Civil Revision No.1530 of 2003(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1530 of 2003(O&M) Date of Decision: May 23, 2011 The State of Punjab through Collector, Patiala and another .....Petitioners v. Raj Kumar and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.C.S.Brar, DAG, Punjab and Ms.Kavita Arora, AAG, Punjab for the petitioners. Mr.Vijay Sharma, Advocate for the respondents. ..... RAM CHAND GUPTA, J. The present revision petition has been filed under Section 115 of the Code of Civil Procedure by petitioners for setting aside order dated 16.12.2002 passed by learned Executing Court. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned Executing Court. Facts relevant for the decision of present revision petition are that a suit was filed by respondents-plaintiffs, namely, Raj Kumar and Sham Lal against the present petitioners, i.e., defendants no.1 and 2 and defendants no.3 to 12, which was decreed by learned trial Court vide judgment and decree dated 5.3.1997, operative part of which reads as under:- “In view of my findings on the above issues, the suit of Civil Revision No.1530 of 2003(O&M) -2- the plaintiffs succeed partly and a declaratory decree to the effect that the seniority of the plaintiffs has not been correctly fixed in the seniority list circulated by the defendants on 7.6.83 and they are entitled to be pleased above defendants no.4 to 6, 11 and 12 and are entitled to be considered for promotion from the dates on which any of these defendants was promoted and they will be given promotion if they are found fit for promotion from that date. However, the plaintiffs will be entitled to get arrears of salary, if any, only for a period of 38 months immediately preceding the date of filing of the suit. The relief of permanent injunction has not been pressed by the learned counsel for the plaintiffs as defendant nos.6 to 9 have already been given promotion during the pendency of the suit, as such the suit qua permanent injunction is dismissed. Parties are left to bear their own costs.” Appeal filed by respondents-plaintiffs was partly accepted by learned Additional District Judge, Patiala, vide judgment and decree dated 29.4.1999, operative part of which reads as under:- “As a result of my above discussion, the appeal is accepted partly. The judgment and decree under appeal are set aside and seniority list dated 7.6.83 (Ex.P12) qua the plaintiffs and defendants nos.3 to 5 and 7 to 12 is hereby quashed and defendants Nos.1 and 2 are directed to refix the seniority of the plaintiffs qua defendants nos.3 to 5 and 7 to 12 in accordance with the judgment and decree of this Court Civil Revision No.1530 of 2003(O&M) -3- within three months. They will also be entitled to consequential benefits like promotion etc. from the date their juniors got. In the circumstances of the case, the parties are left to bear their own costs.” The judgment passed by learned Additional District Judge, Patiala, dated 29.4.1999 has become final as no appeal against the same was filed by petitioners. Execution petition was filed by respondents-decree holders. Seniority of respondents-decree holders was fixed by the petitioners as per the judgment and decree. They were also given promotion from the date their juniors were promoted. However, arrears regarding retrospective promotion had not been given to respondents-decree holders and hence, learned Executing Court directed issuance of warrant of sale of the property, already attached vide impugned order. It has been contended by learned counsel for the petitioners that it is settled law that an employee is not entitled to any pay and allowance during the period he did not perform the duties on higher post by applying principle of no work no pay. It is further contended that respondents-plaintiffs have been given their proper place in the gradation list and have also been given deemed promotion with effect from the date, their juniors were promoted and, however, it is contended that they are not entitled for the salary in the grade of promoted post for the period for which they had not worked on the promoted post and hence, it is contended that learned Executing Court has committed illegality in directing the petitioners to pay the salary of the promoted post for the period for which respondents- plaintiffs did not actually work on the promoted post. Learned State Counsel have also placed reliance upon Union of India v. B.M.Jha, (2007) Civil Revision No.1530 of 2003(O&M) -4- 11 Supreme Court Cases 632, Union of India and another v. Tarsem Lal and others, 2007 AIR (SC) 259, Manohar Burde v. Union of India and others, decided on 31.1.2003 in Writ petition No.5882 of 2000, State of Haryana v. O.P.Gupta etc. , 1996 AIR (SC) 2936, Union of India and others v. C.A.T. and others, 2003(4) SCT 949 and State of Kerala v. Jacob, 2001 (2) SCT 30. On the other hand it has been contended by learned counsel for the respondents-plaintiffs that the judgments passed by learned Courts below have become final as no appeal against the judgment passed by learned first appellate Court has been filed by petitioners-State. It is further contended that as per the said judgment, respondents-plaintiffs are entitled to all available benefits of the promotional post including salary. It is further contended that the principle of `no work no pay' is not being attracted in the case of respondents-plaintiffs