# Bhagwat Prasad v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 687
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-05-21
- **Case number:** Civil Misc. Writ Petition No. 17036 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwat-prasad-v-state-of-u-p-ors-42906
- **Pages:** 19

## Headnote

Constitution of India, Art.-226-Arrears of
salary-denied on ground of "no work no
pay" petitioner was transferred to the
place
where
no
vacancy-inspite
of
direction of Court no proper posting
given-w.e.f. July 2004 to January 2006held-respondent can not be allowed to
take benefit of their own illegal actentitled for salary with cost of Rs.
10,000/-.

Held: Para-55
In view thereof, it cannot be said that
petitioner on is own denied to discharge
duties. Instead it is the respondents own
illegal act by transferring and posting
petitioner at a place where there was no
vacancy so as to deny him any occasion
to render any service. For that purpose,
the loss, if any, must be suffered by
State, may be recovered from officer(s)
concerned but petitioner cannot be made
to suffer by denying him salary for no
fault on his part.

Case Law discussed:
AIR 1984 SC 1291; 1989(2) SCC 541; AIR
1991 SC 958; AIR 1991 SC 2010; 1993
(Suppl.) (2) SCC 324;AIR 1995 SC 1053; 1996
(1) SCC 63; 1996(7) SCC 533=AIR 1996 SC
2936; 1989(9) SCC 559; AIR 1995 SC 319;
AIR 2001 SC 1748; AIR 2002 SC 808; 2003(7)
SCC 238= AIR 2003 SC 3137; AIR 2004 SC
3988; AIR 2005 SC 3966; 2005(104) FLR
863=2005(2) SCC 363; (2005) 8 SCC 314;
2002(3) SCC 437; AIR 2006 SC 531; AIR 2006
SC 586; AIR 2003 SC 1115; 2005 (2) ESC
1215; 2006(1) UPLBEC 20(SC)2007(1) ESC
40(SC); JT 2009(5) SC 487; AIR 1970 SC 156;
2009(15)SCC 335; 2011(11) SCC 626; JT
2011(4) SC 252; AIR 2006 SCC 3018; (2007) 9
SCC 564; (2009) 2 SCC 288; 2007(4) AWC
3382; 2007(3)ADJ 1.

## Text

_Characters 0–39,911 of 61,865. This is a partial read: ask again with offset=39911 for what follows._

2 All] Bhagwat Prasad Vs. State U.P. & Ors.
687
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.05.2014

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 17036 of 2008

Bhagwat Prasad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajesh Khare, Sri Awadh Narain Rai

Counsel for the Respondents:
C.S.C.

Constitution of India, Art.-226-Arrears of
salary-denied on ground of "no work no
pay" petitioner was transferred to the
place
where
no
vacancy-inspite
of
direction of Court no proper posting
given-w.e.f. July 2004 to January 2006held-respondent can not be allowed to
take benefit of their own illegal actentitled for salary with cost of Rs.
10,000/-.

Held: Para-55
In view thereof, it cannot be said that
petitioner on is own denied to discharge
duties. Instead it is the respondents own
illegal act by transferring and posting
petitioner at a place where there was no
vacancy so as to deny him any occasion
to render any service. For that purpose,
the loss, if any, must be suffered by
State, may be recovered from officer(s)
concerned but petitioner cannot be made
to suffer by denying him salary for no
fault on his part.

Case Law discussed:
AIR 1984 SC 1291; 1989(2) SCC 541; AIR
1991 SC 958; AIR 1991 SC 2010; 1993
(Suppl.) (2) SCC 324;AIR 1995 SC 1053; 1996
(1) SCC 63; 1996(7) SCC 533=AIR 1996 SC
2936; 1989(9) SCC 559; AIR 1995 SC 319;
AIR 2001 SC 1748; AIR 2002 SC 808; 2003(7)
SCC 238= AIR 2003 SC 3137; AIR 2004 SC
3988; AIR 2005 SC 3966; 2005(104) FLR
863=2005(2) SCC 363; (2005) 8 SCC 314;
2002(3) SCC 437; AIR 2006 SC 531; AIR 2006
SC 586; AIR 2003 SC 1115; 2005 (2) ESC
1215; 2006(1) UPLBEC 20(SC)2007(1) ESC
40(SC); JT 2009(5) SC 487; AIR 1970 SC 156;
2009(15)SCC 335; 2011(11) SCC 626; JT
2011(4) SC 252; AIR 2006 SCC 3018; (2007) 9
SCC 564; (2009) 2 SCC 288; 2007(4) AWC
3382; 2007(3)ADJ 1.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri A.N.Rai, learned
counsel
for
the
petitioner,
learned
Standing Counsel for the respondents and
perused the record.

