Central Administrative Tribunal - Ernakulam
H.Palmer vs The Director (Hrd) on 14 February, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
OA No.431/2012
Thursday, this the 14th day of February 2013.
CORAM
HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER
HON'BLE Ms. K.NOORJEHAN, ADMINISTRATIVE MEMBER
H.Palmer, age 51
S/o J.Harris,
Sub Divisional Engineer, Kerala Circle
H.R.No.198307230, Staff No.206956
Apsara Bhavan, Maradi, Karode P.O.
Thiruvananthapuram District. Applicant
[By advocate: Mr.Vinod J.Dev]
Versus
1. The Director (HRD), Bharat Sanchar Nigam Ltd
BSNL Corporate Office, BSNL Bhawan
New Delhi-1.
2. The Chief General Manager
Office of the Chief General Manager
Telecom, Kerala Circle
Bharat Sanchar Nigam Ltd (BSNL)
H.R.Section, 2nd Floor, Doordarshan Bhavan
PMG Junction, Thiruvananthapuram Dist.695033.
3. The Assistant General Manager (Admn)
Kerala Circle, Bharat Sanchar Nigam Lt6d (BSNL)
HR Section, 2nd Floor, Doordarshan Bhavan
PMG Junction,
Thiruvananthapuram District-695033. Respondents
[By advocate: Mr.N.Nagaresh)
This Original Application having been heard on 8th February 2013, this
Tribunal on 14th February 2013 delivered the following:
O R D E R
HON'BLE DR.K.B.S.RAJAN, JUDICIAL MEMBER A few dates are relevant to have a grip on the facts of the case and the same are as under:-
(a) 15-05-2009: The applicant was one of the 150 persons who were promoted from the post of Junior Telecom Officer to the post of Sub Divisional Engineer by a common order. Of these, save the applicant, all others have been retained in the same Circle except the applicant who had been shifted from Kerala to N.E-I., vide serial No. 145 of Annexure A-1 promotion cum posting order. The order at Annexure A-1 contained a stipulation that in case the officer concerned fails to join the promotional assignments within the prescribed period of 40 days, he/she should not be allowed to be relieved or join the post thereafter. In such case, the promotion order shall become inoperative and the matter shall be reported to the Corporate office for further necessary action. Further, no request for modification of promotion order shall be entertained.
(b) 18-05-2009: The applicant preferred a representation for getting a posting in Kerala Circle vide Annexure A-II.
(c) 12-06-2009: Relieving order issued to the applicant directing him to join the Shillong Office. The applicant simultaneously submitted medical leave application.
(d) 30-06-2009: Respondents have cancelled the promotion cum posting order (Annexure A-I), vide Annexure A-V.
(e) 05-11-2009 Since there was no positive response to his representation dated 18-05-2009, the applicant vide Annexure A-III renewed his request for re-allotment to Kerala Circle. As there was no response, the applicant thereafter moved the Tribunal with OA No. 490 of 2010.
(e) 02-07-2010: OA No. 490 of 2010 was allowed by order dated 2nd July, 2010 and the respondents were directed to retain the applicant in Kerala Circle in the promoted post and give a posting forthwith.
Annexure A-IV refers. Against the same OP (CAT) No. 271 of 2010 was filed by the respondents before the High Court of Kerala.
(f) 01-11-2010: OP (CAT) No. 271 of 2010 was dismissed. The High Court however stated that in case there be any error, Review could be filed before the Tribunal. After this order, Review was filed in OA No. 490 of 2010 by the respondents, while the applicant filed CP No. 96/2010.
(g) 06-04-2011: Both the Review as well as CP were dismissed. However, the fact that the applicant's spouse has been employed in the Government of Kerala has been taken judicial notice. This is one of the justifications for retention of the applicant in Kerala Circle, on spouse ground. Against dismissal of the Review Application, respondents had filed OP (CAT) No. 1825 of 2011.
(h) 12-07-2011: Respondents directed the applicant to join the duty as JTO in Trivandrum SSA vide Annexure A-IX.
(h) 13-07-2011: OP No. 1825 of 2011 was dismissed by the High Court. Against the same, respondents moved the Apex Court through SLP (C) No. 28021 of 2011.
(i) . 31-10-2011: The SLP (C) No. 28021 of 2011 has been dismissed.
(j) 24-11-2011: The respondents, submitted to the decision of the Tribunal as given in its order dated 02-07-2010, as upheld by the High Court, after their SLP had been dismissed by the Apex Court. Accordingly, the applicant had been promoted from 02-07-2010, the date of CAT judgment in OA No. 490 of 2010 on notional basis and actually w.e.f. the date the applicant had assumed higher responsibility. Annexure A-XI.
(k) 25-11-2011: Applicant joined the post of SDE.
2. The claim of the applicant in this case is that he ought to have been inducted as SDE from 15-05-2009 itself, when he was promoted as SDE and thus, he is entitled to arrears of pay as S.D.E. He is also entitled to interest @ 15% from 02-07-2010 on the arrears of salary. Compensation of Rs 1 lakh has been claimed and the customary residual relief of such other order to meet the ends of justice including cost was also prayed for. Para 8 of the OA refers.
