-1- S.A.W. No.390/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T D.B. Civil Special Appeal No.390 of 2010 IN S.B. Civil Writ Petition No.3763 of 1995. Oriental Insurance Company Limited & Others VERSUS Vinod Kumar Gupta son of Shri Vishambar Dayal Gupta Date of Judgment :::: 23/07/2010 Hon'ble Mr. Justice Dalip Singh Hon'ble Mr. Justice S.S. Kothari Mr. Ashok Mehta, Counsel for the appellant-company Mr. Sargam Jain, on behalf of Mr. Ashok Gaur, Counsel for the respondent *** Per Court : Heard learned counsel for the parties. This special appeal has been preferred on behalf of the appellants-company against the judgment of the learned Single Judge dated 20.08.2009 by which S.B. Civil Writ Petition No.3763 of 1995 filed by the respondent-Vinod Kumar Gupta against the appellant-company for seeking relief of his promotion with consequential benefits has been allowed with interest on the amount due @ 6% per annum. Learned counsel for the appellant-company contended that the learned Single Judge has erred in awarding the benefit of the retrospective promotion. We have gone through the judgment of the learned Single Judge and we find that the respondent appeared for the promotion test from the post of Development Officer to the Assistant Administrative Officer (Development) in the year 1991 and was called for interview on 19.05.1992. -2- S.A.W. No.390/2010 He was also informed vide letter dated 29.06.1992 by the General Manager that he had qualified for the promotion in the general category for the vacancies of the year 1991 and was ranked at serial no.2 in the merit. Later-on, the respondent was served with a letter dated 22.03.1993 by the General Manager informing him that though his name had been included in the ranking list, but on account of the fact of alteration of marks his name was deleted from the ranking list. This was done supposedly on account of some adverse comments made against the respondent in the audit report on account of which it was decided to recover a sum of Rs.20,025/- from the respondent against the initiatives already paid to him in the year 1991. The respondent submitted his representation against the aforesaid audit report and his representation was accepted by the appellant-company after the re-audit which was directed on the representations submitted by the respondent. After the adverse audit paras were removed, the respondent again submitted his representation for being granted the promotion since the adversity pointed out against the respondent had been eliminated as a result of the re-audit and the ranking list in consequence of the promotion exercise had been given effect to and juniors had been promoted. These facts are not in dispute. Based on the above, the learned Single Judge allowed the writ petition rejecting the objection of the appellants that the respondent ought to have approached the Court by -3- S.A.W. No.390/2010 means of the writ petition in the year 1991 itself and not in 1995. The aforesaid objection was liable to be rejected and was rightly rejected by the learned Single Judge. Since the representations made by the petitioner against the action of the appellants lowering the rank of the respondent in the merit list on account of the adverse audit report came to be allowed only on 15.07.1994. Based upon the findings conveyed to the respondent vide letter of the Deputy Manager (Incharge) dated 15.07.1994 the respondent first made a representation to the appellants for undoing the wrong and granting him the benefit of his promotion with effect from 1990-1991 as was done for others including persons junior to the respondent petitioner and when nothing was done by the appellants the respondent approached this Court by means of the writ petition in 1995, which came to be allowed vide judgment dated 20.08.2009. In this view of the matter, the respondent cannot be made to suffer if the writ petition filed by the respondent remained pending before this Court and came to be decided only on 20.08.2009 in his favour. The respondent raised his grievance at the earliest and came to the Court when the appellant failed to give justice to the petitioner. Learned counsel for the appellants relied upon the judgments of the Hon'ble Supreme Court in the case of Babu Lal Vs. Haryana State Agricultural Mkt. Board, reported in 2009 (2) Scale 388 wherein the Hon'ble Supreme Court in the facts and circumstances of that case agreed with the judgment -4- S.A.W. No.390/2010 of the High Court and held that the suit filed by the plaintiff after his acquittal in the criminal case as a result of the benefit of doubt being given to him was not entitled to the benefits with retrospective effect. The Apex Court further held that the employer has a right to decide whether or not such an employee deserves any salary for the intervening period. In the aforesaid case, the employer of the plaintiff took a conscious decision and passed an order against the plaintiff not to grant him the benefits with retrospective effect, which was challenged by the plaintiff in the suit. The Hon'ble Supreme Court refused to interfere with the judgment of the High Court, which set aside the judgment and decree of the appellate Court and affirmed the finding of the learned trial Court dismissing the suit. Learned counsel for the respondent, on the other hand, relied upon the decision of the Hon'ble Supreme Court in the case of State of Kerala and Others Vs. E.K. Bhaskaran Pillai, reported in (2007) 6 S.C.C. 524 and contended that the Hon'ble Supreme after consideration of A.K. Soumini Vs. State Bank of Travancore, reported in (2003) 7 S.C.C. 238 and State of Haryana Vs. O.P. Gupta, reported in (1996) 7 S.C.C. 533 as well as Union of India Vs. K.V. Jankiraman, reported in 1991 (4) S.C.C. 109 held that the question with regard to the grant of monetary benefits with retrospective effect in the case of promotion would depend upon the facts of each case and cannot be said to be a rule of thumb. The Hon'ble Apex Court in Bhaskaran Pillai's case also laid down that there are exceptions to the aforesaid rule. -5- S.A.W. No.390/2010 In Para No.4 of the judgment in State of Kerala and Others Vs. E.K. Bhaskaran Pillai (supra), it has been held as follows : “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 15.06.1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah v. Union of India, Virendra Kumar v. Avinash Chandra Chadha, State of Haryana v. O.P. Gupta, A.K. Soumini v. State of Travancore and Union of India v. Tarsem Lal. 