2. In this writ petition, petitioner
was
transferred
vide
order
dated
11.6.2004 but he was not allowed to join
at the transferred place on the ground that
there was no vacancy. In this view of the
matter, petitioner was not allowed to work
from July, 2004 to 29.01.2006. Now,
when he claimed salary for the said
period, it has been rejected on the ground,
since he did not work, therefore, is not
entitled for salary.

3. It is contended that petitioner was
not allowed to join as there was no
vacancy on which he was transferred and
there was no fault on his part, yet he has
been denied salary, which is patently
illegal.

4. It is said that on the one hand,
respondents themselves passed an illegal
order of transfer on 11.6.2004 without
caring whether on the place of transfer,
there was vacancy or not in which
petitioner could have been transferred and
688 INDIAN LAW REPORTS ALLAHABAD SERIES
when Officer In-charge at transferred
place did not allow petitioner to join on
the ground that there was no vacancy, for
non functioning of this period, petitioner
cannot be blamed or made responsible. A
subsequent modified order was passed but
not communicated to the petitioner for a
long period, again for the fault of
respondents and still petitioner is sought
to be blamed. In fact, respondent
authorities are trying to take advantage of
their own wrong and instead of holding
officer concerned responsible, who passed
a mindless order of transfer of petitioner
to place where there was no vacancy,
petitioner is being sought to be paralysed
by denying him salary for the period he
could not function not on account of his
own volition but on account of denial of
respondents authorities.

5. Per contra, learned Standing
Counsel submitted that though initial
order of transfer dated 11.6.2004 was not
correct since there was no vacancy at
Rajkiya Audyogik Prashikshan Sansthan
(I.T.I.), Banda where petitioner was
transferred and for that purpose, non
functioning of petitioner during some
period may not be the fault on his part.
Another order was issued on 9.7.2004
posting
him
at
Government
I.T.I.,
Mahoba but despite thereof, petitioner did
not join at Mahoba and hence for period
subsequent thereto, he is responsible and
is not entitled for salary.

6. The petitioner, a Senior Assistant,
was working in District Employment
Office, District Banda. Vide order dated
11.6.2004, passed by Director, Directorate
of Training and Employment, U.P.
Lucknow, he was transferred to Rajkiya
Audyogik Prashkshan Sansthan (I.T.I.),
Banda,
on
administrative
ground.
Pursuant thereto, District Employment
Officer, Banda, relieved petitioner on
23.6.2004 and directed him to ensure his
joining at State Industrial Training
Institute,
Banda.
Pursuant
thereto,
petitioner
submitted
joining
before
Principal, I.T.I., Banda on 24.6.2004.

7. The Principal, however, declined
to accept joining and wrote a letter dated
30.6.2004 stating that there was no
vacancy of Senior Assistant at I.T.I.,
Banda, hence he cannot be allowed to join
and in this regard a letter has also been
sent to Directorate stating that further
action would be taken after receiving
instructions from Director.

8. Thereafter, petitioner sent a letter
dated 2.7.2004 to the Director, Training
and
Employment,
U.P.
Lucknow
informing the above situation and sought
instructions either to permit his rejoining
at District Employment Exchange Office,
Banda or to direct Principal, I.T.I. Banda
to accept petitioner's joining subject to
further orders. It appears that matter
remained pending and nothing was done
for almost more than a year whereupon
petitioner sent a reminder dated 12.9.2005
to the Director. Still, having no response,
he approached this Court in Writ Petition
No.21258 of 2005 with the grievance that
neither his joining has been accepted nor
he is being paid salary for no fault on his
part and this action of respondents is
patently illegal. The writ petition was
disposed of vide order dated 21.11.2005.
This Court said that the situation created
in the matter should be examined as to
who is the officer responsible so as to fix
2 All] Bhagwat Prasad Vs. State U.P. & Ors.
689
his accountability and respondent no.2
was directed to consider the matter with a
clear instructions that interest of petitioner
should not be jeopardized because of
negligence of some other official.

9. It is in these circumstances,
Director passed order on 9.01.2006
stating that petitioner, when was not
allowed to join at I.T.I., Banda, vide
Directorate's letter dated 09.7.2004, he
was posted at Government I.T.I., Mahoba
and the said letter was sent to the
petitioner by speed post at his permanent
residence but returned back. Thereafter,
Principal, I.T.I. also got the information
published
on
7.8.2004
in
a
daily
newspaper "Dainik Jagran", still petitioner
did not join at Mahoba. Since order of his
posting has already been passed, no
further direction was required and his
application stands disposed of.

