Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of order: 24 July, 2023
+ W.P.(C) 8641/2018
DARSHAN SINGH ..... Petitioner
Through: Mr.___, Advocate
(appearance not given)
versus
THE CHAIRMAN CUM MANAGING DIRECTOR, UNITED
INDIA INSURANCE CO. LTD. AND ORS. ..... Respondents
Through: Mr.Abhinav Dubey, Advocate
(through VC)
Mr.Som Raj Chaudhury, Advocate for
R-3 and 4
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
CM Application No.______ /2023 (To be numbered)
The instant application has been filed by the petitioner vide Diary no.
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838763/2019 on 25 September 2019. However, the same has never been
listed for this Court and therefore, not numbered by the Registry. The
Registry is directed to number the instant application.
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The instant application has been filed by the petitioner seeking
additional documents to be taken on record since the said documents could
not be filed with the rejoinder filed by the petitioner.
For the reasons stated in the application, the application is allowed
and the documents are taken on record.
The application accordingly, stands disposed of.
W.P.(C) 8641/2018
1. The petitioner has filed the petition seeking the following prayer:
“(a) To direct the respondent to release pay fixation
benefits with arrears on account of promotion to Scale
III with effect from 14.07.2010 and not on notional
pay fixation.
(b) To direct the respondent to promote the petitioner
to the Scale IV and release pay fixation benefits with
arrears on promotion from Scale III to Scale IV with
effect from PE 2014-2015
(c) To direct the respondent to, pay compensation in
the sum of Rs 2 crores on account of delayed
payments, on account of forceful disposal of his
residential property worth Rs.1 Crore which was
purchased with the help of a housing loan and his
lifetime savings and which was sold at a throw-away
price of Rs. 42 Lacs for subsistence of the petitioner as
he was put under great financial difficulty due to
dismissal from service.
(d) To direct the respondent to pay to the petitioner a
sum of Rs 1 crores as damages for the mental agony
and loss of social prestige suffered by the petitioner as
he was implicated in a false case by the senior officers
of the respondent company as clearly brought out by
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the judgment of the Hon'ble High Court of Punjab and
Haryana.
(e ) To direct the respondent to initiate investigation
into the role of respondent no. 3 and 4 who hatched
criminal conspiracy in implicating the petitioner in a
false case.
(f) For cost of litigation and interest and
(g) To pass any other /further order as the Hon'ble
Court deems fit and proper.”
2. It is submitted that the petitioner joined the respondents no.1 and 2,
United India Insurance Company Limited, in June 1980, as an Assistant in
Class-III post at Bathinda. The petitioner was subsequently, appointed as
Branch Manager in Scale II at Sonipat in September 2003.The respondents
no. 3 and 4 are the former employees of the respondent company.
3. It is submitted that during the tenure of the petitioner as Branch
Manager in the respondent’s Company, an allegation was levelled against
him by the respondents no. 3 and 4 in connivance with the person who
complained against the petitioner. It was alleged in the said complaint that
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the petitioner on 23 September, 2004, accepted Rs 15,000/- from the
Complainant, with an intention to get the Insurance claim of the
Complainant passed by the Regional Office, Chandigarh. Therefore, the
petitioner committed offences under Section 7 and 13(1)(d) of the
Prevention of Corruption Act, 1988.
4. It is submitted that the criminal proceedings under Section 7 and
13(1)(d) of the Prevention of Corruption Act, 1988 initiated against the
petitioner and a corruption case bearing no. 8/2004 was filed against the
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petitioner. Vide order, dated 9 September, 2009, passed by the learned
Special Judge, CBI Court, Chandigarh, the petitioner was convicted under
section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988.
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5. It is submitted that challenging the said Judgment and order dated 9
September, 2009, passed by the Learned Special Judge, CBI Court,
Chandigarh, in Corruption Case No. 8/2004, the petitioner filed a Criminal
Appeal before the Punjab and Haryana High Court.
6. It is submitted that the Punjab and Haryana High Court vide order
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dated 6 October 2015 set aside the judgment of the Court below and
acquitted the petitioner, holding the charges as baseless.
7. It is submitted that the petitioner remained suspended during the
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course of the trial i.e. from 23 September, 2004 to 31 December, 2005,
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following which he was terminated on 13 March, 2010 in consequence of
his conviction by the Court below.
8. It is submitted that after his acquittal by the High Court of Punjab and
Haryana, the petitioner moved a representation to the respondent requesting
his reinstatement in service with all consequential benefits which was
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acceded to by the respondent company on 28 October, 2015 .
9. It is submitted that upon the reinstatement of the petitioner, the
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respondent the period from 23 September, 2004 to 2 November, 2015,i.e.,
the suspension period, as the “period spent on duty” which makes him
entitled to all the consequential benefits inclusive of all promotional benefits
and monetary benefits arising therefrom. The management gave the
petitioner a promotion only at the intervention of the Chairman of the
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Parliamentary Committee for the welfare of SCs/STs to the cadre of Deputy
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Manager (Scale III) vide its office order dated 2 May 2016, effective from
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14 July 2010.
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10. It is submitted that on 21 December 2016, the petitioner sent a
detailed representation to the National Commission for Scheduled Castes on
the ground that the respondent though provided notional promotion to the
petitioner to the cadre of Deputy Manager had been denied the arrears of
difference in pay fixation and applicable increments.
11. It is submitted that the Deputy General Manager, sent a letter to the
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petitioner dated 23 December, 2016 stating therein that the petitioner did
not meet the minimum requirements of promotion from Scale III to Scale IV
on the ground of lack of merit during the year 2015-2016 and as such, he
was not entitled to further promotion and other benefits.
12. It is further submitted that the respondent in response to the
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representation of the petitioner dated 23 December, 2016, vide its letter
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dated 2 January, 2017 stated that the petitioner's case was considered as a
"special case" by the management, the petitioner was granted promotion to
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Scale III with effect from 14 July, 2010 by following the promotion policy
by sealed cover procedure. It is submitted that the petitioner though
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extended the benefits of seniority with effect from 14 July, 2010, yet he
was denied the arrears of notional fixation of pay from the date of promotion
to the date of joining.
