Arun Kumar Singh v. The Central Bank of India

will be no order as to costs”. Upon this order being passed, the bank reinstated the petitioner. As the petitioner had been dismissed sometime in the year 1990 and was being reinstated in the end of 1997, in the mean time petitioner had became entitled to promotion and enhancement of pay- scale. They were duly given effect to while fixing his pay in present, but so far as his emoluments for the period where he remained dismissed is concerned, they were paid on basis of pay-scale and position he held on the date of dismissal without enhancing it as a consequence of promotion and increment in pay-scale. Petitioner contending that this was in-violation of orders of this Court and he had filed a contempt application being M.J.C. No. 2509 of 2000, which was ultimately heard and disposed of on

02.04.2003. Before this Court in those proceedings the stand was taken on behalf of the bank that by making payment of arrears of salary of post which was held by the petitioner before dismissal bank had committed no contempt, even if, it had not paid arrears of salary on the promoted post in between. Petitioner was left to make a claim of that by filing a representation before the authority but the application for initiating contempt was dismissed. Petitioner having not been given the pay of the promoted post has now filed this writ petition. Counter affidavit has been filed, in which primarily the stand taken is based on the principle of no work no pay. This principle, petitioner contends may be correct but is not applicable to the facts of - 3 - the present case. Having heard the parties, the writ petition is being disposed of at this stage itself. From the order passed in the writ petition, the dismissal order and the order passed in the contempt application, two things are clear. Firstly, the dismissal of petitioner was found not to be in accordance with law and consequentially petitioner was directed to be reinstated. Secondly, in the contempt application there was no adjudication has rights and issues resolved, whether there is contempt or not. The Court dealing with the contempt matter left it for the petitioner to make a representation in the matter but did not negative the claim of the petitioner. Keeping these two in mind one has to first consider the submission on behalf of the bank for denying the salary of the promoted post to the petitioner from the date he was promoted. Learned counsel for the bank submits that it is case of no work no pay. In my view, the stand taken cannot be accepted for more than one reason. Firstly, it is a well established that it is the discretion of the Court while disposing of applications while granting relief of reinstatement whether to award back wages or not. It was open to the Court to mould the relief. The bank could have made an application to the Court and pressed that monetary benefits be not given, as petitioner consequence of dismissal had not worked for bank, bank did not press the issue, it suffered the order of reinstatement with all consequential benefits. The question is what is understood by all consequential benefits. First, let us see how the bank understood the same. If we refer - 4 - to Annexure-1 of the writ petition, which is the order of reinstatement, the bank reinstates the petitioner with all consequential benefits, as is written therein. Bank then gives promotion which was due within that period as if petitioner had been in continuous service. Thus, considered that recognizing a promotion and giving that promotion is a necessary consequence of reinstatement. If that be so then the necessary fall out of this would be that with promotion the promotional emoluments would follow. At this stage, the bank changes its stand. Though, it gives notional promotion be deprived the promotional benefits on the plea of no work no pay. This split implementation of the orders of this Court is not understood by this Court nor appreciated. Once, bank found that promotion was due and had to be given then with the promotion the emoluments have to also be given because promotion without emoluments is no promotion in fact. Secondly, coming to the question of no work no pay. One has to appreciate that when this Court struck down the dismissal and the order affirming the same, it goes without saying that the dismissal order was found unsustainable in fact or in law. The result was that this Court held that the action of the respondent-bank was wrong then it must follow that petitioner was wrongfully kept out of employment. If petitioner was wrongfully kept out of employment petitioner had reinstated with all consequential benefits is entitled to be treated as if he was never dismissed. For wrongfully having not promoted to work the petitioner cannot be made to suffer. In this connection I may reminded of some what circumstances Chief Justice, Chagla, as he then was in the case of All - 5 - India Groundnut Syndicate Limited -Versus- Commissioner of Income Tax, Bombay City, AIR 1954 Bombay 232 : “But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under sub-section (2) of S 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person - we take it that the Income-tax Department is included in that definition - can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default.” In that view of the matter, the principle of no work no pay will not come to the aid of the bank. More so, when bank agreed to make payment for the entire period on the initial post held and deprived the petitioner only of the incremental pay, bank cannot go half way through if what is submitted on behalf of the bank is to be accepted then no work no pay would mean the bank would be obliged to deprive of the petitioner the entire emoluments for the entire period. Thus, on the face of it, the stand of the bank is full of contradictions. Consequently, - 6 - the respondent-bank is directed to give benefit of full emoluments that the petitioner would have got had he in continuous service including that in relation to the full salary of the promoted post from the date bank itself promoted the petitioner. With these observations and directions, the writ petition is allowed. Trivedi/ (Navaniti Prasad Singh, J.)