10. After receiving this letter,
petitioner appears to have sent a letter
dated 19.01.2006 stating that he has never
been communicated any such letter dated
02.7.2004 posting him at Mahoba, and he
therefore, required Principal, I.T.I., Banda
to make him available letter dated
2.7.2004
and
also
copy
of
daily
newspaper
"Dainik
Jagran"
dated
07.08.2004.

11.

Simultaneously,
he
also
submitted
joining
on
19.1.2006
at
Mahoba but there also Principal declined
to accept his joining observing that one
Deo Prasad, Senior Assistant, has already
been posted by Directorate's letter dated
18.1.2005, who has joined on 20.6.2005
and there being only one post of Senior
Assistant, already occupied, no vacancy
existed whereagainst petitioner could be
allowed to join. Thereupon, Director,
Training and Employment, U.P. Lucknow
passed another order dated 19.1.2006
stating that Principal, I.T.I., Mahoba shall
accept petitioner's joining thereat and Sri
Deo Prasad shall now join at District
Employment
Office,
Mahoba. It
is
pursuant to this letter, Principal, I.T.I.,
Mahoba accepted petitioner's joining
w.e.f. 30.1.2006 (forenoon) vide letter
dated 4.2.2006.

12. Thereafter, petitioner submitted
his representation claiming salary from
July, 2004 to January 2006 by his letter
dated 30.11.2006. Since it remained
unheeded, petitioner again came to this
Court in Writ Petition No.9402 of 2007,
which was disposed of on 26.7.2007 with
the direction to Director, Training and
Employment
to
decide
petitioner's
representation with regard to salary within
eight weeks. It is pursuant to this order,
impugned order has been passed by
Director stating that petitioner himself
being guilty of non joining at Mahoba, is
not entitled for salary from July, 2004 to
January, 2006.

13. The respondents have filed
counter affidavit wherein a copy of order
dated 09.7.2004 issued by Additional
Director,
(Employment)
has
been
appended as Annexure CA 1. A perusal
thereof shows that copy of the letter was
sent by Additional Director to Principal,
I.T.I. Banda and District Employment
Officer, Banda. There is nothing to show
that aforesaid letter was ever addressed or
sent to petitioner by respondent no.2.
Respondents have also placed on record a
690 INDIAN LAW REPORTS ALLAHABAD SERIES
photocopy of a press communication said
to be published in "Dainik Jagran" dated
7.8.2004 stating that petitioner has been
posted at Mahoba and this information
was sent by speed post but has received
back. The alleged letter dated 14.7.2004,
in reference whereto it has been said that
same has been sent by speed post, has
been received back is neither on record
nor details thereof has been given in the
entire
counter
affidavit.
Moreover,
photocopy of the order dated 9.7.2004
shows that it was received in the office of
respondent
no.3
on
14.7.2004
and
therefore also it is difficult to believe that
on the same day a letter could have been
sent to the petitioner. The contention that
information regarding change of place of
posting
was
communicated
to
the
petitioner by post (speed post) is very
difficult to accept in absence of any such
letter placed on record, as also a copy of
the speed post receipt not filed though it
has specifically been challenged by
petitioner and he has also demanded copy
thereof, which has not been supplied.

14. Before coming to the question as
to whether principle of "No work, no pay"
has rightly been applied in the case in
hand, it has to be seen whether it is the
petitioner who has to be blamed for non
working for certain period or respondents
authorities.

15. So far as order dated 11.6.2004,
whereby petitioner was transferred by
Director to Banda, it is admitted by the
parties
that
at
Rajkiya
Audyogik
Prashikshan Sansthan (I.T.I.), Banda,
there was no post or vacancy in which
petitioner could have been allowed to join
and that is how, Principal of said
institution declined to accept joining
report from petitioner. There can be no
manner no doubt that here, it is Director,
who was straightway responsible for
passing a mindless order and has to be
held
responsible
for
whatever
consequences are.

16. Then comes the order dated
9.7.2004 issued by Director, whereby
place of transfer of petitioner was
changed and he was posted at I.T.I.
Mahoba. Here it is said that this letter was
sent to the petitioner at his permanent
residence but it was received back.
Thereafter, Principal, I.T.I., Banda got it
published in daily newspaper Dainik
Jagran on 7.8.2004 but the petitioner did
not join. The question therefore, whether
this order dated 9.7.2004 was reasonably
communicated to the petitioner or not.