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13. It is submitted that on 1 March, 2017, the petitioner being a person
belonging to Scheduled Caste, submitted a representation to the National
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Commission for Scheduled Caste, complaining about the anti-SC/ST
conduct of the respondent nos. 3 and 4, and sought justice and fair play, and
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the Commission, on 1 March, 2017, wrote to the Minister of State For
Finance and Corporate Affairs, Govt. of India, seeking his intervention in
the matter.
14. It is also submitted that the respondent replied to the representation
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dated 1 March 2017 vide its letter dated 25 May, 2017, stating that
following the acquittal, the petitioner was reinstated in service and was
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extended promotion to Scale III with effect from 14 July, 2010 and that he
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has also been extended the benefits of seniority with effect from 14 July,
2010 and notional fixation from his date of selection to the date of joining.
15. It is submitted that the petitioner, through his advocate, sent a
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representation to the respondents on 23 April, 2018, seeking the grant of all
the consequential benefits including arrears of pay and allowances, etc. from
September, 2004 to October, 2015 by treating the said period as continued
service along with the grant of damages and compensation for false
implication and connivance at the instance of the officials of the respondent
company against the petitioner.
16. In view of the foregoing submissions, the petition may be allowed and
this Court may grant the reliefs as sought by the petitioner.
17. Per Contra, the learned counsel for the respondent no. 1 and 2
vehemently opposed the contentions made by the petitioner and submitted
that the petitioner neither worked nor attended the office for a period of
more than 10 years and has already received salary for the said period i.e. an
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amount of approx. Rs.75.00 Lakhs from the respondent Company along with
a promotion from Scale II to Scale III.
18. It is further submitted that as per the principle of “no work no pay”,
the petitioner is not entitled to any enhanced salary for the said period since
the petitioner did not work. However, on the basis of the promotion policy of
the respondent Company, the petitioner is granted notional promotion w.e.f.
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14 July 2010 to Scale-III.
19. It is submitted that the petitioner in the present petition has been
granted notional promotion to Scale III on the ground that the petitioner case
is a “special case”, therefore, despite the fact that the petitioner was not
working, he was granted notional promotion. It was also granted so that
petitioner’s further promotional avenues are not curtailed.
20. It is further submitted that on the basis of the fact that the petitioner
was granted notional promotion, the petitioner, in terms of the Promotion
Policy of the respondent, appeared for examination during Promotion
Exercise 2016-17, which is mandatorily held for promotion to next position
i.e., Scale-IV which is a managerial post.
21. It is contended that the petitioner failed in the said exam and, thus,
could not be promoted to Scale- IV. He applied again for promotion during
the Promotion Exercise 2017-18 for promotion to the cadre of Scale-IV but
did not attend the examination, and hence could not be promoted.
22. It is further submitted that the petitioner was dismissed from the
service on the basis of the criminal charges framed by the Special CBI Court
and there was no malafide intentions of the respondent no. 1 and 2 in this
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regard. Moreover, upon the acquittal of the petitioner by the High Court of
Punjab and Haryana, the petitioner was reinstated to his position along with
granting him notional promotion from Scale II to Scale III along with an
amount of Rs 75 lakhs.
23. Learned Counsel for the respondent no. 1 and 2 submitted that the
petition is devoid of merits and is liable to be dismissed.
24. Learned counsel for the respondent no. 3 and 4 have vehemently
denied all averments made by the petitioner and submitted that no case is
made out against him as per the facts of the instant petition.
25. It is submitted that in the present case, the petitioner seeks a direction
from the Court for initiation of criminal proceedings against the respondents
no. 3 and 4 on the alleged involvement of said respondents in hatching a
criminal conspiracy against the petitioner and implicating him in a false
case.
26. It is further submitted that the respondents no. 3 and 4 were working
in the same respondent company as petitioner but did not participate in any
such criminal conspiracy against the petitioner. The criminal proceedings
were on the basis of the complaint filed by the complainant, pursuant to
which an action was taken against the petitioner by the authorities
concerned.
27. It is submitted that there was no role attributable to the respondents
no. 3 and 4 in the insurance claim which was sanctioned by the petitioner of
the complainant. It was the petitioner who sanctioned the insurance claim
and hence, the respondents no. 3 and 4 played no role in the same.
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28. It is further contended that the allegations by the petitioner against the
respondent no. 3 are misplaced. The allegations which have been made by
the petitioner against the respondent no. 3 by the petitioner is to malign his
reputation and coerce the respondents no. 1 and 2 to agree to his demands.
29. Learned Counsel for the respondents no. 3 and 4submitted that the
petition is devoid of merits and is liable to be dismissed.
30. Learned Counsel for the petitioner in rejoinder to the submissions of
respondents no. 1 and 2 submitted that the contention of the respondent
Company that the petitioner is not entitled to any enhanced salary in the
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promoted cadre for the period from 14 July, 2010 to 2015 because the
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promotion granted to the Petitioner to Scale-III w.e.f. 14 July 2010 was
only “notional promotion” is misplaced.
31. It is contended that the stand taken by the respondent is against the
law laid down by the Hon’ble Supreme Court in Union of India v. K.V.
Jankiraman (1991) 4 SCC 109 wherein it was categorically held that:
“ 25. We are not much impressed by the contention advanced on
behalf of the authorities. The normal rule of "No work no pay" is
not applicable to cases such as 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
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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 n deserves it. Life being complex, il is not possible to anticipate
and enumerate exhaustively all the circumstances under 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 in
disciplinary/criminal proceedings he should be entitled to all salary
for the intervening period is to undermine discipline in the
administration and jeopardize public interest. 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 the said last sentence in the first sub-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 notional
promotion preceding the date of actual promotion, and if so to what
extent, will be decided be the concerned authority by taking into
consideration all the facts and circumstances of the disciplinary
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proceedings/criminal prosecution. Where the Authorities denies
arrears of Salary or part of it, it will record its reasons for doing
so”
32. It is submitted on behalf of the petitioner, in light of the
aforementioned judgment, that the rule of "no work no pay" would not be
applicable when an employee is completely exonerated, not found
blameworthy and is not visited with any penalty even of censure. He has to
be given the benefit of the salary of the higher post along with the other
consequential benefits from the date on which he would have normally been
promoted.
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33. It is submitted that the denial of salary for the period w.e.f. 14 July,
2010 till the date on which the petitioner has joined at promoted cadre
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(Scale- III) i.e on 02 May 2016, is without any justification. Therefore,
such denial of the salary without any basis tantamount to punishing the
petitioner for the wrongs he has not even committed.
