Regular Second Appeal No. 4001 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4001 of 2011 (O & M) Date of decision:-03.10.2011 Uttar Haryana Bijli Vitran Nigam Limited ...Appellant Versus Shamsher Singh Sandhu ...Respondent CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Kartar Singh Malik, Advocate for the appellant. RITU BAHRI J. C.M. No.11520-C of 2011 For the reasons mentioned in the application, same is allowed and the delay of 79 days in filing the regular second appeal is hereby condoned. Regular Second Appeal No.4001 of 2011 A suit for declaration bearing RBT Civil Suit No.75/1 of 2009 was filed by Shamsher Singh Sandhu respondent-plaintiff XEN. (retired) in the Court of Civil Judge (Junior Division) to get his pay fixed at Rs.15,100/- w.e.f. 1.5.1996 equal to the pay of Shri T.S. Sarwal, AEE, who was junior to the plaintiff, with consequential benefits of payment of arrears of refixation of pay alongwith interest and costs of the suit. The plaintiff was working as Executive Engineer in Sub Urban Division No.2 UHBVNL, Karnal and accordingly retired on 21.10.2004. He was promoted as A.E. on 05.11.1978 after completion of 12 years of service. On 17.11.1990 he was appointed as A.E.E. and his pay was fixed as 4100-125- 150-5300 w.e.f. 1.1.1996. the scales were revised and he was placed in the scale of Rs.14,300-400-18300 and his pay was fixed at Rs.14,700/- w.e.f. Regular Second Appeal No. 4001 of 2011 -2- 1.1.1996. Mr. T.S. Sarwal was junior to the plaintiff and was at Serial No.589 in the seniority list whereas plaintiff was at Serial No.581. On 1.5.1996 pay of Mr. T.S. Sarwal was fixed at Rs. 15100/- whereas pay of the plaintiff was fixed @ Rs.14700/-. By placing on record the instructions dated 25.2.1981 it was provided that if there is a consequence of fixation of pay where a junior employee drew higher pay than a senior employee, the pay of the senior employee was required to be raised to the stage of pay being allowed to his junior. On notice, the defendant submitted that w.e.f. 1.1.1996 two increments of the plaintiff had been stopped vide office order No.155 dated 22.7.1994. While revising the salary of the employees vide office order No.705/Finance dated 24.2.1998 it was mentioned at Serial No.6 that the “employee should exercise his option within three months from the issuance of the order i.e. upto 24.5.1998”. the plaintiff never exercised his option. The punishment awarded to the plaintiff came to an end on 1.11.1996. The plaintiff does not dispute that two increments were stopped as punishment vide office order dated 22.7.1994. the punishment came to end in November 1996. The trial Court decreed the suit of the plaintiff that he was entitled to get his pay fixed as on 1.11.1996 in the revised pay-scale as punishment of stoppage of two increments came to an end. He was granted interest @ 9% per annum alongwith arrears of salary. This judgment has been affirmed by the Additional District Judge in Civil Appeal No.39/2010, which was decided on 19.3.2011. Mr. Kartar Singh Malik, Advocate for the appellant has placed on record the judgment of the Division Bench of this Court in Balwant Singh versus State of Haryana and others 2011(2) RSJ 397 to contend that the respondent was entitled to arrears not more than three years and two months. The lower Courts have granted the arrears w.e.f. 1.11.1996 whereas it should have been restricted to three years and two months preceding the date of filing Regular Second Appeal No. 4001 of 2011 -3- the civil suit. The respondent has chosen to file a civil suit on 10.12.2009 whereas the cause of action of re-fixation arose on 1.11.1996. the respondent has raised his claim after he retired on 21.10.2004. In Balwant Singh versus State of Haryana (supra) the Division Bench of this Court examined the case of a daily wager, who was working in the pay-scale of Rs.750-950 whereas the pay scale of the Store Keeper was 950-1400. The cause of action in that case arose in 1993 whereas the writ petition was filed in the year 2007. According to him the Court has restricted the payment of arrears of three years and two months. In the facts of the present case the petitioner had been punished with stoppage of two increments vide order dated 22.7.1994, which came to an end on 01.11.1996. It was the duty of the office to restore