Central Administrative Tribunal - Delhi
Shri Krishan Chander vs Delhi Transport Corporation on 5 March, 2010
Central Administrative Tribunal Principal Bench TA No.146/2009 New Delhi this the 5th day of March, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri Krishan Chander, S/o Shri Bhiku Ram, R/o RZ G-Block, 9-C, Mahavir Enclave, Palam, New Delhi-110045. -Applicant (By Advocate Shri Anil Mittal) -Versus- Delhi Transport Corporation, I.P. Estate, New Delhi-110002 through its Chairman-cum-Managing Director. -Respondent (By Advocate Shri J.S. Bhasin) O R D E R Honble Mr. Shanker Raju, Member (J):
In the doctrine of stare decisis and precedent under Article 141 of the Constitution of India a Constitution Bench of the Apex Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) SCC (L&S) 246, on the issue of Supreme Court vis-`-vis itself and the precedent value vis-`-vis Larger Bench, ruled as under:
5. In Bharat Petroleum Corporation Ltd's case (supra) the Constitution Bench has ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness. At the most, they could have ordered that the matter be heard by a Bench of three learned Judges. Following this view of the law what has been declared by this Court in Pradip Chandra Parija & Ors.'s case (supra) clinches the issue. The facts in the case were that a Bench of two learned Judges expressed dissent with another judgment of three learned Judges and directed the matter to be placed before a larger Bench of five Judges. The Constitution Bench considered the rule of 'judicial discipline and propriety' as also the theory of precedents and held that it is only a Bench of the same quorum which can question the correctness of the decision by another Bench of the co-ordinate strength in which case the matter may be placed for consideration by a Bench of larger quorum. In other words, a Bench of lesser quorum cannot express disagreement with, or question the correctness of, the view taken by a Bench of larger quorum. A view of the law taken by a Bench of three judges is binding on a Bench of two judges and in case the Bench of two judges feels not inclined to follow the earlier three-Judge Bench decision then it is not proper for it to express such disagreement; it can only request the Chief Justice for the matter being placed for hearing before a three-Judge Bench which may agree or disagree with the view of the law taken earlier by the three-Judge Bench. As already noted this view has been followed and reiterated by at least three subsequent Constitution Benches referred to hereinabove.
2. Having regard to the above, this is no more res integra that a view taken in law By a Bench of three-Judge is binding on the Bench of a two-Judge and overrules the same, unless the same is referred on disagreement to a three-Judge Bench.
3. In the light of the above, the question of law involved is whether a retrospective promotion on notional basis would entail payment of arrears to a Government servant, who has been prevented from discharging duties of the higher post, on account of disciplinary and criminal proceedings, which ended in his complete exoneration.
4. Before we proceed to discuss the law laid down by the Apex Court on the subject, a brief factual matrix is relevant to be highlighted.
5. Applicant, who retired on superannuation as Traffic Inspector (TI, for short) on 31.12.2002, by virtue of this TA through CM No.1837/2008 apart from challenging the orders dated 10.9.2002 and 7.3.2003 has sought an amendment to further quash orders dated 27.3.1007, 20.9.2002, 10.9.2002 and 7.3.2003, we allow this amendment, as no reply has been filed by the respondents, despite service.
6. Applicant, who was implicated and arrested in a criminal case under Sections 467/468/120-B on 16.10.1996, was released on bail on 20.12.1996, informed and had reported back for duty on 22.12.1996. Applicant was placed under suspension by an order dated 27.3.1997 from 29.3.1997 on account of involvement in the criminal case.
6. Though the order of suspension shows that the suspension is pending decision of the Court, yet on 20.6.1997 when his turn for promotion as TI along with his junior had become due, he was superseded.
7. Applicant was reinstated from suspension by order dated 28.7.1997 pending finalization of the case and any penalty imposed, if the charges leveled are proved. On 19.8.2000 the Court of Judicial Magistrate, 1st class, Sonepat even not finding any suspicion, evidence or circumstances against applicant, had not framed the charges. Accordingly, applicant was exonerated from the criminal case. This has not been appealed against. However, on 4.12.2000 the disciplinary case against the applicant has been filed and subsistence allowance less paid to him has been allowed. Accordingly, the period from 27.3.1997 to 4.12.2000 has been treated on deemed legal fiction as spent on duty.
8. Applicant, preferred a representation for promotion and grant of consequential benefits on the post of TI from the date his juniors had been promoted. Accordingly, an order passed on 10.9.2002 considered applicant and promoted him as TI w.e.f. 12.9.2002 and as his junior was promoted on 7.10.1997, the promotion had been given notional effect from that date and the period of interregnum from 7.10.1997 to 11.9.2002 has been reckoned towards minimum period of service for determining his eligibility for promotion to the higher post. This is also counted for the purpose of increments in the higher grade but no arrears whatsoever are be admissible. However, it is stated that if any disciplinary proceeding is pending, he shall not be treated as promoted, but his pay on his option has been fixed under FR 22 (i) (a) (i).