34. It is contended that since the payment of the arrears due to the
petitioner along with other benefits has been delayed by 13 years, the
petitioner is entitled to receive pay fixation arrears alongwith interest
thereon for the said 13 years.
35. In view of the foregoing submissions, the petition may be allowed and
this Court may grant the reliefs as sought by the petitioner against
respondents no. 1 and 2.
36. Learned counsel for the petitioner in rejoinder to the submissions of
respondents no. 3 and 4 submitted that they were holding senior positions in
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the respondent Company and that they misused their positions to implicate
the petitioner in a false case in furtherance of a deep-rooted conspiracy
based on caste lines since the petitioner belonged to Scheduled Caste. It is
further prayed that this Court may direct the registration of a case against the
respondents no. 3 and 4 under SC/ST Act due to their prejudice against the
petitioner.
37. It is further submitted that the petitioner is entitled to the damages of
a sum of Rs. 1 crore on account of wrongful conviction, malicious
prosecution, mental agony, stigma, mental torture and harassment in light of
the judgment pronounced by the Hon’ble Supreme Court in the case of Dr.
Mehmood Nayyar Azam V. State of Chhattisgarh and Ors. (Civil Appeal
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No. 5703 of 2012) dated 3 August 2012 and S. Nambi Narayanan V. Siby
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Mathewes & Ors. (Civil Appeal no. 6637-6638 of 2018) dated 14
September 2018.
38. In view of the foregoing submissions, the petitioner submits that the
petition may be allowed and this Court may grant the reliefs sought against
respondents no. 3 and 4.
39. Heard and perused the contents of the writ petition, counter affidavit
of the parties as well as the rejoinder on the record along with the documents
placed on record.
40. This Court deems it appropriate to form the following issues;
i. Whether the respondent is entitled to pay fixation benefits
with arrears on account of promotion to Scale III with effect
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from 14 July 2010
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ii. Whether direction may be passed by this Court
respondent is to promote the petitioner to Scale IV and if
promoted to Scale IV, the direction to release pay fixation
benefits with arrears on promotion from Scale III to Scale IV
with effect from PE 2014-15
iii. Whether this Court can direct the respondent to initiate
an investigation into the role of respondent no. 3 and 4 who
hatched a criminal conspiracy in implicating the petitioner
in a false case
41. Based on the arguments and the material on record this Court will
adjudicate upon the above- mentioned issues. This Court will now deal with
the issue no. 1 - Whether the respondent is entitled to pay fixation benefits
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with arrears on account of promotion to Scale III with effect from 14 July
2010.
42. Notional Promotion refers to the promotion in which a government
employee is involved in a particular exigencies due to which he is unable to
work. Thus such kind of promotions are done on compassionate grounds
with an intent to not hinder any future prospects of such employee. The
employee cannot claim such promotion as a matter of right. The discretion to
give notional promotion or not vests exclusively with the employer, who can
take a decision on the same in accordance with the policies/ rules governing
the employment of such employee as well as other circumventing
circumstances.
43. Moreover, the decision to give notional promotion has to be examined
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as per the scenario of the each case. There are no rigid rules as to when the
notional promotion may be granted and when the notional promotion should
not be granted. Therefore, in such cases the notional promotion is granted on
basis of the factual scenario of the case.
44. Another important aspect is the date from when the benefits of such
notional promotion benefit is to be rendered to the employee who has been
promoted notionally i.e., from the date of notional promotion or from the
date he joins on such promoted post. The employee who is notionally
promoted cannot claim as a right benefits of the promoted post from the date
he was granted the notional promotion. It is based upon the discretion vested
in the employer. Such discretion has to be exercised by taking into account
the peculiar facts of the case.
45. The employer usually takes into account the principle of “no work no
pay” i.e., since the employee has not worked on the promoted position, he is
not entitled for the benefits which accrues from it. If the reason for the
employee not being able to work is not attributable to employer
organization, they may grant the employee benefits of the promoted post
from the date such employee joined the position.
46. Only in exceptional cases, if there is a default on the part of the
employer organization that the employee could work at his position in the
employee organization, they may grant benefits of the notional promotion
from the date of such notional promotion. In other cases, the principles of
“no work no pay” is followed.
47. The above said principle that in the cases of notional promotion on
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“no work no pay” is applicable and the employee granted such promotion is
entitled to benefits of the promoted post from the date of joining of such
position has been enunciated by the Courts in catena of judgments which
have been reiterated as follows.
48. Recently, the Hon’ble Supreme Court in the judgment of Gowramma
C. v. Hindustan Aeronautical Ltd. , (2022) 11 SCC 794 held as follows:
“10. It is true that no work no pay is a principle which is
apposite in circumstances where the employee does not work but
it is not an absolute principle, which does not admit of
exceptions. In this regard we may notice that in one of the
judgments relied upon by the respondents, namely, State of
Kerala v. E.K. Bhaskaran Pillai [State of Kerala v. E.K.
Bhaskaran Pillai, (2007) 6 SCC 524 : (2007) 2 SCC (L&S) 487]
which, in fact, dealt with issue as to monetary benefits when
retrospective promotion is given, this Court held : (SCC p. 527,
para 4)
“4. … 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% 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
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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.”
(emphasis supplied)
11. In the decision in P.V.K. Distillery Ltd. v. Mahendra
Ram [P.V.K. Distillery Ltd. v. Mahendra Ram, (2009) 5 SCC
705 : (2009) 2 SCC (L&S) 134] again relied upon by the
respondent, the matter arose out of an award by the Labour
Court where exercise of power under Section 11-A of the
Industrial Disputes Act was made. This is also a case where
incidentally the Court noted that the appellant employer
remained closed for years together and it was declared as a
sick unit. In this regard, a fact which weighed with the Court is
found reflected in the following statement : (SCC p. 710, para
18)
“18. Although direction to pay full back wages on a
declaration that the order of termination was invalid
used to be the usual result but now, with the passage
of time, a pragmatic view of the matter is being taken
by the Court realising that an industry may not be
compelled to pay to the workman for the period
during which he apparently contributed little or
nothing at all to it and/or for a period that was spent
unproductively as a result whereof the employer
would be compelled to go back to a situation which
prevailed many years ago, namely, when the
workman was retrenched.”
