Orissa High Court

Brahmananda Sahoo vs State Of Odisha & Others on 4 January, 2023

      IN THE HIGH COURT OF ORISSA AT CUTTACK

                  WPC(OAC) No.1970 of 2018

     In the matter of an application under Section 19
          of the Administrative Tribunals' Act, 1985.
                         ..................

   Brahmananda Sahoo                    ....                 Petitioner


                                 -versus-


   State of Odisha & Others             ....         Opposite Parties


             For Petitioner          :M/s. B.B. Mohanty, Advocate

             For Opp. Parties        :M/s. M.K. Balabantaray,
                                      Standing Counsel
   PRESENT:
     THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY
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        Date of Hearing: 16.12.2022 & Date of Order: 04.01.2023
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Biraja Prasanna Satapathy, J.

The present writ petition has been filed inter alia

with the following prayer:

(i) This Hon'ble Tribunal may be pleased to quash the order dt.28.02.2018 and 10.04.2018 under Annexure-4 series so far as it relate to promotion of respondent No.4 & 5 to the rank of DIG of Prisons.

(ii) This Hon'ble Tribunal be pleased to direct the Respondent No.1 to promote the applicant to the rank of DIG of Prisons w.e.f 28.03.2018 i.e the date of promotion of Respondent No.4 & 5 with all consequential service and financial benefits.

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2. Shorn of unnecessary details, the present writ

petition has been filed on the ground that the petitioner

though was recommended for his promotion to the rank of

Deputy Inspector General of Prisons by the Departmental

Promotion Committee in its proceeding held on 16.02.2018

under Annexure-2, but the Opposite Party No.1 did not

extend such benefit of promotion while issuing the

Notification and extending such promotion in favour of the

junior to the petitioner vide order dated 28.02.2018 under

Annexures-4/A and order dated 10.04.2018 under

Annexure-4/b.

3. It is the main contention of the learned counsel

appearing for the petitioner that the petitioner entered into

Government service on 05.04.1981 as an Assistant Jailor

and while so continuing, he was promoted to the rank of

Jailor vide order dated 18.07.1987 and to the rank of

Superintendent, District Jail(Group-B) vide Government

Notification dated 29.09.2009. The petitioner subsequently

was promoted to the rank of Senior Superintendent of

Circle Jail (Class-I) vide Government Notification dated

08.02.2013. Pursuant to the said notification issued on

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08.02.2013, the petitioner joined as Senior Superintendent

of Circle Jail, Koraput on 11.02.2013.

3.1. In the provisional gradation list of Senior

Superintendent of Circle Jail, under Annexure-2, the

petitioner was placed at Serial No.2 and private Opposite

Party Nos.4 & 5 were at serial no.3 & 5. In the proceeding

of the meeting of Departmental Promotion Committee held

on 16.02.2018 under Annexure-2, though the

Departmental Promotion Committee recommended the case

of the petitioner for his promotion to the rank of Deputy

Inspector General of Prisons as against three clear

vacancies and one consequential vacancy, but the Opposite

Party no.1 while issuing the notification on 28.02.2018

extended such promotion in favour of the person placed at

Serial No.1 and 3 of the Gradation list as well as the

recommendation, but did not extend such benefit in favour

of the petitioner for the reasons best known to him.

Subsequently vide another Notification issued on

10.04.2018 under Annexure-4/b, the person placed at

Serial No.5 of the gradation list at serial no.4 of the

recommendation of the Departmental Promotion

Committee was given such promotion.

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3.2. The petitioner on enquiry was intimated that since

a proceeding has been initiated against the petitioner by

Opposite Party No.1 vide Memorandum dated 24.02.2018,

the petitioner has not been given the benefit of promotion

on the face of the recommendation made by the

Departmental Promotion Committee. The petitioner on

coming to know about the reason for withholding the

benefit of promotion on the ground of initiation of the

proceeding on 24.02.2018 represented to the Opposite Party

No.1 under Annexure-6 with a prayer to consider his case

for promotion. In the said application under Annexure-6, it

was clearly indicated that since as on the date of holding of

the Departmental Promotion Committee on 16.12.2018, no

proceeding was pending against the petitioner, the denial of

promotion on the ground of initiation of a proceeding on

24.2.2018 under Annexure-5 is not sustainable in the eye

of law. But in spite of such approach made under

Annexure-6, when no action was taken to extend the benefit

of promotion in favour of the petitioner, the present writ

petition was filed with the prayer as indicated hereinabove.