17. Here the record shows that order
dated
9.7.2004
issued
by
Director
nowhere contains any endorsement for
sending copy thereof to the petitioner.
About the communication of this order by
Principal, I.T.I., Banda, nothing has been
placed on record to show that it was
actually forwarded at a known address to
the petitioner for its communication and
intimation. As already noticed, Principal
I.T.I. Banda's letter dated 14.7.2004 has
not been shown as to how it was remitted
to the petitioner, as no material has been
placed on record to fortify the above
assertion. The Director's letter dated
9.7.2004 was received in the office of
Principal I.T.I on 14.7.2004 and it is
claimed that on the same date the
Principal I.T.I. Banda sent a letter to the
petitioner but to fortify it, no material has
been
placed
on
record.
Thereafter,
2 All] Bhagwat Prasad Vs. State U.P. & Ors.
691
Director himself passed another order
dated 18.1.2005 posting another person
Deo Prasad, Senior Assistant at I.T.I.
Mahoba, who joined on 20.6.2005 and
when petitioner after communication of
order dated 9.7.2004 sought to submit his
joining on 19.1.2006, the same was also
declined by Principal on the ground that
another person has joined and there was
no vacancy at all. Thereafter a third order
was passed by Director on 19.1.2006
itself directing that Principal, I.T.I.,
Mahoba shall allow petitioner to join
thereat and Deo Prasad shall be shifted to
another
place
and
only
thereafter
petitioner's joining was accepted at I.T.I.
Mahoba on 30.1.2006.

18. In these circumstances, it is
difficult to hold that petitioner was guilty of
non joining at Mahoba hence disentitled for
salary for the aforesaid period. The principle
of 'no work no pay', as such has no
application in the government service unless
it is shown that officer concerned has
absented himself illegally from rendering any
service and that being a misconduct, the
period of absence can be treated to be
unauthorized absence which may result in
non payment of salary, if it is so permissible
under the Rules. In some authorities, when a
promotion etc. has been granted notionally,
question has arisen about application of
principle of "no work no pay" in government
service and in one of the judgment of this
Court, it has been examined at length.

19. The issue pertaining to arrears of
salary in the case of a government
employee, who has not rendered any duty
during certain period on account of any
act, omission or order of employer has
been the subject matter of frequent
litigation for quite sometime and a retrospect
of various authorities of the Apex Court and
this Court shows a revolutionary change in
the approach dealing with the said issue. A
government
servant
unlike
private
employment once appointed is governed by
statute, rules and regulations governing his
conditions of service. Though government
service start with a contract but once
appointed, it is a matter of "status". Various
rules and regulations have been framed under
Article 309 (proviso) of Constitution of India
dealing with terms and conditions of
government employees. It is not disputed
that petitioner's salary is paid from State
Exchequer. In the matter of private
employment an employee earns wages by
rendering service to employer and in case of
no work, he is not entitled for any wages
unless specifically provided under contract or
any law governing such contract. It is open to
such an employer to enter into a contract
carving out certain exceptions
where
employee may be entitled for wages even for
certain period where no duty is discharged.
In the cases where employee is governed by
various labour welfare legislations, payment
of wages in certain contingencies, where
employee may not work but still may be
entitled for wages, are governed by said
labour welfare legislations and there the
employer is liable to act according thereto. In
the matter of Government employees and
others who are governed by the rules framed
under Article 309 (proviso) of Constitution,
the position is different. Fundamental Rule
17 (hereinafter referred to as 'FR 17')
provides as to when a Government servant
shall begin to draw pay and allowance etc.
and when he would cease to do so, and reads
as under:

"17. (1) Subject to any exception
specifically made in these rules, and to the
692 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of Sub-rule (2) a Government
servant shall begin to draw (he 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.

(2) The date from which a person
recruited overseas shall commence to
draw pay on first appointment shall be
determined by the general or special
orders of the authority by whom he is
appointed."

20. The exceptions referred to in FR
17 are eventualities like leave, joining
time allowed to Government servant on
transfer, suspension etc. In case of
dismissal or removal, FR 52 provides that
pay and allowances of Government
servant shall cease from the date of
dismissal or removal, and in case of
suspension, FR 53 provides that though
he would not be discharging any duty but
subject to furnishing a certificate that he
has not been engaged in any other
business, profession or vocation, he
would
be
entitled
for
subsistence
allowance which may be 50% or 75% of
leave salary, which he would have been
drawing had he been on leave. The cases
in which payment of salary is governed
expressly by the rules, they do not create
much difficulty but litigation pertaining to
service matters had brought a number of
circumstances before the Court where
employees are denied benefit of salary or
higher salary for one or other reasons
beyond their control or for which they are
not responsible or nothing can be
attributed to them and such situations not
answered by any rule or executive order
having force of law necessitating judicial
pronouncements time and again for such
entitlement.