9. On 29.2.2002 applicant was placed under suspension on account of pending enquiry, which was revoked on 7.10.2002. However, before retirement on superannuation of applicant on 26.12.2002 the enquiry has been dropped against him and period of suspension from 20.09.2002 to 7.10.2002 has been treated as spent on duty for all purposes. On 31.12.2002 applicant retired on superannuation and thereafter he stood promoted as TI.
10. An order passed on 7.3.2003 reiterates the earlier order passed, promoting applicant on restricting the period from 1997 to 2002 as not good for arrears was reiterated. This has been assailed by the applicant.
11. Shri Anil Mittal, learned counsel of applicant in view of the decision of the Apex Court in Union of India v. K.V. Jankiraman, (1993) SCC (L&S) 387 stated that what prevented applicant from discharging and shouldering responsibility of the higher post from the date juniors had been accorded the same from 7.10.1997 till he superannuated are disciplinary proceedings as well as criminal case, which had ended in complete exoneration of applicant on merits. Respondents having treated the period of suspension as spent on duty, denial of arrears of salary for the higher post is not in consonance with law.
12. On the other hand, learned counsel of respondents Shri J.S. Bhasin vehemently opposed the contentions and contended that the principle of no work no pay would have applicability in the instant case and as applicant has not discharged the duties of higher post, in view of Govt. of Indias OM dated 30.12.1976 and 22.12.1980, and in view of the policy decision to place a DTC employee under suspension, vide office order dated 4.1.1994, applicant is not entitled for arrears of increment and salary for the higher post. It is stated that applicant was suspended due to criminal case where he was exonerated yet was against placed under suspension on account of disciplinary proceedings, which were dropped on 26.12.2002. On account of retirement of applicant on superannuation on 31.12.2002, he was promoted as TI from the date of his juniors but without any arrears, which is in accordance with law. Learned counsel has relied upon the following case-law to buttress his plea:
i) Paluru Ramkrishnaiah & Ors. v. Union of India & Ors., (1989) 2 SCC 541.
ii) State of Haryana & Ors. v. O.P. Gupta & Ors., (1996) 7 SCC 533.
iii) Union of India & Ors. v. Rajender Singh, (1999) 9 SCC 173.
iv) A.K. Soumini v. State Bank of Travancore & Anr., JT 2003 (7) SC 238.
v) Union of India v. B.M. Jha, 2008 (1) SC 77.
13. We have carefully considered the rival contentions of the parties and perused the material on record.
14. In a two-judge Bench decision of the Apex Court in State of Kerala & Ors. v. E.K. Bhaskaran Pillai, 2008 (1) SLJ SC 164, the following observations have been made:
4. Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15.6.1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah & Ors. Vs. Union of India & Anr. [(1989) 2 SCC 541], Virender Kumar, G.M., Northern Railways Vs. Avinash Chandra Chadha & Ors.[ (1990) 3 SCC 472] , State of Haryana & Ors. Vs. O.P. Gupta & Ors. [ (1996) 7 SCC 533], A.K. Soumini Vs. State Bank of Travancore & Anr.[ (2003) 7 SCC 238] and Union of India & Anr. Vs. Tarsem Lal & Ors. [ (2006) 10 SCC 145]. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India & Ors. Vs. K.V. Jankiraman & Ors.[ (1991) 4 SCC 109], State of A.P. Vs. K.V.L. Narasimha Rao & Ors.[ (1999) 4 SCC 181], Vasant Rao Roman Vs. Union of India & Ors. [1993 Supp. (2) SCC 324] and State of U.P. & Anr. Vs. Vinod Kumar Srivastava [(2006) 9 SCC 621]. 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 sometime 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. What has been held (supra) is that for grant of wages no hard and fast rule can be applied and principle of no work no pay cannot be accepted as a thumb rule.
16. In Puran Das v. Union of India, AIR 2006 SCW 1034, a two-judge Bench decision of the Apex Court though acknowledged the principle of back wages but in peculiar circumstances where exoneration/acquittal of employee was not found qualified for promotion, dismissed the SLP.
17. In A.K. Soumini v. State of Travancore, (2003) SCC (L&S) 1041, on the issue of no work no pay when taken into consideration and per incuriam of decision of the Apex Court in K.V. Jankiraman (supra) on an issue that the delay in promotion was due to pendency of proceedings before the Court and in the nature of gesture of gratis is not by way of any right, the notional promotion would not entail back wages.
18. A two-Judge Bench in Commissioner, Karnataka Housing Board v. C. Muddaiah, 2007 (10) SCALE 625, observed as under:
32. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected.
19. If one has regard to the above, the normal rule of no work no pay if it is held that the employee though willing to work but was illegally unlawfully not allowed to do so, consequential benefits can be accorded.
20. In Union of India v. B.M. Jha, 2007 (12) SCALE 630, relying upon State of Haryana & Ors. v. D.P. Gupta & Ors., (1996) 7 SCC 533, on notional promotion on the principle that one had not worked in the promotional post ruled that one is not entitled to actual benefits. However, in the aforesaid decision the issue as to respondent having been prevented from discharging the duties has not been considered.
