Jharkhand High Court
Binod Shankar Mishra vs The State Of Jharkhand on 16 March, 2018
Author: S.N.Pathak
Bench: S. N. Pathak
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 4479 of 2017
Binod Shankar Mishra, Son of Late Dharmdeo Mishra, Resident of Flat No.402, Om Sai
Apartment, Anantpur, P.O. & P.S. -Doranda, District-Ranchi ... ... Petitioner
VERSUS
1. The State of Jharkhand
2. The Principal Secretary, Department of Personnel Administrative Reforms and Rajbhasha,
Government of Jharkhand, Ranchi, Resident of Project Building, Dhurwa, P.O. & P.S-
Dhurwa, Ranchi ... Respondents
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
For Petitioner : Mr. Rajendra Krishna, Advocate
Mr. Amit Kumar Sinha, Advocate
Mr. Pravin Kumar Pandey, Advocate.
For Respondents: Mr. Navin Kumar Singh, JC to GA-III
10/ 16.03.2018. Heard learned counsel for the parties and perused the records.
2. Petitioner has approached this Court with a prayer for a direction upon the respondent no. 2 for payment of arrears of salary from the date on which respondents have promoted him to the post of Senior Selection Grade/ A.D.M. Rank as well as Joint Secretary, Additional Secretary and Special Secretary, vide Notification No. 3/ Pro. - 02 - 01/ 2016 Ka. - 7670, dated 2nd September, 2016 and Notification No. 03/ Pro. 02-26/2014, Dated 30th June, 2017 i.e. the intervening period for the post of Senior Selection Grade/ A.D.M. Rank from the period 24.12.2005 to 17.06.2011 for the post of Joint Secretary from the period 18.06.2011 to 02.12.2013 for the post of Additional Secretary from the period 03.12.2013 to 24.11.2016 and for the post of Special Secretary from the period 25.11.2016 to 29.01.2017, vide Notification dated 2nd September, 2016 and Notification dated 30th January, 2017 along with statutory interest for the said intervening period.
Petitioner has also prayed for quashing part (Para-2) of Notification dated 2nd September, 2016 (Annexure-2) and part (para-2) of Notification dated 30th January, 2017 by which respondents have directed that petitioner will be entitled to be given financial benefits with effect from the date of his joining.
3. Brief facts of the case, as has been delineated in the writ petition is that in the year 1981, petitioner was appointed as a Deputy Collector by the Bihar Public Service Commission. An FIR being Bashisth Nagar P.S. Case No. 40 of 1996, dated 8th December, 1996 under Sections 409, 470, 161, 469 and 468 of the Indian Penal Code as well as Sections 7/13 of the Prevention of Corruption Act was lodged against the petitioner. Thereafter, Chargesheet punit 2 was submitted against the petitioner on 29.06.2005. However, neither petitioner was suspended nor any departmental proceeding had been initiated against him. Thereafter, Charge had been framed against the petitioner on 20.04.2006 and, accordingly, he was tried by the Special Judge in Special Case No. 14 of 2005. Due to long pendency of criminal case, petitioner suffered a lot due to non-consideration of his case for promotion for last 16 years. Petitioner, thereafter, preferred quashing applications before this Court vide Cr.M.P. Nos. 109 of 2012, 885 of 2014 and 2255 of 2015 which was disposed of by directing the trial court to conclude the trial within a period of 6 months, 4 months and 1 month respectively. Thereafter, Trial was concluded and petitioner was acquitted on 11.01.2016.
