Delhi High Court
Lt. Governor Of Delhi And Others vs Shri J.P. Gupta on 9 December, 2009
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No.13725/2009
% Date of Decision: 09.12.2009
Lt. Governor of Delhi and Others .... Petitioners
Through Ms.Avnish Ahlawat with Ms.Latika
Chaudhary, Advocate
Versus
Shri J.P. Gupta .... Respondent
Through Nemo.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
The petitioner has impugned the order dated 29th July, 2009 in
OA No.1846 of 2008 passed by the Central Administrative Tribunal,
Principal Bench, New Delhi titled Shri J.P. Gupta v. GNCT of Delhi and
others allowing the plea of the respondent to grant him promotion with
effect from 25th September, 2001 when he was relieved to join the ex
cadre post in DANICS and to pay all the difference of arrears of the pay
with effect from 25th September, 2001 till he was actually promoted on
ad hoc basis on 30th January, 2008.
The respondent had claimed promotion on ad hoc basis on an ex
cadre post in DANICS with effect from 11th September, 2001 which was
denied to him on the ground that he was placed under suspension and
was also facing a disciplinary proceeding.
The respondent was exonerated from the disciplinary proceedings
and the promotion was given to him from 2008 before his retirement.
The suspension of the respondent was also revoked, however,
retrospective promotion was not given to him on the ground that it
would not apply in case of a retiree.
The Tribunal relied on (2004) 11 SCC 210, Mohd. Ahmad v.
Nizam Sugar Factory and others, wherein an employee was granted
promotion though the employee had retired and it was held that on
account of wrongful denial of promotion, the relief to the applicant
could not be set at knot merely because the employee had retired in the
meantime later on. The Tribunal had also relied on Gopi Chand
Bishnoi v. State of U.P., (2006) 9 SCC 694 holding that retrospective
promotion of a government servant who had a right of promotion cannot
be denied on account of retirement of such employee.
Reliance has also been placed on the circular of DoPT dated 14th
September, 1992 Clause 7 whereof contemplates that in case of
pendency of disciplinary proceedings sealed cover procedure should be
employed. It is no more res integra that sealed cover procedure is to
be resorted after chargesheet is issued. And when an employee is
completely exonerated, meaning thereby that he is not found
blameworthy and is not visited with the penalty even of censure, he has
to be given the benefit of the salary of higher post along with other
benefits from the date of which he would have normally been promoted
but for the disciplinary proceedings. The Supreme Court in case of
Union of India and others v. K.V. Janaki Raman, (1991) 4 SCC 109,
relied on by the Tribunal, held that benefits to the employee from the
date he would have normally been promoted cannot be denied on the
principle of „no work no pay‟ as the normal rule of "no work no pay" is
not applicable to such case. The reason given was that in such cases
an employee although is willing to work is kept away from the work by
the authorities for no fault of his and basing a case where the employee
remains away from work for no reason, although the work is offered to
him and in the circumstances applying fundamental rules 17(1), the
emoluments cannot be denied in such cases. The Supreme Court had
held in paras 25 and 26 of K.V. Janaki Raman (supra) is as under:-
"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 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 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 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 jeopardize 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 circumstances of the
disciplinary proceeding/criminal prosecution. Where
the authority denies arrears of salary or part of it, it
will record its reasons for doing so."
The learned counsel for the petitioner is unable to show as to how
these principles will not be applicable even in case of ad hoc promotion
in the facts and circumstances. The respondent had been completely
exonerated of any of the consequences of disciplinary proceedings and
had the disciplinary proceedings been not there, the respondent would
have been entitled for ad hoc promotion in ex cadre post in DANICS.
The counsel is unable to make out any tangible ground for interference
with the order of the Tribunal dated 29th July, 2009 in OA No.1846 of
2008. There are no grounds to interfere with the order of the Tribunal,
the writ petition is, therefore, dismissed.
ANIL KUMAR, J.
December 09, 2009 VIPIN SANGHI, J.
„Dev‟