3. Respondents have contested the O.A. Their contention is that since the applicant was the junior most even amongst the reserved category, he was to be posted out as there were only 149 vacancies of SDE at Kerala Circle. The applicant had wilfully and deliberately abstained from duty, ignoring all the orders issued by the BSNL, taking advantage of the pendency of litigation pursuant to the OA No. 490 of 2010. He was fully aware of cancellation of the promotion order as early as 25-07-2009. As the applicant had not performed any duty in BSNL from 12-06-2009, he was accorded only notional promotion w.e.f. 02-07-2010. The applicant failed to join duty even after issue of Annexure A-9 letter dated 12-07-2009 nor had he applied for leave. The applicant has filed his rejoinder in which he had reiterated his contentions as in the OA. He has stated that his willingness to join duty vide Annexure A16 representation remained unattended and had he been allowed to join duties as per his request, he would have certainly performed his duties.
4. Counsel for the parties argued on the same lines as in the pleadings. Counsel for the applicant relied upon the following decision to hammer home his contention that under such circumstances, the applicant is entitled to have his salary for the period he was put out off duties by the respondents themselves:-
(a) Commissioner, Karnataka Housing Board vs C. Muddaiah (2007) 7 SCC 689
(b) Somesh Tiwari vs Union of India 2009(2) SCC 592
5. Arguments were heard and documents perused: The initial promotion cum posting order was issued on 15-05-2009. The applicant went on medical leave on 12-06-2009. Pleadings do not reflect the date from which the applicant had been certified to be fit to perform his official duties. Nevertheless, the fact remains that the applicant did not attend the office from 12-06-2009 onwards. It was on 05-11-2009 that the applicant renewed his request of May 2009 for allotment to Kerala Circle. Annexure A-III refers. In fact, in the OA, the applicant stated that he had expressed his willingness to join duty. No such expression could be discerned from Annexure A-III. The applicant had indicated about his physical ailment in the said communication, which means that he was still unwell. It is thereafter, in his own leisure hours that the applicant filed OA No.490 of 2010. This was, however, allowed and by order of 2nd July, 2010, the Tribunal ordered that the applicant be allotted Kerala Circle forthwith. This was not allowed but the Department chose to move the matter to the High Court. The High Court dismissed the OP but gave a latitude to the department to approach the Tribunal under the Review jurisdiction and accordingly review was filed. This was also rejected and the respondents moved the High Court, which declined to interfere and lastly, SLP filed was also dismissed. It is under these circumstances that the order dated 02-07-2010 of the Tribunal was executed by the respondents by posting the applicant as SDE in Kerala Circle with a stipulation that the applicant's pay fixation would be notional from 02-07-2010 but actual from the date he shoulders responsibility.
6. The decisions relied upon by the applicant with regard to consequential benefits have been gone through. In so far as Muddaiah is concerned, the writ petitioner before the High Court therein (Muddaiah) challenged the erroneous seniority and sought the relief of reassigning the seniority and consequential benefits thereof. This was allowed by the Single Judge and intra-appeal filed by the Board was dismissed. SLP filed by the Board also came to be dismissed. Thus, the judgment of the single Bench became final. However, the judgment not having been executed, the petitioner filed a contempt petition but the same came to be dismissed, for, according to the Court, the order was complied with when the OM of the respondents stated that the promotion of Shri C. Muddaiah be worked out with reference to the promotion according to Shri K. Srinath and the consequential benefit be allowed to Shri C. Muddaiah as per the judgment referred to above. The writ petitioner then filed a separate Writ Petition which came to be dismissed at the hands of the Single Bench but the Division Bench allowed the petition, and it was against that decision that the Board approached the Supreme Court. The Supreme Court observed that the judgment in the earlier writ petition having become final, the same had to be executed. The Apex Court in para 32 of the said Judgment has held as under:-
32. We are of the considered opinion that once a direction is issued by a competent court, it has to be obeyed and implemented without any reservation. If an order passed by a court of law is not complied with or is ignored, there will be an end of the rule of law.
If a party against whom such order is made has grievance, the only remedy available to him is to challenge the order by taking appropriate proceedings known to law. But it cannot be made ineffective by not complying with the directions on a specious plea that no such directions could have been issued by the court. In our judgment, upholding of such argument would result in chaos and confusion and would seriously affect and impair administration of justice. The argument of the Board, therefore, has no force and must be rejected.
7. The Apex Court further reproduced a part of the order passed by the Single Judge subsequently and the same is as under:-
29. But our attention was also invited by the learned counsel for the writ petitioner to a subsequent order dated 1-6-1998. The preamble of the order refers to the decision in the writ petition and direction of the Court to place the writ petitioner above Respondents 2 to 34 and to grant him consequential benefits.
