Mr. S.K. Verma vs Chairman, Mr. (Sic), Airport ...
2003 Latest Caselaw 1049 Del

JUDGMENT

Vijender Jain, J.

1. Rule.

2. This writ petition can be disposed of at this stage itself as a short controversy has emerged after judgment of this Court in C.W.3505/94 decided on April 24, 2002. Said writ petition was allowed holding that petitioner was entitled for promotion from 1993 on the basis of the result of the DPC which met on 19.4.93. It seems that said judgment dated April 24, 2002 was not challenged by the respondent and respondent granted notional seniority to the petitioner from 1993 since his junior became eligible for promotion from 24.8.93. However, respondent did not grant consequential benefits of payment of arrears of back wages from 1993 on the ground that petitioner has worked as Assistant Manager only from 2000 and therefore, no arrears of back wages could be granted to the petitioner. In this regard counsel for the petitioner has relied upon the decision of this Court in Shri Kalyan Singh Vs. Union of India CW. 4497/96, All India Services Law Journal II 2001(1), 216. It is contended by counsel for the petitioner that arrears of salary was to be granted to the petitioner from 1993, the day when petitioner was promoted by the respondent and therefore, denial of arrears of back wages is contrary to law.

3. On the other hand, Mr. Raja Sahara counsel appearing for respondent has contended that petitioner is not entitled to arrears of salary as petitioner has not worked on the post of Assistant Manager from 24.8.93 till 28.2.2000 and he is not entitled to the pay of Assistant Manager for the said period and in this regard has relied upon the judgment of this Court in Pradeep Kumar Vs. MCD .

4. I have given my careful considerations to the arguments advanced by counsel for the parties. Supreme Court in Union of India & etc. Vs. K.V. Jankiraman etc. observed as under:

"We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or no 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 deserved any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under 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 jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after Clause (iii) of paragraph 3 of the said Memorandum viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion, "we direct that in place of the said sentence the following sentence be read in the Memorandum :

"However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstance of the disciplinary proceedings/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so."

In this case what is to be seen is whether non working of the petitioner on the post of Assistant Manager was on account of his fault. The first writ petition filed by the petitioner was allowed by this Court on the ground that it was a wrong interpretation given by the respondent to Office Memorandum whereby promotion which was to be granted to the petitioner in the year 1993 could not be granted as recommendation qua petitioner was kept in sealed cover when no charge sheet or disciplinary proceedings or criminal prosecution was pending against the petitioner. If that was so then petitioner was not at fault. It was respondent who had denied promotion to the petitioner and for the fault of the respondent; the respondent cannot take advantage by denying the petitioner his rightful promotion and dues including arrears of salary. Even otherwise when earlier writ petition filed by the petitioner was allowed and the respondent were directed that petitioner was entitled for promotion from 1993, no appeal against said order has been filed by the respondent. There is no order or reasons assigned in the order passed by the respondent as to on what basis petitioner has been denied arrears of salary as has been mandated by Supreme Court in Union of India etc. Vs. K.V. Jankiraman etc. (supra). Therefore, I allow the writ petition. Respondent is directed to pay arrears of salary to the petitioner from the date he has been given notional seniority within two months.

Rule is made absolute.