Central Administrative Tribunal - Kolkata
Sanjib Das vs O F B on 29 February, 2024
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A.No. 350/1467/2021 Date of order: 29.02.2024
Present :Hon'ble Mr. Anindo Majumdar, Administrative Member
Hon'ble Mr Rajnish Kumar Rai, Judicial Member
Sanjib Das, son of Late Harekrishna Das,
Aged about 50 years, residing at River
Queen Apartment, Flat No.41,
173, Nimtala Ghat Road, Shyamnagar,
Post Office-Shyamnagar,
District - North 24 PGS
Pin Code - 743127
.......Applicant
- VERSUS-
1. Union of India, service through the Secretary,
Ministry of Defence, New Delhi-110011;
2. The Director General of Ordnance Factory &
Chairman, Ordnance Factory Board,
10 A, S.K. Bose Road, Kolkata-700001;
3. The Secretary, Ordnance Factory Board,
10A, S.K. Bose Road, Kolkata -700001;
4. The General Manager, Rifle Factory,
Ishapore under Indian Ordnance Factories,
P.O. Ishapore-Nawabganj,
North 24 PGS-743144
...........Respondents
For the Applicant : Mr. Arpa Chakraborty, counsel
Ms. P. Mondal, counsel
For the Respondents : Mr. S.K. Ghosh, counsel
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ORDER
Rajnish Kumar Rai, Judicial Member The applicant has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
"A) Office Order being No.DJWM(SG)/DPC/2020/PER/GB dated 25.08.2021 issued on behalf of the respondent No.2, to the extent of grant of benefit of promotion on notional basis in favour of the applicant in JWM(SG) grade with effect from 13.09.2018 without granting any monetary benefits and arrears of pay for the period from 13.09.2018 till 24.08.2021, is not tenable in the eye of law and as such the same may be quashed;
B) An order do issue directing the respondents to extend the applicant with actual benefits of promotion in JWM (SG) grade with effect from 13.09.2018 along with all the arrears of pay and interest accrued thereon along with all consequential benefits in his favour at an earliest;
C) Costs and Incidentals;
D) Such further Order/Orders and/or direction/directions as your Lordships deem fit and proper."
2. Facts of the case in a nutshell as submitted by the applicant in the O.A. are as under:-
(a) The applicant joined the service of the respondents as an Industrial employee w.e.f. 14.01.1991. He participated in various departmental examinations and was promoted to the posts of LDC, Charge Man Gr.II and to the post of Junior Works Manager(Gazetted Group-B Officer) respectively.
His promotion to the post of Junior Works Manager (Senior Grade) was due w.e.f. 13.09.2018.
(b) While the applicant was working as Junior Works Manager (hereinafter referred to as JWM in short), he was issued with a show cause notice dated 18.01.2017 by the respondents asking him to explain the reasons for his failure to submit mortgaged property paper and insured property paper in contravention of the Rules after obtaining House Building Advance from the department. He was also served with a charge 3 memorandum dated 14.09.2017 in this connection. He replied to the said charge memorandum on 25.10.2017. Thereafter challenging the impermissibility of issuance of the said charge memorandum dated 14.09.2017, he preferred O.A.No.91/2020 before this Tribunal which was disposed of on 13.01.2021 with the following order:-
"9. Having noted that the advance was drawn as utilized for the purpose it was drawn, and that in terms of HBA rules, the applicant only made himself liable to pay penal interest which also stood already realized, we hold initiation of proceedings as unwarranted. In the aforesaid backdrop, the proceeding initiated against the applicant is quashed with liberty to the respondents to act in accordance with law."
(c ) Pursuant to the aforesaid order of this Tribunal dated 13.01.2021, the disciplinary proceeding against the applicant was dropped vide Office Order dated 02.08.2021 (Annexure A/2). However, promotion of the applicant from the post of JWM to JWM(SG) was due to the applicant w.e.f. 13.09.2018, but due to initiation of the disciplinary proceeding the DPC had kept its findings in respect of the applicant under "sealed cover". After quashing of the disciplinary proceeding as per order of this Tribunal, Office Order dated 25.08.2021 (Annexure A/3) was issued in favour of the applicant by promoting him to the post of JWM(SG), but such promotion was given w.e.f. 13.09.2018 on notional basis without granting any arrears of pay.
