RAMESH KUMARversusUNION OF INDIA & ORS.

                       [2015]9 S.C.R. 138


A                       RAMESH KUMAR
                                 V.

                     UNION OF INDIA & ORS.
                   (Civil Appeal No.811 of 2007)
B
                          JULY31, 2015
            [T. S. THAKUR AND R. BANUMATHI, JJ.]
        Service Law:
C      Promotion - Retrospective promotion - denial of pay
  and allowances in higher rank from the back date, on the
  basis of principle of 'no work, no pay' - Propriety of- Held:
  When the employee was granted ante-dated seniority, there
  was no reason to deny the pay and allowances in the
D promotional post from the date w.e.f. which he was granted
  promotion to the date of his actual promotion - The earlier
  DPC had wrongly not considered him for promotion - Grant
  of monetary benefits with regard to retrospective promotion
  depends upon case to case - The principle of 'no work, no
E pay' would not be attracted, where the employer is at fault in
  not considering the case of the employee, for promotion and
  not allowing the employee to work on the promotion post -
  Principle of 'No work, no pay'.
F       Allowing the appeal, the Court
         Held: 1. As per the policy of the respondents, an
  . individual cannot be considered for promotion to the
    rank of Naib Subedar, if he has earned more than three
    red ink entries during the entire service and more than
G one red ink entry in the preceding five years of service.
    When the case of the appellant came up for consideration
    on 01.08.1997, the first punishment/red ink entry had
    already expired i.e. on 03.06.1997 and only one red ink
H entry made on 18.02.1995 was on the record; but the DPC
                               138
      RAMESH KUMAR v. UNION OF INDIA& ORS.                   139


appears to have erred in ignoring the same. [Para 1O] A
[145-A-C]
     2. From the DPC proceedings, it is clear that the
respondents took the view that the date of commutation
of punishment would be from 03.06.1992, the date on
                                                           8
which the punishment was awarded and not on
17 .08.1994, the date on which the punishment was
commuted. When the respondents themselves have
taken the view that the Order of the Government would
be deemed to have taken from the date of original c
sentence was passed i.e. 03.06.1992 and not from
17.08.1994, the date on which commutation/remission
was granted by the Government, the High Court was not
right in holding that the appellant was not eligible to be
considered for promotion on 01.08.1997 and the D
impugned order cannot be sustained. [Paras 9 and 1OJ
[144-G-H; 145-E-G]
     3. When appellant was granted ante-dated seniority
w.e.f. 01.08.1997 .alongwith his batch mates, there is no    E
reason as to why he should be denied pay and
allowances in the promotional post as Naib Subedar
w.e.f. 01.08.1997 till the date of his actual promotion on
13.11.2000. [Para 10] [145-D-E]
     4. So far as monetary benefits with regard to F
retrospective promotion is concerned that depends upon
case to case. The principle of "no work no pay'' cannot
be accepted as a rule of thumb and the matter will have
to be considered on a case to case basis. [Para 12] [146-
C-D]                                                      G
  State of Kera/a & Ors. vs. EK. Bhaskaran Pillai 2007
  (5) SCR 251 : (2007) 6 SCC 524 - relied on.
     5. The principle of "no work no pay'' would not be
attracted where the respondents were in fault in not         H
140          SUPREME COURT REPORTS                   [2015] 9 S.C.R.


A 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 promotion
  w.e.f. 01.01.2000 with the ante-dated seniority from
B 01.08.1997 and maintaining his seniority alongwith his
  batch-mates, it would be unjust to deny him higher pay
  and allowances in the promotional position of Naib
  Subedar. [Para 13] [147-D-E]

c                         Case Law Reference

      2007 (5) SCR 251             relied on.             Para 12

          CIVILAPPELLATE JURISDICTION: CivilAppeal No. 811
      of2007
D
          From the Judgment and Order dated 02.12.2004 and
      18.03.2005 of the High Court of Delhi in Civil Writ Petition No.·
      6466/2002 and Review Application No. 55/2005 respectively

E          Rameshwar Prasad Goyal for the Appellant.

