Orissa High Court
Smt. Banalata Mohanty & Others vs State Of Odisha & Others on 11 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CONTC No. 31 of 2011
Smt. Banalata Mohanty & Others .... Petitioners
Mr. Kalyan Patnaik, Advocate
-versus-
State of Odisha & Others .... Opp. Parties
Mr. S.N.Mohapatra, Advocate
for the S & ME Department
CORAM:
THE CHIEF JUSTICE
JUSTICE R.K.PATTANAIK
Order No. ORDER
11.05.2022
31. 1. The present contempt petition has been filed alleging non-
compliance by the Opposite Parties with the order dated 3rd
August, 2010 passed by this Court in W.P. (C) No.14371 of
2008.
2. The background to the present contempt petition is that the
Petitioner was appointed as a Teacher in the Khaira Girls
High School on 17th May, 1993. Following an enquiry against
her for unauthorized absence, her services were terminated.
Challenging the said termination Petitioner filed Appeal No.
46 of 1993 before the State Educational Tribunal (SET),
Bhubaneswar.
3. The above appeal was allowed by the SET on 16th
February, 1995 with a direction for reinstatement of the
Petitioner with continuity of service. However, it was directed
to pay allowances for the period of termination could be
kabita
// 2 //
allowed subject to the Petitioner filing a certificate. Further, it
was clarified that the Managing Committee (MC) of the
School could institute a fresh inquiry for alleged unauthorized
absence as per rules.
4. The MC then filed OJC No. 2045 of 1995 in this Court
challenging the above decision of the SET. In the same writ
petition M.C. No. 686 of 1999 was filed by the Petitioner in
which this Court passed an order stating that the MC was free
to adjust the Petitioner in any High School in Balasore Circle
without prejudice to the claims involved in the writ petition.
The OJC No. 2045 of 1995 was finally dismissed by this
Court on 22nd June, 2005 after noting that the MC of the
School had been superseded and the School had been taken
over by the Government. It was noted that since the MC of the
School was non-existent, it could not pursue the writ petition.
5. As directed by the SET, the Petitioner filed the No
Employment Certificate before the Director Secondary
Education on 18th July, 2005. Thereafter, since the SET's
directions were not implemented, the Petitioner once again
went before the SET with M.J.C. No. 11 of 2006 complaining
of non-compliance with its earlier order dated 16th February,
1995. On 1st October, 2007 the SET disposed of MJC No. 11
of 2006 noting that there was a controversy regarding
compliance of the order dated 13th July, 1999 of this Court,
despite the explanation offered by the Opposite Parties that
the Petitioner had been adjusted in the Parikhi Regional High
School and thereafter in another High School which ever had
taken over by the Government.
// 3 //
6. When the orders were still not implemented the Petitioner
again approached this Court in Writ Petition (Civil) No.
14371 of 2008 for a direction to the Opposite Parties to
implement the earlier orders of the SET within a time frame.
The said writ petition was disposed of by this Court on 3rd
August 2010, by an order the operative portion of which reads
thus:
"Now the order of the Tribunal dated
16.02.1995 has become final. Accordingly,
we direct the O.P.s to comply with the
order of the Tribunal dated 16.02.1995
passed in Appeal No. 46/1993 within a
period of three months from the date of
communication of this order. As the
petitioner has retired in the meantime, all
her retrial benefits shall be paid to her
within the said period. Personal appearance
of Dr. Biswal is dispensed with."
7.It is for the implementation of the above order, that the
present contempt petition has been filed.
8.On 10th June, 2011 in purported compliance of the orders of
this Court provisional pension was ordered to be paid to the
Petitioner who had by then superannuated. Thereafter 19th
October, 2011 an office order was issued by the School
Inspector, Balasore Circle stating inter alia that the services of
the Petitioner was regularized as under for the purposes of
finalizing her pension benefits:
"(a) Her date of appointment being
07.08.1970 the period of service from
07.08.1970 to 31.12.1977 as per entry in
the Photostat copy of the duplicate service
book made available by her as per direction
of Hon'ble High Court is hereby accepted
and declared qualifying service for all
purposes.
// 4 //
(b) Her period of service from 01.01.1981
to 31.01.1990 as inferred from copies of
acquittance rolls traced in piece meals from
Khaira Govt. High School after deputation
of special teams is hereby accepted as
qualifying service for all purposes.
(c) The period from 15.05.1993(date of
termination) to 31.12.1999(date of
reinstatement as per SET order dt.
16.02.1995 as upheld in order dt.