21. In State of Haryana v. Rameshwar Dass, 2009 (7) SCALE 276 on retrospective promotion lump sum actual benefits have been allowed on the plea of discrimination.
22. In Babul Lal v. Haryana State Agricultural Marketing Board, (2009) 1 SCC (L&S) 810 ruled that it is the employer who has a right to decide as to whether an employee deserves any salary after he is exonerated from criminal/disciplinary proceedings and reliance has been placed on the decision of the Apex Court in K.V. Jankiraman (supra).
23. Lastly, in K.V. Jankiraman (supra) while referring to the memorandum issued by DoP&T as to grant of back wages, ruled as under:
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 privatations 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.
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.
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 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 from 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."
24. If one has regard to the aforesaid dicta, which is binding and overrides the decision of two-Judge Bench of the Apex Court in view of Dawoodi Bohra (supra) by the Constitution Bench if the disciplinary or criminal proceedings are not delayed at the instance of the employee and there is no benefit of doubt and non-availability of evidence due to the acts attributable to the employee, the power is vested with the employer to decide the issue, but the same cannot be enumerated exhaustively and an inflexible rule cannot be laid down.
25. Having regard to the above proposition of law, the applicant, who was placed under suspension on 27.3.1997 on account of criminal case there was no delay attributable to the applicant and while framing charge against applicant the court of Judicial Magistrate on the ground of no mens rea and no material on record, even the suspicion against the applicant of having remotely connected with the offence found no ground for framing the charge and as per Section 195 of Cr. PC the applicant was exonerated with liberty to launch prosecution has not been exercised by the prosecution. The respondents by an order dated 4.12.2000 having decided the period as spent on duty, it is no more res integra that the exoneration/acquittal/discharge of applicant from the criminal case has been construed as on merits by the respondents.
26. This has been done on 4.12.2000 yet the applicant, who was neither under suspension nor facing any other disciplinary/criminal proceedings, an omission on the part of the respondents to consider the claim of applicant for promotion from 2000, had deprived him from discharging the duties of the higher post of TI at least from 2000. On 10.9.2002 after a delay of about more than two years ordering officiating promotion to the applicant as TI was also not given effect to and subsequently an enquiry ordered on 20.9.2002 whereby applicant was placed under suspension the enquiry has never come into being and the applicant was reinstated from suspension on 7.10.2002 and prior to his retirement on 31.12.2002, i.e., on 26.12.2002, enquiry has been dropped and the period of suspension being treated as spent on duty, we have no doubt in our mind that the non-existent enquiry on which applicant was placed under suspension, though at least from 4.12.2000, when he was willing and ready to perform duty of higher post, not promoting him at that time deprived him from discharging duties of higher post from 2000, till he retired on superannuation on 31.12.2002. There is no legal and valid justification from the respondents not to promote the applicant and a subsequent event of his being placed under suspension on 20.9-2002, when no proceeding had been initiated, clearly shows that the disciplinary proceedings were kept pending without attributing any delay on the part of the applicant due to the whims and fancies of respondents. However, an order confirming the order passed on 12.9.2002 after dropping the enquiry post-retirement to the applicant given effect to the promotion without any arrears, which has facilitated grant of pension on the higher post of TI from 26.12.2002. On account of disciplinary proceedings and the criminal case the applicant could not be promoted and once he has been exonerated on merits and the interregnum has been treated as spent on duty, the respondents are estopped on the principle of approbation and reprobation to deny back wages only on the ground that applicant has not performed his duties on the higher post.
27. In our considered view what prevented applicant from performing the duties of higher post is an illegal act of the respondents of not holding enquiry and registration of a criminal case by treating the suspension period as spent on duty; on both counts, there is a legal inference to be drawn that the applicant had continued in service and in such an event in 1997, when he was under suspension on account of criminal case when his turn came for promotion as TI and his juniors were promoted, non-resorting to sealed cover procedure is an omission on the part of respondents. Also the instructions regarding sealed cover are very much applicable to the respondents.
28. Furthermore, now treating the period as good for increments but without arrears on account of no work no pay on OM of 1976 and 1980, in our considered view the dicta of the Bench with higher quorum in K.V. Jankiraman (supra) has applicability as an exception to the principle of equal pay for equal work and once the applicant has been exonerated on merits, as respondents have not taken any stand of exoneration of applicant in both the proceedings with a stigma or otherwise, the applicant had been deprived of functioning on higher promotional post of TI. As such denial of arrears is not sustainable in law, as notional promotion and actual benefits is not a thumb rule. On examining the circumstances of the present case, we are satisfied that applicant is entitled on notional promotion to actual benefits, as he has been deprived of promotion at least from 4.12.2000, when he was reinstated back and his period has been treated as spent on duty.
29. Resultantly, for the foregoing reasons, this TA is partly allowed. Impugned orders are set aside to the extent arrears of salary of higher post are denied to the applicant, including increments in the post of TI from 4.12.2000 till 31.12.2002. Respondents are directed to disburse actual arrears, i.e., difference of salary of the post and arrears of increments to the applicant, within a period of two months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.