Civil Writ Petition No.11000 of 1991 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.11000 of 1991 Date of decision: December 14, 2010. Chander Kalan Button ...Petitioner(s) v. State of Haryana & Anr. ...Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Ram Kumar Malik, Senior Advocate with Shri Surya Partap Singh, Advocate for the petitioner(s). Shri K.C. Bhatia, Additional Advocate General, Haryana for the respondents. Kanwaljit Singh Ahluwalia , J. (Oral): Petitioner – Chander Kalan was appointed as an Auxiliary Nurse Midwife on 24.9.1965. Her services were confirmed on 4.3.1967. In the present writ petition, she has prayed that she be promoted as Multi Purpose Health Supervisor (Female) from the date her juniors were so promoted and she be granted all consequential benefits. It is pleaded in the writ petition that a seniority list was circulated on 31.3.1983; the petitioner was at serial number 262 and the candidates upto serial number 546, belonging to the general category, were promoted as Multi Purpose Health Supervisor (Female). Therefore, grievance of the petitioner is that she has been denied promotion whereas Civil Writ Petition No.11000 of 1991 -: 2 :- her juniors were promoted and they were allowed to steal march over the petitioner. Notice of motion was issued by this Court. In the written statement, State of Haryana has submitted that since complete service record of the petitioner was not available, the promotion case of her juniors were examined and they were promoted. However, realizing the mistake, promotion order of the petitioner has been issued with effect from 11.2.1992. Following portion of the written statement is required to be noticed as under:- “4. That para 4 of the writ petition is admitted. It is further clarified that the complete service record of the petitioner was not available at the time when the promotion case of her juniors was examined. Therefore, the petitioner was not promoted along with her juniors. It is also stated that the petitioner has since been promoted by orders dated 11.2.92 to the post of Multipurpose Health Supervisor (F). The copy of the same has also been sent to the petitioner. The promotion orders dated 11.2.92 are attached as Annexure 'R1' along with the written statement.” Case of the petitioner is that her juniors were promoted on 25.3.1991 whereas promotion orders of the petitioner were made on 11.2.1992. Admittedly, there was no fault of the petitioner. It is due to the sheer inadvertence or mistake of the respondents that the promotion orders of the petitioner could not be issued along with her juniors. The mistake was later on realized and has been rectified by the State. Counsel for the petitioner submits that she has been denied Civil Writ Petition No.11000 of 1991 -: 3 :- arrears of pay and computation of terminal benefits as her promotion order should relate back to the date when her juniors were promoted, i.e., 25.3.1991. I find merit in this contention. A Division Bench of this Court in Sports Authority of India and another v. Central Administrative Tribunal and another (CWP No.14998 of 2009), decided on 6th November, 2009 has held that the normal rule of “no work, no pay” is not applicable to cases wherein employee is willing to work but is kept away from the work for no fault of his. It will be necessary to reproduce following portion of the above stated judgment:- “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 various High Courts. This question was considered by the Supreme Court in the case of ‘Union of Civil Writ Petition No.11000 of 1991 -: 4 :- 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 Civil Writ Petition No.11000 of 1991 -: 5 :- 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 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 Civil Writ Petition No.11000 of 1991 -: 6 :- 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 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.” Civil Writ Petition No.11000 of 1991 -: 7 :- 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 Civil Writ Petition No.11000 of 1991 -: 8 :- given promotion as was done in Vasant Rao Raman’s case.” 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 Civil Writ Petition No.11000 of 1991 -: 9 :- 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 ‘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 Civil Writ Petition No.11000 of 1991 -: 10 :- 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. ...” In the present case, due to the fault of the respondent-State, there was delay of issuing promotion order, it is held that the petitioner shall be entitled to promotion with effect from 25.3.1991 when her juniors were so promoted. However, she will be entitled to arrears of pay for the interregnum period, i.e., from 25.3.1991 to 11.2.1992 and considering this fact, her terminal benefits shall be computed. The arrears of pay as well as the terminal benefits shall be computed and paid within six months from the date of receipt of a certified copy of this order. Hence, the writ petition is allowed in the above terms, with no order as to costs. [Kanwaljit Singh Ahluwalia] December 14, 2010. Judge kadyan