Madhya Pradesh High Court
Padmanabha Bhaskaran Pillai vs Food Corporation Of India on 6 March, 2012
(1) W.P. No. 9094/2010
HIGH COURT OF MADHYA PRADESH: JABALPUR
Writ Petition No. 9094 / 2010
Padmanabha Bhaskaran Pillai
Versus
Food Corporation of India and others
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Mrs. Shobha Menon, learned senior counsel with Shri
Rahul Choubey, for the petitioner.
Shri M.K.Agrawal, learned counsel for the respondents.
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Present : Hon'ble Shri Justice R.S.Jha
ORDER
(06-03-2012) The petitioner has filed this petition being aggrieved by the orders dated 6-5-2010, 11-5-2010 and 17-5-2010 issued by the respondent No.5, respondent No. 3 and respondent No. 7 respectively wherein while granting notional promotion to the petitioner on the post of Assistant Manager (General) with effect from 6-8-1986, arrears of pay have been awarded to him only from the date he actually assumed the charge of the promoted post.
2. The brief facts leading to the filing of the present petition are that the petitioner was serving with the respondents as a steno typist. In view of a vigilance enquiry against him he was awarded adverse entries in his service (2) W.P. No. 9094/2010 records for the years 1983, 1984 and 1985 as a result of which he was not found fit for promotion along with his peers and juniors in the DPC that was held in the year 1986 for making promotions on the post of Assistant Manager (General). On 17-12-1988 a punishment of revertion to the post of AG-II (Ministerial) with a further stipulation that he would not be eligible for being considered for promotion for a further period of five years was imposed upon the petitioner on his being found guilty of the charges levelled against him in the enquiry conducted by the respondents. The aforesaid order of punishment was modified by the appellate authority by order dated 11-9-1990 and a lesser punishment of withholding of three increments non- cumulatively was imposed upon the petitioner.
3. The petitioner assailed the aforesaid order of punishment by filing a writ petition before this Court which was registered as W.P.No. 2822/1992 and was ultimately disposed of by order dated 28-2-1998 by setting aside the order of punishment and remitting the matter back to the authority for reconsidering the quantum of punishment. Pursuant to the aforesaid directions issued by this Court the matter was again taken up by the appellate authority and after reconsidering the matter a punishment of withholding three increments (non-cumulative) was (3) W.P. No. 9094/2010 awarded to the petitioner. The petitioner again assailed the order passed by the authorities by filing W.P.No. 5122/1999 which was ultimately allowed by order dated 24-4-2008 and the order imposing punishment on the petitioner was set aside. In the meanwhile, the petitioner had been considered by the respondent/authorities in the DPC held in the year 1996 for promotion on the post of Assistant Manager (General) and promoted on the said post by order dated 4-1-1996 and thereafter he stood superannuated from service with effect from 28-2-1998.
4. As far as the adverse entries in the petitioner's service record for the year 1984 are concerned, the petitioner had filed W.P.No. 6067/1998 assailing the same. When this petition came up for hearing on 10-12-2009 it was informed to this Court that the vigilance enquiry and the consequent punishment imposed upon the petitioner, on the basis of which adverse entries for the year 1984 were recorded by the respondents, had been quashed and set aside by the order passed by this Court in W.P.No. 5122 of 1999 dated 24-4-2008. In view of the aforesaid, this Court allowed the petition filed by the petitioner by order dated 10-12-2009 by observing that as the basis on which the adverse entries for the year 1984-85 were recorded no longer existed, therefore, the respondent/authorities were required to (4) W.P. No. 9094/2010 reassess the aforesaid entries made in the petitioner's record and thereafter hold a review DPC to reconsider his case for promotion on the post of Assistant Manager (General) as on 1986 along with his peers and juniors and in case he is found fit, all usual benefits that would accrue be granted to him.
5. Pursuant to the orders passed by this Court the respondent/authorities conducted a review DPC on 4-5-2010 and thereafter in view of the orders passed by this Court the petitioner's ACR gradings for the years 1983, 1984 and 1985 were revised to "good", "very good" and "very good" respectively. The DPC also decided that the petitioner be given notional promotion with effect from 6-8-1986 and, therefore, pursuant to the report of the DPC the respondent/authorities have issued the impugned orders dated 6-5-2010, 11-5-2010 and 17-5-2010 granting notional promotion to the petitioner with effect from 6-8-1986 and arrears of pay with effect from the date he actually assumed charge of the promoted post. The petitioner being aggrieved by the denial of full back wages and arrears of pay to the petitioner with effect from 6-8-1986 has filed the present petition assailing the impugned orders to that extent.
