Kambli 1 wp2554.94 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2554 OF 1994 ... Gunvant Nagarji Desai ...Petitioner v/s. The Oriental Insurance Co.Ltd. ...Respondent ... Mr.N.M.Ganguli for the petitioner. Mr.A.G.Kothari for the Respondent. ... CORAM: D.K.Deshmukh & N.D.Deshpande,JJ DATED: 21st September, 2010 P.C.: 1. The facts that are relevant and material for deciding this petition are, the Petitioner joined services of New Great India Kambli 2 wp2554.94 Insurance Co. in the year 1965. After nationalisation of the Insurance business by the General Insurance Business (Nationalisation) Act, 1972, the said Great Insurance Co.Ltd. was merged with the Respondent M/s.Oriental Insurance Co. Ltd. The Petitioner was categorised as a Senior Assistant. In the year 1984, the Petitioner was considered for promotion to the post of Assistant Administrative Officer. But he was not promoted to that post because a trial on the allegation of having committed an offence under section 420 of IPC was pending against the Petitioner. The Petitioner was convicted by the Metropolitan Magistrate. As a result of his conviction the Petitioner was removed from services. However, the appeal filed by the Petitioner against the order of conviction was allowed by the Sessions Court. As a consequence of that order, by order Kambli 3 wp2554.94 dated 29-6-1989 the Petitioner was reinstated in service with all benefits as per Rules. It may be pointed out here that by order dated 17-2-1987 the Petitioner was removed from service. Before his reinstatement, the Petitioner had filed Writ Petition No.1809 of 1989 in this Court claiming reinstatement in service and also claiming release of his promotion, which was withheld because of his conviction. Writ Petition No.1809 of 1989 was disposed of by this court by order dated 8-8-1989. This court noted that the Petitioner has already been reinstated in service. So far his claim for promotion with retrospective effect is concerned, this court directed the Management to consider his representation in that regard. The representation made by the Petitioner was considered by the Respondent and by order dated 12-1-1995 the Petitioner was promoted Kambli 4 wp2554.94 to the post of Assst.Administrative Officer. In the order dated 12-1-1995, it was stated “Your salary in the promoted cadre shall be fixed by allowing the intervening period i.e. from 17th September, 1984 till the date of your joining duties as AAO, to be counted for increments in the pay scale of AAO, but no arrears for such intervening period would be admissible.” The Petitioner, thus, got promotion from 17th September, 1984, but he was not paid any arrears. The present petition has been filed by the Petitioner challenging that part of the order dated 12-1-1995, which denied him arrears of salary. ( The petition was filed before the promotion, during the pendency of the petition promotion has been granted by the aforesaid order). Thus, the only question to be considered is whether the Petitioner is entitled to arrears of salary in the post of Kambli 5 wp2554.94 A.A.O. From 17th September, 1984. 2. The learned Counsel appearing for the Petitioner relies on the judgment of the Supreme Court in the case of Union of India v/s. K.V.Jankiraman, AIR 1991 SC 2010, especially, on the following observations made in paragraph 7 of judgment. 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 bas done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employ- ees, 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 privations 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. We are not much impressed by the contentions advanced on behalf of the Kambli 6 wp2554.94 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. It is for this reason that F.R. 17(1) will also be inapplicable to such cases. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not 'found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases' where the proceedings, whether disciplinary or criminal, are, for example, delay at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To Kambli 7 wp2554.94 ignore however, such circumstances when they exist and lay down' an inflexible rule that in every case when an employ- ee is exonerated in disciplinary/ criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not ap- prove of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz.. "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum: "However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so." To this extent we set aside the conclusion of the Tribunal on the said point. 3. It is clear from the observations quoted above that according to Supreme Court when promotion which is withheld because of Kambli 8 wp2554.94 pendency of prosecution is released, it is for the competent authority at the time of releasing promotion to consider the fact and circumstances of the case and decide whether the employee is to be paid arrears or not and while making that order the authority is under a duty to record reasons. In so far as the present case is concerned, we do not find any reason being recorded by the authority for deciding not to pay any arrears to the Petitioner. 4. The learned Counsel appearing for the Respondent relied on the judgment of the Supreme Court in the case of State of Harayana & ors. v/s. O.P.Gupta & ors. (1996) 7 SCC 533 to contend that arrears are not payable to the Petitioner. Perusal of that judgment shows that the judgment of the Supreme Court in K.V.Jankiraman, referred to Kambli 9 wp2554.94 above, was relied on before the Supreme Court and the Supreme Court in paragraph 8 has observed thus: 8. It is true, as pointed out by Shri Hooda, that in Union of India v. K.V.Jankiraman this court has held that where the incumbent was willing to work but was denied the opportunity to work for no fault of his, he is entitled to the payment of arrears of salary. That is a case where the respondent was kept under suspension during departmental enquiry and sealed cover procedure was adopted because of the pendency of the criminal case. When the criminal case ended in his favour and departmental proceedings were held to be invalid, this Court held that he was entitled to the arrears of salary. That ratio has no application to the cases where the claims for promotion are to be considered in accordance with the rules and the promotions are to be made pursunt thereto. 5. Perusal of paragraph 3 of the judgment of the Supreme Court in the case of O.P.Gupta shows that it was not the case where the promotion was withheld because of pendency of any prosecution, and therefore, Kambli 10 wp2554.94 the Supreme Court has applied different rule in that case. However,it is clear from the observations in paragraph 8 of the judgment of the Supreme Court in O.P.Gupta’s case that when promotion is withheld because of pendency of criminal prosecution and when the employee concerned gets clean acquittal, he will be normally entitled to arrears. We have not been shown any material which will disentitle the Petitioner to get the arrears of salary. 6. In these circumstances, therefore, in our opinion, the petition deserves to be allowed. In our opinion, therefore, following order would meet the ends of justice. O R D E R (i)The Respondent is directed to pay Kambli 11 wp2554.94 arrears of salary to the Petitioner of the post of A.A.O. (Asst. Administrative Officer) from 17th September, 1984 till the date on which he was actually promoted as A.O.O. (ii)Arrears to be paid as expeditiously as possible, in any case, within a period of three months from today. (iii)Rule made absolute accordingly. No order as to costs. (D.K.Deshmukh, J.) (N.D.Deshpande, J.)