3.3. The main thrust of argument of the learned counsel

for the petitioner is that since as on the date of holding of

the Departmental Promotion Committee and consequential

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recommendation made on 16.02.2018, no proceeding as

such was pending against the petitioner, the Opposite Party

no.1 should not have denied the benefit of promotion while

extending such benefit in favour of his junior i.e. Opposite

Party no.4 vide order dated 28.02.2018 under Annexure-

4/A. Accordingly, it is contended that the petitioner is

eligible and entitled to get the benefit of promotion from

28.2.2018 with all consequential service and financial

benefit.

4. Mr. M.K. Balabantaray, learned Additional

Standing Counsel on the other hand made his submission

basing on the affidavit filed by Opposite Party no.1 on

1.12.2022. In the said affidavit on 1.12.2022, it was

submitted that during pendency of the present writ petition,

the petitioner was allowed to retire from his service on

attaining the age of superannuation on 30.11.2019.

Subsequently vide order dated 5.6.2020, the proceeding

initiated against the petitioner on 24.02.2018 under

Annexure-5 was dropped and the petitioner was given

promotion to the rank of Deputy Inspector of General of

Agency vide notification dated 11.01.2021 on notional basis

vide order under Annexure-B/1. It is accordingly

contended that since the petitioner has been given

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promotion w.e.f the date Opposite Party no.1 was given

such promotion vide notification dated 28.02.2018 under

Annexure-4/A, nothing remains to be decided in the

present writ petition.

5. I have heard Mr. B.B. Mohanty, learned counsel for

the petitioner and Mr. M.K. Balabantary, learned Standing

Counsel for the opposite parties. On the consent of the

learned counsel for the parties, the matter was taken up at

the stage of admission for disposal and disposed of by the

present order.

6. This Court after going through the materials

available on record finds that as on the date of holding the

Departmental Promotion Committee on 16.2.2018 and

consequential recommendation by the said Departmental

Promotion Committee, no proceeding was pending as such

against the petitioner. The Departmental Promotion

Committee also recommended the case of the petitioner by

placing him at serial no.2 as against 3 clear vacancies and

one consequential vacancy. Therefore as per the considered

view of this Court, there was no occasion on the part of the

Opposite Party no.1 in not extending the said benefit of

promotion while extending the same in favour of private

Opposite Party no.4 vide notification dated 28.02.2018

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under Annexure-4/A and in favour of Opposite Party no.5

vide order dated 10.4.2018 under Annexure-4/B.

6.1. This Court also finds that the proceeding against

the petitioner since was only initiated on 24.02.2018

under Annexure-5 and therefore, on the garb of initiation

of the proceeding subsequent to the recommendation of

the D.P.C, the petitioner should not have been denied the

benefit of promotion. The aforesaid view of the Court is

fortified by the action taken by Opposite Party no.1 in

extending the benefit of such promotion in favour of the

petitioner vide notification dated 11.01.2021 under

Annexures-B/1 to the affidavit dated 1.12.2022. It is also

found that the proceeding initiated against the petitioner

on 24.02.2018 under Annexure-5 was dropped vide order

dated 5.6.2020 and the petitioner was given the benefit of

promotion though notionally, vide order dated

11.01.2021. From the aforesaid stand of the Opposite

Party, it is quite apparent that since as on the date of

holding of the Departmental Promotion Committee and

the recommendation made on 16.02.2018, there is no

proceeding pending against the petitioner, the Opposite

Party no.1 has extended the benefit of promotion in favour

of the petitioner vide order dated 11.01.2021.