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(emphasis supplied)
12. In regard to interference in such matters i.e. cases relating
to back wages, we find similar approach adopted in other
decisions which no doubt the respondent lays store by (see in
this regard HUDA v. Om Pal [HUDA v. Om Pal, (2007) 5 SCC
742 : (2007) 2 SCC (L&S) 255] ). Though the decision
in Canara Bank v. Damodhar Govind Idoorkar [Canara
Bank v. Damodhar Govind Idoorkar, (2009) 4 SCC 323 :
(2009) 1 SCC (L&S) 832] again relied upon by the respondent
did involve the service of the employee being terminated as he
had secured employment in the reserved category using a false
caste certificate and the Court modified direction of the High
Court which ordered full back wages by substituting the order
by reducing it to 50%, we do not find that any principle has
been laid down which could be treated as constituting it as a
precedent. The decision in Deepali Gundu Surwase v. Kranti
Junior Adhyapak Mahavidyalaya [Deepali Gundu
Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10
SCC 324 : (2014) 2 SCC (L&S) 184] involved the High Court
setting aside the award of back wages on the ground that the
appellant had not proved the factum of non-employment. The
Court inter alia laid down as follows : (Deepali Gundu
Surwase case [Deepali Gundu Surwase v. Kranti Junior
Adhyapak Mahavidyalaya, (2013) 10 SCC 324 : (2014) 2 SCC
(L&S) 184] , SCC pp. 357-58, para 38)
“38.6. In a number of cases, the superior courts have
interfered with the award of the primary
adjudicatory authority on the premise that
finalisation of litigation has taken long time ignoring
that in majority of cases the parties are not
responsible for such delays. Lack of infrastructure
and manpower is the principal cause for delay in the
disposal of cases. For this the litigants cannot be
blamed or penalised. It would amount to grave
injustice to an employee or workman if he is denied
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back wages simply because there is long lapse of
time between the termination of his service and
finality given to the order of reinstatement. The
courts should bear in mind that in most of these
cases, the employer is in an advantageous position
vis-à-vis the employee or workman. He can avail the
services of best legal brain for prolonging the agony
of the sufferer i.e. the employee or workman, who
can ill-afford the luxury of spending money on a
lawyer with certain amount of fame. Therefore, in
such cases it would be prudent to adopt the course
suggested in Hindustan Tin
Works v. Employees [Hindustan Tin
Works v. Employees, (1979) 2 SCC 80 : 1979 SCC
(L&S) 53] .”
13. The most important question is whether the employee is at
fault in any manner. If the employee is not at all at fault and she
was kept out of work by reasons of the decision taken by the
employer, then to deny the fruits of her being vindicated at the end
of the day would be unfair to the employee. In such circumstances,
no doubt, the question relating to alternative employment that the
employee may have resorted to, becomes relevant. There is also
the aspect of discretion which is exercised by the Court keeping in
view the facts of each case. As we have already noticed, this is a
case where apart from the charge of the employee having
produced false caste certificate, there is no other charge.
Therefore, we would think that interests of justice, in the facts of
this case, would be subserved, if we enhance the back wages from
50% to 75% of the full back wages, which she was otherwise
entitled. The appeals are partly allowed. The impugned judgments
will stand modified and the respondents shall calculate the amount
which would be equivalent to 75% of the back wages and disburse
the amount remaining to be paid under this judgment within a
period of six weeks from today to the additional appellants.
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49. The Hon’ble Supreme Court in the judgment of Union of India v.
B.M. Jha , (2007) 11 SCC 632 held as follows :
5. We have heard learned counsel for the parties. It was argued by
learned counsel for the respondent that when a retrospective
promotion is given to an incumbent, normally he is entitled to all
benefits flowing therefrom. However, this Court in State of
Haryana v. O.P. Gupta [(1996) 7 SCC 533 : 1996 SCC (L&S) 633
: (1996) 33 ATC 324] and followed in A.K. Soumini v. State Bank
of Travancore [(2003) 7 SCC 238 : 2003 SCC (L&S) 1041 : JT
(2003) 8 SC 35] has taken the view that even in case of a notional
promotion from retrospective date, it cannot entitle the employee
to arrears of salary as the incumbent has not worked in the
promotional post. These decisions relied on the principle of “no
work no pay”. The learned Division Bench in the impugned
judgment has placed reliance on State of A.P. v. K.V.L. Narasimha
Rao [(1999) 4 SCC 181 : 1999 SCC (L&S) 841 : JT (1999) 3 SC
205] . In our view, the High Court did not examine that case in
detail. In fact, in the said judgment the view taken by the High
Court of grant of salary was set aside by this Court. Therefore, we
are of the view that in the light of the consistent view taken by this
Court in the abovementioned cases, arrears of salary cannot be
granted to the respondent in view of the principle of “no work no
pay” in case of retrospective promotion. Consequently, we allow
this appeal and set aside the impugned order of the High Court
dated 17-5-2000 passed by the Division Bench of the High Court
as also the order dated 11-1-2000 passed by the Central
Administrative Tribunal, Principal Bench.
xxx
18. In any event the principle of normal rule of “no work no pay”
depends upon the facts and circumstances of each case and is not
a rule of thumb. The said principle is not akin to a mathematical
theorem which has to end as “hence proved” and as there is no
straitjacket formula applicable thereto. Reliance is placed
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upon Gowramma C. v. Hindustan Aeronautical Ltd. [Gowramma
C. v. Hindustan Aeronautical Ltd., 2022 SCC OnLine SC 310]
wherein it is held as under :
“9. It is true that no work no pay is a principle which
is apposite in circumstances where the employee
does not work but it is not an absolute principle,
which does not admit of exceptions. In this regard we
may notice that in one of the judgments relied upon
by the respondents, namely, State of Kerala v. E.K.
Bhaskaran Pillai [State of Kerala v. E.K. Bhaskaran
Pillai, (2007) 6 SCC 524 : (2007) 2 SCC (L&S) 487]
which, in fact, dealt with issue as to monetary
benefits when retrospective promotion is given, this
Court held :
„… 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
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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‟.”
19. Reliance is further placed upon Ashoka Kumar
Thakur v. Union of India [Ashoka Kumar Thakur v. Union of
India, (2011) 12 SCC 793 : (2012) 1 SCC (L&S) 444] wherein it is
held as under :
“3. Whether an order can be treated as a precedent
would depend upon the fact situation. In fact, we
have stated that though the normal rule of „no work
no pay‟ could have, in law, been applied, in view of
the special features of the case, we had directed
payment.”