4. It is specific case of the petitioner that due to prolonged pendency of criminal case, he had been denied his promotional benefits and therefore, he preferred W.P.(S) No. 5459 of 2003, which was disposed of on 21.03.2012. Pursuant to direction of the Court, petitioner had been granted promotion to Junior Selection Grade but was denied promotion to Senior Selection Grade in the garb of pendency of criminal case. Being aggrieved, petitioner filed Contempt Case (Civil) No. 333 of 2014, which was however dropped. After his acquittal, petitioner again moved before this Court vide W.P.(S) No. 3329 of 2016, which was disposed of with a direction to the respondents to consider case of the petitioner and pass appropriate order. However, the respondents sat tight over the matter and petitioner had to prefer Contempt Case (Civil) No. 923 of 2017, which was disposed of by this Court. After orders of this Court, petitioner was granted promotion to the post of Senior Selection Grade notionally from 24.12.2005 vide Notification dated 2nd September, 2016. Petitioner has also been given notional benefits for the post of Joint Secretary with effect from 18.06.2011, Additional Secretary with effect from 03.12.2013 and Special Secretary with effect from 25.11.2016 vide Notification dated 30.01.2017. Being aggrieved by action of the respondents in granting notional promotion without any monetary benefits, petitioner filed representations for payment of monetary benefits. When the respondents did not pay any heed to the genuine claim of the petitioner, he has knocked door of this Court for the reliefs as mentioned hereinabove.
5. Mr. Rajendra Krishna, learned counsel appearing for the petitioner assisted by Mr. Amit Kumar Sinha and Mr. Pravin Kumar Pandey, submits that respondents have wrongly and illegally denied arrears of salary to the punit 3 petitioner from the date on which he is legally entitled. Learned counsel further submits that there is no provision of notional promotion. The respondents have already promoted the petitioner to the post of Senior Selection Grade, Joint Secretary, Additional Secretary and Special Secretary from the date on which his juniors had been promoted but denied arrears of salary. Learned counsel further submits that in catena of decisions, the Courts have held that when a delinquent has been acquitted from the criminal case, the employer cannot deny him/her from the fruits of promotion as well as monetary benefits. To buttress his arguments, Mr. Rajendra Krishna, learned counsel relies on the Judgment passed by Hon'ble Supreme Court in the case of Union of India and others Vs. K.V. Janki Raman and others reported in (1991) 4 SCC 109.
6. It has further been argued that similarly situated employee namely Jaishree Jha had preferred W.P.(S) No. 2431 of 2012 which was allowed by this Court directing the respondents to grant consequential benefits including consideration of her promotion from the date when other similarly situated officers were considered. Said order has also been upheld by the Division Bench of this Court. Similar order had been passed in the case of Shankar Prasad Singh in W.P.(S No. 3219 of 2014, disposed of on 26.02.2015. Learned counsel further submits that said Jaishree Jha and Shankar Prasad Singh have already received entire benefits after order of this Court but similar benefits have not been extended in the case of the petitioner. Learned counsel further submits that the respondents cannot deny arrears of salary of the intervening period for the post of Senior Selection Grade, Joint Secretary, Additional Secretary and Special Secretary on which petitioner has been promoted on the above posts by order of the respondents.
Learned counsel further argues that instant case is not a case of dismissal as in case of dismissal, reinstatement can only be given or considered after acquittal in the criminal case and if there is a rule for reinstatement with all consequential benefits, then only backwages can be granted. Here the case is quite different. Petitioner was already given promotion but matter was kept in a sealed cover. Meaning thereby, on acquittal the said sealed cover shall be opened. Admittedly, promotion was given which had its effect from a retrospective date and as such, the consequential benefits cannot be given from the prospective effect rather both goes side by side and as promotion was from the retrospective effect, punit 4 petitioner is entitled for the monetary benefits from the retrospective date.
Learned counsel further submits that it is not a case where petitioner has not been acquitted honorably. Trial was concluded on 11.01.2016 and the learned Trial Court has clearly held at para-18 of the said Judgment as under:
"18. Considering the entire evidence on record, I find that prosecution has not been able to prove its case beyond all reasonable doubts. Therefore, on the basis of aforesaid discussion it is found that prosecution has failed to prove the charges in question against the accused persons as leveled against the accused persons."
