Suchismita Tripathy vs State Of Odisha & Ors
2023 Latest Caselaw 9178 Ori

               IN THE HIGH COURT OF ORISSA AT CUTTACK

                                  W.P.(C) No.41812 of 2021

      In the matter of an application under Articles 226 & 227 of the
  Constitution of India.

                                   ..................

          Suchismita Tripathy                        ....               Petitioner

                                                  -versus-

          State of Odisha & Ors.                     ....              Opposite Parties



          For Petitioner      :       Mr. S. Roy (Advocate)

          For Opp. Parties :          Mr. S. Mishra (Advocate)
                                      Opp. Party Nos. 2 & 3

PRESENT:

   THE HON'BLE JUSTICE BIRAJA PRASANNA SATAPATHY

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        Date of Hearing: 14.08.2023 and Date of Judgment: 14.08.2023
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   Biraja Prasanna Satapathy, J.

1. This matter is taken up through Hybrid Arrangement

(Virtual/Physical) Mode.

2. Heard Mr. S. Roy, learned counsel for the Petitioner and Mr. S.

Mishra, learned counsel appearing for the Opp. Party Nos. 2 & 3.

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3. Pursuant to the instruction sought for by this Court, Mr. S. Mishra,

learned counsel appearing for the Opp. Party Nos. 2 & 3 produced the

instruction so provided by the Registrar vide his letter dtd.11.08.2023.

The same be kept in record.

4. The present writ petition has been filed by the Petitioner inter alia with

the following prayer:-

"In the facts and circumstances stated above, it in humbly prayed that this Hon'ble Court may graciously be pleased to issue a Rule NISI in the nature of Writ of Mandamus and/or any appropriate Writ / Writs calling upon the Opp. Parties to show cause as to why the Order No. 19163, dtd.20.11.2021 under Annexure-14 so far it relates to the rejection of the prayer of the Petitioner for release of salary for the period from 04.11.2017 to 27.05.2019 is concerned, shall not be quashed by directing the Opp. Parties to pay the salary of the Petitioner for the period from 04.11.2017 to 27.05.2019 within a stipulated period;

And, if the Opp. Parties fail to show cause or show insufficient, false cause, make the said Rule absolute by directing the Opp. Parties to pay the salary of the Petitioner for the period from 04.11.2017 to 27.05.2019 within a stipulated period;

And, pass such other Order/Orders, as this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the present case;

And allow this Writ Petition with cost;

And, for this act of kindness, the Petitioner shall remain duty bound ever pray."

5. It is contended that on being duly selected the Petitioner was

appointed as an Associate Professor in the College and Research Projects

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under Opp. Party Nos. 2 & 3 vide Office order dtd.25.07.2012 under

Annexure-2. While continuing as such vide order dtd.05.07.2017 under

Annexure-5, Petitioner was put under transfer to Chipilima and in the

said order the name of the Petitioner finds place at Sl. No. 4. It is

contended that on receipt of the order of transfer so issued under

Annexure-5 Petitioner immediately moved the Opp. Party No. 2 on

06.07.2017 under Annexure-6 inter alia with a request to cancel/modify

the order of transfer and with a prayer to transfer him to the Department

of Agronomy in the College of Agriculture, Bhubaneswar.

5.1. In the meantime the Petitioner also approached this Court

challenging the order of transfer in W.P.(C) No. 13570 of 2017. This

Court vide order dtd.10.07.2017 disposed of the writ petition inter alia

with the following order:-

"The Petitioner has filed this writ petition seeking for a direction to the opposite parties No.1 & 2 to modify cancel the transfer order passed on 05 072017 as per the representation dated 06.07.2017, and to release her salary from the month of April, 2017 till date, as she has performed her duty in full months.

In course of hearing, learned counsel for the petitioner states that highlighting the grievance, the petitioner has made a representation before opposite party No.1 vide Annexure 6, but no decision has yet been taken.

Considering the limited grievance of the petitioner, without expressing any opinion on the merit of the case, this court disposes of the writ directing opposite party No.1 to take a decision on the representation filed by the petitioner

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vide Annexure-6 and pass appropriate order within a period of three months from the date of communication of this order.

Requisites for communication of this order to opposite party No.1 shall be filed within a week,"

5.2. However, on being communicated with the order so passed by this

Court and vide communication dtd.26.08.2017 under Annexure-8

Petitioner when was directed to join in her place of posting in terms of

order dtd.05.07.2017, Petitioner challenging the same once again

approached this Court in W.P.(C) No. 21109 of 2017. This Court while

issuing notice of the matter vide order dtd.25.10.2017 passed the

following interim order:-

"In the interim, it is directed that the operation of the office order dated 5.7.2017 as at Annexure - 5 so far as it relates to the petitioner and the letter dated 26.8.2017 at Annexure

- 9 shall remain stayed till the next date."

5.3. The Petitioner after receipt of the order so passed by this Court on

25.10.2017 submitted the same before Opp. Party No. 3 along with her

joining on 30.10.2017 under Annexure-10. In spite of the interim order

passed by this Court when the Petitioner was not allowed to discharge

her duty, she filed CONTC No. 1628 of 2017. This Court vide order

dtd.22.02.2019 disposed of the writ petition along with the contempt

petition by granting liberty to the Petitioner to file a fresh representation

before the Opp. Party Nos. 2 & 3 within two (2) weeks from the date of

order and for its consideration within a period of one month from the

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date of filing of such representation. Pursuant to the order passed by this

Court on 22.02.2019, Petitioner moved an application on 01.03.2019.

5.4. It is contended that in consideration of such representation submitted

by the Petitioner vide office order dtd.28.05.2019 under Annexure-11,

while modifying the order dtd.05.07.2017 the Petitioner was reposted

against the vacant post of Associate Professor in the Department of

Agronomy, College of Agriculture, OUAT, Bhubaneswar.

5.5. It is contended that subsequent to her joining in terms of order

dtd.28.05.2019, Petitioner made a grievance before Opp. Party No. 3 on

20.02.2020 inter alia with a prayer to release the salary for the period

from 05.07.2017 to 24.10.2017 and 25.10.2017 to 27.05.2019. However,

vide order dtd.14.10.2020 under Annexure-12 Opp. Party No. 3 in terms

of the order of Opp. Party No. 2 while treated the period from

06.07.2017 to 03.11.2017 as leave due, treated the period from

04.11.2017 to 25.07.2019 as "no work no pay".

5.6. It is contended that in terms of the interim order passed by this Court

on 25.10.2017 in W.P.(C) No. 21109 of 2017, the operation of office

order dtd.05.07.2017 so issued under Annexure-5 and communication

dtd.26.08.2017 so issued under Annexure-8 were stayed. Pursuant to the

interim order Petitioner submitted her joining on 30.10.2017. In view of

continuance of the interim order till 22.02.2019 and consequential

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reposting of the Petitioner vide order dtd.28.05.2019, Petitioner became

eligible and entitled to get the benefit of salary for the period from

04.11.2017 to 27.05.2019.

5.7. It is contended that on being aggrieved with the Office order

dtd.14.10.2020 so issued under Annexure-12, Petitioner moved the Opp.

Party No. 2 on 20.01.2021 under Annexure-13 inter alia with a prayer to

release the salary for the period from 04.11.2017 to 27.05.2019 by

modifying the office order dtd.14.10.2020. But it is contended that

without proper appreciation of the Petitioner's claim vis-a-vis the interim

order passed by this Court on 25.10.2017, Opp. Party No. 2 once again

rejected the claim by upholding the period of absence from 06.07.2017

to 03.11.2017 as leave due and the period from 04.11.2017 to 27.05.2019

as "no work no pay" vide the impugned order dt.20.11.2021 under

Anenxure-14.

5.8. It is contended that in terms of order dtd.05.07.2017, Petitioner was

never relieved from her duty and vide order dtd.25.10.2017, this Court

stayed the operation of order dtd.05.07.2017 as well as communication

dtd.16.08.2017. Taking into account the joining of the Petitioner so

submitted on 30.10.2017 under Annexure-10, Petitioner is eligible and

entitled to get the benefit of salary for the period from 04.11.2017 to

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27.05.2019 as pursuant to the order dtd.28.05.2019 under Annexure-11,

Petitioner rejoined in her post on the very same day.

5.9. Learned counsel for the Petitioner accordingly contended that since

the Petitioner on the face of the interim order passed by this Court

submitted her joining on 30.10.2017 under Annexure-10 and at no point

of time the Petitioner was relieved in terms of Office order

dtd.05.07.2017, it is to be held that the Petitioner in spite of her

willingness to discharge her duty was not allowed to discharge the same.

