Union of India and others v. M.K. Gopinathan (O.P.(CAT) No.12 of 2016)

O.P.(CAT) No.12 of 2016 :- 1 :- ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` TUESDAY, THE 7[TH] DAY OF FEBRUARY 2023 / 18TH MAGHA, 1944 ``` ``` OP (CAT) NO. 12 OF 2016 ``` ``` AGAINST THE ORDER IN OA 958/2013 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ``` ## **`PETITIONERS:`** ``` 1UNION OF INDIA,REP BY THE SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI 110001. 2THE CHAIRMAN,CENTRAL BOARD OF EXCISE & CUSTOMS, NORTH BLOCK, NEW DELHI 110001 3CHIEF COMMISSIONER OF CENTRAL EXCISE CUSTOMS CENTRAL REVENUE BUILDINGS, I S PRESS ROAD, COCHIN 682018 4COMMISSIONER OF CENTRAL EXCISE,CENTRAL REVENUE BUILDINGS, I S PRESS ROAD, COCHIN 682018 5PAY ACCOUNTS OFFICER,CENTRAL REVENUE BUILDINGS, I S PRESS ROAD, COCHIN 682018 BY ADVS. ASSISTANT SOLICITOR GENERAL SRI.T.V.VINU, CGC ``` ## **`RESPONDENT:`** ``` M.K.GOPINATHAN ADDITIONAL COMMISSIONER OF CENTRAL EXCISE & CUSTOMS (RETD)IB ABAD OLYMPUS , EDAPPALLY, COCHIN 682024 BY ADVS. SMT.CHANDINI G.NAIR SRI.C.S.GOPALAKRISHNAN NAIR ``` ``` THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 07.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` O.P.(CAT) No.12 of 2016 :- 2 :- ## O.P.(CAT) No.12 of 2016 ## _S.V.BHATTI, J._ The respondents in O.A.No.958 of 2013 before the Central Administrative Tribunal, Ernakulam are the petitioners. The Original Petition arises from the order dated 22.7.2015 of the Tribunal. For convenience and continuity, we refer to the parties as described before the Tribunal. 2. On 25.5.1973, the applicant was appointed as Inspector of Central Excise. The narrative can be continued from an event happening in the year 1985 when the respondents did not consider the applicant for promotion as Superintendent. The applicant, complaining the denial of promotion due to the applicant in the year 1985 filed O.A.No.408 of 2011. On 10.10.2011, the Central Administrative Tribunal disposed of the application, and the operative portion reads as follows: O.P.(CAT) No.12 of 2016 :- 3 :- “In the factual situation, therefore, we direct the Chief Director of Central Excise and Customs to convene a review DPC for promotion to the post of Superintendent as against the vacancies for the year 1985 within a period of six weeks from today. If the applicant is found eligible for promotion, such consequential benefits shall be worked out notionally and inform the applicant within six weeks thereafter. The department implemented the direction of the Tribunal. On 2.12.2011, the applicant was promoted as Superintendent with effect from 2.8.1985 resulting in consideration and grant of promotions as Asst.Commissioner, Deputy Commissioner and Joint Commissioner. The details of the promotion are excerpted from Ext.A3 dated 28.12.2011. |**Sl.No.**|**Number and**<br>**Date of order**|**File Number**|**Category**<br>**of**<br>**promotion**|**Promotion**<br>**with**<br>**effect from the**<br>**date**| |---|---|---|---|---| |1|Order<br>No.134/2011<br>dtd 12/2011|C.No.II/3/30/20<br>11 Estt.|Notional Promotion<br>to<br>the<br>grade<br>of<br>Superintendent|2.8.1985| |2|Order<br>No.12/2012<br>dtd 20.01.2012|F.No.A-<br>32012/47/2011<br>AD-II|i)<br>Antedated<br>promotion<br>to<br>the<br>grade<br>of<br>Asst.Commissioner<br>notionally.<br>ii)<br>Notional<br>promotion<br>to<br>the<br>grade<br>of<br>Dy.Commissioner|i)19.10.1995<br>ii) 19.10.1999| |3|Order<br>No.31/2012<br>dtd.23.02.2012||Promotion to the<br>grade<br>of<br>Joint<br>Commissioner|23.07.2009| |4|28.02.2012|F.No.A-<br>32012/47/2011<br>Ad II|Antedated<br>Non-<br>Functional Selection<br>Grade (NFSG) on<br>adhoc basis|19.01.2010| ## 3. Through Ext.A3 dated 28.12.2011, the Addl. Commissioner communicated to the applicant that he is O.P.(CAT) No.12 of 2016 :- 4 :- eligible to draw the arrears of pay and allowances consequent on the fixation of pay scale w.e.f. 2.8.1985. The direction of Addl.Commissioner to the applicant to receive arrears was objected to by the Accounts Department resulting in a stalemate, particularly, for the promotion of Superintendent w.e.f. 2.8.1995 on the payment of arrears of pay and allowances to the petitioner. 