Central Administrative Tribunal - Madras
K M Sabarinathan vs M/O Social Justice & Empowerment on 9 April, 2025
1 OA No.310/01730/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01730/2018
Dated this the 10th day of February, Two Thousand Twenty Five
CORAM :
HON'BLE MR M. SWAMINATHAN. MEMBER (J)
AND
HON'BLE MR. SANGAM NARAIN SRIVASTAVA, MEMBER(A)
G. Perumal Samy,
Per No.940413, EAS II,
Chargeman FEA,
Avadi, Chennai. .. Applicant
By Advocate M/s. R. Rajesh Kumar
Vs
1. The Union of India
rep by its secretary,
Ministry of Defence,
(Production & Supply)
Government of India
New Delhi.
2. The Chairman & DGOF,
Ordnance Factory Board,
10/A, S.K. Bose Road,
Kolkata.
3. Member & Addl. DGOF/AV,
Armoured Vehicles Headquarters,
Avadi, Chennai.
4. The General Manager,
Engine Factory, Avadi (EFA)
Avadi, Chennai. .. Respondents
By Advocate Mr. K. Kannan
2 OA No.310/01730/2018
ORAL ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial Member) This OA has been filed by the applicant seeking the following relief:
"........to set aside the Impugned Order dated 13.10.2018 passed by the 4th respondent bearing Ref. No EFA/A/Admin/009/OA52/18 and consequently direct the 4th Respondent to pay all add attended benefits in lieu of the promoted post from the date on which the applicant was promoted notionally and to pass such or other order as this Hon'ble court may deem fit and proper in the circumstances of the case and thus render justice."
2. Brief facts of the case as submitted by the applicant are as follows:
The Applicant is employed at the Respondent office. A charge sheet was issued against the Applicant, and disciplinary proceedings were initiated, resulting in the withholding of the Applicant's due promotions.
Despite the Applicant having a meritorious case, the Disciplinary Authority imposed a penalty of "Reduction of Pay by one stage for two years with cumulative effect." The Applicant's appeal was dismissed by the 3rd Respondent. The 1st Respondent directed the Disciplinary Authority to issue a "recordable warning," which was subsequently done by the 3rd Respondent, revoking the penalty. Based on this, the penalty was cancelled, and the Applicant was promoted notionally from 28.10.2013 , with monetary benefits provided from the actual due date, but without financial compensation for the promotion. The failure to provide the financial benefit after the revocation of the penalty constitutes double 3 OA No.310/01730/2018 jeopardy, as the Applicant has already undergone a lengthy ordeal. The 4th Respondent rejected the Applicant's request, leading to the current OA.
3. The Applicant's counsel contended that during the disciplinary proceedings, the promotion from Fitter "SK" to Fitter-HS-II was withheld in a sealed cover. He further argued that the Applicant was eligible for promotion from 18.07.2012, but the Respondents delayed the promotion due to the ongoing disciplinary proceedings, which were solely attributable to the Respondents.
4. The counsel further noted that following the conclusion of the disciplinary proceedings, the Respondents issued a promotion letter dated 06.01.2017 promoting the Applicant notionally from 15.10.2013. Another order, dated 07.02.2017 promoted the Applicant from 18.07.2012, the actual date the Applicant was eligible for promotion. However, these promotions were given notionally, with no financial benefits provided.
5. Additionally, the Applicant had passed the required trade test and was fully eligible for promotion. The promotion order had been kept in a sealed cover due to the disciplinary proceedings and was only issued after the Applicant was exonerated and the penalty was modified. The counsel 4 OA No.310/01730/2018 argued that withholding the financial benefits from 18.07.2012 constitutes double jeopardy, as the penalty was revoked and only a 'recorded warning' was imposed. Non-payment of monetary benefits, despite the penalty being revoked, would amount to another form of punishment.
6. Lastly, the counsel pointed out that the promoted post did not involve any additional work compared to the Applicant's previous position at the time of being charge-sheeted. Therefore, the "no work, no pay"
defense is not applicable, as the duties remain the same, with only a change in designation. Thus, the counsel argued that the concept of "no work, no pay" should not apply to the Applicant.
7. The learned counsel for the applicant relied upon the following judgments in support of his contentions and prayed for allowing the OA.
(i) Judgment, dated 27.08.1991 of the Hon'ble Apex Court in the case of Union of India Vs Janakiraman, 1991 (4) SCC 109.