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, State of A.P. v. K.V.L. Narasimha Rao, Vasant Rao Roman v. Union of India and State of U.P. v. Vinod Kumar Srivastava. 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 inquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before Court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-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. (emphasis supplied) -6- S.A.W. No.390/2010 A look at the above passage from Bhaskaran Pillai's judgment of the Hon'ble Supreme Court would go to show that in the facts and circumstances of the present case the respondent petitioner appeared for the promotion examination, qualified and was ranked no.2 in the merit. This was conveyed to the petitioner by the appellant. However, it was only on account of some adverse audit report that his promotion was denied after entering the data in the ranking list for promotion, which resulted in lowering of marks of the petitioner. The aforesaid objections in the re-audit report was removed or upon reaudit by the appellants on the representations of the petitioner and which was duly conveyed to the respondent petitioner on 15.07.1994 by the appellant bank. Once the aforesaid adversity on account of which data in the ranking list entered was removed, the original marks awarded ought to have been restored in the ranking list in the case of the petitioner, who was no.2 in order of merit. It was, therefore, incumbent upon the appellants to have restored the position of the respondent petitioner and since he was no.2 in the merit, the promotion which had been denied to him because of the aforesaid reason ought to have been given to him. It is needless to state that during the aforesaid period persons junior to him and lessor in merit were promoted and the petitioner was required to work even under the persons junior to him for no fault of his. Thus, as was held by the Hon'ble Supreme Court in State of Kerala & Others Vs. E.K. Bhaskaran Pillai (supra) after -7- S.A.W. No.390/2010 consideration of A.K. Soumini as well as O.P. Gupta' case and since the Hon'ble Supreme Court has held that the principle of “no work no pay” is not a rule of thumb and there are exceptions to the same where monetary benefits can be given a person and one such exception mentioned in Para 5 of State of Kerala & Others Vs. E.K. Bhaskaran Pillai case (supra) is that “persons junior to him were appointed and he was wrongly denied” promotion and, therefore, the petitioner was promoted with retrospective effect. So far as the judgments referred by learned counsel for the appellants is concerned, Babu Lal's case was one arising out of acquittal in a criminal case after giving the plaintiff the benefit of doubt. As explained in E.K. Bhaskaran Pillai's case by the Hon'ble Apex Court cases arising out of criminal trial and acquittal on the basis of benefit of doubt stand in a class by itself where it is open for the employer after taking into consideration the nature of the delinquency etc., to pass orders either allowing or disallowing such benefits with retrospective effect. Thus, the present case is distinguishable and falls expressly in the exceptions carved out by the Hon'ble Supreme Court in E.K. Bhaskaran Pillai's case (supra) in Paras 4 and 5 of the report. In the facts and circumstances, therefore, we find no infirmity in the judgment of the learned Single Judge. The special appeal as well as the stay application are, accordingly, dismissed. (S.S. Kothari) J. (Dalip Singh) J. Ashok/ -8- S.A.W. No.390/2010 As would be seen that the facts of the present case are totally distinguishable from the case of Babu Lal (supra). In the instant case, the respondent-petitioner qualified in the promotional examination and was ranked at serial No.2 in the merit and it was only after ranking list was prepared that an adverse comment was made against the petitioner respondent in an audit report. The said audit report was set aside on re-audit on the representation made by the petitioner respondent in the year 1994. Thus, whatever adversity was there to deny the promotion to the respondent has seized to exist and the appellants ought to have, therefore, restored the position prior to convey of the letter dated 22.03.1993 by which the petitioner had been informed by the appellants that on account of the alteration in the data his marks had been reduced. Once the re-audit restored the position and the audit objection pointed out did not stand on acceptance and the detailed re-audit report on 15.07.1994. The original marks of the respondent petitioner ought to have been awarded and his rank restored accordingly. Thus, the appellant failed to carry out, despite representation having been made by the respondent petitioner, the facts of the present case, therefore, are totally different from Babu Lal's case (supra). Moreover, in Babu Lal's case the plaintiff had only worked as Executive Officer from 28th March, 1997 to 31st July, 1997 and had only been given an additional charge to look after the work of Executive Officer and Secretary in addition to his own duties without any extra remuneration. In the light of these -9- S.A.W. No.390/2010 facts the Hon'ble Supreme Court affirmed the findings given by the learned trial Court that the plaintiff was not entitled to any remuneration for the said period as claimed in the suit. Be that as it may, a case of disciplinary action based upon criminal charges and proceedings in a criminal trial resulting in acquittal on account of benefit of doubt stand on a different foot from the facts of the present case and, therefore, the aforesaid judgment of Babu Lal's case (supra) has no application in the facts and circumstances of the present case. We have given our thoughtful consideration to the rival submissions made by the learned counsel for the parties and perused the aforesaid judgments and we find that in Para No.5 of the report, the Hon'ble Supreme Court has referred to the earlier judgments instead of State of Haryana and others Vs. O.P. Gupta and Others, J.T. 1998 (3) S.C. 141, A.K. Soumini Vs. State Bank of Travancore, reported in J.T. 2003 (8) S.C. 35 and held “that even in case of a notional promotion from the retrospective date it cannot entitle the employee to arrears of salary as the incumbent has not worked in the promotional post on the principle of “no work no pay”.