21. Initially, the courts were of the
view that once it is found that employee
was wrongly denied such salary, he is
entitled for entire arrears irrespective of
the fact whether he actually discharged
duties of the post or not. There was a
dichotomy of judicial pronouncements in
the matters dealing with labour cases and
those dealing with government service,
inasmuch as, in labour matters since
power
of
discretionary
relief
was
conferred upon adjudicatory forum under
the labour laws, the issue was decided in
the light of such provisions and the facts
and circumstance of concerned case but in
the matter of government servants,
initially the courts allowed arrears of
salary virtually as a matter of course once
it is found that such denial was
inconsistent to law, but, subsequently it
was noticed that failure on the part of
authorities in observance of or strict
compliance of statute was more frequent
then desired and consequence of allowing
arrears as a matter of course was so
drastic that huge public money used to be
siphoned off to such employees who have
rendered no public duty or have not
actually shouldered any responsibility of
higher post and therefore, necessity arose
to have a balance in two situations so as
not to waste public money for the follies
of authorities ,who were under the
obligations to observe certain procedure,
norms and failure whereof may not enrich
certain employees being against the
interest
of
public
exchequer
but
simultaneously interest of employees,
who were not at fault, was also to be
observed. This gave occasion to consider
2 All] Bhagwat Prasad Vs. State U.P. & Ors.
693
the question of arrears of salary not as a
matter of right, but in each case
depending upon multifarious reasons and
factors
which,
this
Court
will
be
discussing later on.

22. Here, at this stage, this Court
propose to refer some of the judgments
throwing light on the discussion made
hearinabove.

23. In P.S. Mahal Vs. Union of
India, AIR 1984 SC 1291, while deciding
the dispute pertaining to seniority, Apex
Court directed the employees to be treated
as deemed promoted from retrospective
date and also directed for payment of
salary of higher post for the past period.
However, in Paluru Ramkrishnajah and
others Vs. Union of India & another, 1989
(2) SCC 541, despite allowing promotion
with back date, the back wages were
denied for the reason that earlier in other
matters, certain writ petitions were
allowed by the Hon'ble Madhya Pradesh
High Court on 4.4.1983 following the
Apex Court judgment dated 2.2.1981 in
Civil Appeal No. 441 of 1981 wherein
back
wages
were
denied
despite
retrospective promotion and a Special
Leave Petition Civil No. 5987-92 of 1986
filed by the Government of India against
the judgment of Hon'ble Madhya Pradesh
High Court was dismissed on 28.7.1986
therefore the Court took the view that
same relief should be granted to the
appellant
in
Paluru
Ramkrishnajah
(Supra) also.

24. Subsequently relying on P.S.
Mahal (supra), arrears of salary on
account of back dated promotions was
claimed but the aforesaid dictum was not
followed in Virender Kumar Vs. Avinash
Chadha and Ors., AIR 1991 SC 958 and
for denying arrears of salary to the
employees, who were allowed promotion
from earlier date, Apex Court gave
following
reasons:-
"I.
Deemed
appointments have to be given to the
concerned employees even from the dates
when they were not in service and
probably when they were still in their
schools and colleges. 2. Neither equity
nor justice is in favour of the respondents
to award them emoluments of higher
posts with retrospective effect and the
decision in P.S. Mahal (Supra) was
distinguishable.
3.
The
matter
was
agitated in 1972 but remained pending for
more than one and half decade for no fault
of the employer. 4. The higher posts were
not vacant during the entire period and
were manned by others. The employer
had paid the incumbents who were
working on the higher post, emoluments
of the said posts 5. The employees have
not actually worked in the higher post and
on the principle of "no work, no pay",
were not entitled for higher salary." In the
aforesaid case, therefore, on the facts and
circumstances of the case, as referred
above, the employees were denied arrears
of salary despite allowing promotion from
an earlier date.

25. In Union of India Vs. K.V.
Jankiraman, AIR 1991 SC 2010, validity
of a Government Order came up for
consideration, which provided that during
pendency of disciplinary or criminal
proceedings, when an employee is to be
considered for promotion, his matter shall
be kept in sealed cover and he shall not be
allowed actual promotion even if selected,
till disciplinary/criminal proceeding is
694 INDIAN LAW REPORTS ALLAHABAD SERIES
finalized and only after conclusion of
such proceeding, sealed cover shall be
opened and if he is to be promoted, no
arrears of salary shall be paid. The
validity of this Government Order to the
extent it denied arrears of salary to
employee against whom, as a result of
departmental
inquiry
or
criminal
proceedings,
nothing
ultimately
was
proved and who was exonerated and
found entitled for promotion from due
date yet arrears denied, came up for
consideration and it was contended that
this gives a leverage to the employer to
take advantage of his own wrong and
despite the fact that employee is not at
fault and has done everything possible
and permissible, yet he cannot get arrears
of salary for an act for which employer is
solely responsible and therefore, such
provision is arbitrary. A Full Bench of
Central Administrative Tribunal declared
aforesaid part of Government Order
violative of Articles 14 and 16 of
Constitution. The matter came up in
appeal before a three Judges Bench of
Apex Court, which held that FR 17 would
not be applicable to a case where
employee though is willing to work is
kept away by authorities for no fault of
his. The court held:

