondents thereby having disabled him from functioning in the promotion post as Coach Grade-I, cannot validly resist the disbursement of monetary benefit to him.
7. The learned counsel, appearing on behalf of the respondents would, however, appear to sound discordance by arguing that the exalted placement of the applicant having come about in implementation of the judgment dated 12.12.2003, rendered by a learned Division Bench of this Tribunal in OA No.420-CH of 2002, MRS. SANDHYA KAUL VS. THE SPORTS AUTHORITY OF INDIA (Annexure A-14) , the applicant cannot claim higher salary for the non-functional period i.e. for the period he did not function as Coach Grade-I.
8. In this case, there is no controversy that the applicant got promoted as Coach Grade-II with effect from 20.11.1987. The learned counsel appearing on behalf of the respondents is noticed (in the judgment recorded by the learned Judicial Member) of having conceded that the applicant became eligible for consideration for promotion as Coach Grade-I with effect from 28.11.1995 i.e. after completion of eight years of service as Coach Grade-II. It is not a case where the plea raised by the respondents is that there was want of a vacancy against which the applicant could be considered for promotion or that there was pendency of any proceedings in the departmental dispensation which impeded a favourable consideration for promotion of the applicant. In fact, it is apparent from a conjunctive perusal of the pleadings raised by the parties and the documentation made available on record, including the judgments rendered by two learned Division Benches of this Tribunal in the following cases:-
i)MRS. SANDHYA KAUL VS. THE SPORTS AUTHORITY OF INDIAN & ANOTHER (supra); and
ii)RAM KRISHAN SHARMA VS. DIRECTOR GENERAL, SPORTS AUTHORITY OF INDIA : OA No.913-PB of 2004, decided on 6.6.2008 that the respondents had flagrantly erred in the matter of fixture of seniority of Coaches in employment.
9. It is not even an averment on behalf of the respondents that any dereliction / aberration on the part of the applicant led to the erroneous fixture of seniority to his disadvantage. That the competent quarters had erred in the matter of fixture of seniority would be apparent from a perusal of the above D.B. decisions in the cases of Mrs. Sandhya Kaul and Ram Krishan Sharma (supra), placed on record as Annexures MA-1 & MA-2 respectively.
10. In any case, thus, the applicant became eligible for consideration for promotion as Coach Gr.-I with effect from 28.11.1995. Consideration for the purpose aforementioned was denied to him on account of erroneous low placement in hierarchy. The rectification in the matter of fixture of seniority came about in terms of the mandate in Sandhya Kauls case (supra). The position that, thus, emerges is that the applicant is not, at all, to be blamed for either low placement in the seniority or for the consequential denial of promotion to him for as long as 14 years. As against it, the blame therefor lies squarely upon the respondents.
11. This factual scenario, examined on the touchstone of the law of the land announced by the Honble Apex Court in Jankiramans case (supra) persuades us to uphold the entitlement of the applicant to the grant of monetary benefit with effect from the date promotion had come to be granted to him. The relevant observations made by Their Lordships in Jankiramans case are extracted hereunder:-
When an employee is completely exonerated in criminal/ disciplinary proceedings and is not visited with the penalty even of censure in dictating thereby that he was not blamed-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 work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reason, although the work is offered to him. It is for this reason that F.R.17(1) will also be inapplicable to such cases. (underlining for emphasis in relatability to the case under consideration)
12. The above view was reiterated by the two Division Benches of Punjab & Haryana High Court in the cases of SUDARSHAN KUMAR and KANWALJIT SINGH(supra).
13. In view of the fact that the judgment in Jankiramans case (supra) had been rendered by a three-judges combination of the Honble Summit Court, we cannot agree with the plea canvassed on behalf of the respondents on the basis of the judgment in Telecommunication Services Association case (supra) which had been rendered by two Judges Bench of the Honble Apex Court. For that very reasoning, the judgment rendered by the Single Bench of the Punjab & Haryana High Court in Haryana State Agricultural Marketing Boards case (supra), is of no help in advancing the plea raised on behalf of the respondents.
14. In the course of the dissenting view recoded by the Honble Member (Administrative) it was indicated that the two options available were either to decline back wages to the applicant or to await disposal of the judicial review challenge pending before the Punjab & Haryana High Court in the context of the judgment rendered by this Tribunal in OA No.913-PB of 2004. That judgment was mentioned by the Honble Member in the context of the variation of orders granted by this Tribunal in Sandhya Kauls case and Ashok Kumars case.
15. Having already upheld the entitlement of the applicant to the grant of monetary benefits with effect from the date of promotion, we do not feel inclined to adopt the other recourse suggested by the Honble Member(A). It is a matter of common knowledge that the dockets in Courts are pronouncedly fairly heavy. For want of availability of appropriate number of judicial personnel, the courts are sometimes not in a position to effect dilution in pendency. Thus, without at all sounding accusatory in the context towards the system, all that we feel is that the vicissitudes of delay cannot be wished away. The applicant having been denied due promotion for a period of about 14 years, we do not wish to add to his emotional rigour by delaying the disbursement of economic benefit to him.