30.067.1999 in OJC No. 2045) is hereby
declared duty period with salary
entitlements and qualifying service for all
purposes.
(d) She is deemed to be retired on dt.
31.01.2003(AN) as a government servant
with pension benefits due from 01.02.2003.
(e) The break periods from 01.01.1978 to
31.12.1980, 01.02.1990 to 14.05.1993 and
from 01.01.2000 to 31.01.2003 are hereby
treated as no work no pay but the same are
condoned for counting of past stints of
service towards pensionary benefits.
(f) She shall have no credit of E.L. for post
retirement encashment.
A copy of this order shall be pasted in the
newly opened Service Book of Smt.
Mohanty."
9. This was enclosed along with an affidavit dated 9th
November, 2011 of the Inspector of School, Balasore Circle.
In the same affidavit, it was contended that for the purposes of
the final pension a letter had been sent to the Petitioner on 6th
August, 2011 to attend the office of the Inspector of School on
12th August, 2011 'to sign the first page of the Service Book
that was to be opened anew.' According to Inspector of
Schools, the Petitioner did not attend the office and one more
// 5 //
date was given to her. It is stated that the affidavit that 'she
has no service book and she is not prepared to signed the first
page of the newly built service book.' This is put forth as a
reason for not paying her the final pension.
10. Further in Para-9 of the said affidavit it is claimed that the
retirement gratuity and arrears of provisional pension has been
credited to her bank account and that therefore, all the claims
in terms the order dated 3rd August, 2010 stand fulfilled.
11. However, the Petitioner has filed an affidavit in response
to the said affidavit of the Inspector of Schools where she has
explained in great detail how the alleged break period
between 1st February, 1990 to 14th May 1993 and then again
from 1st January, 2000 to 31st January, 2003 ought not to be
treated as such.
12. As regards the period from 1st February, 1990 to 14th May
1993, it is rightly pointed out by the Petitioner that once by
the judgment dated 16th February, 1995 the SET set aside the
termination order and no fresh proceedings were initiated by
the MC, and further the said order of the SET was affirmed by
the Court by dismissal of OJC No.2045 of 1995 on 22nd June,
2005, the Petitioner could not have been deprived of the pay
and the increments for the above period. In other words, the
period from 1st February, 1990 to 14th May 1993 could not be
treated as 'the period of no work' and on that basis the
principles of 'no work no pay' applied, particularly without
conducting an enquiry.
13. Accepting the above contention of the Petitioner this
Court directs that the Opposite Parties will re-compute the
pension payable to the Petitioner by treating the
// 6 //
aforementioned period 1st February, 1990 to 14th May 1993 as
a period during which the Petitioner was on duty and not to
treat it as a 'no work and no pay' period.
14. Likewise for the period from in 1st January, 2000 to 31st
January, 2003 it was the fault of the Opposite Party that the
order of the SET which was affirmed by this Court was not
implemented. Even the order dated 30th July, 1999 asking the
Opposite Parties to adjust the Petitioner in any High School in
Balasore District was not complied with. The Petitioner was
compelled to go back to the SET and then again come back to
this Court for implementation of earlier orders. Therefore,
there is no justification for the Opposite Parties in treating the
period from 1st January, 2000 to 31st January, 2003 as a period
again of 'no work no pay'. Consequently, this Court directs
the Opposite Parties to treat the aforementioned period 1st
January, 2000 to 31st January, 2003 also as a period during
which the Petitioner was in service and re-compute her
pension accordingly.
15. The re-computed pension will be calculated in terms of
the above directions concerning both periods and an
appropriate order shall be issued by the Opposite Parties
within a period of eight weeks from today and in any event
not later than 15th July, 2022. By that date, the arrears of
recomputed pension shall be paid to the Petitioner.
16. It is stated by learned counsel for the Petitioner that the
Petitioner is now bed ridden and unable to move. A direction
is accordingly issued to the Opposite Parties to depute an
Authorized Officer to visit the Petitioner at her residence and
obtain her signatures on the new Service Book and not offer
// 7 //
any more excuses for not paying her final pension. All these
steps should be completed on or before 15th July, 2022.
17. A compliance affidavit in respect of each of the above
directions of this Court shall be filed by the Inspector of
School, Balasore, in this Court by the next date, failing which
he shall remain personally present before this Court.
18. List on 25th July, 2022.
19. A certified copy of this order shall be delivered forthwith
to the Inspector of School, Balasore through a Special
Messenger for compliance.
(Dr. S. Muralidhar)
Chief Justice
( R.K.Pattanaik)
Judge