(5) W.P. No. 9094/2010
6. It is submitted by the learned senior counsel appearing for the petitioner that the petitioner has been victimized inasmuch as adverse entries were recorded in the ACR dossier by the respondents on the basis of a vigilance enquiry which was initiated for no fault on the part of the petitioner as has been held by this Court in W.P.No. 5122/1999 decided on 24-4-2008 and in such circumstances the petitioner has been denied the opportunity to work on the higher post for no fault on his part, therefore, he is entitled to full arrears of salary from the date of his promotion i.e. 6-8-1986. It is further submitted that this Court while deciding W.P.No. 6067/1998 filed by the petitioner assailing the adverse entries made in the service record has already held that in case the petitioner is granted promotion on conducting a review DPC he would be entitled to all usual benefits that would accrue and in such circumstances, the respondent/authorities had no discretion in the matter and they were bound to award full back wages/arrears of salary to the petitioner, more so, in view of the fact that the order passed by this Court in W.P.No. 6068/1998 dated 10-12-2009 has attained finality as the respondents had not assailed the same before any higher Court. The learned senior counsel appearing for the petitioner in support of (6) W.P. No. 9094/2010 her submissions has relied upon the decision of the Supreme Court rendered in the case of Commissioner, Karnataka Housing Board v. C.Muddaiah, (2007) 7 SCC 689.
7. It is also contended by the learned senior counsel appearing for the petitioner that the respondent/authorities have not mentioned any reason for denying arrears of salary to the petitioner from the date of awarding retrospective promotion in the minutes of the DPC or in the impugned orders Annexure P-1, Annexure P-2 and Annexure P-3 and in such circumstances the contentions of the respondents in the return in support of their action should not be considered by this Court in view of the decision of the Supreme Court in the case of East Coast Railway and another v. Mahadev Appa Rao and others, (2010) 7 SCC 678 and the case of Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405.
8. The respondents, per contra, submit that the petitioner's case was considered by the respondent/authorities for promotion in the year 1986 but as he did not have a good service record in view of the adverse entries contained therein for the years 1983, 1984 (7) W.P. No. 9094/2010 and 1985, therefore, his case for promotion was rejected. It is further stated that the petitioner did not assail his superannuation in the DPC held in the year 1986. However, in the writ petition filed by the petitioner i.e. W.P.No. 6067/1998 assailing the adverse entries made in his service record for the years 1984 and 1985 this Court directed the respondent/authorities to revise the entries keeping in mind the fact that the petitioner had been exonerated by this Court and the punishment imposed upon him had been set aside in W.P.No. 5122/1999 decided on 24-4-2008 and, therefore, the respondent/authorities in compliance of the orders issued by this Court held the review DPC and revised the entries of the petitioner's service record for the years 1983, 1984 and 1985 and thereafter awarded retrospective promotion to the petitioner with effect from 6-8-1986. It is further stated that the respondent/authorities by fixing his notional pay and seniority on the post of Assistant Manager (General) has also granted him arrears of salary with effect from the date he actually rendered service on the post of Assistant Manager (General) i.e. 4-1-1996 and have also disbursed the difference of salary for this period to the petitioner by order dated 17-6-2010, a copy of which has been filed before this Court as Annexure R-4 along with the additional (8) W.P. No. 9094/2010 return. It is submitted that in view of the aforesaid facts and circumstances the petition filed by the petitioner deserves to be dismissed.
9. I have heard the learned counsel appearing for the parties at length and perused the record.
10. The question that arise for decision of this Court in the present petition is as to whether the petitioner is automatically and ipso facto entitled to arrears of salary and full back wages on being granted retrospective promotion in the particular facts and circumstances of the present case and whether the observations made by this Court in the order dated 10-12-2009 passed in W.P.No. 6068/1998 to the effect that in case the petitioner is found fit for promotion with retrospective effect he be granted all usual benefits that would accrue, amounts to an order of granting arrears of salary and full back wages leaving no discretion with the respondents in the matter.
11. Several decisions have been placed before this Court by both the parties. The issue regarding grant of back wages in various circumstances came up for consideration before the Supreme Court In the case of State of Kerala and others v. E.K.Bhaskaran Pillai, (2007) 6 SCC 524 (supra) and some of the instances and situations that have (9) W.P. No. 9094/2010 to be taken into consideration while deciding the issue of grant of back wages and salary have been illustratively (and not exhaustively) been laid down in paragraph 4 in the following terms :-
"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 v. Union of India (1989) 2 SCC 541, Virender Kumar v. Avinash Chandra Chadha, (1990) 3 SCC 472, State of Haryana v. O.P. Gupta, (1996) 7 SCC 533, A.K. Soumini v. State Bank of Travancore, (2003) 7 SCC 238 and Union of India v. Tarsem Lal, (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 v. K.V. Jankiraman, (1991) 4 SCC 109, State of A.P. v. K.V.L. Narasimha Rao, (1999) 4 SCC 181, Vasant Rao Roman v. Union of India, 1993 Supp. (2) SCC 324 and State of U.P. v. 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 sometimes full benefits with ( 10 ) W.P. No. 9094/2010 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."
