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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 811  OF 2007

RAMESH KUMAR                               ...Appellant

Versus

UNION OF INDIA & ORS.                   ...Respondents

J U D G M E N T

R. BANUMATHI, J  .                    

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  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 are as under:- The appellant got enrolled in the Indian

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Army  on  the  post  of  Store  Keeper  Technical/Sepoy  on

19.03.1983 and 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  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 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 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.

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29.10.1994.  The appellant was 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.

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 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  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

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seniority  was  maintained  from  01.08.1997  when  his

batchmates have been promoted.

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

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  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 the fresh DPC was held on 15.03.2000, the appellant

was declared fit for promotion to the rank of Naib Subedar

w.e.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

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01.08.1997 and 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 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  on 03.06.1992 but the same was commuted

only on 17.08.1994 and therefore the period of five years was

rightly 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 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

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Naib Subedar, but to avoid any injustice, his seniority was

maintained from 01.08.1997 alongwith his batchmates.   

7. We have carefully considered the rival contentions

of the parties and perused the impugned judgment and the

materials on record.

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 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  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 and from that date he is taken to have

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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 name was again placed in the original

place in the seniority 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, 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  again  examined  in  consultation  with  Judge  Advocate

General  (JAG)  Department  and vide  letter  No.77701/DPC/

Q/II/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 announced and not from 17.08.1994.

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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 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 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.”

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 which the punishment was commuted.

10. 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 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

01.08.1997, the first punishment/red 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

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genuineness of  the representations made by the appellant,

DPC again considered the claim of the appellant and granted

him promotion w.e.f. 01.01.2000 to the rank of Naib Subedar

with a further direction that the seniority of the appellant will

be maintained alongwith  his  batchmates  from 01.08.1997.

When  appellant  was  granted  ante-dated  seniority  w.e.f.

01.08.1997 alongwith his batchmates, we find no 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.  The High Court

has  not  properly  appreciated  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 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

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for promotion on 01.08.1997 and the impugned order cannot

be sustained.   

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 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.

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 benefits with regard to retrospective promotion is

concerned  that  depends  upon  case  to  case.   In  State  of

Kerala & Ors. vs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524,

this Court held that the principle of “no work no pay” cannot

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be accepted as a rule of thumb and the matter will have to be

considered on a case 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 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.”

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

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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

batchmates, it would 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  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.

…………………………J.       (T.S. THAKUR)

…………………………J.      (R. BANUMATHI)

New Delhi; July  31, 2015

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