Learned counsel strenuously urges that since petitioner has been exonerated and has not been vested with any blameworthy remarks, is entitled for the benefits from retrospective date as well. Learned counsel further submits that the Hon'ble Supreme Court has held that in the cases where the proceedings, whether disciplinary or criminal, at the instance of employee or the clearance in disciplinary proceeding or acquittal in the criminal proceedings is with benefits of doubt or on account of non- availability of evidence due to the acts attributable to the employees etc., in such situation the government can take a decision independently. In the instant case, the government has taken a decision for non-payment of monetary benefits with retrospective effect and has given only notional benefits though the Judgment of acquittal clearly says that the Vigilance Department has failed to get further witnesses examined during entire period of 16 years of trial and, therefore, there is no laches on part of the petitioner and he deserves entire benefits from the date it fell due. Learned counsel has further relied on the Judgments passed in the case of Sri Mahavir Pandey Vs. state of Bihar reported in 2000(1) PLJR 768; Suryadeo Prasad Vs. State of Jharkhand and others reported in 2010(3) JCR 238.
7. Per contra, counter affidavit has been filed.
Mr. Navin Kumar Singh, JC to Mr. Shamim Akhtar, learned GA-III appearing for the State vehemently opposes contention of learned counsel for the petitioner and argues that petitioner is not eligible for payment of salary and allowances to the notionally promoted post as per the provisions laid down in Rule 58 of Jharkhand Service Code, 2001 and Rule 74 of the Jharkhand Financial Rule. The salary of a post is granted from the date when charge of a post is actually held and work against the post is carried. Petitioner was granted notional promotion and as such, there is no question punit 5 of taking charge and hence, he is not entitled for the monetary benefits. Petitioner cannot claim financial benefits against the work not performed by him. As per Rule 58 of Jharkhand Service Code, Rule 74 of the Jharkhand Financial Rule and Office Memo No. 2074, dated 04.04.1980, a government servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date on which he assumes the duties of that post. Leaned counsel further submits that in light of observation of Hon'ble Apex Court in the case of K.V. Jankiraman (supra) and departmental Resolution No. 6227, dated 20.11.2008, the departmental promotion committee recommended notional promotion to the petitioner with effect from the date of promotion of his juniors but this does not entitle him for the monetary benefits as well for the intervening periods in which he did not take charge for the said post.
Mr. Navin Kumar Singh, learned counsel appearing for the State- respondents distinguishes the Judgments relied upon by learned counsel for the petitioner and argues that cases relied upon by them is not at all applicable in the facts and circumstances of the instant case as facts of both cases are entirely different and benefits were awarded in a peculiar circumstances. Learned counsel further submits that in the case of Smt. Jayshree Jha and Shankar Prasad Singh (supra), there was clear direction of this Hon'ble Court to grant them financial benefits as well but in the case of present petitioner, there was no such direction of the Court and as such, respondents have followed the provisions as per Rule 58 of Jharkhand Service Code, Rule 74 of the Jharkhand Financial Rule and Office Memo No. 2074, dated 04.04.1980.
Learned counsel disputes the factum of honourable acquittal of the petitioner in the said criminal case and further submits that in the said criminal case, prosecution did not examine informant/I.O. who inspected place of occurrence and other material witnesses in this case and as such, place of occurrence was not established. The prosecution neither produced any bill nor exhibited the measurement book document as per production- cum-seizure list available in this case. The prosecution has even not exhibited the production-cum-seizure list lying on record. Out of 16 witnesses, only 4 witnesses had been examined, 4 witnessed died during trial and rest were declared hostile and because of this reason, finding has been recorded by the Trial Court that the prosecution has not been able to prove its case beyond all reasonable doubt, which infers that there is benefits punit 6 of doubt and as such, this is not a case where petitioner has been acquitted honorably. Learned Trial Court acquitted the petitioner observing therein that charges were not proved and hence it cannot be termed as honorable acquittal and as such, petitioner is not entitled for any monetary benefits from retrospective date. The decision of the State is fully justified in not granting monetary benefits from retrospective date and the same has been granted from the date of assumption of charge.
Learned counsel further submits that petitioner is not entitled for payment of salary allowances to the notionally promoted post as per provisions of Rule 58 of Jharkhand Service Code, 2001 and Rule 74 of the Finance Rule.