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6.2. In view of such conduct of the Opposite Party

no.1 and in view of the fact that the proceeding initiated

against the petitioner on 24.02.2018 was dropped vide

order dated 5.6.2020 in view of the decision of the Hon'ble

Apex Court reported in AIR 1991 S.C 2010, Union of

India Vs. K.V. Janakiraman and A.I.R 2015 S.C 2904,

Ramesh Kumar V. Union of India & Others, the

petitioner is eligible and entitled to get the benefit of

promotion from 28.02.2018 with all consequential service

and financial benefits. The view of the Hon'ble Apex

Court in Paragraph 7 of the judgment in K.V.

Janakiraman is reproduced hereunder.

"7. The Full Bench of the Tribunal, while considering the earlier Memorandum dated 30th January. 1982 has, among other things, held that the portion of paragraph 2 of the memorandum which says "but no arrears are allowed in respect of the period prior to the date of the actual promotion" is violative of Articles 14 and 16 of the Constitution because withholding of salary of the promotion- al post for the perked during which the promotion has been withheld while giving other benefits, is discriminatory when compared with other employees' who are not at the verge of promotion when the disciplinary proceedings ' were initiated against them.

The Tribunal has, therefore, directed that. on exoneration. full salary should be paid to such employee which he would have on promotion if he had not been subjected to disciplinary proceedings.

We are afraid that the Tribunal's reference to para-

graph 2 of the Memorandum is incorrect. Paragraph 2 only recites the state of affairs as existed on January

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30, 1982 and the portion of the Memorandum which deals with the relevant point is the 'last sentence of the first sub-paragraph after clause (iii) of paragraph 3 of the Memorandum which is reproduced above. That sentence reads as follows:

"But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion".

This sentence is preceded by the observation that when the' employee is completely exonerated on the conclusion of the disciplinary/court proceedings, that is, when no statutory penalty, including that of censure, is imposed, he is to be given a notional promotion from the date he would have been promoted as determined by the Departmental Promotion Committee. This direction in the Memorandum has also to be read along with the other direction which follows in the next sub- paragraph and which states that if it is found as a result of the proceedings that some blame attaches to the officer then the penalty of censure at least, should be imposed. This direction is in supersession of the earlier instructions which provided that in a case where departmental disciplinary proceedings have been held, "warning" should not be issued as a result of such proceedings.

There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blame worthy in the least, he should not be deprived of any benefits including the salary of the promotional post. It was urged on behalf of the appellant-authorities in all .these cases that a person is not entitled to the salary of the post unless he assumes charge of the same. They relied on F.R. 17(1)' of the Fundamental Rules and Supplementary Rules which reads as follows:

"F.R. 17(1) Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties: Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence."

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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 bas 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.

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.

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

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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 jeopar- dise 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." To this extent we set aside the conclusion of the Tribunal on the said point.

Hon'ble Apex Court in Paragraph 13 of the

judgment in the case of Ramesh Kumar has observed as

follows:

"13. We are conscious that even in the absence of statutory provision, normal rule is "no work no pay". In appropriate cases, a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Principle of "no work no pay" would not be attracted where the Respondents were in fault in not considering the case of the Appellant for promotion and not allowing the Appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the Appellant was granted

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promotion w.e.f 01.10.2000 with the ante-dated seniority from 01.08.1997 and maintaining his seniority along with his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar."

6.3. Therefore, in view of the aforesaid analysis made

by this Court, this Court is of the view that the petitioner

is eligible and entitled to get the benefit of promotion from

28.02.2018 with all service and financial benefit. While

holding so, this Court directs Opposite Party No.1 to

calculate the differential entitlements of the petitioner

from 28.02.2018 to 30.11.2019 and release the same in

favour of the petitioner. Opposite Party No.1 is also

further directed to recalculate the pensionary benefits of

the petitioner and also take steps for release of the

differential pension and pensionary benefits in favour of

the petitioner. This Court directs Opposite Party no.1 to