(ii) Judgment, dated 02.11.2012 of the Hon'ble High Court of Punjab & Haryana at Chandigarh in the case of Satyavir Sigh Shekhawat Vs State of Haryana & others
(iii) Judgment, dated 31.07.2015 of the Hon'ble Supreme Court in the case of Ramesh Kumar Vs UOI, in Civil Appeal No.811 of 2007 5 OA No.310/01730/2018
(iv) Judgment. Dated 15.09.2011 of the Hon'ble High Court of Punjab & Haryana at Chandigarh in the case of Jagir Singh Vs State of Punjab & others
(v) Judgment, dated 18.05.2015 of the Hon'ble High Court of Punjab & Haryana at Chandigarh in the case of SS Karan Vs State of Punjab & Haryana High Court
(vi) Judgment, dated 07.04,1999 in the case of Mrs Santhosh Kumar Aneja Vs Haryana Seed Development Corporation(1999 122 PLR 368)
8. Per contra the learned counsel for the respondents submitted that the applicant was not granted monetary benefits from the notional date of promotion preceding the actual date of promotion as per the rules in vogue on the subject matter. He further submitted that that the Revising Authority while revoking the penalty imposed on the applicant had made the following observation under point 8 in its order dated 22.11.2016;
"8. AND WHEREAS the President of India on careful consideration of all the facts involved in the case including the points raised by the petitioner in this case and also keeping in view the fact that the petitioner is lower rung employee and striving for his just cause, has come to the conclusion that penalty imposed on the petitioner is serve and hence, need to be set aside. However, it is a fact that 'Gherao' of Group 'A' Officers had taken place and the method adopted by the petitioner was not appropriate. Therefore, taking a lenient view, so as to maintain harmonious industrial relation and to maintain discipline in employee so as to be avoided re-occurrence of such an event a 'Recordable Warning' to be issued and directed the applicants to refrain from such activities in future would meet ends of justice."6 OA No.310/01730/2018
9. He further submitted that the observations in the Revising Order clearly indicate that the Revising Authority concluded, without a doubt, that the "Gherao" incident involving Group 'A' Officers occurred, and that the Applicant's actions during the incident were inappropriate. Additionally, the Revising Authority directed the Disciplinary Authority to issue a "Recordable Warning" to the Applicant, advising them to refrain from such conduct in the future.
10. The counsel further argued that this confirms the Applicant's acquittal was not an honorable one. Since the acquittal was not honorably rendered, the Respondents, after considering all the facts and circumstances of the disciplinary proceedings, made the prudent decision to withhold arrears of pay for the period of the notional promotion prior to the actual promotion, in accordance with the rules laid down in the DOPT O.M. Dated 14.09.1992.
11. By referring to the following case laws in support of his contentions, the learned counsel for the respondents prayed for dismissal of the OA.
(i) Judgment, dated 24.10.2007 of the Hon'ble Apex Court in the case of Union of India Vs B.M. Jhan, 2007 (11) SCC 632.
(ii) Judgment, dated 14.10.2022 of the Hon'ble Madras High Court in WP No.31095 of 2017.7 OA No.310/01730/2018
12. We have heard both the parties at length, perused the pleadings, and the materials placed on record. We have also gone through judgments relied upon by the respective parties.
13. The question that arises for consideration is when an employee granted a retrospective promotion, he is entitled to all benefits, however, in the case of a notional promotion from a retrospective date, the issue is whether the employee is eligible for arrears of salary.
14. The principle of "no work, no pay" is not a rigid rule, but rather depends on the facts and circumstances of each individual case. It is not a fixed formula that applies universally, like a mathematical theorem that ends with "hence proved." In this context, reliance is placed on Gowramma C. vs Hindustan Aeronautical Ltd. [2022 SCC OnLine SC 310], where the following was held:
"10. It is true that no work no pay is a principle which is apposite in circumstances where the employee does not work but it is not an absolute principle, which does not admit of exceptions. In this regard we may notice that in one of the judgments relied upon by the respondents, namely, State of Kerala v. E.K. Bhaskaran Pillai [State of Kerala v. E.K. Bhaskaran Pillai, (2007) 6 SCC 524: (2007) 2 SCC (L&S) 487] which, in fact, dealt with issue as to monetary benefits when retrospective promotion is given, this Court held:8 OA No.310/01730/2018
"4.... 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‟."