Learned counsel submits that salary of the promotional post is granted with effect from the date on which a person assumes his duty in the said post but, in the instant case, petitioner never performed his duty nor took charge of the promotional post, so he was not entitled for grant of arrears of salary in view of Rule 58 of Jharkhand Service and Rule 74 of the Jharkhand Finance Rule and also in view of Office Memo No. 2074, dated 04.04.1980. The arrears of salary of notional promotion is to be granted or not, is to be decided by the Disciplinary Authority, the Departmental Promotion Committee considered the said point and recommended notional promotion in view of the ratio laid down by Hon'ble Apex Court in K.V. Jankiraman (Supra) and Departmental Resolution No. 6772, dated 20.11.2008. Learned counsel further submits that the Hon'ble Apex Court has clearly held that the High Court sitting under Article 226 of the Constitution of India, cannot interfere and sit in appeal over the assessment made by the Departmental Promotion Committee, unless and until there is perversity, biasness or malafide. Since in the instant case the Departmental Promotion Committee has duly considered case of the petitioner and have decided to give notional promotion to the petitioner, so there is no illegality in the decision taken by the respondents in not granting financial benefits to the petitioner.
Learned counsel has placed reliance on following Judgments:
(i) (1991) 4 SCC 109 - Union of India Vs. K.V. Jankiraman & others - Paragraphs - 16, 26, 34 and 48.
(ii) (2000) 8 SCC 395 - Badri Nath Vs. Government of Tamil Nadu & Others - Para-41.
(iii) (2013) 1 SCC 598 - Deputy Inspector General of Police & Others Vs. S. Samuthiram - Para-24 and 26.
(iv) (2014) 14 SCC 370 - Union of India Vs. S.P. Nayyar -
punit 7 Para-11 and 15.
(v) (2015) 2 SCC 365 - S. Bhaskar Reddy & Another Vs. Superintendent of Police & Another - Para-21 and 22.
(vi) (2016) 1 SCC 495 - H.S. Sidhu Vs. Devendra Bapna & Others - Para-13.
(vii) 1990 (2) PLJR 248 - Dr. Parasnath Prasad Vs. State of Bihar - Para-20.
(viii)2000(1) PLJR 768 - Mahavir Pandey vs. State of Bihar
- Para-7 & 8.
8. The question which falls for determination in the instant case is:
"Whether a person is entitled for arrears of salary from the date of retrospective promotion or not?"
Petitioner in the instant case has been granted promotion with retrospective effect but the actual benefits has been allowed from the date of assumption of charge.
At this juncture, it is relevant to quote Rule 58 of Jharkhand Service Code and Rule 74 of the Finance Rule which reads as under:-
"58(a) of the Jharkhand Service Code, 2001:-
Subject to any exceptions specifically made in these rules and to the provisions of clause (b) of this rule, a Government servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date on which he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties.
(b) ... ... ... .."
Rule 74 of the Jharkhand Finance Rule, reads as under: "74. All authorities which are competent to sanction revision of pay or the grant of concession to Government servants should bear in mind that retrospective effect should not be given to financial sanctions, except in exceptional circumstances, without the special approval of Government."