4. The applicant moved the Tribunal in O.A.No.958 of 2014 for the following reliefs: (i) To declare that the applicant is entitled for the arrears of pay and allowances for the entire period of notional promotion as Superintendent, Assistant Commissioner, Deputy Commissioner, Joint Commissioner and Additional Commissioner. (ii) To direct the respondents to pay the arrears of pay and allowances for the entire period of notional promotion as Superintendent, Assistant Commissioner, Deputy Commissioner, Joint Commissioner and Additional Commissioner. (iii) To direct the respondents to refund the amount recovered already from the applicant within a time frame. (iv) To direct the respondents to pay interest at the rate of 12% per annum for the difference in the amount of arrears due including the amount already recovered from the applicant. O.P.(CAT) No.12 of 2016 :- 5 :- (v) Grant such other relief or reliefs that may be prayed for or that are found to be just and proper in the nature and circumstances of the case. (vi) Grant cost of this O.A. 5. Through the order impugned before us, the Tribunal substantially granted the reliefs as prayed for. Hence the Original Petition at the instance of Union of India and others. 6. Mr.T.V.Vinu, the learned Central Government counsel argues that the direction of the Tribunal to pay arrears of pay and allowances upon notional promotion and re-fixation of salary by the department is untenable in law and facts. He contends that the principle of ‘no work no pay’ is attracted to the notional promotion given to the applicant. Therefore, a direction to pay arrears of pay and allowances is illegal, at any rate unsustainable. With considerable force, it is argued that the Tribunal ought not to have entertained any prayer in O.A.No.958 of 2013, in as much as the consideration by the Tribunal in the O.P.(CAT) No.12 of 2016 :- 6 :- second round of litigation would either touch upon the relief already considered and granted in a limited way by the Tribunal in O.A.No.408 of 2011. The applicant, having maintained reticence on the alleged denial of promotion in the year 1985, moved the Tribunal in 2011. In retrospect, it could well be appreciated that the Tribunal while disposing of O.A.No.408 of 2011 was not inclined to or persuaded to grant consequential benefits including payment of arrears of pay and allowances to the applicant. Now directing the department/respondents in O.A. to pay arrears of pay and allowances would virtually amount to revising the order of the Tribunal in O.A.No.408 of 2011. The principle of ‘no work no pay’ comes as a second point for consideration in the sequence and the primary point is the applicant is not entitled in law to ask for ancillary and independent reliefs in O.A.No.958 of 2013 from the Tribunal. The counsel submits that whether the department is at fault or the applicant has O.P.(CAT) No.12 of 2016 :- 7 :- merely stood as an onlooker to the happenings for over 25 years is not a circumstance for consideration in the present round of litigation. The Tribunal committed a jurisdictional error by directing payment of arrears of pay and allowances to the applicant. He prays for setting aside the order impugned in this Court. 7. Mr.C.S.Gopalakrishnan Nair, learned counsel appearing for the applicant contends that the denial of promotion to the applicant as Superintendent in the year 1985 is a serious flaw and injustice committed by the department. The department accepted that a mistake has happened at their hands and for the said reason they complied with the directions issued in O.A.No.408 of 2011. The observation of the Tribunal that ‘consequential benefits shall be worked out notionally’ shall not be understood as denying discretion to the employer, i.e. department to grant arrears of pay and allowances. The Additional O.P.