REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 811 OF 2007

RAMESH KUMAR ...Appellant

Versus

UNION OF INDIA & ORS. ...Respondents

J U D G M E N T

R. BANUMATHI, J.

Challenge in this appeal is the order of the High Court of Delhi in W.P.

writ petition filed against the order of denial of pay and allowances to

the appellant for the period from 01.08.1997 till the date of his actual

promotion i.e. 13.11.2000 and also the order dated 18.03.2005 dismissing

the Review Application No.55 of 2005.

2. Background facts which led to the filing of this appeal are as

under:- The appellant got enrolled in the Indian Army on the post of Store

Keeper Technical/Sepoy on 19.03.1983 and was subsequently promoted to the

rank of Havildar on 01.08.1989. While the appellant was so working, a

Summary Court Martial (SCM) for the offences under Sections 41(i), 39 (a)

and 63 of the Army Act was initiated against him. After completion of the

inquiry and on proved charges by an order dated 03.06.1992, the appellant

was sentenced to:- (i) reduction in rank; (ii) dismissal from service and

(iii) rigorous imprisonment for one year in civil prison. Aggrieved by the

Order passed in Summary Court Martial, the appellant preferred a statutory

complaint under Section 164 of the Army Act. The Central Government vide

Order dated 17.08.1994 commuted the punishment modifying it to one of

severe reprimand and further remitted the sentence of dismissal from

service directing reinstatement in service. However, it was held that the

appellant was not entitled to any pay and allowances for the period between

the date of dismissal and the date of reinstatement in service. In

compliance with the Order passed by the Central Government, the appellant

was reinstated in service w.e.f. 29.10.1994. The appellant was again put

to Summary Court Martial for committing offence under Section 54(b) of the

Army Act and by an Order dated 18.02.1995; the appellant was awarded severe

reprimand/red ink entry for the offence of loosing identity card.

3. Case of the appellant for promotion to the rank of Naib Subedar

came up for consideration before Departmental Promotion Committee (DPC) on

01.08.1997; but the appellant was not considered for promotion and

according to the respondents, the appellant did not meet the discipline

criteria for promotion as the appellant was having two red ink entries

during preceding five years. On appellant’s repeated representations for

his promotion as per his seniority, finally his claim was considered by the

DPC held on 15.03.2000 and he was granted promotion w.e.f. 01.01.2000 with

ante-dated seniority w.e.f. 01.08.1997 alongwith his batchmates. However,

no direction was issued regarding any pay and allowances to the appellant

in the higher rank of Naib Subedar from the back date; but his seniority

was maintained from 01.08.1997 when his batchmates have been promoted.

4. Aggrieved by the order of the DPC, denying pay and allowances

in the promotional post for the period between 01.08.1997 to 13.11.2000,

the appellant filed W.P.(C) No.6466 of 2002 before the High Court of

Delhi. Vide impugned order dated 02.12.2004, the High Court dismissed the

writ petition observing that the appellant has no legitimate claim for

payment of pay and allowances from a retrospective date on the principle of

“no work no pay”. The Review Application No.55 of 2005 also came to be

dismissed on 18.03.2005. This appeal assails the correctness of the above

orders passed in the writ petition and also the review application.

5. Contention of the appellant is that subsequently when the fresh

DPC was held on 15.03.2000, the appellant was declared fit for promotion to

the rank of Naib Subedar w.e.f. 01.01.2000 with ante-dated seniority w.e.f.

01.08.1997 and while so, the appellant was arbitrarily deprived from

getting pay and allowances and other benefits from 01.08.1997 and hence the

appellant is entitled to get his pay and allowances for the period from

01.08.1997 till the date of his actual promotion on 13.11.2000. It was

submitted that the respondents erroneously denied pay and allowances to the

appellant when they themselves have granted him ante-dated seniority w.e.f.

01.08.1997.

6. Learned Senior Counsel for the respondents Mr. A.K. Panda

contended that although the order imposing punishment on the appellant was

passed by the Summary Court Martial on 03.06.1992 but the same was commuted

only on 17.08.1994 and therefore the period of five years was rightly

counted w.e.f. 17.08.1994 and therefore the appellant was not eligible to

be considered for promotion prior to 17.08.1999. It was further submitted

that on 01.08.1997, when the appellant’s case came up for promotion to the

rank of Naib Subedar, he did not meet the criteria for promotion as he had

incurred two red ink entries during preceding five years and rightly the

appellant was not given the pay and allowances from 01.08.1997 which

benefit was given to him w.e.f. 13.11.2000 when he actually joined the said

rank of Naib Subedar, but to avoid any injustice, his seniority was

maintained from 01.08.1997 alongwith his batchmates.

7. We have carefully considered the rival contentions of the

parties and perused the impugned judgment and the materials on record.