(d) Main Grievance of the applicant is that though pursuant to the order of this Tribunal dated 13.01.2021, the disciplinary proceeding against the applicant was dropped vide Office Order dated 02.08.2021, he has not been granted all the benefits flowing from the retrospective promotion including the monetary benefits. He made detailed representation to the authorities ventilating his grievances against his notional promotion and for releasing 4 the consequential benefits of his retrospective promotion, but to no effect. Therefore, he has finally approached this Tribunal seeking the aforesaid reliefs.
3. The respondents have filed written reply refuting the claim of the applicant stating therein that the application of the applicant is devoid of any substantive merit for the following reasons:-.
(a) It is stated by the respondents that during pendency of the disciplinary proceeding against the applicant DPC was held in respect of promotion from JWM to JWM(SG) and as per due procedure, the findings in respect of the applicant was kept in sealed cover. After the disciplinary proceeding was dropped against the applicant as per order of this Tribunal, the sealed cover was opened as per the due procedure. As per the findings of the Selection Committee, the applicant was promoted to the post of Junior Works Manager(Selection Grade) w.e.f.13.09.2018 and granted notional seniority vide order dated 25.08.2021.
(b) The respondents have relied on Para 3 of DoP&T's Office Memorandum No.22011/4/91-Estt(A) dated 14th September, 1992, relevant part of which is reproduced below :-
"On the conclusion of the disciplinary case/criminal prosecution which results in dropping of allegations against the Government servant, the sealed cover or covers shall be opened. In case the Government servant is completely exonerated the due date of his promotion will be determined with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position. The Government Servant may be promoted, if necessary, by reverting the junior most officiating person. He may be promoted notionally with reference to the date of promotion of his junior. 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 appointing 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. It is not possible to anticipate and enumerate exhaustively all the circumstances under which such denials of arrears of salary or part of it may become necessary. However, there 5 may be cases where the proceedings, whether disciplinary or criminal, are for example, delayed at the instances 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. These are only some of the circumstances where such denial can be justified.
In the light of the above Office Memorandum of DoP&T, the matter was duly considered by the competent authority and it was decided that the applicant "will be entitled to notional fixation from the effective notional date specified.
However, he will not be entitled to any arrears of pay." In support of their statement the respondents have relied on the judgment of Hon'ble Apex Court in Paluru Ramkrishnaiah & Others vs. Union of India & Others decided on 28.03.1989 wherein it was observed that "........there has to be no pay for no work i.e. a person will not be entitled to any pay and allowance during the period for which he did not perform the duties of a higher post although...promoted." Therefore, there was no infirmity in the order of notional promotion of the applicant.
4. The applicant has filed a rejoinder to the reply of the respondents wherein he has denied the statements made by the respondents in their reply. It is submitted by the applicant that as per the latest judicial propositions, the principle of "No work and no pay" is not applicable to the instant case as the applicant was kept away from work in the higher post by the authorities for no fault of him. It is further submitted that the respondents unnecessarily elaborated the contents of the charge memorandum dated 14.09.2017 which was assailed owing to the impermissibility in issuance of the same against the applicant vide O.A.No.91/2020 which was decided on 13.01.2021 in favour of the applicant with the above quoted directions. The applicant has also submitted that the judgment of Hon'ble Supreme Court in Paluru Ramkrishnaiah & Others vs. Union of India & Others (supra) is not applicable to this case as the applicants therein had neither been considered by the 6 DPC for promotion nor their promotions were considered under the "sealed cover"
procedure. Therefore, the applicant submitted that consequent to the quashing of the disciplinary proceedings, he should be granted all the benefits of his retrospective promotion including the monetary benefits and arrears of pay.