(CAT) No.12 of 2016 :- 8 :- Commissioner, Customs is the competent authority and through Ext.A3 dated 28.12.2011, the competent authority sanctioned arrears of pay and allowances. The Accounts Department/Officer is incompetent to sit in judgment on the decision taken by the competent authority. The audit objection or the communication between the department and the Central Government is not on point. He relies on the judgment reported in _M.K.Sucheendran v State of Kerala_ (2005(3) KLT 499) and contends that the applicant is entitled to arrears of pay and allowance from the respondents in the Original Application. He commends to us the consideration and findings recorded by the Tribunal and prays for dismissing the Original Petition. 8. We have taken note of the rival contentions and perused the record. At this stage of our consideration, we are of the view that we need not go into the reasons recorded by the Tribunal in the O.P.(CAT) No.12 of 2016 :- 9 :- impugned order for, admittedly, the impugned order has proceeded on inapplicability of the principle of ‘no work no pay’ to the case on hand and since the mistake is committed by the department, the department shall not also deny arrears of pay and allowances to the applicant. The challenge to the impugned order is that the Tribunal ought not to have expanded the relief contrary to the direction issued in O.A.No.408 of 2011. 9. Before taking up this aspect of the matter, let us refer to Sucheendran’s case relied on by Mr.Gopalakrishnan Nair. The said judgment at more than one place and in categorical terms has held that the payment of backwages etc. consequent to the promotion will depend upon facts of each case and retrospective promotion and appointment retrospectively for notional purposes are different. All would depend upon the facts of each case. The above being the gist of the Division Bench of this O.P.(CAT) No.12 of 2016 :- 10 :- Court, the narrative would be completed by actually excerpting the very paragraphs on which reliance is placed by the counsel for the applicant. Learned counsel for the petitioner relied on the decision of this court in State of Kerala v Bhaskaran Pillai (2003 (1) KLT 60) in which it was held that the decision in Philomina v. State of Kerala (1984 K.LT. 59) was not good law. We are of the opinion that whether one will get backwages consequent to promotion depends upon the facts of each case. It is true that normally when retrospective promotions are effected, all benefits flowing therefrom, Including monetary benefits, must be extended to an officer who has been illegally denied promotion earlier as held by the Supreme Court in State of Andhra Pradesh v. K.V.L. Narasimha Rao ((1999) SCC 181), Retrospective promotion and appointment retrospectively for notional purpose are different. In this connection, we also refer to the decision of the Apex Court In Union of India K.V.Jankiraman (AIR 1991 SC 2010). There are also various decisions of the Supreme Court where direction was only to give notional benefits without giving salary on the ground of "no work no pay" (See State of Haryana v, O.P.Gupta (1996) 7 SCC 533), Paluru Ramakrishnaiah v Union of India ((1989) 2 SCC 541), Virender kumar, G.M. N.Riys.v. Avinash Chandra Chadh ((1990) 3 SCC 472)). All depend upon the facts of each case. Here, the petitioner is not entitled to salary for the period of retrospective notional appointment on the ground of 'no work no pay’. Difference in salary for the retrospectively promoted post cannot be denied on the ground of "no work no pay" because there is no difference in work of Assistant Public Prosecutor Grade 11 and Assistant Public prosecutor Grade 1. The petitioner was doing the same work. There is no question of 'no work in the promoted post. The matter is covered by the service rules. Rule 23(c of Part 1 of the Kerala Service Rules reads as follows: O.P.