20. The acts of the petitioner are not relating to any delay whereas
the acts of the respondents are relating to a continuing wrong
causing continuous loss, harm and injury to the petitioner since
inception. Further, as the issue involved before us had primarily
been settled vide order dated 30-7-2014 in the first round of
litigation, we deem it appropriate to grant the reliefs sought by the
petitioner in the present writ petition, more so as the said reliefs
are neither effecting any third parties nor are raking open any
dead issues. The petitioner is further entitled to the reliefs sought
as there is no fault on the part of the petitioner in the present case
and the delay, if any, in his appointment solely rests upon the
shoulders of the respondents. The petitioner cannot be made to
suffer for no wrong attributable to him, as such, cannot be denied
extension of his rightful dues/benefits flowing from his seniority
and promotion by the respondents.
21. Thus, we allow the present writ petition and direct the
respondents to treat the petitioner as having being promoted to the
rank of Assistant Commandant from the date his batchmates were
appointed i.e. from 1-3-2003 and accordingly notionally fix his
pay after granting the increments which have been granted to his
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juniors and further to grant him senior timescale promotion with
effect from the same date of his batchmates when they were
granted the said benefit and grant the same relief as has been
granted to similarly situated persons as the petitioner. We further
direct that the respondents, shall take appropriate steps to
calculate and release the amount due with simple interest @ 6%
per annum from the actual date it became due i.e. 1-3-2003 to the
petitioner, within a period of four weeks from today to comply
with the aforesaid directions.
22. Under the facts and circumstances of the present case before
us, we clarify that the petitioner will not be entitled to grant of
back wages as he was not performing any duty of any senior post
and had not in fact been granted promotion. In view thereof the
order dated 16-4-2019, whereby the petitioner's representation
dated 18-7-2018 for entitlement of back wages or notional fixation
of pay in the rank of Assistant Commandant was rejected stands
quashed in part as the petitioner is not held to the grant of back
wages.
50. Moreover, the Delhi High Court in the judgment of Union of India v.
G. D Goel 2008 SCC OnLine Del 1792 held as follows:
“10. The first case which needs mention in the chronology of the
judgments, we are taking stock of, is the decision of the Supreme
Court in Paluru Ramkrishnaiah v. Union of India - (1989) 2 SCC
541. The Court in this case held that in case the promotion
granted with retrospective effect, back wages for the period for
which the person actually did not work in the promotion post is
not payable. This view was taken on the basis of the following
factual background:- “16. It may also be noticed that even though
the petitioners on their completion of two years' service as
Supervisor „A‟ were not promoted as Chargeman II in or about
the year 1966 they chose to wait for about 17 years to file these
writ petitions which were filed in 1983, and nearly 2 years even
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after the decision dated February 2, 1981 in Civil Appeal No. 441
of 1981, which indicates that but for the decision in Civil Appeal
No. 441 of 1981 they would perhaps not have thought of filing
these writ petitions inasmuch as in the meantime they had not only
been promoted in the normal course as Chargeman II but some of
them had been promoted even to higher posts in the hierarchy.”
11. In Union of India v. K.V. Jankiraman (1991) 4 SCC 109, this
issue came up for consideration namely whether the Government
could deny the benefit of wages for the past period if he was
granted promotion subsequently but from back date. Union of
India had contended that a person cannot be allowed to draw
benefits of a post the duties of which he had not discharged. This
contention was negated as not applicable where an employee, who
is willing to work, is kept away from work by the authorities for no
fault of his. The Supreme Court observed 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 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. 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
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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
in applicable to such cases.” 12. Issue again came up
for consideration before the Supreme Court in the case
of State of A.P. v. K.V.L. Narasimha Rao - (1999) 4
SCC 181. In this case also the court held that back
wages are normally to be allowed in case of
retrospective promotion. However, in the said case, the
Court denied the benefit to the employee noting down
the peculiar facts of this case in the following terms:-
“5. In normal circumstances when the
retrospective promotions are effected all benefits
flowing therefrom, including monetary benefits,
must be extended to an officer who has been
denied promotion earlier. However, on the
reorganization of States a large number of
officers stood allotted from different States to the
newly-formed State and their services had to be
integrated on various principles and several
agencies were involved in the same. The steps to
be taken thereto were one of formulation of
principles, publication of a provisional inter-
State seniority list, inviting objections thereto,
consideration of those objections in consultation
with the Central Government and acting upon its
directions to bring the seniority list in conformity
with such directions. This entire exercise
involved a good deal of time and gave rise to an
extraordinary situation. It is in those
circumstances that the rules contained in
Fundamental Rule 26 or Rule 40 of the
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Hyderabad Civil Services Regulations have been
framed. As a matter of fact, rules of the erstwhile
State regarding seniority are not applicable in
the new State as the allottees are governed by the
Act and seniority is finalized therein. Even so, we
do not see that there is any impediment to frame
new rules affecting conditions of service of such
allottees but in conformity with the Act. Surely
new rules cannot be brushed aside by saying that
they are not applicable to cases coming under
the Act. There is no contention either in the High
Court or before us that they are framed in
contravention of the Act. In this background, we
fail to see as to why the rules are not applicable
to the respondents as held by the High Court.”
13. Another judgment which needs to be
mentioned is in the case of State of Haryana v.
O.P. Gupta - (1996) 7 SCC 533. The controversy
involved in the said case was whether the
employees were entitled to arrears of salary for
the period for which they had admittedly not
worked, but had been given notional promotion
from the deemed date. The matter related to a
seniority dispute where fresh seniority list was
directed to be prepared in accordance with rules
ignoring any inconsistent administrative
instructions. The Supreme Court held that
entitlement of the employees to work arose only
when they were promoted in accordance with
rules and the preparation of seniority list was a
condition precedent for the exercise. The
employees could not be posted in the promotional
post till the exercise was carried out and thus,
their plea that they were willing to work had no
legal foundation. The Court, thus, did not give
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these employees benefit of arrears of salary for
the period they had not worked. The case of K.V.