"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"

26. The Apex Court, expressed its
agreement with finding of Tribunal that
when
an
employee
is
completely
exonerated, meaning thereby that he is not
found blameworthy in the least and is not
visited with penalty even of censure, he
has to be given benefit of salary of higher
post alongwith other benefits from the
date on which he would have been
normally
promoted
but
for
disciplinary/criminal
proceedings.
However, Apex Court further held that in
such matters, a discretion must be left to
employer to decide whether entire salary
is to be paid or not, for the reason that
there may be cases where proceedings,
whether disciplinary or criminal, were
delayed at the instance of employee or
clearance in disciplinary proceeding or
acquittal in criminal proceeding is with
benefit of doubt or on account of non
availability of evidence due to the acts
attributable
to
employee
etc.
The
concerned authority therefore, must be
vested with power to decide whether
employee at all deserves any salary for
intervening period and if he does, the
extent to which he deserves it. The Apex
Court further held that it is not possible to
anticipate and enumerate exhaustively all
circumstances
under
which
such
consideration may become necessary but
to ignore such circumstances when they
exist, however, and lay down an inflexible
rule of payment of arrears once an
employee is exonerated would undermine
discipline in the administration and
jeopardize public interests. Thus, legal
exposition
as
laid
down
in
K.V.
Jankiraman (Supra) is where an employee
is not guilty of being away from work but
is prevented from doing so by authorities,
normal rules of "no work, no pay" is not
applicable but in such cases considering
various complexities of life and history of
2 All] Bhagwat Prasad Vs. State U.P. & Ors.
695
proceedings etc., departmental authority
must decide entitlement of Government
servant
about
arrears
and
quantum
thereof.

27. In Vasant Rao Roman Vs. Union
of India & others, 1993 (Suppl.) (2) SCC 324
arrears of salary was denied to employee
though it was held that denial of promotion
on higher post on account of wrong fixation
of seniority was illegal. The Apex court held
that principle of "no work, no pay" would
have no application to the said case since
employee was neither under suspension nor
any disciplinary proceeding was pending
against him and on the contrary he was made
to suffer on account of administrative reason
for which he was not responsible. There was
shortage of literate Shunters at Gwalior
during 1960 and the employee being literate
was deputed for table work and therefore, for
administrative reason, he could not complete
requisite number of firing kilometers. The
juniors were promoted as Shunters and
Drivers and his claim was ignored on
account of lack of requisite number of firing
kilometers. Thus, on the one hand, the
employee was utilized by department to
benefit itself with qualification of employee
since literate Shunters to discharge table
work were not readily available and on the
other hand, for the same qualification, he was
denied promotion on the ground that he has
not completed requisite number of firing
kilometers. Hence, Apex Court held that
there was no justification in denying him
arrears of emoluments from the date he was
allowed promotion to the post of Shunter
Grade 'B' and Driver Grade 'C'.

28. In Surjit Ghosh Vs. Chairman &
Managing Director, United Commercial
Bank and Ors. AIR 1995 SC 1053, as a
result of disciplinary proceedings, the
employee was punished but the said order
of punishment was passed by an authority
to whom an appeal otherwise would lie
under the rules and thereby the employee
was denied right of appeal though conferred
under the rules. The Apex Court held such
exercise of power by higher authority illegal
but while considering question as to what
consequential orders should be passed, in
the facts of the case, noticed that
proceedings against employee were pending
since 1982 and almost for 13 years the
employee was out of employment. He also
at one stage was inclined to forego all the
arrears of salary provided he is reinstated in
service on the post to which he was entitled
with the benefit of continuity in service to
which the Bank did not agree. The court
thereafter noticed that his allegations that
charges were trumpeted against him cannot
be said to be without any substance, the
inquiry was also defective, he was an exarmy officer and therefore, instead of
remanding the matter, a lump sum
compensation would be just and reasonable.
The arrears of salary and future salary
would have come to about 20 lacs and
noticing the fact that the Bank being
nationalized, the money belongs to public
and such a huge amount should not be
allowed to be paid to someone who has not
worked for a long time at all just for the
reason that Bank feels that it has lost
confidence in the employee, the Court
directed for payment of a lump sum
compensation of Rs. 50,000/- in lieu of
arrears of salary and reinstatement in
service with continuity of service without
any loss of seniority.