12. In the case of Chairman-Cum-Managing Director, Coal India Limited and others v. Ananta Saha and others, (2011) 5 SCC 142 the Supreme Court after analyzing the law has again laid down the same law in the following terms in paragraph 49 :-
"49. The issue of entitlement of back wages has been considered by this Court time and again and consistently held that even after punishment imposed upon the employee is quashed by the court or tribunal, the payment of back wages still remains discretionary. Power to grant back wages is to be exercised by the court/tribunal keeping in view the facts in their entirety as no straitjacket formula can be evolved, nor a rule of universal application can be laid for such cases. Even if the delinquent is reinstated, it would not automatically make him entitled to back wages as entitlement to get back wages is independent of reinstatement. The factual scenario and the principles of justice, equity and good conscience have to be kept in view by an appropriate authority/court or tribunal. In such matters, the approach of the court or the tribunal should not be rigid or mechanical but flexible and realistic. (Vide U.P. SRTC v. Mitthu Singh, (2006) 7 SCC 180, Akola Taluka Education Society v. Shivaji, (2007) 9 SCC 564 and Balasaheb Desai Sahakari S.K. Ltd. v. Kashinath Ganapati Kambale, (2009) 2 SCC 288.)"( 11 ) W.P. No. 9094/2010
13. The Supreme Court in the case of Union of India v. B.M.Jha, (2007) 11 SCC 632 in paragraph 5 thereof has held in the following terms :-
"5. We have heard learned counsel for the parties. It was argued by learned counsel for the respondent that when a retrospective promotion is given to an incumbent, normally he is entitled to all benefits flowing therefrom. However, this Court in State of Haryana v. O.P. Gupta, (1996) 7 SCC 533 and followed in A.K. Soumini v. State Bank of Travancore, (2003) 7 SCC 238 has taken the view that even in case of a notional promotion from retrospective date, it cannot entitle the employee to arrears of salary as the incumbent has not worked in the promotional post. These decisions relied on the principle of "no work no pay". The learned Division Bench in the impugned judgment has placed reliance on State of A.P. v. K.V.L. Narasimha Rao, (1999) 4 SCC 181. In our view, the High Court did not examine that case in detail. In fact, in the said judgment the view taken by the High Court of grant of salary was set aside by this Court. Therefore, we are of the view that in the light of the consistent view taken by this Court in the abovementioned cases, arrears of salary cannot be granted to the respondent in view of the principle of "no work no pay" in case of retrospective promotion. Consequently, we allow this appeal and set aside the impugned order of the High Court dated 17-5-2000 passed by the Division Bench of the High Court as also the order dated 11-1-2000 passed by the Central Administrative Tribunal, Principal Bench.
14. The Supreme Court has taken a similar view while rendering decision in the case of J.K.Synthetics Ltd. v. K.P.Agrawal, (2007) 2 SCC 433 in paragraphs 17 thereof in the following terms :-
( 12 ) W.P. No. 9094/2010
"17. There is also a misconception that whenever reinstatement is directed, "continuity of service" and "consequential benefits" should follow, as a matter of course. The disastrous effect of granting several promotions as a "consequential benefit" to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualised while granting consequential benefits automatically.
Whenever courts or tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether "continuity of service" and/or "consequential benefits" should also be directed. We may in this behalf refer to the decisions of this Court in A.P. SRTC v. S. Narsagoud, (2003) 2 SCC 212, A.P. SRTC v. Abdul Kareem, (2005) 6 SCC 36, and Rajasthan SRTC v. Shyam Bihari Lal Gupta, (2005) 7 SCC 406.
