The right to notional promotion and consequential service benefits, including promotion, after reinstatement.

JUDGMENT :

C.R. Dash, J. - The petitioner, a workman, who has retired from service on superannuation in the meantime, has preferred this writ application challenging inaction of the opposite party in not granting him his consequential service benefits, i.e. notional promotion after reinstatement in his previous job pursuant to the award passed by the learned P.O., Industrial Tribunal, Rourkela in I.D. Case No. 26/97(C) on 26.10.1999, which was confirmed by this Court in O.J.C. No. 4054 of 2001, vide order dated 19.02.2009. The petitioner was appointed as a Dumper Operator on 30/31.12.1983. He along with 18 others were promoted as Dumper Operator, Grade-D with effect from 01.11.1985. While matter stood thus, the petitioner was issued with a charge-sheet on the allegation that, on 05.05.1986 some tyres were stolen from the store of the company when the key of the store was with the petitioner workman. The petitioner workman pleaded that he was never handed over with the keys of the store during the relevant period and he never remained in-charge of the store at any point of time. It was further pleaded that the nature of duty as a Dumper Operator and the allegation regarding theft of tyres has no connection at all. On the basis of the charge-sheet, a Disciplinary Proceeding was initiated against the petitioner and F.I.R. was also lodged against him at the P.S. In the G.R. Case initiated on the basis of the F.I.R., the petitioner was acquitted. But in the Disciplinary Proceeding he was found guilty and he was dismissed from service. The petitioner moved for conciliation. The conciliation having failed, the matter was referred to the Industrial Tribunal. The Industrial Tribunal passed award for reinstatement of the petitioner with full back wages. The back wages, as calculated according to the rules was paid to the petitioner. By the time the petitioner was reinstated in his service in 2009 after dismissal of O.J.C. No. 4054 of 2001 preferred by the Management, his coworkers working with him in the same grade had already been promoted to Special Grade. Though the petitioner should have been promoted to such Grade on reinstatement notionally, no action was taken by the opposite party for giving promotional benefits to the petitioner on the basis of the award and the petitioner has preferred this writ petition for this limited benefit.

2. Counter affidavit has been filed by the opposite party. In the counter affidavit it is averred that the petitioner was paid back wages for the period from 07.01.1990 to 31.03.2009. The back wages, as calculated by the concerned project, came to Rs. 14,90,020.34 p. (fourteen lakhs ninety thousand twenty and paisa thirty-four only) and after necessary deductions in accordance with rules, full back wages have been paid to the petitioner. It is further averred that the petitioner having not worked as a Driver in Special Grade, he could not be treated as a Special Grade Driver/Operator after reinstatement till his retirement, as claimed by him. He can only be treated as Grade-D Operator, as he was at the time of his entry into service and at the time of his dismissal. The Pay Slip of his co-worker Naba Kumar Mohapatra, who is working in the Special Grade, has no relevance to the claim of the petitioner, as Sri Naba Kumar Mohapatra had got promotion on due consideration of his case. The petitioner is not entitled to the promotional benefit, as he has not worked during the period from his dismissal till his reinstatement.

3. On the basis of evidence on record, learned Industrial Tribunal in I.D. Case No. 26 of 1997(C) came to hold as under:

"Thus, I find that there is no evidence to believe that the 2nd party, who was Dumper Operator, was ever in charge of the store room. The Management has not explained as to how he could remove the tyres in spite of the presence of the security guards. F.I.R. was lodged after framing of the charge-sheet in the domestic enquiry and there was no mention of theft of tyres by t