IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.14998 of 2009 Date of decision: 6th November, 2009 Sports Authority of India and another … Petitioners Versus Central Administrative Tribunal and another … Respondents CORAM: HON’BLE MR. JUSTICE T.S. THAKUR HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Arvind Moudgil, Advocate for the petitioners. KANWALJIT SINGH AHLUWALIA, J. Present writ petition has been preferred by Sports Authority of India assailing the impugned order (Annexure P-2) passed by Central Administrative Tribunal, Chandigarh Bench (hereinafter referred to as, ‘the Tribunal’), wherein the respondent No.2 employee has been held entitled to arrears of pay and allowances with effect from 15th July, 1996, the date, on which the employee was retrospectively promoted to the post of Coach Grade II. A further direction has been given by the Tribunal to pay the arrears within three months from the receipt of copy of the order. Counsel for the petitioners has contended that the Tribunal has committed a grave error in not acknowledging the principle of ‘no work no pay’ and the order granting arrears as monetary and consequential benefits cannot be sustained, as respondent employee was granted notional promotion with retrospective effect. In the present case, petitioners had promoted respondent No.2 employee on 4th July, 2005, with effect from 15th July, 1996. Whether in each and every case, where the employee is granted notional promotion with retrospective effect, he is not entitled to grant of arrears monetary and Civil Writ Petition No. 14998 of 2009 consequential benefits or there can be some exceptions, is an issue, which we have been called upon to deliberate in the present writ petition. Before we do so, it will be necessary to take note of brief facts of the case. Satpal Singh, respondent No.2, in pursuance of the interview held on 16th December, 1987, was appointed as Coach Grade III in Athletics under NSTC Scheme with the petitioner employer. Respondent joined his services on 19th February, 1988. A representation was submitted by the respondent employee on 28th April, 2003 stating therein that his name has not been included in the seniority list of Coaches and his juniors have already been promoted in the next grade. It was submitted in the representation that he had brought this fact to the notice of the employer by addressing a letter dated 8th February, 2003. The representation mentioned names of various Coaches, who were junior to the respondent employee but were promoted to the higher post of Sports Coach Grade II with effect from 15th July, 1996. Thereafter, the respondent employee submitted various reminders, which elicited no response. The respondent employee was thereafter left with no other option except to approach the Tribunal by filing Original Application bearing No.385/HR of 2004. The petitioner employer filed a short reply, in which case of the respondent employee was conceded and it was stated that due to inadvertence, name of the respondent employee was omitted from the seniority list. It will be apposite here to reproduce following portion of the short reply filed by the petitioner employer to Original Application No.385/HR of 2004, which has been annexed as Annexure A-8: “3. That the applicant had sent a representation dated 28.4.2003 representing that he joined SAI as Coach Grade III on 19.2.1988. His name did not appear at all in the seniority list of Grade III Coaches as on 1.1.1993 and upgraded thereafter. 4. That on this representation of applicant, his case was considered and it was found that his name was omitted 2 Civil Writ Petition No. 14998 of 2009 inadvertently. The seniority of the applicant in Grade III has been fixed and his name at present appears at Sl. No.1A of the seniority list issued on 17.2.2003. The applicant’s name appears after the name of Shri S.S. Bhadouria, Volleyball coach and above Ms. Parampal Johal, Swimming Coach and the case of the applicant for promotion to Grade II will be considered by DPC in accordance with the rule. The office memorandum to this effect was issued on 10.8.2004 and a copy of the same was also sent to the applicant. A copy of OM dated 10.8.2004 is attached herewith as Annexure R-1. A copy of the seniority list issued on 17.2.2003 is also attached herewith as Annexure R-II. 5. That in view that the seniority of the applicant has already been fixed and his promotion to Grade II will be considered by DPC, nothing survives in the petition. It is, therefore, respectfully prayed that since the grievance of the applicant already stands redressed, the OM filed by the applicant has become infructuous and the same may kindly be dismissed.” The Tribunal passed order (Annexure A-11) on July 6, 2005 and disposed of the Original Application by observing that since the factual position has been conceded by the employer that the respondent employee was excluded from the seniority list prepared on 1st January, 1993 inadvertently and after carrying on the necessary correction, fresh seniority list has been issued, respondent