IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No.7825 /2008 Decided on:20.5.2009 M.L. Sharma. …Petitioner. Versus State of Himachal Pradesh. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the petitioner : Mr. D.P. Gupta, Advocate vice Mr. K.D. Shreedhar, Advocate. For the Respondent : Mr. R.K. Sharma, Sr. Addl. A.G. with Mr. Rajinder Dogra, Addl. A.G. and Mr. Ramesh Thakur, Asstt. Advocate General. Rajiv Sharma, J. The petitioner was appointed as Sectional Officer on 3.10.1964. He was promoted to the post of Assistant Engineer (Mechanical) with effect from 15.1.1983. The post of Assistant Engineer is in the feeder category for the post of Executive Engineer. The disciplinary proceedings were initiated against the petitioner on 20.8.1999. The Departmental Promotion Committee met for considering the case of the petitioner and others on 15.10.1999 for making promotions to the post of Executive Engineer. The case of the petitioner was considered by the Departmental Promotion Committee. However, due to the pendency of the disciplinary 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 proceedings the sealed cover procedure was adopted. He was exonerated in the disciplinary proceedings. He had earlier approached the learned Himachal Pradesh Administrative Tribunal seeking directions to the respondent to open the sealed cover. Consequently, vide notification dated 25.6.2001 on the basis of the recommendations made by the Departmental Promotion Committee on 15.10.1999 the petitioner was promoted to the post of Executive Engineer (Mechanical) in the pay scale of Rs. 12000-15500. However, the promotion was made with immediate effect. Mr. D.P. Gupta, Advocate has strenuously argued that the petitioner was required to be promoted from the date the Departmental Promotion Committee had made recommendations on 15.10.1999 and not with effect from 25.6.2001. He has also argued that one Sh. L.R. Sharma, who was junior to his client was given officiating charge as Executive Engineer vide notification dated 21.10.1999. Mr. R. K. Sharma, learned Senior Additional Advocate General has argued that the petitioner could only be considered for promotion with immediate effect and not on the basis of the recommendations made by the Departmental Promotion Committee on 15.10.1999. I have heard the learned counsel for the parties and perused the record carefully. The petitioner was fully eligible and qualified to be considered for the post of Executive Engineer by way of promotion. His case was considered by the duly constituted Departmental Promotion Committee on 15.10.1999. However, the sealed cover procedure was adopted by the Departmental Promotion Committee. He was absolved of the charges levelled against him. He was promoted, as noticed above, with immediate 3 effect i.e. with effect from 25.6.2001. The Court is of the firm opinion that his promotion was to relate back to 15.10.1999. Mr. R.K. Sharma, learned Senior Additional Advocate General has also argued that the petitioner cannot be held entitled to monetary benefits on the principle of ‘no work no pay’. The circumstances in which the sealed cover procedure is to be adopted and employee is to be held entitled to get the reliefs after his exoneration has been settled by their Lordships of the Hon’ble Supreme Court in Union of India and others versus K.V. Jankiraman and others, (1991) 4 SCC 109. Their Lordships have held that the principle of ‘no work no pay’ will not be applicable where the incumbent is ready and willing to discharge the duties, however, he is prevented from doing so. Their Lordships have held as under: “16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge- memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/ charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a 4 promotion, increment etc., does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (2)................................................... (3)....................................... (4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;" 17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench-has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely 5 because some disciplinary/ criminal proceedings are pending against the employee. To deny the said benefit they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions. 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. It is for this reason that F.R. 17(1) will also be inapplicable to such cases. 26. 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, delayed 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 6 which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated from 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 approve 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." Their Lordships of the Hon’ble Supreme Court in State of Kerala and others versus E.K. Bhaskaran Pillai, (2007) 6 SCC 524 have held that the principle ‘no work no pay’ cannot be accepted as a rule of thumb. Their Lordships have held as under: “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 7 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.” In the present case, the petitioner was always ready and willing to discharge the duties of the higher post; however, he was prevented from doing so by the respondent. Accordingly, it is held that the petitioner was to be promoted with effect from 15.10.1999, the date on which the recommendations were made by the Departmental Promotion Committee. The action of the respondent not to grant the promotion to the petitioner with effect from 15.10.1999 is declared arbitrary. The adoption of sealed cover procedure is to protect the interest of the employee vis-à-vis larger public interest. In case the employee is exonerated of the charges, the benefits are to be to relate back to the date when the Departmental Promotion Committee has made recommendations. In the present case the Departmental Promotion Committee has met on 15.10.1999. 8 Consequently, in view of the aforesaid reasoning, the petition is allowed. The petitioner shall be now deemed to have been promoted to the post of the Executive Engineer with effect from 15.10.1999 with all consequential benefits i.e. arrears of salary etc. with interest @ 9% per annum. The needful be done within a period of eight weeks from today. No costs. 20.5.2009 (Rajiv Sharma ), J. *awasthi*