Wednesday, September 28, 2011

OA No. 41 OF 2009






Sri M. Hanumantharayappa,
S/o Hanumappa,
Aged 62 years,
Deputy Office Superintendent L.I. (Retd.),
Central Excise Department,
No.114, BWS KHB Colony,
4th Cross, A.D. Hally, II Stage,
Basaveswaranagar, Bangalore – 560 079. .. Applicant

(By Advocate Shri R. Hari)


1. The Commissioner of Central Excise,
Bangalore I Commissionerate,
C.R. Buildings, Queens Road,
Bangalore – 560 001.

2. The Chief Commissioner of Central Excise,
C.R. Buildings, Queens Road,
Bangalore – 560 001.

3. Union of India, represented
by the Secretary,
Central Board of Excise & Customs,
Ministry of Finance,
North Block, New Delhi – 1.

4. The Member (P and V),
Central Board of Excise & Customs,
Ministry of Finance,
North Block, New Delhi – 1. ... Respondents

(By Advocate Shri G. Mallikarnunappa,
Addl. Central Govt. Standing Counsel)


Hon'ble Smt. Leena Mehendale, Member (A) :

This case arises against order No.C.No.II/39/147/2008 Estt.A, dated 8th December, 2008, passed by the Office of the Commissioner of Central Excise, Bangalore-1 Commissionerate, which itself is in pursuance of letter F.No.A-26017/ 89/2008-Ad.II.A dated 18-11-2008 received from the Office of Central Board of Excise and Customs, New Delhi.

2. Briefly, the case of the applicant is that the applicant was originally appointed as Sepoy in the Central Excise and Customs Department on 31.7.1974. He had later passed the SSLC Examination and was given appointment as LDC on 23.6.1986. His seniority was not properly assigned in the LDC grade and one of his juniors Shri Jayanna M.was promoted earlier than the promotion of the applicant. On hearing the applicant, this Tribunal in OA No.524/2002 directed the respondents to re-examine the representation of the applicant which was then considered by the respondent No.1 favourably who vide his Establishment order No.86/2003 dated 19.6.2003 revised his seniority and gave him notional appointment to the grade of LDC. Consequent to the revised seniority in the grade of LDC, further promotion to the grade of UDC and still further to the grade of Dy. Office Superintendent Gr. L.II were also revised. Promotion to the grade of UDC on notional basis was revised on 25.9.2003 and that to the grade of Dy. Office Superintendent Gr.L.II was revised by another order dated 25.9.2003. Further, in view of all these revisions in fixing his seniority and allowing him his notional promotion going back as early as 1986, the Respondent No.1 also took a decision to allow arrears for the retrospective promotion orders and issued an order dated 28.9.20904 (Annexure-A/1). However, as the arrears were not being actually paid, the applicant kept on submitting representations. He Submitted 11 representations and finally a legal notice on 3.10.1997 after which he again approached this Tribunal in OA No.04/2008. It was then brought to the notice of the Tribunal that even though Respondent No.1 had issued orders allowing payment of arrears in respect of notional promotions, the bill for arrears of pay was returned by the Pay & Accounts Office for obtaining Ministry's approval. Accordingly, this Tribunal directed the respondents to consider the representations, obtain the approval of the Ministry and take a decision within two months from the date of order, i.e., 13.6.2008.

3. Now, once again the applicant has approached this Tribunal with the present OA because of the inability of Respondent No.1 to draw and pay the arrears of pay. He has quoted letter F.No.A-26017/89/2008 Ad.IIA dated 18.11.2008 from whom the matter was referred and who have opined that since the applicant has only been given notional promotion and has not actually performed the duties of the senior post from time to time, therefore, no arrears of pay can be given.

4. Heard Shri R. Hari, lerned counsel for the applicant and Shri G. Mallikarjunappa, learned Addl.Central Govt. Standing Counsel for the respondents.

5. The learned counsel for the applicant pointed out that it was basically the error, lapse and negligence on the part of the respondents in not applying their mind and promoting the junior without considering the seniority of the applicant. The normal rule of no work, no pay as has been laid down by the Hon'ble Supreme
Court in other cases does not apply here. Because, here the eligible and willing person has been kept away from working against the promotional post by the mistake of the establishment and for no fault or lapse on his part.

6. It is the contention of the learned counsel for the applicant that since the respondents have prevented the applicant from discharging his duties on the promotional post by not giving him promotion which is no fault of him, therefore, the respondents cannot now take the advantage of their own error by not paying him the arrears.

7. The learned counsel for the respondents mainly relied on the principle of "No Work No Pay." The learned counsel has pointed out the judgment of the Hon'ble Supreme Court in Paluru Ramkrishnaiah and further in the case of TESA (India) vs. UOI (1994 (4) SLR 15) the Hon'ble Apex Court have denied arrears for the period of notional promotion.

8. However, the learned counsel for the applicant has quoted the latest judgement of the Hon'ble Supreme Court in Panender Mukhopadhyay & Ors. Vs. V.K. Kapoor & Ors. 2008 AIR SCW 481 allowing arrears of pay and allowances on notional promotion and this Supreme Court order supersedes the previous orders of the Supreme Court. He has also quoted order passed by this Tribunal in OA No.20/2009 in which it has been held that arrears from the date of notional promotion have to be paid in a case where the facts show that the applicant was improperly denied promotion along with his juniors and was kept away from work. The OA has discussed at length various cases coming up before the Apex Court and has come to the following conclusion:-
"(a) No absolute proposition of law can be laid down regarding applicability of the normal rule of 'no work no pay'. Mechanical application of the said rule made in a particular case can be found to be wholly unjust. The decision regarding payment of pay and allowances from the date of notional promotion to the date of actual promotion has to be taken in the facts and circumstances of each case.

(b) While the Apex Court in P.S. Mahal held that arrears of pay and allowances have to be paid in case of promotion from a back dte on revision of seniority, the Apex Court has not allowed back wages where (i) either there was a contested question of seniority whether on account of state reorganization or otherwise or (ii) where a large number of similarly situated employees were involved or (iii) where rota and quota rule had broken down. Back wages have also not been granted when promotions were granted in exercise of powers under equitable jurisdiction."

9. In view of the above, this Tribunal is of the opinion that the applicant is entitled to arrears from the date of his notional promotion. The respondents are directed to pay the same to him along with interest at 8% per annum on such arrears. The entire amount should be paid within three months from the date of receipt of the order. In case the amount is not paid the arrears and the interest so computed shall carry interest at the rate of 9% beyond this period till the date of actual payment.

10. This Tribunal also takes note of the fact that even though a similar order has been earlier passed in OA No.20/2009, against the same department, the respondents have not considered it to apply their mind to the present case and have continued with their orders dated 18.11.2008 and 8.12.2008. Hence, this Tribunal would like to keep on record and direct that the respondents No.1 to 3 should take a review of similar cases pending with them and take proper decision at their level so that more applicants are not required to come before this Tribunal from time to time.



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