Jankiraman (supra) was discussed and
distinguished. We may, for our purpose, take
note of the following observations in the said
judgment:-
“5. Shri Gupta, learned counsel appearing for
the State, contended that the State was prepared
to comply with the direction issued by the High
Court in the first instance for the preparation of
the seniority list but the rival candidates who
claimed inter se seniority over the others
approached the Division Bench and also this
Court for relief; since, ultimately, this Court has
decided that seniority has to be prepared strictly
in accordance with Rule 9 of the Rules, on
receipt thereof, the Government has complied
with the conditions of the preparation of the
seniority list. Accordingly, they have been given
the promotion with the deemed dates, though
there was no specific direction in that behalf.
Others who had joined the service have not
claimed, except the respondents, but some of
them were not even parties to the earlier writ
proceedings or to the appeal in this Court and
consequently, they are not entitled to the arrears.
It is contended by Shri S.M. Hooda, learned
counsel appearing for the respondents that the
respondents were willing to work in the
respective posts but they were not given the
same. To avoid their entitlement, a seniority list
was wrongly prepared denying them their
entitlement to work in the promotional post;
consequently, the respondents are entitled to the
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arrears of salary and the High Court was right in
granting the same.
12. We find from the aforesaid discussion that at times Supreme
Court has granted the relief whereas on some other occasions, the
arrears of salary for the period prior to the date of actual
assumption of promotional post are denied. However, a closure
scrutiny of the facts in each case would clearly reveal a discerning
trend and there is no contradiction as far as principle of law laid
down in various judgments is concerned.
13. The principle which can be deduced is that if a promotion is
denied to an employee because of the mistake of the
administration and due to no fault of the said employee, then the
authorities are bound to pay the arrears of salary etc. upon giving
him the benefit of retrospective promotion after realizing that
mistake. This principle would be extended even to those cases
where due to sheer negligence, carelessness or on account of
malafides an employer denies the benefit of promotion to the
employee at a proper time when it becomes due and gives him
afterwards though retrospectively. (Also see State of Kerala v.
E.K. Bhaskaran Pillai, (2007) 6 SCC 524 : JT (2007) 6 SC 83;
Mohd. Ahmed v. Nizam Sugar Factory, (2004) 11 SCC 210; Nalini
Kant Sinha v. State of Bihar, 1993 Supp (4) SCC 748. On the other
hand, where there is genuine dispute and the promotion was
delayed because of pendency of such a dispute and before the
settlement of the dispute the promotion could not have been
granted, the salary for the past period can be denied even when
promotion is given retrospectively after the resolution of the
dispute. Further the benefit of arrears of salary for past period
can also be denied if it is found that it was not fault or mistake of
the administration because of which the promotion was delayed.
14. In those cases where concerned employees seniors as well
as juniors are granted the benefit of promotion and the salary
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for the period in question, same should invariably be given to
such an employee who is given belated promotion
retrospectively as non grant of arrears of pay and allowances
of the higher post for the relevant period, in such
circumstances, would amount to hostile discrimination”
51. The Supreme Court in the landmark judgment of State of Haryana v.
O.P. Gupta , (1996) 7 SCC 533 held as follows :
6. Having regard to the above contentions, the question arises
whether the respondents are entitled to the arrears of salary? It
is seen that their entitlement to work arises only when they are
promoted in accordance with the Rules. Preparation of the
seniority list under Rule 9 is a condition precedent for
consideration and then to pass an order of promotion and
posting to follow. Until that exercise is done, the respondents
cannot be posted in the promotional posts. Therefore, their
contention that though they were willing to work, they were not
given the work after posting them in promotional posts has no
legal foundation. The rival parties had agitated their right to
seniority. Ultimately, this Court had directed the appellant to
prepare the seniority list strictly in accordance with Rule 9
untrammelled by any other inconsistent observation of the
Court or the instructions issued in contravention thereof. Since
the order had become final in 1990, when the appeal had been
disposed of by the Court by the above directions, the State in
compliance thereof prepared the seniority list in accordance
with the Rules and those directions and promotions were given
to all eligible persons and postings were made accordingly on
1-12-1992. In the interregnum some had retired. As stated
earlier, though the deemed date has been given as 1-1-1983,
the respondents cannot legitimately claim to have worked in
those posts for claiming arrears and, as a fact, they did not
work even on ad hoc basis.
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7. This Court in Paluru Ramkrishnaiah v. Union of India [(1989)
2 SCC 541 : 1989 SCC (L&S) 375 : (1989) 10 ATC 378 : (1989) 2
SCR 92] (SCR at p. 109 : SCC p. 556, para 19) considered the
direction issued by the High Court and upheld that there has to be
“no pay for no work”, i.e., a person will not be entitled to any pay
and allowance during the period for which he did not perform the
duties of higher post, although after due consideration, he was
given a proper place in the gradation list having been deemed to
be promoted to the higher post with effect from the date his junior
was promoted. He will be entitled only to step up the scale of pay
retrospectively from the deemed date but is not entitled to the
payment of arrears of the salary. The same ratio was reiterated in
Virender Kumar, G.M., N. Rlys. v. Avinash Chandra Chadha
[(1990) 3 SCC 472 : 1991 SCC (L&S) 62 : (1990) 14 ATC 732]
(SCC p. 482, para 16).
8. It is true, as pointed out by Shri Hooda, that in Union of India
v. K.V. Jankiraman [(1991) 4 SCC 109 : 1993 SCC (L&S) 387 :
(1993) 23 ATC 322 : AIR 1991 SC 2010] this Court had 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 pursuant thereto.”
52. It is a well- settled law that the benefits which accrues upon the
notional promotion including increase in the salary will be granted by the
employer as per its discretion in respect of the particular facts of the case. If
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the employee was not able to perform its duty due to default on the part of
the employer, the employer may grant benefits which accrues from the
notional promotion from the day of such promotion. However, in the cases
where there is no default on the part of the employer, then the employer may
on the basis of the principle of “no work, no pay” may grant such promotion
from the date the employee joins back his position.
53. Therefore, the grant of notional promotion as well as the grant of
benefits which accrues from such notional promotion depends on the facts of
the case. There is no straightjacket formula as to when the notional
promotion will be granted and in which cases the notional promotion cannot
be granted.
54. In the instant petition, the petitioner was notionally promoted from
th
14 July 2010 as per sealed cover policy of the respondent company wherein
irrespective of the fact that the petitioner did not work at a position, he is
granted notional promotion. Thus, the petitioner was notionally promoted to
Scale- III on the basis of respondent’s promotion policy in accordance with
the promotional policy.
55. The petitioner in the instant petition is seeking the benefits which
accrues to the position of Scale- III from the date he was granted notional
promotion in accordance with the promotion policy of the respondent
company. The respondent company has been granted benefits of notional
promotion from the date the petitioner joined the said position as the
respondent held that the petitioner is entitled for benefits from the date he
joined back the position.
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56. The respondent company has contended that the petitioner was out of
service not due to any default committed on the part of the respondent.
Since, the respondent company dismissed the petitioner from his service on
the ground of conviction of the petitioner by the Special CBI Courts
subsequently, on his acquittal, the petitioner was reinstated back into the
services. Furthermore, petitioner has already been paid Rs 75 lakhs by the
respondent company alongwith notional promotion to Scale- IV and the
respondent has asserted that the petitioner is not entitled to anything more.
57. Hence, on the basis of the principle of "no work, no pay" respondent
company held that the benefits of the promoted post accrues from the date
the petitioner joined the promoted position i.e., Scale III.
58. In the present petition, while it is undeniable that the petitioner's
inability to contribute during the suspension period was due to criminal
charges faced by him. However, the reality remains that no productive work
was carried out during that time. The petitioner was unable to actively fulfill
his work responsibilities assigned to the position of Scale III.
59. The concept of remuneration is inherently linked to the notion of an
employee's productive engagement, and the petitioner is unable to work
resulted in a lack of tangible work contribution to the organization.
Especially in the present case, where there is no default attributable to the
respondent company for petitioner’s inability to work at his designated post.
60. This Court is of the view that the principle of "no work, no pay" is a
foundational tenet of employment relationships, designed to ensure that
remuneration is commensurate with the work performed. The underlying
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concept is that compensation is earned through active contributions to an
organization's objectives.
61. Moreover, granting of work wages leads to further complexities from
an organizational perspective since, it could establish a precedent that
organizations might find challenging to manage consistently. Such a
decision could lead to administrative difficulties, including adjustments to
payroll records, benefits calculations, and tax implications. Additionally,
other employees who were not subject to similar circumstances might
perceive the differential treatment as unfair, potentially impacting workplace
morale and cohesion.
62. In the context of the instant petition, if the Court directed the
respondent to pay fixation benefits to petitioner on account of notional
th
promotion from 14 July 2010 till the date the petitioner joined the service,
during the period when no work has been done by the petitioner could create
uncertainty and inconsistency in how organizations handle similar situations.
Moreover, such fixation benefits if allowed, will amount to each employee
knocking the door of the Court claiming the relief despite the fact, that they
are not entitled to the same.
63. The petitioner was dismissed from his service subsequent to his
conviction and after his acquittal, the respondent company has reinstated
him back along with all the benefits and promotion which accrued to the
post of the petitioner. There is no default or irregularity on the part of the
respondent company that the petitioner was not able to perform his duty. The
petitioner is entitled to fixation benefits of Scale III from the date of joining
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the said position and can’t be entitled to such fixation benefits from the date
of notional promotion. Hence, the respondent company is not entitled to pay
anything more.
64. Moreover, the petitioner has wrongly placed reliance on the judgment
of Union of India v. K.V. Jankiraman (Supra), the Hon’ble Supreme Court
has held that that the issue of notional promotion along with benefits which
accrue from such notional benefits has to decide on the basis of the facts of
each case. The facts of the aforementioned judgment are different from the
facts of the instant petition. Therefore, the aforementioned judgment is not
applicable on the petitioner.
65. The petitioner’s acquittal is a significant factor in his favor, the
Court's decision must also take into account the broader implications for
both the petitioner and the respondent. While the petitioner suffered the
consequences of an unwarranted suspension, the Court is bound to balance
his rights with the overarching principles that govern employment
relationships and organizational management.
66. Therefore, I am of the view that arrears of fixation benefits of Scale –
III cannot be granted to the petitioner in view of the principle of “no work no
th
pay” cannot be granted from 14 July 2010. The petitioner is entitled to the
pay scale of the promotional post only with effect from the date he joined
the Scale – III post and not from the date of his notional promotion.
Accordingly, issue no. i is decided.
67. Now adverting to the issue no. ii – Whether direction may be passed
by this Court respondent is to promote the petitioner to Scale IVand if
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promoted to Scale IV, the direction to release pay fixation benefits with
arrears on promotion from Scale III to Scale IV with effect from PE 2014-
15.
68. The petitioner has claimed relief that he should be promoted from the
position of Scale III to Scale IV i.e. post of Manager. The petitioner has
submitted the representation to the respondent company in this regard, to
which, the respondent company has denied the promotion to Scale IV due to
lack.
69. The respondent has contended in this regard that as per terms of the
Promotion Policy of the respondent appeared for examination during
Promotion Exercise 16-17 which is mandatorily held for promotion to next
scale-IV, which is a managerial post. The petitioner failed in the said exam
and, thus, could not have been promoted to Scale IV.
70. The petitioner again applied for the promotion during Promotion
Exercise 2017- 18 for promotion to Cadre of Scale –IV but did not appear
for the exam, hence could not be promoted to the cadre of Scale- IV.
71. The Court under Article 226 of the Constitution of India has
unrestrained power to issue reliefs to the petitioner before it, given the
petitioner has a legal right to the relief claimed by it. However, if the
petitioner does not have any legal right for the relief which has been claimed
by him/her, this Court should not wrongly exercise its power under Article
226 of the Constitution of India by granting such reliefs claimed by the
petitioner.
72. The Hon’ble Supreme Court has discussed the restraint to be
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exercised by this Court under Article 226 in the judgment of Sarvepalli
Ramaiah v. District Collector, Chittoor , (2019) 4 SCC 500 :
“41. In this case, the impugned decision, taken pursuant to orders
of Court, was based on some materials. It cannot be said to be
perverse, to warrant interference in exercise of the High Court
extraordinary power of judicial review. A decision is vitiated by
irrationality if the decision is so outrageous, that it is in defiance
of all logic; when no person acting reasonably could possibly have
taken the decision, having regard to the materials on record. The
decision in this case is not irrational.”