employee is entitled to promotion with effect from 1996. The petitioner employer was directed to hold review DPC to consider the claim of the respondent employee within a period of three months. On 4th July, 2005, petitioner employer passed an order (Annexure A-10), wherein it was stated that the respondent employee Satpal Singh, who was working as Athletics Coach Grade III in the pay scale of Rs.5500-9000 (revised), is notionally promoted to Grade II in the pay scale of Rs.8000-13000 with effect from 15th July, 1996. The order further stated that the respondent employee will be entitled to actual 3 Civil Writ Petition No. 14998 of 2009 monetary benefits from 30th May, 2005 and his inter se seniority maintained as per his joining in the lower grade. The respondent employee was not satisfied with the above order. He filed Original Application No.42/HR of 2006 with a prayer that order of promotion (Annexure A-10), in so far as the same denied arrears and monetary benefit, be quashed and he be paid arrears of pay of promoted post with effect from the date he has been promoted, i.e. 15th July, 1996. In the Original Application, it was projected by the employee that there was no fault on his part. His name was omitted from the seniority list due to the inadvertence admitted by the petitioner employer. Therefore, he cannot be denied monetary benefit. The Tribunal, on 26th November, 2008, after hearing counsel for the parties, allowed the application of the employee and held him entitled to arrears of pay and allowances on the promoted post with effect from 15th July, 1996. The impugned order (Annexure P-2) passed by the Tribunal has been challenged before us. Learned counsel for the petitioner has submitted that the Tribunal has erred in granting the relief to respondent no.2 as it has deviated from the principle of “no work no pay”. To fortify his submission he has placed reliance on the decision of the Hon’ble Supreme Court in the case of ‘Union of India v. B.M. Jha’ (2008) 2 SCC (L & S) wherein it has been held that arrears of salary cannot be granted in the case of retrospective promotion in view of the principle of “no work no pay”. There can be no quarrel with the proposition that ordinarily arrears of salary cannot be granted in case of retrospective proposition. Two short questions, which arise for our consideration, are (a) whether there can be any exceptions to the principle of “no work no pay” and (b) whether the case of respondent no.2 is covered by any such exceptions. In this regard it will be imperative to analyze the various judgments rendered on this issue by the Supreme Court of India as well as 4 Civil Writ Petition No. 14998 of 2009 various High Courts. This question was considered by the Supreme Court in the case of ‘Union of India v. K.V. Jankiraman’ 1991(4) S.C.C. 109 wherein it was urged by the Union of India that the normal rule is “no work no pay” and therefore a person cannot be allowed to draw the benefits of a post, the duties of which he has not discharged. While rejecting the contention, the Hon’ble Supreme Court held as under: “24. It was further contended on their behalf that the normal rule is “no work no pay”. Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privatations which are multiplied when he is also placed under suspension. When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly. 25. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of “no work no pay” is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him.” (Emphasis supplied) Similarly in the case of ‘Vasant Rao Roman v. Union of India’ 1993 (2) S.L.R. 289, also an exception was made to the principle of “no work no pay”. It was observed by the Hon’ble Supreme Court that admittedly neither the appellant had 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 5 Civil Writ Petition No. 14998 of 2009 was not responsible. Therefore, in view of the aforesaid facts it was held that not allowing the arrears of emoluments to the appellant cannot be justified. To the same effect is the decision of the Supreme Court in the case of ‘Harbans Singh v. Union of India’, 1995 S.C.C. 471 on which reliance has been placed by the tribunal while granting relief to the respondent no. 2. The argument urged by the learned counsel for the petitioner was also rejected by a division bench of this court in the case of ‘Vidya Parkash Harnal v. State of Haryana’, 1995(3) S.C.T. 785 wherein it was held as under: “Similarly, the argument that the petitioner was not entitled to the grant of emoluments on the principle of “No work, no pay” is apparently mis- conceived and based upon wrong notions of law. If a civil servant is not offered the work to which he was legally entitled, he cannot be deprived of the wages for the post to which he subsequently is held entitled to. Permitting such a course to be adopted would be encouraging the imposition of double penalty, that is, firstly by declining the civil servant his right of promotion and secondly by depriving him of the emoluments to which he would have been entitled to upon promotion