5. Heard Learned Counsel for both sides and perused the materials placed on record.
6. After perusal of the pleadings and reliefs sought by the applicant, the sole question appears for consideration is regarding grant of monetary benefits as well as arrears of pay for the period from 13.09.2018 to 24.08.2021 which have been denied by the promotional order dated 25.08.2021. The submission of the Learned Counsel for the applicant is that since the charge memo was dropped by the Disciplinary Authority, all consequential benefits are to be given to the applicant to which he is entitled as per rules.
7. Without going into the controversy regarding charge sheet dated 14.09.2017 which was dropped vide Office Order dated 02.08.2021, we find that the applicant is only concerned with the order dated 25.08.2021 vide which he has been given notional promotion w.e.f. 13.09.2018 without granting any monetary benefits and arrears of pay. The promotion order of the applicant was withheld only on the ground that a disciplinary proceeding was initiated against the applicant vide charge memo dated 25.10.2017. The main grievance of the applicant is that pursuant to the promotional order dated 25.08.2021 he was given retrospective promotion w.e.f. 13.09.2018 to the post of Junior Works Manager(Sr. Grade) while the applicant was already performing the job of Junior Works Manager,therefore, he is entitled for the actual promotion w.e.f. 13.09.2018 along with all monetary benefits and arrears of promotion.
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8. Respondents' counsel has argued that in terms of Para 3 of DoPT's O.M. dated 14.09.1992, the applicant is entitled to notional fixation from the effective notional date specified and is not entitled to any arrears of pay since he has not assumed the charge of higher post.
9. Learned Counsel for the applicant in his contention has relied upon the judgment of Union of India & Others vs. K.V. Jankiraman & Others reported in (1991)4 Supreme Court Cases 109 in which the Hon'ble Supreme Court has discussed the identical controversy wherein it was held that "no work no pay" is not applicable to cases such as the present one where the employee was willing to work but was kept away from work by the authorities for no fault of his. In the instant case, the applicant was already performing the job of Junior Works Manager and the only question is regarding grant of senior grade as per promotional policy which was denied at the relevant time on the ground that the same was kept under the sealed cover to be opened after dropping of the disciplinary proceeding. Relevant paras of the judgment of the Hon'ble Supreme Court in the case of K.V. Jankiraman (supra) i.e. Para 25 and 26 are reproduced below for ready reference:-
"25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R.17(1) will also be inapplicable to such cases.
26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, 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 8 and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and 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. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct 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."
Learned Counsel for the applicant further relied upon the case law in Ramesh Kumar vs. Union of India & Others reported in (2015)Supreme Court Cases 335, in which the Hon'ble Supreme Court in Para 14 and 15 held as under:-
"14. 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 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:-
"4... 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-9
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. 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. In view of the judgment of Hon'ble Apex Court in Ramesh Kumar (supra), we see that the Hon'ble Supreme Court clearly held that 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.
10. In the instant case, the applicant was already discharging the duties as Junior Works Manager (JWM in short) in the junior scale capacity. However, the next promotional post is in the same capacity of JWM but in the senior grade and pay scale.
11. After going through the entire facts and rule position, we are of the opinion that when the applicant was completely exonerated from the charges during disciplinary proceedings and not a single punishment was imposed upon him during the relevant period, he should not be deprived of any benefit including the salary and arrears of promotional post. Thus, the stand of the respondents in denying the benefit of pay and allowances on promotional post of JWM (SG) is contrary to the law. Hence, the respondents are directed to grant the applicant all consequential benefits i.e. salary and arrears for the period from 13.09.2018 to 24.08.2021 along with other consequential benefits of the promotional post i.e. JWM(SG). Accordingly the O.A is allowed. The impugned order dated 25.08.2021 10 is quashed with regard to not giving the benefit of arrears of pay and salary for the period from 13.09.2018 to 24.08.2021 for the promotional post of JWM(Senior Grade). No order as to costs.
(Rajnish Kumar Rai) (Anindo Majumdar) Judicial Member Administrative Member Sb