16. The O.A. shall stand allowed and the applicant is held entitled to all the consequential benefits admissible to him with effect from the date of promotion.
17. Disposed of accordingly.
18. We would, however, allow the parties to bear their own costs of the cause in the facts and circumstances of the case.
(JUSTICE S.D.ANAND)
MEMBER(J)
(SHYAMA DOGRA)
MEMBER(J)
Dated: March , 2012
`bss
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
DISSENT NOTE
With due respect, I do not agree with the conclusion arrived at by the other two Honble Members and I agree with the dissent note of Honble Member (A) attached with the order dated 1.11.2011 for the following reasons:-
It is not a case where the employee was willing to work, and was kept away for no fault of the employee. But it is a case where the employee had not actually worked on a higher post, therefore, he is not entitled to the salary for the period for which seniority is being assigned to him. In this regard, reliance has been placed on a decision passed by the Honble Apex Court in the case of Virender Kumar, General Manager, Northern Railways, New Delhi versus Avinash Chandra Chadha & Ors. (A.I.R. 1991 S.C. Page 958) where the Honble Apex Court with respect to retrospective emoluments has held that Promotion Retrospective emoluments Railway employees approached High Court regarding their seniority in and promotions to grades in Class III service No directions about promotion to class II service by High Court Emoluments of higher posts with retrospective effect, categorically denied to them even on basis of their claim to higher grades in Class III Posts However, .Promotions to Class II service on basis of new seniority list of Class III service Employees gaining substantially Employees not entitled to claim promotions to higher posts Held, neither equity nor justice was in favour of employees to award them emoluments of higher posts with retrospective effect Employees not working in said posts Principal of no work no pay attracted. In the present case also, the applicant had actually not worked on the said post and, therefore, on the principle of No work No Pay, he will not be entitled to any arrears of salary from retrospective effect.
2. The Honble Apex Court in a recent decision again reiterated the earlier law laid down for denying the emoluments for giving promotion retrospective effect in the case of Union of India versus B.M.Jha ( 2008(1) S.L.R. Page 488). It may be pointed out that in the case of B.M.Jha, the Tribunal had taken a view that since the respondent therein had been granted promotion retrospectively from 27.8.1984, he must be paid arrears for the higher post for the period August 27, 1984 till 5th February, 1992. The decision was challenged in the judicial forum of High Court who also dismissed the writ petition by affirming the writ petition. Thereafter, the Union of India had taken up the matter before the Honble Apex Court and the Honble Apex Court has allowed the appeal filed by the Union of India by denying the arrears on account of retrospective promotion. Relevant para 5 of the judgment reads as under :-
5. We have heard learned counsel for the parties. It was argued by learned counsel for the respondent that when a retrospective promotion is given to an incumbent normally he is entitled to all benefits flowing therefrom. However, this Court in the case of State of Haryana & Ors. v. D.P. Gupta & Ors., [1996] 7 SCC 533 and followed in the case of A.K. Soumini v. State Bank of Travancore JT (2003) 8 SC 35 has taken the view that even in case of a notional promotion from retrospective date, it cannot entitle the employee to arrears of salary as the incumbent has not worked in the promotional post. These decisions relied on the principle of no work no pay. The learned Division Bench in the impugned judgment has placed reliance on the case of State of Andhra Pradesh v. K.V.L. Narasimha Rao & Ors., (1999) 3 SC 205. In our view, the High Court did not examine that case in detail. In fact, in the said judgment the view taken by the High Court of grant of salary was set aside by this Court. Therefore, we are of the view that in the light of the consistent view taken by this Court in the abovementioned cases, arrears of salary cannot be granted to the respondent in view of the principle of no work no pay in case of retrospective promotion. Consequently, we allow this appeal and set aside the impugned order of the High Court dated 17.5.2000 passed by the Division Bench of the High Court as also the order dated 11.1.2000 passed by the Central Administrative Tribunal, Principal Bench.
3. In this view of the matter, the grant of arrears for the period of promotion which should have been considered as notional in character and Tribunal as no right to grant such favour to the employees once it is proved on record that the employee had not performed duties on higher post from retrospective effect. Therefore, the claim of the applicant for grant of arrears from retrospective effect is held to be ultra-virus in view of the decision of the Apex Court and cannot be granted by the Tribunal.
(KHUSHIRAM) MEMBER (A) Dated: March , 2012.
Kks
Draft order in O.A.NO. for consideration please.
(KHUSHIRAM),
MEMBER(A).
Honble Mr. S.D.Anand,
Member(J)/HoD.
In accord with the majority view obtained by the two Honble Judicial Members and Honble Member (A) dissenting, the O.A. shall stand allowed and the applicant is held entitled to all the consequential benefits admissible to him with effect from the date of promotion.
(JUSTICE S.D.ANAND) MEMBER(J) (SHYAMA DOGRA) MEMBER(J) (KHUSHIRAM) MEMBER(A) Dated: March 29, 2012 `bss 1 (OA No.1026-HP of 2009)