(CAT) No.12 of 2016 :- 11 :- 23. (c) Promotions which do not involve a change of duties shall have effect from the date of the vacancy which occasions the promotion". Therefore, there is a clear provision In the service rules that promotions which do not involve a change of duties should be given effect from the date on which the vacancy arose. Here, there is no change of duties. It is only promotional aspect with a change of salary alone and for n fault of the petitioner, he was denied promotion at the particular date. Therefore, the petitioner will be entitled to the difference in salary in the promoted post for the period from 19.9.1989 to 11.7.1995 from which date he was retrospectively promoted. The arrears of the same should be paid to him within three months from the date of receipt of a copy of this judgment. The wit appeal is allowed to the above extent. 10. By referring to the ratio laid down in _M.K.Sucheendran’s_ case, we are convinced to hold that there is no abstract application on either entitlement or disentitlement to backwages/arrears on retrospective promotion given to a candidate. Payment of financial benefits on retrospective promotion would certainly depend upon the facts and circumstances of each case. Now let us turn to the circumstances leading to the present claim for sanction of arrears of pay and allowance. In 1985, the applicant was denied the promotion of O.P.(CAT) No.12 of 2016 :- 12 :- Superintendent. The record would disclose that subsequently, he was promoted but not with effect from 1985. The grievance of non-consideration for promotion in the year 1985 was challenged before the Tribunal in the year 2011. As suggestively pointed out by Adv.Vinu that the department was well within its competence to contest the belated application filed in 2011. However, for reasons unexplained by the record, such a plea was not taken. He extends the argument that it could be because of this reason the Tribunal, while directing the constitution of review DPC, limited the extent to which benefit would be granted to the applicant if finally promoted w.e.f. 2.8.1985. The consequential step upon being eligible for promotion is that notionally the applicant will be promoted, and the actual monetary benefit was denied. The applicant was satisfied with the direction and did not take up further remedies claiming financial benefits. O.P.(CAT) No.12 of 2016 :- 13 :- 11. In the background of binding orders, we are of the view that the decision taken by the Addl.Commissioner in Ext.A3 certainly is beyond the relief granted by the Tribunal in O.A.No.408 of 2011. This was rightly objected to by the Accounts and Audit. Let us consider the issue from yet another perspective i.e. from the perspective of the applicant viz. that the applicant was desirous of having not only the promotion and also the other attendant benefits including arrears of pay and allowance. That being the case, the applicant ought to have carried the order in O.A.No.408 of 2011 before this Court and the Supreme Court. The applicant, admittedly, did not pursue the matter beyond what has been granted by the Tribunal. In law, the consequential steps taken by the department are in implementation of the directives in O.A.No.408 of 2011. That being the case, the understanding to give more in the form of arrears of pay and allowance would certainly be illegal and O.P.(CAT) No.12 of 2016 :- 14 :- beyond the scope of directives issued in O.A.No.408 of 2011. Therefore, by referring to the above circumstances, we are of the view that the Tribunal ought not to have entertained the present application for consequential relief alone. Further, the applicant approached the Tribunal in a structured or truncated way. In other words, in O.A.No.408 of 2011 the prayer for consequential benefits was also made and it is not granted by the Tribunal in its order dated 10.10.2011. Then for the same relief another O.A. is not maintainable. For the above reasons we are of the considered view that there is jurisdictional error in entertaining the present application and directing the department to pay arrears of pay and allowances to the applicant is unsustainable. Therefore, the order under review is set aside. Original Petition is allowed. 