which subsequently is considered in his favour. Deprivation to work against the post to which a civil servant is entitled on promotion is always at the risk and responsibility of the State and cannot be made a basis for depriving such a civil servant of the emoluments to which he was entitled, had he been promoted in accordance with the rules at the time when he became eligible for such promotion. The Courts cannot ignore the magnitude of the sufferings and the pains to which a civil servant is subjected on account of deprivation of the monetary benefits particularly in this age of skyrocketing prices and non-availability of essential requirements of livelihood. The Court cannot shut its eyes and forget the holocast of economic deprivation to the petitioner and his dependants. Such a deprivation might have upset the career of the dependants, depriving the society of the services of such youth and budding dependants or 6 Civil Writ Petition No. 14998 of 2009 children of the petitioner. The executive once being satisfied that a civil servant was entitled to the promotion with retrospective effect cannot deprive him of the benefits of salary accruing on account of such promotion from an early date without assigning valid, cogent and specific reasons.” Another division bench of this court in the case of ‘State of Haryana v. Bani Singh Yadav’ 2005(2) S.L.R. 622 after discussing the various judgments rendered by this court on this point laid down the following principle: “The principle of no work no pay can be invoked by the employer to deny wages or pay to the employee only in those cases in which the employee voluntarily abstains from discharging the duties assigned to him/her. It cannot be applied in the cases in which the employee/workman is kept away from duty or is prevented or rendered ineligible to discharge duties of a particular post due to an act or omission of the employer.” Even other High Courts have recognized the exceptions to the principle of ‘no work no pay”. In the case of ‘Manohar Burde v. Union of India’, 2003(4) S.C.T. 519 Bombay High Court held as under: “The ordinary and the general rule is no pay for no work and, therefore, an incumbent who has not worked on a particular post, would not be entitled to the pay for same. On the basis of notional promotion given, such incumbent, obviously, shall be entitled to refixation of his present pay. This is done to ensure that his present salary would not be less than his juniors. In the peculiar facts and circumstances of the case, if an incumbent has been wrongfully denied his lawful claim of promotion and is made to suffer on account of administrative reasons for which he was not responsible, the Court in such case keeping in view pecularity of the facts and circumstances obtaining therein may order payment of arrears when the incumbent is given promotion as was done in Vasant Rao Raman’s case.” 7 Civil Writ Petition No. 14998 of 2009 More recently, the exceptions to the principle of ‘no work, no pay’ have been recognized by the Hon’ble Supreme Court in the case of ‘State of Kerala v. E.K. Bhaskaran Pillai’ 2007(6) S.C.C. 524 wherein it has been held that: “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 accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.” (Emphasis supplied) Relying on the aforesaid decision, a division bench of this court of which one of us was a member (Ahluwalia J.) has held in the case of ‘Prem Kumar Chauhan v. Punjab State Electricity Board’ 2008(4) S.L.R. 635 that where a person is wrongly denied his due, full benefits may be given. Similarly, another division bench of this court in the case of 8 Civil Writ Petition No. 14998 of 2009 ‘Kanwaljeet Singh v. 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.” The perusal of the aforesaid authorities make it clear the principle of ‘no work, no pay’ cannot be treated as an inflexible principle to which there are no exceptions. It has been consistently held that when the employee has been wrongly denied the promotion for no fault of his due to some lapse on behalf of the employer, the principle of ‘no work, no pay’ will have no application. Therefore, the question as to whether there are any exceptions to the principle of ‘no work, no pay’ will be replied in the affirmative. The second question will also be answered in the affirmative as in the present case admittedly the respondent no.2 was denied promotion for no fault of his. As has already been pointed out, respondent no.2 was denied the promotion as his name was omitted from the seniority list due to inadvertence which has been admitted by the petitioner employer. Therefore, the principle of ‘no work, no pay’ will have no application in the present case. For this reason, the impugned order does not warrant any interference. 9 Civil Writ Petition No. 14998 of 2009 No other point was urged before us. In view of the above, the present petition is devoid of any merit and is thus dismissed. There shall be no order as to costs. [T. S. THAKUR] CHIEF JUSTICE [KANWALJIT SINGH AHLUWALIA] JUDGE November 6, 2009 rps 10