the benefit of two increments once the punishment came to an end. However, this was not done. The respondent retired in October 2004 and he filed a civil suit on 12.4.2006 to claim parity of pay-scale to his junior. The Appellate Court while dismissing the appeal filed by the management has held that the plaintiff was entitled to re- fixation of salary w.e.f. 1.11.1996. The order does not require any interference at the stage. The judgment of Balwant Singh's case (supra) is not applicable to the facts of the present case as in that case the appellant had sought benefit of pay-scale of a post of Store Keeper, which was not given to him whereas in the present case the punishment order imposed by the Department had came to an end and it was the duty of the Department to re-fix the salary. For this fault, the respondent cannot be held liable. A Co-ordinate Bench of this Court in J.C. Aggarwal versus Haryana State Federation of Coop. Ltd. 2011(1) SCT 511 while examining the case of promotion from retrospective date has held that in case of an illegal or arbitrary denial of promotion to an employee, the concept of 'no work no pay' will not apply when a junior has been given promotion and petitioner has been Regular Second Appeal No. 4001 of 2011 -4- denied promotion in an illegal and arbitrary manner, he is entitled to release of difference of salary from the date his junior was promoted. An exception was made to the principle of “no work no pay” by the Supreme Court in Vasant Rao Roman versus Union of India 1993(2) S.L.R. 289. It was observed by the Supreme Court that neither the appellant has been put under suspension nor any disciplinary proceedings were pending against him. On the contrary, he had been made to suffer on account of administrative reasons for which he was not responsible. He cannot be denied the benefit of arrears of salary on the principle of “no work no pay”. In a recent judgment of the Supreme Court in State of Kerala versus E.K. Bhaskaran Pillai 2007(6) S.C.C. 524 it has been held as under :- “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 Regular Second Appeal No. 4001 of 2011 -5- accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.” (Emphasis supplied) This judgment has been followed by a Divison Bench of this Court in Prem Kumar Chauhan versus Punjab State Electricity Board 2008(4) S.L.R. 635 where a person is wrongly denied his due, full benefits may be given; and Kanwaljeet Singh versus State of Haryana 2008(6) S.L.R. 212 after placing reliance on E.K. Bhaskaran Pillai's case has held that :- “It is, thus, evident from the aforementioned principle that in cases where the respondents have wrongly denied due promotion to their employee then in that eventuality he should be given full benefit including monetary benefit and the principle of 'no work no pay' would not govern the issue...... There is no intervening factor imputing any fault to the petitioner providing a factor, which may result in reducing or denying the arrears of salary to the petitioner. It would be inequitable to first deny him promotion for more than three years and then also to deny him the arrears of his salary. The principle of 'no work no pay' would not be attracted to the facts of the present case.” In the facts of the present case, the petitioner was imposed a punishment of stoppage of two increments, which came to end on 01.11.1996 and thereafter it was the duty of the Department to refix his salary by restoring the benefit of two increments. This was not done and the petitioner retired from the service in the year 2004. When he filed a suit in the year 2006 that he should be granted salary at par his junior. He cannot be denied the arrears of salary on account of the fact that he had slept over his right. Once the punishment imposed upon the petitioner had come to an end it was the duty of the Department to refix his salary. He cannot be held responsible for not doing so. He cannot be made to suffer on account of administrative reasons for which he was not responsible. Regular Second Appeal No. 4001 of 2011 -6- No ground to interfere in the judgments and decree passed by the courts below is made out. No substantial question of law arises for adjudication by this Court. The regular second appeal is dismissed. October 03, 2011 ( RITU BAHRI ) Vijay Asija JUDGE