as for no fault of them, they were deprived of their rights to work on the promotional post, whereas their juniors were allowed to work on the same. It is further contended that learned Executing Court cannot go beyond the decree and the Executing Court could not order that respondents-plaintiffs are not entitled for salary of the promotional post from the date they were given notional promotion, as no such order was passed by learned first appellate Court. Similar point arose before this Court in Ram Dass and others v. State of Punjab and others, 2009(3) SCT 11: 2009(5) SLR 359 and it was observed that where the Court specifically granted all the consequential benefits, respondents cannot nullify the said judgment, which has become final, even if on the facts of some other case, some other view was taken by the Courts. It is also clarified that consequential benefits includes monetary Civil Revision No.1530 of 2003(O&M) -5- benefits unless excluded by the Court by a specific direction. In this case O.P.Gupta's case (supra) on which reliance has been placed on behalf of the petitioners, was also considered. The relevant paragraphs of the judgment read as under:- “6. In so far as the proposition of law laid down in the judgment referred to above is concerned, there can not be any dispute. In the present case, this judgment is not applicable. The right of the petitioners flows from the judgment dated 06.01.2003 passed in CWP No.7586 of 1999 wherein this Court specifically granted all consequential benefits. The expression consequential benefits includes monetary benefits unless excluded by the Court by a specific direction. The judgment dated 06.01.2003 stands affirmed in SLP which fact has been admitted by the respondents even in the reply filed. The respondents cannot nullify the judgment of this Court which is affirmed by the Hon'ble Supreme Court. Even if in another case the Hon'ble Supreme Court has taken a different view that will have no application where the judgment stands concluded between the parties. This is settled proposition of law. 7. In view of the above circumstances, the impugned order is hereby quashed. The respondents are directed to release all consequential benefits including the arrears of Civil Revision No.1530 of 2003(O&M) -6- salary in implementation of the judgment dated 06.01.2003 from the retrospective date of promotion granted to the petitioners, within a period of four months from the date a certified copy of this order is served upon the competent authority. No costs.” Moreover doctrine of `no work no pay' cannot be applied, where the competent authority was at fault in not promoting the employee at its due date without any sufficient reason or fault of the employee. Hon'ble Apex Court in State of Kerala v. E.K.Bhaskaran Pillai, 2007 (2) SCT 757: (2007) 6 SCC 524 has held that principle of `no work no pay' cannot be regarded as a rule of thumb and grant of full back wages in certain eventualities is permissible particularly when promotion is wrongly denied, after making reference to various judgments rendered by Hon'ble Apex Court in cases of Paluru Ramkrishnaiah v. Union of India, (1989) 2 SCC 541; Virender Kumar v. Avinash Chandra Chadha, (1990) 3 SCC 472; A.K.Soumini v. State Bank of Travancore, 2004(2) SCT 315: (2003) 7 SCC 233; Union of India v. Tarsem Lal, 2006(4) SCT 355: (2006) 10 SCC 145; Union of India v. K.V.Jankiraman, 1991(3) SCT 317: (1991) 4 SCC 109; State of A.P. v. K.V.L. Narasimha Rao, 1999(2) SCT 684: (1999) 4 SCC 181; Vasant Rao Roman v. Union of India, 1993 Supp. (2) SCC 324; State of U.P. v. Vinod Kumar Srivastava, (2006) 9 SCC 621; and O.P. Gupta's case (supra) and held as under:- Civil Revision No.1530 of 2003(O&M) -7- “.......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 of 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 Civil Revision No.1530 of 2003(O&M) -8- also.” In the present case, nothing has been shown by learned counsel for the petitioners that there was any default on the part of respondents-plaintiffs in pursuing their case of promotion with effect from the date their juniors were promoted. Hence, it cannot be said that respondents-plaintiffs are not entitled for pay on higher post from the date their juniors were promoted. On the point reliance is also placed upon Kanwaljeet Singh v. State of Haryana and others, 2008 (4) SCT 326 : 2008(6) SLR 212. Moreover the judgment passed by the Courts below have become final and hence learned Executing Court is bound to implement the said judgment. At the execution stage the judgment and decree passed by learned trial Court and affirmed by learned appellate Court, which have become final, cannot be modified. It has been clarified by learned first appellate Court that respondents-plaintiffs are entitled for all the benefits of retrospective promotion etc. after fixing their seniority and after granting them promotion from the date their juniors were promoted. There is no such order excluding payment of arrears of salary on the promotional post from the date their juniors were promoted. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned Executing Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Civil Revision No.1530 of 2003(O&M) -9- Court. Hence, the present revision x petition is, hereby, dismissed being devoid of any merit. 23.5.2011 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.