N.V. Raju v. State of Kerala and High Court of Kerala represented by Registrar (Subordinate Judiciary)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY ,THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940** ## **WP(C).No. 32770 of 2017** ## **PETITIONER/S:** **N.V.RAJU ADDITIONAL DISTRICT JUDGE-II, NORTH PARAVUR-678591.** **BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 HIGH COURT OF KERALA REPRESENTED BY THE REGISTRAR (SUBORDINATE JUDICIARY), ERNAKULAM, COCHIN-682031.** **BY ADVS.** **SRI.ELVIN PETER P.J.** ## **OTHER PRESENT:** ## **SUNILKUMAR KURIAKOSE GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 32770 of 2017** **2** ## **JUDGMENT** The petitioner, who is presently working as a District and Sessions Judge, has approached this Court seeking directions to the respondents to grant him all monetary benefits of the notional promotion granted to him with effect from 2.7.2015, ie., the date on which his juniors had been promoted. 2. Heard the learned counsel for the petitioner and the learned Government Pleader. 3. The petitioner submits that he was appointed as Munsiff Magistrate on 17.7.2000 and as Sub Judge/Chief Judicial Magistrate on 7.3.2012. It is stated that on 17.4.2015, the petitioner had been served with a memo of charges to which he had submitted his written statement of defence. By Ext.P1 order dated 13.7.2015, the petitioner had been informed that the Administrative Committee of this Court held on 8.7.2015, after perusing the written statement of defence filed by the delinquent officer, resolved to accept his contentions and to drop all **WP(C).No. 32770 of 2017** **3** further proceedings as against him. 4. It is stated that the petitioner, along with other officers, was being considered for appointment by transfer as District Judge. Though the proposal for appointment as District Judge in respect of all other persons included in the list had been favorably considered and Ext.P2 Government Order had been issued granting appointment to 16 persons included in the list, the petitioner's case was not considered for promotion on the ground that disciplinary proceedings were pending as against him. It is stated that after dropping the disciplinary action, the petitioner was also granted appointment by transfer as District Judge by Ext.P3 proceedings and Ext.P3(a) posting orders were also issued. The petitioner was granted proforma seniority with effect from 16.7.2015, that is the date on which his immediate junior took charge as District Judge, pursuant to appointment under Ext.P2. 5. The petitioner thereafter preferred a representation as evidenced by Ext.P4 dated **WP(C).No. 32770 of 2017 4** 20.6.2016, seeking the benefits, including arrears of salary in the cadre of District Judge with effect from 16.7.2015. By Ext.P5 proceedings, the request of the petitioner has been turned down. Ext.P5 memorandum only states that the High Court has considered the representation referred to in detail and resolved that the same is liable to be rejected. The learned counsel for the petitioner would submit that since all disciplinary proceedings initiated against the petitioner had been dropped by Ext.P1, the petitioner would be entitled to all benefits, as if promotion is retrospectively granted to him and that the principle of 'No work No pay' would not be applicable in the petitioner's case. 6. Relying on the decision of the Apex Court in _**Union of India v. K.V Jankiraman and Others (1991) SCC 109)**_ , it is contended that where the disciplinary proceedings which were pending against the employee ends in complete exoneration, the employee would be entitled to the benefit of salary of the higher post along with other benefits from the date on which he would normally have been promoted but for the ## **WP(C).No. 32770 of 2017** ## **5** disciplinary/criminal proceedings. It is further stated that it is only in cases where the proceedings, disciplinary or criminal, are delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is granting the benefit of doubt or on account of non availability of evidence due to the acts attributable to the employee that the concerned authorities would be vested with the power to decide whether the employee deserves any salary for the intervening period. It is contended that the Apex Court therefore held that the denial of monetary benefits on the principle of 'No work No pay' would not be applicable in a case where the promotion is held up due to pendency of disciplinary proceedings and such proceedings ultimately end in full exoneration of the employee. 7. The learned counsel also places reliance on the decision of the Apex Court in _**C.O Arumugam and**_ ## _**Others v. State of Tamil Nadu and Others (1991 Supp**_ _**(2) SCC 199)**_ where the Apex Court held that where the disciplinary proceedings or the criminal proceedings **WP(C).No. 32770 of 2017** **6** on account of which the employee had been declined promotion, end in complete exoneration, the employee should be considered for promotion and if found suitable, he would be entitled to promotion with retrospective effect from the date when his juniors were promoted with full consequential benefits. The learned counsel also relied on a decision of the Hon'ble Supreme Court in _**Smt. Sudha Shrivastava v.