15. In the case of G.M., Haryana Roadways v. Rudhan Singh, (2005) 5 SCC 591, the Supreme Court in paragraph 10 of the aforesaid case has held the following :-
"10. In Saran Kumar Gaur v. State of U.P., 1993 Supp (2) SCC 749 this Court observed that when work is not done remuneration is not to be paid and accordingly did not make any direction for award of past salary. In State of U.P. v. Atal Behari Shastri, 1993 Supp (2) SCC 207, a termination order passed on 15-7-1970 terminating the services of a Licence Inspector was finally quashed by the High Court in a writ petition on 27-11-1991 and a direction was issued to pay the entire back salary from the date of termination till the date of his attaining superannuation. This Court, in the absence of a clear finding that the employee was not gainfully employed during the relevant period, set aside the order of the High Court directing payment of entire back salary and substituted it by payment of a lump sum amount of Rs 25,000. In Virender ( 13 ) W.P. No. 9094/2010 Kumar v. Avinash Chandra Chadha, (1990) 3 SCC 472, there was a dispute regarding seniority and promotion to a higher post. This Court did not make any direction for payment of higher salary for the past period on the principle of "no work no pay" as the respondents had actually not worked on the higher post to which they were entitled to be promoted. In Surjit Ghosh v. Chairman and MD, UCO Bank, (1995) 2 SCC 474, the appellant (Assistant Manager in the Bank) was dismissed from service on 28-5-1985, but his appeal was allowed by this Court on 6-2-1995 as his dismissal order was found to be suffering from an inherent defect. His claim for arrears of salary for the past period came to about Rs 20 lakhs but this Court observed that a huge amount cannot be paid to anyone for doing no work and accordingly directed that a compensation amount of Rs 50,000 be paid to him in lieu of his claim for arrears of salary. In Anil Kumar Gupta v. State of Bihar, (1996) 7 SCC 83 the appellants were employed as daily-wage employees in Water and Land Management Institute of the Irrigation Department of the Government of Bihar and they were working on the posts of stenotypists, typists, machine operators and peons, etc. This Court allowed the appeal of the workmen and directed reinstatement but specifically held that they would not be entitled to any past salary. These authorities show that an order for payment of back wages should not be passed in a mechanical manner but a host of factors are to be taken into consideration before passing any order for award of back wages."
16. The principle of law discernible from the aforesaid judgments of the Supreme Court are that grant of back wages or arrears of salary are not a natural consequence of every order of reinstatement or retrospective promotion and in such cases the person concerned is not ipso facto entitled to arrears of salary ( 14 ) W.P. No. 9094/2010 or back wages, as the issue of award of back wages has to be considered in the facts of each case and the authority has to determine as to whether back wages should be awarded fully or partially.
17. Similar view has been taken by the Supreme Court in the cases of Commissioner, Karnataka Housing Board v. C.Muddaiah, (2007) 7 SCC 689, South Bengal State Transport Corpn v. Ashok Kumar Ghosh, (2010) 11 SCC 71, N. Selvaraj v. Kumbakonam City Union Bank Ltd., (2006) 9 SCC 172, National Insurance Co. Ltd. v. T. Mahendran, (2010) 12 SCC 47, G.M.Tank v. State of Gujrat, (2006) 5 SCC 446 and U.P. State Textile Corpn. Ltd. v. P.C.Chaturvedi, (2005) 8 SCC 211 and various other decisions.
18. In view of the aforesaid law laid down by the Supreme Court it is no longer in doubt that the grant of arrears of salary or back wages is not ipso facto or a natural consequence of setting aside of an order of punishment or grant of retrospective promotion on the directions issued by the higher Court or Tribunal and the question has to be decided in the facts and circumstances of each case
19. In the instant case, when the petitioner's case was considered for promotion on the post of Assistant Manager ( 15 ) W.P. No. 9094/2010 (General) in the year 1986, admittedly and undisputedly he had three adverse entries in his service record for the years 1983, 1984 and 1985 and on that count the petitioner's case for promotion was considered and rejected by the respondent/authorities. It is also undisputed that the aforesaid rejection and superannuation of the petitioner in the year 1986 was not assailed by the petitioner and in such circumstances, the denial of his promotion by the respondent/authorities in the year 1986 on the post of Assistant Manager (General) cannot be found fault with. It is also undisputed and admitted that the adverse entries in the years 1983, 1984 and 1985 were reconsidered and revised by the respondents pursuant to the directions issued by this Court in W.P.No. 6067/1998 decided on 10-12-2009 in the review DPC that was convened by the respondents on 4-5-2010 and were upgraded to "good" and "very good". It is also undisputed that after revising and upgrading the entries for the years 1983, 1984 and 1985 in the DPC held on 4-5-2010 the respondents as per the directions of this Court considered the case of the petitioner for promotion as on 6-8-1986 and finding him fit for promotion notionally promoted him on the said post with effect from 6-8-1986 by the impugned orders dated 6-5-2010, 11-5-2010 and 17-5-2010. From the aforesaid ( 16 ) W.P. No. 9094/2010 undisputed and admitted facts it is clear that no fault can be found with the respondents in denying the petitioner's promotion from 1986 till the holding of the review DPC in the year 2010 on the directions issued by this Court as till that date the petitioner's service record was not good and in such circumstances it cannot be said or held that the petitioner, though entitled, was not permitted to work on the higher post for no fault on his part or on account of any fault on the part of the respondents
