Satyanarayan Sankhere vs State of M.P. & Others

The petitioner has prayed for following reliefs:-

(a) That, the petitioner's payment be fixed at the post of Assistant Engineer from the date of his promotion and he be paid all the difference of pay with interest at the rate of 24%.

(b) That, the petitioner's be paid all the difference of payment of Assistant Engineer from 20-06-1994 to 28-09-2011 which the juniors are getting to financial benefits.

(c) Any other relief in favour of the petitioner may also be granted, if the facts and circumstances of the case permit in the interest of justice.

The admitted facts between the parties are that the petitioner was subjected to a criminal case initiated at the behest of State Economic Offence Bureau.

Shri Atul Anand Awasthy, learned counsel for the petitioner fairly submits that the trial Court by order dated 07-07-2010 convicted the petitioner against which a batch of appeals were preferred by petitioner and other accused. These appeals were analogously heard and decided by Division Bench of this Court on 22-02-2011. All the accused including the petitioner were exonerated. Thereafter, the respondents opened the sealed cover of the petitioner for promotion on the post of Assistant Engineer (Civil) and promoted him w.e.f. 20-06-1994 on notional basis. The intervening period between 20-06-1994 to 28-09-2011 was treated as "No work no pay".

Shri Awasthy submits that once the petitioner is exonerated by Division Bench of this Court, it is clear that he was subjected to trial for no fault on his part. The principle of "No work no pay" cannot be pressed into service. The petitioner was all along willing to perform the duties of the promotional post but he was deprived to do so for the reasons solely attributable to the respondents. Hence, the petitioner may be directed to be promoted on actual basis by giving him benefit of arrears of pay w.e.f. 20-06-1994 on the promotional post.

Per contra, Shri Rahul Mishra, learned Government Advocate opposed the said contention. He submits that it was petitioner's conduct because of which he was subjected to criminal case and was convicted by the trial Court but later on acquitted by this Court. During this meantime, the petitioner did not perform any service on the promotional post and, therefore, the doctrine of "No work no pay" is clearly attracted. He supported the impugned order.

In support of aforesaid contention, Shri Awasthy placed reliance on (2013) 11 SCC 626 (Shiv Nandan Mahto vs. State of Bihar & Others) and (2015) 2 SCC 377 (Joginder Singh vs. Union Territory of Chandigarh & Ors.).

Parties confined their arguments to the extent indicated hereinabove.

I have heard the parties at length and perused the record.

Shri Awasthy, learned counsel for the petitioner, during the course of arguments, fairly admitted that the petitioner was found guilty for various offences by the trial Court and was acquitted by this Court. A plain reading of common judgment passed in Criminal Appeal No.1276/10 shows that this Court has turned down the judgment under appeal on technical grounds. The convictions were not found sustainable in law in view of the fact that Special Judge had no jurisdiction to take cognizance of the offence under the Adhiniyam (Para 35).

Thus, the acquittal of the petitioner was not on merits. Because of pendency of criminal case against the petitioner, his fate was kept in the sealed cover. The proceedings of trial and appeal consumed sufficient amount of time. During this period, as per settled law, sealed cover could not have been opened. Thus, no fault can be found in the action of respondents-department in not opening the sealed cover or not promoting the petitioner during the pendency of criminal case against him. The criminal case was instituted against the petitioner by the prosecution agency and not by the respondents-department. The petitioner's acquittal is on technical grounds and not on merits. It was petitioner's alleged conduct because of which he was subjected to criminal case. In (1994) 1 SCC 541 (Management of Reserve Bank of India vs. Bhopal Singh Panchal), the Apex Court considered the case where an employee was placed under suspension because of pendency of criminal case. He was acquitted by High Court on benefit of doubt. The Court opined that employee, during this period when criminal case was pending, did not render any work. His non performance of work was because of his own involvement in the alleged offence and Bank is nowhere responsible for keeping him away from duties. In this backdrop, it was held that the Bank cannot be saddled with liability to pay salary for this period. In this case, also the employer cannot be saddled for grant of arrears of pay of promotional post w.e.f. 20-06-1994 to 28-09-2011 when petitioner has admittedly not performed the duties of higher post. In (2007) 6 SCC 534 (State of Kerala & Others vs. E.K. Bhaskaran Pillai), the Supreme Court poignantly held that although the principle of "No work no pay" cannot be accepted as a rule of thumb. It is also very difficult to set down any hard and fast rule in this regard. It depends on the facts and circumstances of a particular case. In the case of Jogindar Singh (supra), the Court held that acquittal of appellant was honorable acquittal and in this background decided to grant relief to the appellant therein. In the present case, as noticed, the petitioner succeeded from this Court on technical grounds and not on merits. So far judgment of Shiv Nandan Mahto (supra) is concerned, in the said case the High Court applied "No work no pay" on the presumption that during the period appellant was under suspension. This finding was found to be factually incorrect by Supreme Court and in the peculiar facts of that case, he was directed to be paid backwages. In the present case, the employer has taken a plausible view and since there is no thumb rule or a straight jacket formula that in all cases of grant of retrospective promotion arrears of wages should be granted, no writ of mandamus can be issued for payment of arrears of backwages. In the factual matrix of this case, the employer has rightly declined the grant of arrears of backwages and protected petitioner's pay and allowances on promotional post by giving him benefit of proforma promotion. The scope of judicial review of administrative action is limited. Another view is possible is not a ground for interference. [See (2005) 5 SCC 181 (State of NCT of Delhi & Another vs. Sanjeev @ Bittoo), (2006) 8 SCC 200 (Jayrajbhai Jayantibhai Patel vs. AnilBhai Nathubai Patel & Others) and (2013) 5 SCC 252 (Kalinga Mining Corporation vs. Union of India & Others)]

In totality, I find no justification in granting the benefit as claimed by the petitioner. The petition is devoid of substance and is hereby dismissed.

No cost.