Central Bank Of India vs Shri J.N.Dubey
2009 Latest Caselaw 1721 Del

*              THE HIGH COURT OF DELHI AT NEW DELHI



+                      Writ Petition (Civil) No.12124/2005



                                           Date of Decision : 28.4.2009

CENTRAL BANK OF INDIA                                    ......Petitioner
                                           Through : Ms.Rachna Gupta,
                                           Advocate.


                                     Versus

SHRI J.N.DUBEY                                        ...... Respondent
                                           Through : Mr.Harish Pandey
                                           with        Mr.M.K.Tripathi,
                                           Advocates.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                               YES
2.     To be referred to the Reporter or not ?                    YES
3.     Whether the judgment should be reported
       in the Digest ?                                            YES

V.K. SHALI, J. (Oral)

1. The petitioner has challenged the award dated 15.7.2004

passed by Industrial Tribunal cum Labour Court-II in ID

no.85/1992 titled J.N.Dubey Vs. Central Bank of India. By

virtue of the aforesaid award, the learned Industrial Tribunal had

directed that the respondent/workman shall be deemed to have

been promoted for all intents and purposes from 7th January,

1990 and he deserves to get due increments and due

emoluments w.e.f. 07.1.1990 within a month after the

publication of the award. It was further directed that in case of

default, he is entitled to carry an interest @ 10% per annum.

2. The petitioner/Bank feeling aggrieved by the impugned

award has challenged the same only with regard to the claim of

wages for the period 07.1.1990 up to the date of his retirement

as at the time of filing of the writ petition, the petitioner has

already superannuated.

3. I have heard the learned counsel for the parties and

perused the record. The learned counsel for the petitioner has

contended that the impugned award with regard to the

promotion and payment of wages especially from 7.1.1990 till the

date of his superannuation that is 30.6.1997 ought not to have

been given to the petitioner especially in the light of the fact that

the respondent/workman had not actually worked on the

promoted clerical post and therefore, the doctrine of „no work no

pay‟ ought to have governed the said period. In support of her

contention, the learned counsel has placed reliance on the case

titled Union of India Vs. B.M.Jha (2007) 11 SCC 632, wherein

the Supreme Court in the said case followed the principle of no

work no pay. However, the judgment is very short and does not

deal with the entire previous case law on the same subject.

4. This proposition of no work no pay was contested by the

counsel for the respondent/workman who placed reliance on

State of Kerala & Ors. Vs. E.K.Bhaskaran Pillai (2007) 6

SCC 524, wherein there is an elaborate examination of the entire

case law with regard to the payment of back wages and the

concept of no work no pay. Ultimately, after analyzing the entire

gamut of case law, the Apex Court has observed that the

principle of no work no pay cannot be accepted as a rule of

thumb. There are exceptions where the Courts have granted

this monetary benefit also to a party. These are essentially the

cases where the respondent/workman has been kept away from

performing the duties on account of the acts of omission and

commission which are directly attributable to the opposite party

namely the employer. In all cases while balancing the equities,

the Courts have granted the back wages which has roughly from

20% to 100%. It may be pertinent here to reproduce the

observations passed by the Supreme Court in the said judgment

given in para no.4, which reads as under:-

"4. Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15-6-1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah vs. Union of India, Virender Kumar v. Avinash Chandra Chadha, State Haryana v. O.P. Gupta, A.K.Soumini v. State Bank of Travancore and Union of India v. Tarsem Lal. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India v. K.V. Jankiraman, State of A.P. v. K.V.L. Narsimha Rao, Vasant Rao Roman vs. Union of India and State of U.P. v. Vinod Kumar Srivatava. 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."

5. Similar is the view expressed in case titled Commissioner,

Karnataka Housing Board Vs. C.Muddaiah (2007) 7 SCC 689,

wherein it has been observed that the principle of no work no pay

cannot be applied as an absolute proportion as it does not have

any backing of a statute.

6. Coming back to the facts of the present case, the

respondent/workman has not denied that he was working as a

Security Guard and had obtained the requisite decree from a

University in Varanasi, but he could not be promoted by the

petitioners under a mistaken belief that the decree which has

been obtained by the respondent /workman was from a fake

University. This mistaken belief of the petitioner /employer was

not without any basis but was based on the report/letters

written by the UGC. It took some time to the petitioner to get the

said confusion cleared and ultimately it was only after the entire

fact situation was examined and the respondent/workman

agitated his grievance in the Industrial Tribunal that he could

earn his promotion w.e.f. 7.1.1990 in such a contingency. I feel

that the equities ought to be balanced by at least reducing the

back wages for the period 7.1.1990 to the date of retirement in

1997 to 50% because there was a genuine mistake on the part of

the petitioner for not having given the promotion under a

mistaken belief.

7. I, accordingly, modify the award dated 15.7.2004 to the

effect so far as the payment of increments and due emoluments

w.e.f. 7.1.1990 to the date of his retirement are concerned, the

petitioner will be given 50% of the total emoluments after the

fixation of his pay from 7.1.1990. The aforesaid monetary

benefit will be given to the petitioner within six weeks from today.

The aforesaid amount to be paid within six weeks from today

failing which it will carry an interest @ 10% from the date of the

award till the time of its realization.

8. With these directions, the award dated 15.7.2004 passed in

ID No.851992 by Industrial Tribunal-cum-Labour Court-II

stands modified and the writ petition stands disposed of.

V.K. SHALI, J.

APRIL 28, 2009 RN