29. In Smt. Sudha Srivastava Vs.
Comptroller and auditor General of India,
1996 (1) SCC 63 following K.V.
696 INDIAN LAW REPORTS ALLAHABAD SERIES
Jankiraman (supra), Apex Court allowed
arrears of salary to the legal heirs of
deceased employee on the ground that he
was denied promotion on account of
criminal proceedings wherein he was
honourably acquitted.

30. In State of Haryana and Ors. Vs.
O.P. Gupta and others, 1996 (7) SCC 533 =
AIR 1996 SC 2936 as a result of
redetermination of seniority, pursuant to
direction of Apex Court, promotions were
allowed retrospectively but arrears denied.
The Apex Court noted that incumbents,
who approached the Court claiming arrears
of salary though contended that they were
ready but were not allowed to work on
higher
post
on
account
of
wrong
determination
of
seniority
but
their
contention could not withstand judicial
scrutiny for the reason that they were not
the persons who agitated the issue of
seniority earlier. Some other persons
disputed seniority list which was ultimately
decided by Apex Court directing for
redetermination of seniority and therefore,
contention of employees that they were
ready to work was contrary to record. It was
also held where a seniority list has to be
redrawn and promotions have to be made
and until that exercise is undertaken, it was
not open to employees concerned to claim
that they were ready to work on higher post
and thus question of entitlement of arrears
on promotional post would not arise. The
law laid down in K.V. Jankiraman (Supra)
was distinguished on the ground that it was
a case of sealed cover procedure but would
have no application to the case of promotion
as a result of redetermination of seniority.

31. In J.N. Srivastava Vs. Union of
India and another, 1998 (9) SCC 559, the
employee served a notice of voluntary
retirement but before communication of
its
acceptance
withdrew
the
same.
However the employer forced voluntary
retirement upon him whereagainst he
approached Tribunal, which held that
voluntary retirement having been given
effect to and employee also having
handed over charge, no relief can be
granted to him. The Apex Court reversed
judgment of Tribunal and held that before
communication of acceptance of letter of
voluntary retirement, it was open to the
employee to withdraw the same. Further
observing that employee was denied work
though he was ready, it was held that he is
also entitled for benefit of salary for the
period he was denied work by employer
and principle of "no work, no pay" would
not apply.

32. A Constitution Bench considered
application of "no work, no pay" in the
matter of employees of Bank going on
strike in Syndicate Bank Vs. K. Umesh
Nayak AIR 1995 SC 319 and observed
that whoever voluntarily refrains from
doing work when it is offered to him is
not entitled for payment for the work not
done. In other words that is the dictum of
"no work, no pay". However, it was also
held where issue pertaining to strike is
dealt with by statute or contract between
employer and employee recognizing right
of employees to go on strike, in such case
in order to get entitlement for wages for
the period of strike, it has to be both legal
and justified.

33. In State Bank of India Vs. Anjan
Sanyal AIR 2001 SC 1748 an employee
was transferred but he did not comply the
same and made representations for its
2 All] Bhagwat Prasad Vs. State U.P. & Ors.
697
cancellation. He was relieved in absentia
and reminded by the Bank to join at the
place of transfer but he did not obey,
whereafter another order was passed
transferring him to another place but that
too was not obeyed and instead the
employee filed a writ petition wherein an
interim
order
was
passed
directing
employee to obey the later order of
transfer which was not complied by him
again and instead he preferred an intra
Court appeal wherein he was allowed
some more time to join at the later place
of transfer. The employee filed a special
leave petition which was dismissed.
However, the employee did not join at the
place of transfer. The writ petition was
ultimately allowed by Hon'ble Single
Judge setting aside order of transfer with
all consequential benefits and salary for
the period he was not in the office. The
Apex Court, in the appeal of the Bank,
observed that in such a case where an
employee, who has not discharged any
duty by disobeying order of transfer, if is
allowed salary for the period he was
absent, it would amount to granting a
premium
to
an
errant
officer.
Accordingly, setting aside judgment of
High Court, Apex Court left it open to the
Bank to deal with the period of absence in
accordance with rules of Bank.