20. In view of the aforesaid it is also clear that in the peculiar facts and circumstances of the present case it cannot by any stretch of imagination be held that the observations made by this Court to the effect that the petitioner on being found fit in the review DPC would be entitled to all usual benefits that accrue, would amount to or include a direction to grant full arrears of salary or back wages to the petitioner as the words "usual benefits" would not ipso facto or automatically include such a relief, in view of the law laid down by the Supreme Court in the judgments quoted above and, therefore, the respondents were entitled to consider and decide what would be the usual benefits in the facts of the petitioner's case. ( 17 ) W.P. No. 9094/2010
21. The learned counsel for the petitioner has heavily relied upon a decision rendered by the Supreme Court in the case of Commissioner, Karnataka Housing Board v. C.Muddaiah, (2007) 7 SCC 689 to contend that in cases where the Court on allowing a case for promotion or seniority further orders that the petitioner would be entitled to consequential benefits, which order attains finality, the authorities concerned are bound to pay all consequential financial benefits to the petitioner. It is submitted that in the case of C.Muddaiah (supra) the Supreme Court, while considering the directions for grant of consequential benefits, has awarded arrears of salary and back wages. It is submitted that as the petitioner's case is identical and similar to that of C.Muddaiah (supra), the petitioner is also entitled to grant of arrears of salary.
22. I am unable to accept the contention of the learned senior counsel appearing for the petitioner for two reasons; firstly, that the Supreme Court, while deciding the case of C.Muddaiah (supra), has recorded a finding to the effect that the Court while allowing the petition of the petitioner therein had considered several aspects and had thereafter issued a direction to the effect that the seniority list of the petitioner and the respondents therein shall be revised accordingly with a further direction that "necessarily it ( 18 ) W.P. No. 9094/2010 follows that the petitioner is entitled to such other consequential benefits that he might earn consequent upon the revision of ranking" and, therefore, in the case of C.Muddaiah (supra) there was a clear and specific direction of the Court that the petitioner would be entitled to all the consequential benefits claimed by him consequent upon revision of seniority whereas there is no such direction in the petitioner's case. On the contrary, the direction issued by this Court is that he would be entitled to all usual benefits that accrue. Secondly, I am also of the considered opinion that the connotation of a direction granting "consequential benefits that he might earn consequent upon the revision of ranking" is different from a direction that he would be entitled to all usual benefits that accrue. I am inclined to say so as the words "consequential benefits that he might earn" necessarily means that the employee would be entitled to all the benefits that he would earn on revision of seniority or retrospective promotion, whereas the meaning of words "usual benefits that accrue" would mean that the authority would be at liberty to examine what would be the benefits that the employee would be usually entitled to in view of the changed factual scenario and as grant of arrears of salary and back wages is not automatic and a usual consequence ( 19 ) W.P. No. 9094/2010 as has been held by the Supreme Court in the cases referred to above, therefore, the decision in the case of C.Muddaiah (supra) would not help the petitioner in the present case in view of the different facts obtaining in the present petition. In fact, it is pertinent to note that the Supreme Court in the case of C.Muddaiah (supra) itself has stated that the normal rule in such cases is "no work no pay" but the Court may issue directions for payment of full or partial benefits depending upon the facts of the case.
23. In view of the aforesaid, the contention of the petitioner based on the decision rendered by the Supreme Court in the case of C.Muddaiah (supra) is hereby rejected.
24. A perusal of the impugned orders indicates that the respondent/authorities on examining the case of the petitioner have given him notional promotion with effect from 6-8-1986 and actual benefit of salary from 1986 i.e. the date from his actual promotion on the post of Assistant Manager (General). As the respondents cannot be held responsible nor can any fault be found with the respondent/ authorities in not awarding promotion to the petitioner in the year 1986, I am of the considered opinion that the petitioner is not entitled to full arrears of salary or back ( 20 ) W.P. No. 9094/2010 wages from 6-8-1986 as claimed by him in the present petition. I am also of the considered opinion that in view of the aforesaid facts and circumstances, no fault can be found with the impugned orders limiting the grant of monitory benefits to the petitioner from the date he actually rendered service on the post of Assistant Manager (General) after granting him notional promotion and pay fixation on the said post from 1986.
25. In view of the aforesaid, the petition filed by the petitioner being meritless is accordingly dismissed.
26. In the facts and circumstances of the case there shall be no order as to costs.
(R.S.Jha)
mct Judge