**_ ## _**Comptroller and Auditor General of India (1996 KHC**_ _**597**_ ), where the case of an employee who passed away, pending an appeal from a criminal conviction was considered and the Apex Court held, relying on _**K.V Jankiraman's case**_ held that where the exoneration is complete and the acquittal is an honourable acquittal, the employee would be entitled to all benefits. The decisions of the Apex Court in _**Sunaina Sharma and Others v. State of Jammu and**_ _**Kashmir and Others (2017 KHC 6738)**_ and _**Ramesh Kumar**_ _**v. Union of India and Others (2015 KHC 4545)**_ are also relied upon. A decision of a full bench of this Court in _**State of Kerala and Another v. N.G. Joseph (2014(4) KHC 841)**_ which is decided in terms of Rule ## **WP(C).No. 32770 of 2017** ## **7** 18(iii)(b) of the Kerala Civil Services (Classification, control and Appeal) Rules, 1960 is also relied on by the learned Senior Counsel appearing for the petitioner. 8. A statement has been placed on record by the 2[nd] respondent. It is stated therein that temporary promotions had been granted to 30 officers including the petitioner as Sub-Judge/CJM due to exigencies of services. The Administrative Committee meeting held on 4.2.2014 had resolved that the temporary promotions be regularized and the matter be placed before the Full Court. It is stated that in the meanwhile, senior most officers in the cadre of SubJudge/CJMs including the petitioner had been directed to forward judgments rendered by them for preparation of a panel of Sub-Judges/CJMs bar being considered for appointment as District Judges. It is stated that after evaluation of the judgments, a panel of 18 officers was prepared in which the petitioner was also included. The Administrative Committee held on 7.4.2015 resolved to place the matter before the Full Court meeting on 9.4.2015. It **WP(C).No. 32770 of 2017 8** is stated that on that day, the full Court resolved to regularize the temporary promotion granted to all officers except three, including the petitioner, and in the case of the petitioner, the resolution was that the matter of regularization be considered after the disciplinary proceedings against him are concluded. It is stated that the Administrative Committee meeting held on 8.7.2015 resolved to accept the written statement of defence filed by the petitioner and to drop all further proceedings against him. 9. Paragraph 5 and 6 of the statement reads as follows: “5. Thereafter, the Administrative Committee meeting held on 8.7.2015 resolved to accept the written statement of defence filed by the petitioner and to drop all further proceedings against him. Therefore, the Administrative Committee meeting held on 20.8.2015 resolved that the matter of regularization of the temporary promotion given to the officer on 7.3.2012, be placed before the Full Court. The Full Court Meeting held on 4.9.2015 resolved to regularize the temporary promotion of the petitioner as Sub-Judge/CJM with effect from 7.3.2012 and to declare satisfactory completion of his probation with effect from 7.3.2013. The matter of his promotion as **WP(C).No. 32770 of 2017** **9** District Judge was resolved to be placed before the next Full Court meeting along with appropriate reports as contemplated by the Rules. 6. The Full Court Meeting held on 21.11.2015 perused the report of the three Judges Committee evaluating the Annual Confidential Report of the Officer and approved the recommendation of the committee. Hence resolved to promote the petitioner as District Judge in the Kerala State Higher Judicial Service by giving him provisional seniority from the date of his immediate juniors were promoted without accrual of any financial benefit. Accordingly, the Government issued G.O(Ms) No.49/2016/Home dated 12.02.2016 appointing the petitioner to the post of District and Sessions Judge in the Kerala State Higher Judicial Service. The Administrative Committee meeting held on 22.2.2016, resolved to post him as an Additional District and Sessions Judge, Thiruvananthapuram and the petitioner took charge as such on 08.03.2016.” 10. It is further submitted that the petitioner submitted a representation seeking retrospective effect for the promotion with all service benefits including pay but the same was rejected by the Administrative Committee at its meeting held on 31.3.2017, in the light of the Full Court resolution dated 21.11.2015 and this was intimated to the petitioner. It is contended by the learned counsel for the 2[nd] respondent that the Full Bench decision **WP(C).No. 32770 of 2017 10** relied on by the learned Senior Counsel appearing for the petitioner would have no application in the instant case, since the said decision was rendered considering the specific provisions contained in Rule 18(iii)(b) of the the Kerala Civil Services (Classification, control and Appeal) Rules, which provides for grant of all consequential benefits in case of acquittal in criminal proceedings. 