8. By perusal of the records it is seen that considering the

petition dated 31.08.1992 submitted by the appellant against the order

dated 03.06.1992 passed in the SCM, the Central Government vide its order

dated 17.08.1994 commuted the punishment of reduction of rank and one year

rigorous imprisonment to severe reprimand and remitted the sentence of

dismissal directing reinstatement of the appellant. However, it was

mentioned in the said order dated 17.08.1994 the period between the date of

dismissal and date of reinstatement in service will not be treated as duty

and the appellant will not be paid pay and allowances due to him for the

said period. Order dated 17.08.1994 does not specifically state the date

from which the commutation of punishment shall take effect. The appellant

rejoined the duty on 29.10.1994 and from that date he is taken to have been

reinstated. In the ASC records (Sup.), letter No.6442/ TB3/ST12 dated

23.07.1997, it is clearly mentioned that the punishment was set aside by

the Court and was reinstated into service and his name was again placed in

the original place in the seniority list. In the said letter it was further

stated that the award of punishment for the second time for loss of

temporary identity card will not affect the appellant’s promotion to the

rank of Naib Subedar. However, as noticed earlier, in the DPC held on

01.08.1997, the appellant’s case was not considered, observing that he was

having two red ink entries during the last five years and the appellant was

denied promotion to the rank of Naib Subedar w.e.f. 01.08.1997.

9. It is pertinent to note that the case of the appellant was

again examined in consultation with Judge Advocate General (JAG) Department

and vide letter No.77701/DPC/ Q/II/ST-12 dated 17.05.2000 of the DPC

proceedings, the Department opined that the date of commutation of

punishment would only be from 03.06.1992, the date on which punishment was

announced and not from 17.08.1994. We may usefully refer to the relevant

portion of the said DPC proceedings which reads as under:

“The case was examined in consultation with JAG Deptt this HQ. JAG Deptt

has opined that Govt. order dated 17 Aug 94 does not specifically spell out

the date from which the commutation of punishment shall take effect. In

the absence of any specific date, the order of the Govt. would be deemed to

have been taken from the date of original sentence was passed. Therefore,

the date of commutation of punishment would be from 03 June 92 (the date on

which punishment was announced) and not 17 Aug 94.”

From above referred proceedings, it is clear that the respondents took the

view that the date of commutation of punishment would be from 03.06.1992,

the date on which the punishment was awarded and not on 17.08.1994, the

date on which the punishment was commuted.

10. As per the policy of the respondents, an individual cannot be

considered for promotion to the rank of Naib Subedar, if he has earned more

than three red ink entries during the entire service and more than one red

ink entry in the preceding five years of service. It is noticeable that

when the case of the appellant came up for consideration on 01.08.1997, the

first punishment/red ink entry had already expired i.e. on 03.06.1997 and

only one red ink entry made on 18.02.1995 was on the record; but the DPC

appears to have erred in ignoring the same. Considering the genuineness of

the representations made by the appellant, DPC again considered the claim

of the appellant and granted him promotion w.e.f. 01.01.2000 to the rank of

Naib Subedar with a further direction that the seniority of the appellant

will be maintained alongwith his batchmates from 01.08.1997. When

appellant was granted ante-dated seniority w.e.f. 01.08.1997 alongwith his

batchmates, we find no reason as to why he should be denied pay and

allowances in the promotional post as Naib Subedar w.e.f. 01.08.1997 till

the date of his actual promotion on 13.11.2000. The High Court has not

properly appreciated these aspects and erred in holding that on 01.08.1997,

the appellant was not eligible to be considered for promotion. When the

respondents themselves have taken the view that the Order of the Government

would be deemed to have taken from the date of original sentence was passed

i.e. 03.06.1992 and not from 17.08.1994, the date on which

commutation/remission was granted by the Government, the High Court was not

right in holding that the appellant was not eligible to be considered for

promotion on 01.08.1997 and the impugned order cannot be sustained.

11. The respondents have advanced the argument that the denial of

pay and allowances is on the principle of “no work no pay” and no injustice

has been done to the appellant since he has not actually worked in the

promotional post of Naib Subedar during the aforesaid period. It was

submitted that the benefit of pay and allowances was rightly awarded w.e.f.

13.11.2000, the date on which the appellant actually assumed the rank of

Naib Subedar but his seniority was maintained so as to protect his interest

in his further promotions.

12. In normal circumstances when retrospective promotions are

effected, all benefits flowing therefrom, including monetary benefits, must

be extended to an employee who has been denied promotion earlier. So far

as monetary benefits with regard to retrospective promotion is concerned

that depends upon case to case. In State of Kerala & Ors. vs. E.K.

Bhaskaran Pillai, (2007) 6 SCC 524, this Court held that the principle of

“no work no pay” cannot be accepted as a rule of thumb and the matter will

have to be considered on a case to case basis and in para (4), it was 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 sometimes 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.”

13. We are conscious that even in the absence of statutory

provision, normal rule is “no work no pay”. In appropriate cases, a court

of law may take into account all the facts in their entirety and pass an

appropriate order in consonance with law. The principle of “no work no pay”

would not be attracted where the respondents were in fault in not

considering the case of the appellant for promotion and not allowing the

appellant to work on a post of Naib Subedar carrying higher pay scale. In

the facts of the present case when the appellant was granted promotion

w.e.f. 01.01.2000 with the ante-dated seniority from 01.08.1997 and

maintaining his seniority alongwith his batchmates, it would be unjust to

deny him higher pay and allowances in the promotional position of Naib

Subedar.

14. The impugned orders passed by the High Court are set aside and

this appeal is allowed. The respondents shall release the arrears of pay

and allowances to the appellant for the period from 01.08.1997 till the

date of his actual promotion that is 13.11.2000 in the promotional post of

Naib Subedar within eight weeks from today. No order as to costs.

…………………………J.

(T.S. THAKUR)

…………………………J.

(R. BANUMATHI)

New Delhi;

July 31, 2015

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