_________________________________________________________
For Petitioner : Mr. Varun Sharma, Advocate.
For Respondents/ State : Mr. Shubham Bajpayee, P.L.
_________________________________________________________
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
13.01.2025
1. The petitioner has filed this petition seeking the following relief(s):-
"a. This Hon'ble Court may kindly be pleased to issue a writ
in the nature of mandamus or suitable direction to the
respondents authorities for quashing the impugned order,
dt. 6/8/2017 Annexure - P/1 passed by the respondent
no. 4.
b. May kindly be pleased to grant consequential benefits of
pay, salary and arrears to the petitioner for the termination
period from 30/09/2002 up to 7/7/2013.
c. May kindly be pleased to allow any other relief as the
Hon'ble Court may be deemed fit and proper."
2. Learned counsel for the petitioner would argue that the petitioner
was posted and working as a Constable in the 2 nd Battalion, Special
Armed Force (BSF), Bilaspur. A departmental enquiry was instituted
against him by issuing a charge-sheet on 29.5.2001. The enquiry report
was submitted on 10.8.2001 and the petitioner was inflicted with the
penalty of withholding increment for one year vide order dated
31.8.2001. He would further submit that the Revisional Authority/The
Commandant, Bilaspur exercising powers under Regulation 270 of the
C.G./M.P. Police Regulations, issued a show-cause notice to the
petitioner on 17.5.2002. The petitioner filed a reply on 20.7.2002 and
thereafter, the penalty was enhanced to dismissal from service vide
order dated 30.9.2002. The appeal filed by the petitioner was dismissed
vide order dated 20.11.2002. He would also submit that the order dated
30.9.2002 was challenged by filing W.P. No.2729 of 2022, which was
disposed of with a direction to the respondent authorities, whereby the
matter was remitted back to the Revisional Authority, to reconsider the
entire records of the case, evidence, and the defence of the petitioner
and take an appropriate decision in the matter. It was also observed that
the issue of back wages would be considered by the Competent
Authority only in the event any penalty less than dismissal from service
is imposed upon the petitioner. He would contend that the Revisional
Authority vide order dated 11.8.2017 inflicted the punishment of
stoppage of one increment with non-cumulative effect but the period
from the date of termination of dismissal from service till 11.8.2017 has
been declared as 'No Work No Pay'. He would also contend that
according to Rule 54 of the Fundamental Rules, the petitioner is entitled
to get the entire benefits including salary, arrears of salary, increments
etc.
5. On the other hand, learned counsel for the State would oppose
the submissions made by counsel for the petitioner. He would submit
that the authority concerned had inflicted a major punishment of
stoppage of one increment with noncumulative effect for a period of one
year, therefore, the petitioner is not entitled to get arrears of salary. He
would further submit that the penalty imposed upon the petitioner has
already been reduced from dismissal to the stoppage of one increment.
6. Heard learned counsel for the parties and perused the documents
present on the record.
7. Admittedly, the petitioner was inflicted with the punishment of
stoppage of one increment for one year vide order dated 31.8.2001 by
the Disciplinary Authority. The Commandant, Bilaspur exercising the
power under Regulation 270 of the Police Regulations, issued a show-
cause notice and thereafter, inflicted a penalty of dismissal from service
vide order 30.9.2002. The petitioner preferred W.P. No.2729 of 2002 and
the same was disposed of vide order dated 31.1.2013, observing in para
11 as under:-
"(11) In the result, the order passed by the appellate
authority as also the order passed by the revisional authority
are declared illegal and unsustainable in law and are set-
aside. The matter is remanded to the revisional authority to
reconsider the entire records of the case, evidence, defence
of the petitioner and take appropriate decision in the matter.
In compliance of the order passed by this Court, the
petitioner shall be immediately reinstated in service, but the
issue of back wages would be considered by the competent
authority only in the event any penalty less than dismissal
from service is imposed upon the petitioner. The petition is
accordingly allowed in the manner and to the extent
indicated above."
8. The Commandant, vide order dated 11.8.2017, reduced the
penalty of dismissal from service to stoppage of one increment with non-
cumulative effect. However, the period from the date of dismissal from
services till 11.8.2017 has been declared as 'No Work No Pay'.
9. The Fundamental Rules specially sub-rule (2) of Rule 54 clearly
entitles the Government servant to full pay and allowances in case of full
exoneration, then the question would be whether the State Government
is justified in denying full pay and allowances to the petitioner invoking
the principle of 'No Work No Pay' for the period from 30.9.2002 to
7.7.2013.
10. The principle of 'No Work No Pay' is based upon a fundamental
concept in a Law of Contract of Employment namely, wages and salary
are paid by the employer in consideration of work/service rendered by
the employee. 'No Work No Pay' principle has been laid down keeping in
view the public interest that a Government servant who does not
discharge his duty is not allowed pay and arrears at the cost of the public
exchequer. (See Union Territory, Chandigarh v. Brijmohan Kaur,
reported in (2007) 11 SCC 488).
11. The Supreme Court in the matter of State of Bihar and others v.
Kripa Nand Singh and another, reported in (2014) 14 SCC 375 has
observed that 'No Work No Pay' is the rule and 'No Work Yet Pay' is the
exception. It was pointed out that the exception would apply only when
the employee is compelled (compulsory waiting period) not to attend his
duty without any violation or without any fault on his part.
12. The Supreme Court in the matter of State of Uttar Pradesh and
others v. Madhav Prasad Sahrma, reported in (2011) 2 SCC 212 has
held that principle of 'No Work No Pay' cannot be applied as a rule of
thumb. Full back wages in certain circumstances may be justified
particularly when promotion is wrongly denied.
13. Similarly, in the matter of Commissioner, Karnataka Housing
Board v. C. Muddaiah, reported (2007) 7 SCC 689, the Supreme Court
has reiterated that principle of 'No Work No Pay' is not absolute in a
given case, if it is that the person was willing to work but he was illegally
and unlawfully not allowed to do so, the Court may in the circumstances,
direct the authority to grant him all benefits considering "as if he had
worked".
14. In the considered opinion of this Court, the principle of 'No Work
No Pay' would not be applicable where the rule expressly direct
otherwise; like sub-rule (2) of Rule 54 of the Fundamental Rules, which
clearly provides that the Government servant who had been dismissed,
removed or compulsorily retired has been fully exonerated, shall be paid
full pay and allowances to which he would have been entitled, had he
not been dismissed, removed or compulsorily retired, but subject to
proviso to sub-rule (2) of Rule 54 and if the termination of the
proceedings instituted against the Government servant had been
delayed due to reasons directly attributable to the Government servant,
but in that case also, the amount determined under proviso to sub-rule
(2) shall not be less than the subsistence allowance and other
allowances admissible under Rule 53, as such, when the rule expressly
provides for the grant of full pay and allowances on full exoneration of
the Government servant from punishment/criminal charges, the principle
of 'No Work No Pay' would have no application and the said principle of
'No Work No Pay' would not override sub rule (2) of Rule 54 of the
Fundamental Rules which provides full pay and allowances on full
exoneration.
15. In view of the above legal position, the part of the impugned order
dated 11.8.2017 (Annexure P/1) holding the petitioner to be not entitled
to full pay and allowances from the date of termination till the date of
reinstatement is hereby set aside. The matter is remitted to the appellate
authority to consider the case of the petitioner for the grant of full pay
and allowances from 30.9.2002 to 7.7.2013 in light of sub-rule (2) of
Rule 54 of the Fundamental Rules and also in light of the judgment
delivered by this Court in the matter of Shankar Lal Soni (died)
through LR's v. State of Chhattisgarh and others (WPS
No.994/2010), decided on 9.7.2021 within two months from the date of
receipt of a copy of this order by passing a reasoned and speaking
order.
16. As informed by learned counsel by the petitioner, the petitioner
has already retired from services. Therefore, the respondent authorities
are directed to decide the matter of the petitioner, preferably, within a
period of 90 days from the date of receipt of a copy of this order.
17. With the aforesaid observations, the writ petition is disposed of.
Sd/-
(Rakesh Mohan Pandey)
Judge
Nimmi