11. Relying on the decision of the Apex Court in ## _**Vishwanath Gupta v. State of Uttaranchal [(2007) 11**_ _**SCC 633),**_ the learned counsel would submit that in cases where notional promotions are granted and where the employee has not actually carried out the duties attached to the post, there would be no entitlement to any back wages or the salary in the higher post as a matter of right. 12. I have considered the contentions advanced on either side. It is not in dispute before me that the disciplinary proceedings initiated against the petitioner had been dropped after considering the explanation furnished by the petitioner. The **WP(C).No. 32770 of 2017** **11** decision to drop the disciplinary proceedings had been taken by the Administrate Committee as early as on 8.7.2015 and had been intimated to the petitioner immediately thereafter. In the meanwhile, the persons who had been considered for appointment as District Judges along with the petitioner had been granted the benefit of promotion by Ext.P2 proceedings. After the dropping of the disciplinary proceedings, the petitioner had also been given the benefit of promotion with effect from the date when his immediate junior had assumed charge as District Judge by Ext.P3 proceedings. However, Ext.P3 specifically provided for proforma seniority from 16.7.2015. But no monetary benefits were provided for. The petitioner assumed charge of the post in pursuance of Ext.P3 order. Thereafter, he submitted Ext.P4 representation pointing out that the delay in grant of promotion to him was only on account of the pendency of disciplinary proceedings, which had been decided to be dropped on 8.7.2015 and therefore contended that he would be entitled to retrospective promotion with effect from 16.7.2015 and to the **WP(C).No. 32770 of 2017 12** monetary benefits as well. The request of the petitioner has been turned down. 13. In the statement filed by the 2[nd] respondent, it is stated that the petitioner had not actually performed the duties of the post of District Judge during the period from 16.7.2015 till he assumed charge in pursuance of Ext.P3(a) dated 25.2.2016. Relying on the decision in _**Sasidhar**_ _**Reddy Sura v. State of Andhra Pradesh and Others**_ _**[(2014) 2 SCC 158]**_ , it is stated that the petitioner is not entitled to arrears of salary on the basis of the principle of 'No work No pay'. It is stated that the decision of the Full Bench in N.G.Joseph's case(Supra) is not applicable in view of the fact that the factual aspects were different in that case and the decision was rendered considering the specific provisions contained in Rule 18 of the Kerala Civil Services (Classification, Control and Appeal) Rules which provided for such benefits being granted on acquittal from criminal charges. **==> picture [412 x 10] intentionally omitted <==** **WP(C).No. 32770 of 2017** **13** advanced on either side, I am of the opinion that the issue raised by the petitioner with regard to the grant of the monetary benefits is liable to be considered by the 2[nd] respondent, taking note of the decisions relied on by the petitioner as well. The learned Senior Counsel appearing for the petitioner has placed reliance on several decisions, where the Apex Court has considered the question of grant of monetary benefits on exoneration of an employee from the disciplinary proceedings initiated against him. In the instant case, the memo of charges had been served on the petitioner on 9.4.2015. The Administrative Committee considered the petitioner's reply as against the memo and decided to drop the proceedings against the petitioner on 8.7.2015. It is stated that the petitioner has now been granted proforma promotion with effect from 16.7.2015. The instant case is one, where the proceedings initiated against the petitioner has been dropped and no penalty of any nature has been inflicted as against him. In the above view of the matter, I am of the opinion that the issue requires reconsideration at **WP(C).No. 32770 of 2017** **14** the hands of the 2[nd] respondent. The writ petition is therefore ordered directing the 2[nd] respondent to take up the request made by the petitioner and to reconsider the same, in accordance with law, taking note of the decisions relied on by the learned Senior Counsel appearing for the petitioner also and to pass orders on the same without delay. ## **Sd/-** **ANU SIVARAMAN** sab **JUDGE** **WP(C).No. 32770 of 2017** **15** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER NO.1-367530/2013/1-1 DATED 13-07-2015 BY THE 2ND RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE GOVERNMENT ORDER GO(MS)NO.136/2015/HOME DATED 02-07-2015.** **EXHIBIT P2(A) TRUE COPY OF THE PROCEEDINGS VIDE ORDER NO.B1-7938/2013(2) DATED 13-7-2015 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF THE GOVERNMENT ORDER GO(MS)NO.49/2016/HOME DATED 12-02-2016.** **EXHIBIT P3(A) TRUE COPY OF THE PROCEEDINGS VIDE ORDER NO.B1-7938/2013 DATED 25-2-2016 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 2006-2016 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXHIBIT P5 TRUE COPY OF THE OFFICIAL MEMORANDUM B1(A)-7938/2013 DATED 20-04-2017 OF THIS HON'BLE COURT.**