          A. K. Panda, Sanjeev Kumar Das, Anil Katiyar, Manjula
      Gupta, B. V. Bairam Das for the Respondents.

           The Judgment of the Court was delivered by
F
        R. BANUMATHI, J. 1. Challenge in this appeal is the
  order of the High Court of Delhi in W.P. (C) No.6466 of 2002
  dated 02.12.2004, whereby the High Court dismissed the writ
  petition filed against the order of denial of pay and allowances
G to the appellant for the period from 01.08.1997 till the date of
  his actual promotion i.e. 13.11.2000 and also the order dated
  18.03.2005 dismissing the Review Application No.55 of 2005.

       2. Background facts which led to the filing of this appeal
H are as under:- The appellant got enrolled in the Indian Army on
      RAMESH KUMAR v. UNION OF INDIA& ORS.                          141
               [R. BANUMATHI, J.]

the post of Store Keeper Technical/Sepoy on 19.03.1983 and          A
was subsequently promoted to the rank of Havildar on
01.08.1989. While the appellant was so working, a Summary
Court Martial (SCM) for the offences under Sections 41 (i), 39
(a) and 63 of the Army Act was initiated against him. After
completion of the inquiry and on proved charges by an order         B
dated 03.06.1992, the appellant was sentenced to:- (i)
reduction in rank; (ii) dismissal from service and (iii) rigorous
imprisonment for one year in civil prison. Aggrieved by the
Order passed in Summary Court Martial, the appellant
preferred a statutory complaint under Section 164 of the Army       C
Act. The Central Government vide Order dated 17.08.1994
commuted the punishment modifying it to one of severe
reprimand and further remitted the sentence of dismissal from
service directing reinstatement in service. However, it was
                                                                    0
held that the appellant was not entitled to any pay and
allowances for the period between the date of dismissal and
the date of reinstatement in service. In compliance with the
Order passed by the Central Government, the appellant was
reinstated in service w.e.f. 29.10.1994. The appellant was          E
again put to Summary Court Martial for committing offence
under Section 54(b) of the Army Act and by an Order dated
18.02.1995; the appellant was awarded severe reprimand/red
ink entry for the offence of loosing identity card.
                                                                 F
      3. Case of the appellant for promotion to the rank of Naib
Subedar came up for consideration before Departmental
Promotion Committee (DPC) on 01.08.1997; but the appellant
was not considered for promotion and according to the
respondents, the appellant did not meet the discipline criteria G
for promotion as the appellant was having two red ink entries
during preceding five years. On appellant's repeated
representations for his promotion as per his seniority, finally
his claim was considered by the DPC held on 15.03.2000 and
he was granted promotion w.e.f. 01.01.2000 with ante-dated H
142         SUPREME COURT REPORTS                  [2015] 9 S.C.R.


A     seniority w.e.f. 01.08.1997 alongwith his batchmates.
      However, no direction was issued regarding any pay and
      allowances to the appellant in the higher rank of Naib Subedar
      from the back date; but his seniority was maintained from
      01.08.1997 when his batchmates have been promoted.
B
       4. Aggrieved by the order of the DPC, denying pay and
  allowances in the promotional post for the period between
  01.08.1997 to 13.11.2000, the appellant filed           W.P.(C)
  No.6466 of 2002 before the High Court of Delhi. Vide
C impugned order dated 02.12.2004, the High Court dismissed
  the writ petition observing that the appellant has no legitimate
  claim for payment of pay and allowances from a retrospective
  date on the principle of "no work no pay". The Review
  Application No.55 of 2005 also came to be dismissed on
D 18.03.2005. This appeal assails the correctness of the above
  orders passed in the writ petition and also the review
  application.

       5. Contention of the appellant is that subsequently when
E the fresh DPC was held on 15.03.2000, the appellant was
  declared fit for promotion to the rank of Naib Subedar we.f.
  01.01.2000 with ante-dated seniority w.e.f. 01.08.1997 and
  while so, the appellant was arbitrarily deprived from getting
  pay and allowances and other benefits from 01.08.1997 and
F hence the appellant is entitled to get his pay and allowances
  for the period from 01.08.1997 till the date of his actual
  promotion on 13.11.2000. It was submitted that the
  respondents erroneously denied pay and allowances to the
  appellant when they themselves have granted him ante-dated
G seniority w:e.f. 01.08.1997.

       6. Learned Senior Counsel for the respondents Mr. A.K.
  Panda contended that although the order imposing punishment
  on the appellant was passed by the Summary Court Martial
H on 03.06.1992 but the same was commuted only on
                                                                       -
      RAMESH KUMAR v. UNION OF INDIA& ORS.                    143
               [R. BANUtllATHI, J.]

17.08.1994 and therefore the period of five years was rightly A
counted w.e.f. 17.08.1994 and therefore the appellant was not
eligible to be considered for promotion prior to 17.08.1999. It
was further submitted that on 01.08.1997, when the appellant's
case came up for promotion to the rank of Naib Subedar, he
did not meet the criteria for promotion as he had incurred two B
red ink entries during preceding five years and rightly the
appellant was not given the pay and allowances from
01.08.1997 which benefit was given to him w.e.f. 13.11.2000
when he actually joined the said rank of Naib Subedar, but to
avoid any injustice, his seniority was maintained from C
01. 08. 1997 along with his batch mates.

     7. We have carefully considered the rival contentions of
the parties and perused the impugned judgment and the
materials on record.                                          D

     8. By perusal of the records it is seen that considering
the petition dated 31.08.1992 submitted by the appellant
against the order dated 03.06.1992 passed in the SCM, the
Central Government vide its order dated 17 .08.1994 E
commuted the punishment of reduction of rank and one year
rigorous imprisonment to severe reprimand and remitted the
sentence of dismissal directing reinstatement of the appellant.
However, it was mentioned in the said order dated 17. 08.1994
the period between the date of dismissal and date of F
reinstatement in service will not be treated as duty and the
appellant will not be paid pay and allowances due to him for
the said period. Order dated 17.08.1994 does not specifically
state the date from which the commutation of punishment shall
take effect. The appellant rejoined the duty on 29.10.1994 G
and from that date he is taken to have been.reinstated. In the
ASC records (Sup.), letter No.6442/ TB3/ST12 dated
23.07.1997, it is clearly mentioned that the punishment was
set aside by the Court and was reinstated into service and his H
name was again placed in the original place in the seniority
144         SUPREME COURT REPORTS                     [2015] 9 S.C.R.


A     list. In the said letter it was further stated that the award of
      punishment for the second time for loss of temporary identity
      card will not affect the appellant's promotion to the rank of Naib
      Subedar. However, as noticed earlier, in the DPC held on
      01.08.1997, the appellant's case was not considered,
B     observing that he was having two red ink entries during the
      last five years and the appellant was denied promotion to the
      rank of Naib Subedar w.e.f. 01.08.1997.

       9. It is pertinent to note that the case of the appellant was
C again examined in consultation with Judge Advocate General
  (JAG) Department and vide letter No.77701/DPC/ Q/ll/ST-12
  dated 17.05.2000 of the DPC proceedings, the Department
  opined that the date of commutation of punishment would only
  be from 03.06.1992, the date on which punishment was
D announced and not from 17 .08.1994. We may usefully refer to
  the relevant portion of the said DPC proceedings which reads
  as under:

        "The case was examined in consultation with JAG
E       Deptt this HQ. JAG Deptt has opined that Govt. order
        dated 17 Aug 94 does not specifically spell out the
        date from which the commutation of punishment
        shall take effect. In the absence of any specific date,
        the order of the Govt. would be deemed to have
F       been taken from the date of original sentence was
        passed. Therefore, the date of commutation of
        punishment would be from 03 June 92 (the date on
        which punishment was announced) and not 17 Aug
        94."
G
       From above referred proceedings, it is clear that the
  respondents took the view that the date of commutation of
  punishment would be from 03.06.1992, the date on which the
  punishment was awarded and not on 17.08.1994, the date on
H which the punishment was commuted.
      RAMESH KUMAR v. UNION OF INDIA& ORS.                         145
               [R. BANUMATHI, J.]