The issue involved in the instant writ petition is no more resintegra. The question fell for consideration before the Hon'ble Division Bench of Patna High Court in the case of Dr. Paras Nath Prasad vs. State of Bihar & Ors. Reported in 1990(2) PLJR 248. The writ petition was allowed considering the provisions of Rule 58 of the Service Code and Rule 74 of the Finance Rules. Sub-Rule (b) to Rule 58 relates to direct recruitment in overseas, which is not applicable in the present case whereas Sub-Rule (a) of Rule 58 relates to the draw of pay and allowance attached to tenure of a post of incumbent which starts from the date the person assumes the duties, subject to exception specifically made in the rule. The said Rule does not make complete bar of retrospective promotion, nor debar payment of arrears of salary on such retrospective promotion, which would be evident punit 8 from Rule 74 of the Bihar Financial Rule where authorities are competent to sanction benefits from retrospective effect, but in exceptional circumstances and in other cases with the special approval of the Government. The aforesaid aspects were taken into consideration in the case of Mahavir Pandey Vs. state of Bihar reported in 2000(1) PLJR 768. It is relevant to quote Para-6 of the said Judgment:
"6. Thereby, while in all cases an employee cannot ask for arrears of salary on promotion from retrospective date, in certain cases, persons are entitled for such benefit. It can be classified in two groups, namely, (a) a person notionally promoted by the authorities, of their own cannot claim for arrears of salary on such retrospective promotion, till the same is granted by the authorities/ State by special order under rule 74 of the Bihar Service Code (sic.). The principle of no work no pay can be made applicable in such case as held in the case of State of Haryana V/s. O.P. Gupta [(1996) 7 S.C.C. 537] and the decision of this Court in the case of Ramakant Singh & others in C.W.J.C. No. 11130/98, disposed of on 13.5.1999; and (b) where a person accrues (sicacquires?) right to be promoted but because of one or the other action on the part of the authorities/ State, is not promoted in time but granted such promotion subsequently from retrospective date, is entitled for arrears of salary on such retrospective promotion, even if not worked against the higher post. In such case the principle of no work no pay will not be applicable as held in the case of Union of India V/s. K.V. Jankiraman etc. (A.I.R. 1991 S.C. 2010), and in the case of Paras Nath Prasad V/s. State of Bihar & Ors. [1990 (2) P.L.J.R. 248] and other cases. For example, in a case where promotion was not considered because of pendency of departmental proceeding/ suspension/ criminal case or matter is pending under sealed cover, on completion of such proceeding and promotion from retrospective date a person is entitled for arrears of salary on such retrospective promotion, though not worked against the higher post. Similarly in a case where for one or other reason, case of senior is not considered and junior promoted but subsequently such mistake is rectified on consideration of case of senior and such promotion is granted from retrospective date. However, the principle of no work no pay on retrospective promotion to selection grade in the same cadre cannot be made applicable, as the person continued to function against the cadre post, even on such promotion to selection grade scale. In such case, on such retrospective promotion, arrear is payable."
The rule of "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where Courts have granted monetary benefits from the back date also. In the instant case, it is not a case that promotion has not been granted to the petitioner rather he has been granted promotion from retrospective effect but the monetary benefits have been denied from the punit 9 retrospective effect.
In the case of Alappat Narana Menon V/s. State of Kerala (1977(II) S.L.R. 656), the Hon'ble Supreme Court has observed as follows:
"The foregoing discussion with reference to pronouncement of the Supreme Court and Gujrat, Allahabad and Mysore High Courts clearly establish that a Government servant cannot be said to have forfeited his claims for arrears of salary when he did not get his due promotion for no fault of his. The Governments plea the petitioner was given only a notional promotion is not sustainable in law. What the petitioner got was not a notional promotion and it is wrong to call this promotion as notional in the context of the peculiar facts and circumstances of this case. The concept of notional promotion cannot enter the realm of discussion in this case. Notional promotion is one which a Government servant gets under particular exigencies of situation, which he cannot claim as a right. Here, the petitioner is entitled as of right to get the promotion from 01.04.1955 and, therefore, his claim for arrears cannot be denied to him on the plea that what was given to him was only a notional promotion and the policy of the Government is not to give the arrears of salary in such cases. It is no argument to say that many have been promoted ignoring the petitioners claim. I, therefore, hold that the petitioner is entitled to succeed."