15. It is a well settled law that the benefits which accrues upon the notional promotion including increase in the salary will be granted by the employer as per its discretion in respect of the particular facts of the case. If the employee was not able to perform its duty due to default on the part of the employer, the employer may grant benefits which accrues from the notional promotion from the day of such promotion. However, in the cases where there is no default on the part of the employer, then the employer may on the basis of the principle of "no work, no pay" may grant such 9 OA No.310/01730/2018 promotion from the date the employee joins back his position. Therefore, the grant of notional promotion as well as the grant of benefits which accrues from such notional promotion depends on the facts of the case. There is no straight jacket formula as to when the notional promotion will be granted and in which cases the notional promotion cannot be granted.
16. Moreover, in the present OA, the applicant has wrongly placed reliance on the judgment of Union of India v. K.V. Janki Raman (Supra), the Hon'ble Supreme Court has held that that the issue of notional promotion along with benefits which accrue from such notional benefits has to decide on the basis of the facts of each case. The facts of the aforementioned judgment are different from the facts of the instant application. Therefore, the aforementioned judgment is not applicable on the applicant. We find all the judgments relied on by the applicant will not be applicable to the present case.
17. The concept of remuneration is inherently linked to the notion of an employee's productive engagement, and the applicant is unable, (because of the disciplinary proceedings pending) to work resulted in a lack of tangible work contribution to the respondent organization. Especially in the present case, where there is no default attributable to the respondent 10 OA No.310/01730/2018 for applicant inability to work at his designated post. This Court is of the view that the principle of "no work, no pay" is a foundational tenet of employment relationships, designed to ensure that remuneration is commensurate with the work performed. The underlying concept is that compensation is earned through active contributions to an organization's objectives.
18. The Hon'ble Supreme Court of India, in the case of Union of India vs B.M. Jha, in Appeal (Civil) No.5128 of 2001, order dated 24.10.2007 has held that 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. We extract the relevant portion of the judgment below:
"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 11 OA No.310/01730/2018 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 he 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 above mentioned 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.
19. Similar issue was also considered by the Hon'ble Madras High Court, in WP No.31095 of 2017 and vide its judgment, dated 14.10.2022, it was held as follows:
"5. This Court is of the considered opinion that an employee, who is facing disciplinary proceedings and Criminal Case is not entitled for promotion. The pendency of a Criminal Case and departmental disciplinary proceedings is bar for promotion as per the rules in force. Thus, the authorities have not committed any mistake in not promoting the petitioner to the post of Superintendent during the pendency of the departmental disciplinary proceedings and the Criminal Case. When the petitioner was exonerated from the departmental disciplinary proceedings and acquitted in the Criminal Case, thereafter, the respondents have granted notional promotion to the petitioner from the date on which his junior was promoted. Thus, the authorities have acted in accordance with the rules in force and not committed any error in the matter of granting notional promotion to the writ petitioner.12 OA No.310/01730/2018
6. As far as the monetary benefits are concerned, the petitioner cannot claim the same, since he had not performed the duties and responsibilities attached to the post of Superintendent. An employee, who had not performed the duties and responsibilities to the particular post, is not entitled to claim salary attached to the said post and in the event of granting such monetary benefits it will result in financial loss to the State Exchequer and more so, the employee had not performed the duties and responsibilities attached to the post. That is the reason why, the notional promotion concept was accepted by the Courts and in order to restore the seniority of the employee and put him back in the original position enabling him to get further promotions in accordance with the rules in force. This being the factum established; this Court do not find any infirmity in respect of the reasons stated in the order impugned."
20. Applying the aforementioned judgments to the present case, the Applicant faced disciplinary proceedings in 2012. As per the applicable rules, the pendency of departmental proceedings serves as a bar to promotion. After the completion of the disciplinary proceedings, a penalty order of "reduction of pay" was issued in 2014. This penalty was later reversed by the Revisionary Authority in 2016. Subsequently, the Respondents granted the Applicant a notional promotion effective from 28.10.2013, but allowed the monetary benefit only from the actual date of duty assumption, i.e from 21.11.2016. Since the Applicant did not perform the duties and responsibilities associated with the promoted post, he is not entitled to claim arrears of salary for that post.
13 OA No.310/01730/2018
21. In light of these circumstances, we find no infirmity or illegality in the orders passed by the Respondents. As a result, the OA is dismissed. No order as to costs.
(SANGAM NARAIN SRIVASTAVA) (M. SWAMINATHAN)
MEMBER(A) MEMBER(J)
10.02.2025
mas