12. After the judgment is dictated, the counsel said that the adjudication may be misunderstood by the department that further recovery proceedings can O.P.(CAT) No.12 of 2016 :- 15 :- be initiated against the applicant who retired in 2004. We make it clear that by virtue of the present adjudication, none of the issues on consequent promotion given to the applicant is revisited or steps for recovering any amount could be initiated by the respondents. With the above observations, the appeal is allowed. No order as to costs. **Sd/- S.V.BHATTI, JUDGE** **Sd/- BASANT BALAJI, JUDGE** css/ O.P.(CAT) No.12 of 2016 :- 16 :- ## **`APPENDIX OF OP (CAT) 12/2016`** ## `PETITIONER ANNEXURES` ``` ANNEXURE A1TRUE COPY OF ORDER DATED 10.10.2011 IN OA NO.408/2011 ANNEXURE A2TRUE COPY OF ORDER NO.134/2011 DATED 02.12.2011 ISSUED BY THE 4TH RESPONDENT. ANNEXURE A3TRUE COPY OF THE PAY FIXATION STATEMENT DATED 28.12.2011 ISSUED FROM FILE C.NO.11/24/A-8/2011 ACCTSL PB. ANNEXURE A4TRUE COPY OF MEMO C NO.11/3/30/2011-ESTT. DATED 30.01.2012. ANNEXURE A5TRUE COPY OF OFFICE ORDER NO.12/2012 DATED 20.01.2012 ANNEXURE A6TRUE COPY OF THE PAY FIXATION STATEMENT DATED 16.02.2012 ISSUED IN FILE C.NO.11/24/A-8/2011 ACCTS I PB. ANNEXURE A7TRUE COPY OF ORDER NO.31/2012 DATED 23.02.2012 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A8TRUE COPY OF THE NOTIFICATION DATED 28.2.2012 ISSUED FROM FILE A 32012/47/2011 AD.II BY THE 2ND RESPONDENT. ANNEXURE A9TRUE COPY OF THE PAY FIXATION STATEMENT ISSUED IN C.NO.11/24/A-8/2011 ACCT. I PB.DATED 29.02.2012 ISSUED BY THE ADDITIONAL COMMISSIONER IN 4 THE RESPONDENT'S OFFICE. ANNEXURE A10TRUE COPY OF THE REPRESENTATION DATED 13.07.2012 ANNEXURE A 11TRUE COPY OF THE LETTER C.NO.11/24/A- 4/2009 ACCTS.I PB DATED 3.8.2012. ANNEXURE A 12TRUE COPY OF THE REPRESENTATION DATED 12.08.2012. ANNEXURE A13TRUE COPY OF THE LETTER C.NO.II/24/A- 4/2009 ACCTS. I PB. DATED 27.08.2002 ISSUED BY THE 4TH RESPONDENT. ANNEXURE A 14TRUE COPY OF THE LETTER C.NO.II/39(R)/7/2010 CO.CX DATED 8.2.2011 ISSUED BY THE 4TH RESPONDENT. ANNEXURE A15TRUE COPY OF THE REPRESENTATION DATED 14.09.2012 ADDRESSED TO THE 4TH RESPONDENT. ANNEXURE A16TRUE COPY OF THE LETTER C.NO.11/24/A- 4/2009 ACCTS.I PB DATED 31.10.2012. ``` O.P.(CAT) No.12 of 2016 :- 17 :- ``` ANNEXURE A17TRUE COPY OF THE LETTER C.NO.1V/16/103/2012 RTI DATED 15.11.2012 ISSUED BY THE CPIO IN 4TH RESPONDENT OFFICE. ANNEXURE A18TRUE COPY OF THE LETTER C.NO.11/24/A- 4/2009 ACCTS.PB DATED 14.06.2012 ADDRESSED TO THE 5TH RESPONDENT BY THE DDO IN THE 4TH RESPONDENT'S OFFICE. ANNEXURE A 19TRUE COPY OF THE LETTER NO.PAO/CE/CHN/PRE- CHECK/2012-13 DATED 20.06.2012 ISSUED BY THE 5TH RESPONDENT ALONG WITH A COPY OF THE LETTER NO.CO.ORD/EXP/PAY-FIX/2012- 13/46 DATED 11.5.2012 OF THE 1ST RESPONDENT. ``` ``` ANNEXURE A20TRUE COPY OF THE LETTER DATED 19.10.2012 ADDRESSED TO THE CENTRAL PUBLIC INFORMATION OFFICER, CUSTOMS HOUSE, COCHIN. ANNEXURE A21TRUE COPY OF THE LETTER NO.S/44/37/08-ADM- CUS DATED 20.11.2011 ISSUED BY THE CPIO OF CUSTOMS HOUSE. ANNEXURE A22TRUE COPY OF THE PUBLIC NOTICE NO.1/2000 ON 10.05.00 ISSUED BY THE 4TH RESPONDENT. ANNEXURE A23TRUE COPY OF THE JUDGMENT IN WA 2905/02 DATED 31.05.2005. ANNEXURE A24TRUE COPY OF THE LETTER NO.11/24/A-4/2009 ACCTS.I PB DATED 13.12.2012. ANNEXURE A25TRUE COPY OF THE ORDER DATED 2.9.2008 OF THE PRINCIPAL BENCH IN OA NO.468/2008 ANNEXURE A26TRUE COPY OF THE JUDGMENT IN OP(CAT) NO.2617/13 DATED 31.07.2013. ``` ``` RESPONDENT ANNEXURES ANNEXURE R1TRUE COPY OF LETTER F.NO.C18011/03/2012- AD.II DATED 10.02.2012. ANNEXURE R2DOPTO.M.NO.5/II/2011-CS-I(U) DATED 27.2.2013. PETITIONER EXHIBITS EXHIBIT P1TRUE COPY OF THE OA NO 958/2013 ALONG WITH ITS ANNEXURES FILED BY THE RESPONDENT BEFORE THE CAT, ERNAKULAM BENCH EXHIBIT P2TRUE COPY OF THE REPLY STATEMENT DTD 31/12/2013 EXHIBIT P3TRUE COPY OF THE REJOINDER DTD 15/1/2014 EXHIBIT P4A TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DTD 1/4/2014 ``` O.P.(CAT) No.12 of 2016 :- 18 :- ``` EXHIBIT P5TRUE COPY OF THE ORDER IN OA NO 958/2013 DTD 22/7/2015 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH ```