Orissa High Court
Jogendra Biswal vs State Of Odisha & Others on 5 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.36029 of 2022
Jogendra Biswal .... Petitioner
Mr. D.R. Swain, Advocate
-versus-
State of Odisha & others .... Opposite Parties
Mr. N.K. Praharaj, A.G.A.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. 05.04.2023
01. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard Mr. D.R. Swain, learned counsel for the petitioner as well
as Mr. N.K. Praharaj, learned Addl. Government Advocate for the
State-Opposite Parties. Perused the writ application as well as the
documents annexed thereto.
3. The present writ application has been filed by the petitioner with
the following prayer:-
"It is therefore prayed that this Hon'ble Court may
graciously be pleased to
i) Admit the writ application,
ii) Call for LCR
iii) Issue a Rule NISI to the Opposite Parties to
file show cause as to why the impugned order
dt.14.10.22 shall not be quashed. If they fails
to show cause or file any insufficient cause
then this Hon'ble Court issue a writ in the
nature of certiorari quashing the impugned
orders under Annexures-5 & 6.
And this Hon'ble Court may issues any writ/
writs, order/ orders and direction/ directions
which may deem fit and proper in the ends of
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justice."
4. It is submitted by learned counsel for the Petitioner that the
Petitioner while initially appointing as a Constable, GRP, Cuttack on
18.08.1991. Thereafter while he was discharging his duties as such
he was entitled in a criminal case bearing G.R. Case No.1313 of 1996
for alleged commission offences under Sections-379, 341 & 34 of
IPC. On the basis of complaint lodged by a passenger. On the basis
of such allegation a Disciplinary Proceeding was also initiated
against the Petitioner. In the said Disciplinary Proceeding the
Petitioner a filed a show-cause. In the Disciplinary Proceeding a
major penalty was imposed on the Petitioner that is dismissal from
service. It is further submitted by learned counsel for the Petitioner
that the final order passed in the Disciplinary Proceeding was an ex-
parte order. Therefore, the petitioner approached the Tribunal by
filing O.A. No.916 of 2017 which was filed eventually transferred to
this Court as WPC(OAC) No.916 of 2017 a Coordinate Bench of this
Court vide order dated 08.07.2022 was inclined to set aside the
impugned the 16.09.2004 with a further direction to Opposite Party
No.4 to consider the prayer of the Petitioner for his reinstatement
taking into account the ratio decided by this Court as well as Hon'ble
Supreme Court in various judgments.
5. Learned counsel for the Petitioner further contended that after
dismissal of the aforesaid writ application the Petitioner approach the
authorities. The authorities have reinstated the Petitioner vide order
dated 14.10.2022 under Annexure-5. He further contended that
although the Petitioner was reinstated in service. However, the
authorities have not paid the back wages to the Petitioner which he is
entitled to in view of the judgments this Court as well as the Hon'ble
Supreme Court. Being aggrieved by such inaction of the opposite
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parties in granting back wages to the Petitioner, the Petitioner has
approached this Court by filing the representation of the Petitioner.
6. The learned Addl. Government Advocate for the State, on the
other hand submitted that pursuant to the order passed by this Court,
the authorities have considered the case of the Petitioner and
accordingly an order has been passed reinstating the Petitioner in
service. However, while passing such order the authorities have not
granted any back wages taking into consideration certain facts and
circumstances of the nature and grievance of the allegation.
Therefore, learned Addl. Government Advocate submitted that the
Petitioner is not entitled to any back wages as he has not worked for
the period which is claimed for back wages and applying the
principle of work 'No Work No Pay' the Petitioner is not lawfully
entitled to get the back wages. Accordingly, the learned Addl.
Government Advocate has prayed for dismissal of the writ
application.
7. Considering the submission made by learned counsels
appearing for the parties and upon a careful consideration of the
background facts of the present case this Court is of the considered
view that once the Authorities took a decision to reinstated the
Petitioner to consider the payment of the back wages. However, on a
careful scrutiny of the reinstatement order dated 14.10.2022 under
Annexure-5. It appears that the authorities have not considered the
aspect of the payment of back wages. In such view of the matter, this
Court deems it proper to dispose of the writ application by directing
the Petitioner to file a fresh representation with regard to payment of
back wages taking therein all the grounds available to him along with
all supporting documents within a period of three weeks from today.
In the event such representation is filed the authority shall do well to
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consider the same in accordance with law and by taking into the
grounds raised by the Petitioner as well as documents filed in support
of the claim and shall take a decision within a period of six weeks
from the date of communication of certified copy of this Order by the
Petitioner to Opposite Party No.4. The Opposite Party No.4 is
directed to take a decision by the judgments of this Court as well the
Hon'ble Apex court to be cited and relied by the Petitioner along
with the representation filed by the Petitioner.
8. With the aforesaid observations/ directions, the writ
application stands disposed of.
Issue urgent certified copy of this order as per Rules.
( A.K. Mohapatra )
Judge
Anil