     10. As per the policy of the respondents, an individual· A
cannot be considered for promotion to the rank of Naib
Subedar, if he has earned more than three red ink entries during
the entire service and more than one red ink entry in the
preceding five years of service. It is noticeable that when the
case of the appellant came up for consideration on B
01.08.1997, the first punishmenUred ink entry had already
expired i.e. on 03.06.1997 and only one red ink entry made on
18.02.1995 was on the record; but the DPC appears to have
erred in ignoring the same. Considering the genuineness of
the representations made by the appellant, DPC again C
considered the claim of the appellant and granted him
promotion w.e.f. 01.01.2000 to the rank of Naib Subedarwith
a further direction that the seniority of the appellant will be
maintained alongwith his batchmates from 01.08.1997. When
                                                                 0
appellant was granted ante-dated seniority w.e.f. 01.08.1997
alongwith his batchmates, we find rio reason as to why he should
be denied pay and allowances in the promotional post as Naib
Subedarw.e.f. 01.08.1997 till the date of his actual promotion
on 13.11.2000. The High Court has not properly appreciated E
these aspects and erred in holding that on 01.08.1997, the
appellant was not eligible to be considered for promotion.
When the respondents themselves have taken the view that
the Order of the Government would be deemed to have taken
from the date of original sentence was passed i.e. 03.06.1992 F
and not from 17.08.1994, the date on which commutation/
remission was granted by the Government, the High Court was
not right in holding that the appellant was not eligible to be
considered for promotion on 01.08.1997 and the impugned
order cannot be sustained.                                       G

     11. The respondents have advanced the argument that
the denial of pay and allowances is on the principle of "no work
no pay" and no injustice has been done to the appellant since
he has not actually worked in the promotional post of Naib         H
146         SUPREME COURT REPORTS                  [2015] 9 S.C.R.


A     Subedar during the aforesaid period. It was submitted that the
      benefit of pay and allowances was rightly awarded w.e.f.
      13.11.2000, the date on which the appellant actually assumed
      the rank of Naib Subedar but his seniority was maintained so
      as to protect his interest in his further promotions.
B
            12. In normal circumstances when retrospective
      promotions are effected, all benefits flowing therefrom,
      including monetary benefits, must be extended to an employee
      who has been denied promotion earlier'. So far as monetary
C     benefits with regard to retrospective promotion is concerned
      that depends upon case to case. In State of Kera/a & Ors. vs.
      E.K. Bhaskaran Pillai, (2007) 6 SCC 524, this Court held that
      the principle of "no work no pay" cannot be accepted as a rule
      of thumb and the matter will have to be considered on a case
D     to case basis and in para (4), it was held as under:-

        " ... We have considered the decisions cited on
        behalf of both the sides. So far as the situation with
        regard to monetary benefits with retrospective
E       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
F       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
G       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
H
        effect and sometimes it may not. Particularly when


                                                                       -
         RAMESH KUMAR v. UNION OF INDIA& ORS.                         147
                  [R. BANUMATHI, J)

    the administration has wrongly denied his due then                A
    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"                B
    cannot be accepted as a rule of thumb. There are
    exceptions where courts have granted monetary
    benefits also."

       13. We are conscious that even in the absence of statutory C
  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 D
  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
. promotion w.e.f. 01.01.2000 with the ante-dated seniority from
  01.08.1997 and maintaining his seniority alongwith his E
  batchmates, it wouid be unjust to deny him higher pay and
  allowances in the promotional position of Naib Subedar.

       14. The impugned orders passed by the High Court are
 set aside and this appeal is allowed. The respondents shall          F
 release the arrears of pay and allowances to the appellant for
 the period from 01.08.1997 till the date of his actual promotion
 that is 13.11.2000 in the promotional· post of Naib Subedar
 within eight weeks from today. No order as to costs.
                                                                      G
 Kalpana K. Tripathy                                Appeal allowed.