73. The Hon’ble Supreme Court has reiterated the principle that the High
Courts under Article 226 of the Constitution of India should only interfere
with decisions of the authorities if there is an irrationality or illegality on the
face of it.In case there is no such irrationality or illegality, then Courts
should not interfere as the same would amount to surpassing the jurisdiction
under Article 226 of the Constitution of India.
74. In the present facts, the petitioner will be eligible for the position of
Scale- IV by passing the exam conducted by the respondent company. The
petitioner has appeared once in the exam and failed while on the other
instance, the petitioner has not even appeared in the exam.
75. This Court is of the view that in this regard the Court cannot override
the Promotion Policy of the respondent company and grant any relief to the
petitioner. There is a particular procedure which has been enumerated by the
respondent company for promotion to Scale- IV. Moreover, there is no legal
right in the favour of the petitioner to be promoted to Scale – IV since, the
petitioner has to pass the said exam.
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76. In such a situation if the Court, passes a direction for the promotion of
the petitioner to Scale- IV, such direction would amount to misuse of its
power under Article 226 of the Constitution of India since, there is no legal
right which has arisen in the instant petition in favour of the petitioner
regarding his promotion from Scale III to Scale- IV. The Court must
exercise its jurisdiction under Article 226 very cautiously and must only act
when there is a legal right of the petitioner which has been violated.
77. Such a direction will be prejudice to the other employees of the
respondent company, who were not promoted to the position of Scale- IV
since they were unable to pass the exam. The petitioner merely by filing the
writ petition cannot transcend the procedure followed by the respondent
company for its promotion.
78. Therefore, this Court is of the view that no direction can be passed to
the respondent company to promote the petitioner from the position of
Scale- III to Scale IV since, the petitioner is required to pass the exam for
the said promotion. However, the petitioner has not been able to pass the
said examination. Accordingly, issue no. ii is decided.
79. Now adverting to the next issue iii- Whether this Court can direct the
respondent to initiate an investigation into the role of respondent no. 3 and 4
who hatched a criminal conspiracy in implicating the petitioner in a false
case.
80. Under Article 226 of the Constitution of India, acts exercising civil
jurisdiction and does not exercise any criminal jurisdiction. The power under
Article 226 of the Constitution of India is designed to be promoted as a
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beneficial weapon for the person who is aggrieved due to violation of his/
her legal rights. The directions of initiation of criminal proceedings only in
exceptional cases especially when the authorities are not acting/taking action
cognizance of the event under Article 226 of the Constitution of India. Since
the petitioner before the Court may allege malafidely that his rights have
been aggrieved and if the Court directs initiation of criminal proceedings
against the parties who have violated the right of the petitioner can cause
distress to the other party against whom initiation of criminal proceedings
may be ordered.
81. This principle has been further enunciated by in the catena of
judgments which have been discussed hereinbelow.The Hon’ble Supreme
Court while dealing the Kapil Agarwal and Ors. Vs Sanjay Agarwal Ors.,
2021 5 SCC 524
“6.1. As observed and held by this Court in catena of
decisions, inherent jurisdiction Under Section 482
Code of Criminal Procedure and/or Under Article
226 of the Constitution is designed to achieve salutary
purpose that criminal proceedings ought not to be
permitted to degenerate into weapon of harassment.
When the Court is satisfied that criminal proceedings
amount to an abuse of process of law or that it
amounts to bringing pressure upon Accused, in
exercise of inherent powers, such proceedings can be
quashed.
6.2. As held by this Court in the case of Parbatbhai
Aahir v. State of Gujarat MANU/SC/1241/2017 :
(2017) 9 SCC 641, Section 482 Code of Criminal
Procedure is prefaced with an overriding provision.
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The statute saves the inherent power of the High
Court, as a superior court, to make such orders as are
necessary (i) to prevent an abuse of the process of any
Court; or (ii) otherwise to secure the ends of justice.
Same are the powers with the High Court, when it
exercises the powers Under Article 226 of the
Constitution.”
82. In light of the aforementioned judgment, it is a well-settled law that
the Court under Article 226 cannot entertain matters pertaining to matters of
criminal proceedings. The Court further should not interfere in the criminal
proceedings which are pending in the Criminal Courts.
83. This Court is of the view that the writ of mandamus/ direction which
are issued by this Court in exercise of its power under Article 226 is a
weapon vested by the Constitution of India in the High Courts of this
country, should be utilized by the Courts in case the citizens are aggrieved
by a breach in the performance of a public duty by any authority, which
violates their fundamental or any statutory rights. Court serves the purpose
of ensuring that the State remains accountable to its citizens and protects
citizens against the excess in the use of power by the state. However, there
are certain limitations and conditions to its application. The directions
should be issued only in exceptional cases.
84. In the present facts, a direction by this Court to initiate proceedings
against respondents no. 3 and 4 cannot be passed by this Court. The
petitioner may approach the authorities concerned for the same. The facts of
the present case do not fall within the exceptional circumstances, which
merit the interference of this Court under Article 226 of the Constitution of
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India. Accordingly, issue no. iii is decided by this Court.
85. In view of the aforementioned discussion and judgments cited, the
writ petition under Article 226 of the Constitution of India would not be
maintainable against respondents in view of the above said discussion for the
following reasons:
a) The petitioner has already been granted notional promotion and he is
entitled to fixation benefits of such notional promotion from the date
of his joining the office based on the principle of “no work no pay”
b) The petitioner is not entitled to be promoted to the position of Scale
IV since he did not pass the requisite exam to be promoted to Scale
IV. Hence, the petitioner is not eligible for said promotion.
c) This Court cannot initiate criminal proceedings against respondent no.
3 and 4 since, there are no exceptional circumstances made out in this
case which warrant interference of this Court for issuing such a
direction.
86. It is also observed that the respondent company has rightly considered
the representation of the petitioner and duly granted him all the reliefs which
the petitioner is entitled to.
87. Accordingly, the issue framed has been decided.
88. This Court upholds the objection taken up by the respondents on the
various aspects of the writ petition.
89. This Court discerns no material to establish the proposition put forth
by the petitioner. The petitioner has not able to make out it for grant of
reliefs as prayed by the petitioner.
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90. Accordingly, the petition is accordingly dismissed along with pending
applications, if any.
91. The order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
JULY 24, 2023
SV/DB
Click here to check corrigendum, if any
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