30. It then proceeds to state:
"In view of the facts explained in the Preamble I, P.B. Mahishi, Housing Commissioner, Karnataka Housing Board, order that Shri C. Muddaiah is deemed to have been promoted as Superintendent from the cadre of FDAs with effect from 22-3-1984 i.e. the date from which Shri K. Srinath was so promoted. I further order that Shri C. Muddaiah is deemed to have been promoted as Assistant Revenue Officer from the cadre of Superintendent with effect from 12-6-1985 i.e. the date on which his junior was so promoted. He is deemed to have been posted as Assistant Revenue Officer with effect from 27-10-1997, the date on which the Hon'ble High Court of Karnataka rendered its judgment in WP No. 1848 of 1992. I also order that Shri C. Muddaiah be paid arrears of pay and allowance for the period from 27-10-1997 to 28-2-1998, the date on which he retired from service on attaining the age of superannuation presuming that he has worked as Assistant Revenue Officer during the said period even though he had actually not worked in that capacity. Shri C. Muddaiah will not be eligible for arrears of pay and allowance for any earlier period since he has not actually worked in the cadre of Superintendents and Assistant Revenue Officers, in view of the provisions of the Karnataka State Civil Services (Regulation of Promotion, Pay and Pension) Act, 1973. A statement showing the pay fixation allowed in favour of Shri C. Muddaiah consequent on the above orders is enclosed herewith. On the basis of the revised pay fixation order enclosed Shri C. Muddaiah will also be entitled for pension, gratuity and family pension, etc."
(emphasis supplied)
31. Bare reading of the above order makes it more than clear that the salary to be paid to the writ petitioner was from 27-10-1997 to 28-2-1998. It was expressly stated that the writ petitioner would not be entitled to arrears of pay and allowances for any earlier period "since he has not actually worked in the cadre of Superintendents and Assistant Revenue Officers". It is thus obvious that in spite of clear direction issued by a competent court, no payment was made and an express order was passed to the effect that the writ petitioner would not be entitled to pay as he had not worked. The writ petitioner, therefore, had legitimate grievance against such direction. A fresh substantive petition, hence, could be filed by him and since he was entitled to such relief, the Division Bench was justified in granting the prayer.
.
8. The above case clearly shows that the Court's order is specific as to for which period pay was admissible and for which period, the same is not. And what the Apex Court has held is that once a judgment has become final, the same has to be executed. It would be seen from the above judgment that salary has been directed to be paid for the period the petitioner to the writ petition was serving. However, for the past period when he had not worked claim for arrears was declined. Thus, the said decision is not in any way assisting the case of the applicant.
9. In the case of Somesh Tiwari, the Apex Court has directed that the period of absence be regularized by way of grant of leave. The counsel for respondents has also relied upon the above judgment and stated that the respondents are not averse in granting leave admissible to the applicant if he applies for the same.
10. In Muddaiah (supra) the Apex Court has dealt with the general law as under:-
34. 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.
11. Subsequently, in Gujarat Agricultural University v. All Gujarat Kamdar Karmachari Union, (2009) 15 SCC 335, the Apex Court has stated as under:-
33. One of the principles well known in the matters of service is that if a person has worked, he must be paid and if he has not worked, he should not be paid. This is expressed in doctrine, "no work, no pay". Another oft repeated principle in service jurisprudence is that if an employer has wrongly denied an employee his due then in that case he should be given full monetary benefits. But none of these principles is absolute nor can these principles be applied as a rule of thumb. Of late, the courts have followed the principle that a person is not entitled to get something only because it would be lawful to do so.
12. In the instant case, had the applicant been performing the duties of JTO during the period in question, he could have been considered for payment of salary even as of SDE as he was available and willing. He chose to absent himself perhaps on the ground that he has the judgment in his favour. Respondents have afforded the promotion from 02-07-2010, the date when the order of the Tribunal in OA No. 490 of 2010 was passed. In fact, the order of the Tribunal quashed the transfer order and directed the respondents to retain the applicant in Kerala Circle. Promotion order is dated 15-05-2009 and the applicant has sought promotion with back wages from that very date, while the respondents have granted him promotion from 02-07-2010 and the same was with notional fixation of pay. As the promotion order is dated 15-05-2009, and as a period of 40 days had been specified as period within which the officers could take charge as SDE, interest of justice warrants that the applicant be deemed to have been promoted w.e.f. 01-07-2009 and the notional fixation of pay be from 01-07-2009 instead of 02-07-2010 as directed in Annexure AXI. Pay fixation may take into account the period of adhoc promotion as SDE if any prior to regular promotion. The applicant is not entitled to any back wages for the period he did not shoulder higher responsibilities but his promotion would be effective from 01-07-2009.
13. The period of absence may be regularized by grant of admissible leave, subject to his applying for the same.
14. The OA is disposed of accordingly. Respondents are directed to issue necessary corrigendum to Annexure A-XI. They shall also pass a formal order withdrawing the order dated 26-04-2010 whereby the Corporate Office had cancelled the promotion order of the applicant and also order dated 30-06-2010 vide Annexure A-V. K.NOORJEHAN Dr K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER aa.