In the case of Union of India V/s. K.V. Jankiraman etc. (A.I.R. 1991 S.C. 2010), the Supreme Court took into consideration the fact that the respondent of the said case was not promoted because of pendency of departmental proceeding and matter was kept in sealed cover. Subsequently, the employees was granted retrospective promotion. Taking into consideration the aforesaid fact, there being no laches on the part of the employee, allowed consequential benefit of arrears of salary and held that the principle of no work no pay was not applicable in such case. Similar view was taken by this Court in C.W.J.C. No. 1631/96, disposed of on 10.04.1997 wherein the provisions of Bihar Service Code and Bihar Financial Rules were taken into consideration. Similar question fell for consideration before the Supreme Court in the case of State of Haryana V/s. O.P. Gupta & Ors. [(1996) 7 SCC 533]. The Supreme Court made distinction between sets of persons, one promoted notionally and the other who had right to be promoted and affirmed the view taken in the case of Union of India V/s. K.V. Jankiraman etc. (A.I.R. 1991 S.C. 2010).
9. The contention of learned counsel for the respondents that petitioner has not been honorbly acquitted and thus is not entitled for arrears of salary from retrospective date, does not apply in the facts and circumstances of the punit 10 present case as admittedly petitioner has not been found guilty of charges and has not been given benefits of doubt rather he has been acquitted in absence of any evidence against him. In the case of Ranchhodji Chaturji Thakore Vs. Superintendent Engineer, Gujarat Electricity Board, and another reported in (1996) 11 SCC 603, the Hon'ble Supreme Court has held at para-3 as under:
"3. The reinstatement of the petitioner into the service has already been ordered by the High Court. The only question is whether he is entitled to back wages. It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basis of the conviction by operation of proviso to the statutory rules applicable to the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceedings and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant. Each case requires to be considered in its own backdrop. In this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in jail. Under these circumstances, the petitioner is not entitled to payment of back wages. ... ... ..."
Reliance of the respondents on para-26 of the Judgment passed in the case of Deputy Inspector General of Police and another Vs. Samuthiram reported in (2013) 1 SCC 598 is relevant to be quoted hereunder:
"26. As we have already indicate, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The Court, therefore, acquitted the accused punit 11 giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so."
This observation of the Hon'ble Apex Court applies in the case of dismissal wherein upon reinstatement in the absence of any provisions in the Service Rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is accrued to claim any benefits including reinstatement. In the instant case, petitioner was granted promotion and the case was kept in a sealed cover and upon acquittal, the sealed cover was opened and petitioner was granted promotion from retrospective date. The benefits of said promotion could not have been given from the date of assumption of charge as the petitioner did not work due to the fact that he was prevented from not working. It is not a case that he himself chose not to work or absented himself unauthorisedly. It finds support from the view expressed in the case of K.V. Jankiraman and others (Supra). Paragraphs-24, 25 and 26 of the Judgment passed by Hon'ble Supreme Court in the case of Union of India and others Vs. K.V. Janki Raman and others reported in (1991) 4 SCC 109, reads as under:
"24. It was further contended on their behalf that the normal rule is "no work no pay". Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension. When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly.
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 no found blameworthy in the least and is not visited with the penalty even of censure, he has to be punit 12 given the benefit of salary of the higher post along with the other benefits from the date on which he would have normally been promoted but 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 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."
The rule of no work no pay cannot be accepted as a rule of thumb. Since Junior to the petitioner were granted promotion with consequential benefits from the retrospective date, petitioner is also entitled for the similar benefits. It is not a case where petitioner is not entitled for promotion and he was given promotion only on acquittal from the criminal case. He was already considered and granted promotion but his case was kept in a sealed cover and as such on acquittal from criminal case, he was entitled for not only promotion from the retrospective date but also monetary benefits.
10. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncements and legal proposition, I find merits in the instant writ petition and as such, writ petition stands allowed. Consequently, part (Para-
2) of Notification dated 2nd September, 2016 (Annexure-2) and part (para-
punit 13
2) of Notification dated 30th January, 2017 by which respondents have directed that petitioner will be entitled to be given financial benefits with effect from the date of his joining, are hereby quashed and set aside. As a result of quashment of the impugned orders, the petitioner is entitled for promotional as well as monetary benefits from the date of notional promotion itself. The respondents are directed to pay entire amount with all consequential benefits, within a period of three months from the date of receipt/production of a copy of this order.
11. No order as to costs.
(Dr. S.N.Pathak, J.) punit