34. In Food Corporation of India Vs.
S.N. Nagarkar AIR 2002 SC 808, notional
promotion without arrears was allowed by
employer relying on judgment of Apex
Court in O.P. Gupta (Supra) and Paluru
Ramkrishnajah (Supra). The Apex Court
found that notional promotion was
allowed pursuant to order dated 6.5.1994
passed by High Court in Writ Petition No.
4983 of 1993 wherein a direction was also
issued for payment of arrears of pay. The
said judgment having attained finality it
was not open to deny arrears of salary
while implementing said judgment and to
defend
such
denial
in
execution
proceedings. Moreover, it was held that
entitlement of employee for arrears of pay
and allowances is within the domain of
court and if it is satisfied that employee
was not considered for promotion to the
promotional post for no fault of him but
on account of fault of authorities
concerned, it can always allow arrears of
pay and allowances, since it is settled law
that in exercise of writ jurisdiction the
Court can mould relief having reference
to the facts of the case and interest of
justice.

35. In A.K. Soumini v. State Bank of
Travancore and Anr. 2003(7) SCC 238=
AIR 2003 SC 3137, the Court upheld denial
of arrears on the ground that as a matter of
fact,
employee
was
disentitled
for
promotion under the promotion policy but
taking into account pendency of appeal
before the Court for a considerable time on
account whereof employee could not appear
in subsequent tests, benefit of promotion
was allowed, which was more in the nature
of gesture of gratis and not by way of any
right to which she was entitled. Therefore,
notional promotion allowed by the Bank
with revision of pay scale was found to be
more than what ought to have been allowed
to her, be it either in law or equity, and her
further claim for payment of arrears was
found to be highly far-fetched, without any
basis and unjust. This is apparent from para
9 of the judgment, which is reproduced as
under:

"So far as the case on hand is
concerned, the appellant was denied
698 INDIAN LAW REPORTS ALLAHABAD SERIES
promotion in terms of the promotion policy
under which it was necessary for a
candidate to secure at least a minimum
eligibility mark of 6 1/2 at the interview and
the learned single Judge, allowed the claim
only on the ground that such prescription of
a minimum mark was not valid. Though the
Division Bench also affirmed the same, this
Court overruled the said decision, and
upheld such prescription. But taking into
account the pendency of the appeal in this
Court for considerable time, and on account
of which the appellant also did not appear in
the subsequent tests, benefit to promote her
was not denied. The fact that her non
promotion was legal and there has been no
unlawful interference with her right to
promotion or to serve in the promoted
category was obvious and could not be
minced over or completely ignored in the
light of the judgment of this Court, allowing
the appeal by the Bank. While that be the
position, the grant of relief to her, keeping
in view the delay merely due to pendency of
proceedings before Court, was more in the
nature of a gesture of gratis and not by way
of any right, to which she was found to be
entitled to. Consequently, the notional
promotion given to her by the Bank with
suitable revision of her pay scales itself is
more
than
sufficient
to
meet
the
requirements, be it either in law or in equity.
The further claim for payment of arrears as
well, is farfetched and can have no basis, in
law. The Division Bench, in our view
properly approached the question in the
light of the relevant guiding principles and
the same could not be said to be either
arbitrary, unreasonable or unsound in law to
warrant of our interference."

36. In Punjab National Bank v.
Virender Kumar Goel, AIR 2004 SC
3988, the employees were denied work
despite withdrawal of their options
seeking voluntary retirement. It was held
to be illegal on the ground that before
acceptance, it is always open to the
employee to withdraw such option and
therefore, for the period the employees
could not work, arrears was allowed. The
Apex Court held that principle of "no
work, no pay" would not apply in such a
case since employees were out of their job
for no fault of their. It also held that a
party, who is in breach of contract, can
hardly seek for any equitable relief. Since
the Bank did not permit employees to
work and breached contract, it did not lie
in its mouth to deny arrears of salary to
the employees.

37. In General Manager, Haryana
Roadways Vs. Rudhan Singh, AIR 2005
SC 3966, the employee was engaged for a
short period i.e. 16.3.1988 to 28.2.1989
with some breaks and thereafter was not
given any appointment. He raised an
industrial dispute regarding validity of his
termination wherein, it was held that
having completed 240 days of service in a
calendar year, his termination was in
violation of Section 25F of the Industrial
Disputes
Act,
1947.
Declaring
his
termination illegal, he was held to be
entitled for reinstatement, continuity of
service
and
50%
of
back
wages.
Upholding
the
award
of
Industrial
Tribunal-cum-Labour
Court
holding
termination of employee as illegal, the
Court and noticed that in the matter of
award of back wages, there is no rule of
thumb that in every case whenever
termination is found to be illegal, full or
some back wages have to be allowed to
the workman. A lot of factors have to be
taken into consideration which include
how quick the employee was in taking
2 All] Bhagwat Prasad Vs. State U.P.