Accordingly, the principle of "no work no pay" cannot be made

applicable to the claim of the Petitioner.

5.10. In support of his aforesaid submission, Mr. Roy, learned counsel

for the Petitioner relied on a decision of the Hon'ble Apex Court

reported in the case of (i) Vasant Rao Roman Vs. Union of India

through the Central Railwa, Bombay & Ors. (1993 Supp (2) SCC 324),

(ii) State of Kerala & Ors. Vs. E.K. Bhaskaran Pillai ((2007) 6 SCC

524 (iii) Shiv Nandan Mahto ((2013)11 SCC 626) as well as the

decision in the case of Shobha Ram Raturi Vs. Haryana Vidyut

Prasaran Nigam Limited & Ors. ((2016) 16 SCC 663). Learned counsel

for the Petitioner also relied on an order passed by this Court in the case

of Muralidhar Pal Vs. State of Odisha & Ors. (W.P.C.(OA) Nos. 878 &

879 of 2015).

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5.11. Hon'ble Apex Court in Para 3 & 4 of the Judgment in the case of

Vasant Rao Roman has held as follows:-

"3. We have heard learned counsel for the parties and have also perused the order of the Tribunal. The Tribunal has denied the entitlement of emoluments and other benefits to the appellant on the basis of a memorandum of the Government of India, Ministry of Home Affairs in GI.MHA OM No. E. 7/28/63-Ests (A) issued on December 22, 1964. A perusal of the aforesaid memorandum as detailed in para 14 of the order of the Tribunal shows that it applied to the case of an officer who remained suspended and could not be promoted due to his suspension or in case of officers who could not get promotion due to departmental proceeding. The Tribunal placing reliance on the aforesaid memorandum has taken the view that on the analogy of the instructions mentioned in the aforesaid memorandum and on the principle of 'no-work no-pay on a particular post, the appellant was not entitled to any arrears of pay.

4. In our view, the Tribunal was wrong in applying the aforesaid memorandum in the case of the appellant before us. Admittedly, neither the appellant had been put under suspension nor any disciplinary proceedings were pending against him. On the contrary, he had been made to suffer on account of administrative reasons for which the appellant was not responsible. There was shortage of literate Shunters at Gwalior during 1960. The appellant being literate was deputed for table work and therefore for administrative reasons he could not complete requisite number of firing kilometers. Thus, with no fault on his part his juniors had been promoted as Shunters and Drivers and his claim was ignored on account of having not completed the requisite number of firing kilometers. The Tribunal itself has allowed the claim of the appellant regarding seniority over his juniors, considering force in the contention of the appellant. Thus, in the facts and circumstances of this case, we find no justification whatsoever for not allowing the arrears of emoluments to the appellant of the post of Shunter 'B' from June 12, 1961 and that of the post of Driver 'C' from December 17, 1965."

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5.12. Similarly, Hon'ble Apex Court in Para 4 of the Judgment in the

case of State of Kerala has held as follows:-

"4. Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15-6-1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah v. Union of India, Virender Kumar v. Avinash Chandra Chadha, State of Haryana v. O.P. Gupta, A.K. Soumini v. State Bank of Travancore and Union of India v. Tarsem Lals. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India v. K.V. Jankiraman, State of A.P. v. K.V.L. Narasimha Rao. Vasant Rao Roman v. Union of India and State of U.P. v. Vinod Kumar Srivastava. We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also."

// 10 //

5.13. Similarly, Hon'ble Apex Court in Para 8 & 9 of the Judgment in

the case of Shiv Nandan Mahto has held as follows:-

"8. Having heard the learned counsel for the parties, we are constrained to observe that the High Court failed to examine the matter in detail in declining the relief to the appellant. In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, obvious that the appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the appellant was entitled to be paid full back wages for the period he was kept out of service.

9. Consequently, the appeal is allowed. The order passed by the Division. Bench is quashed and set aside. The appellant has already been reinstated in service. The respondents are, however, directed to pay to the appellant the entire full back wages from the period he was kept out of service till reinstatement. The full back wages shall be paid to the appellant with 9% interest. Let the amount be paid to the appellant within a period of three months from the date of receipt of copy of this order."

5.14. Similarly, Hon'ble Apex Court in Para 3 of the Judgment in the

case of Shobha Ram Raturi has held as follows:-

"3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the impugned order of retirement dated 31-12-2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilized the services of the appellant for the period from 1-1-2003 to 31-12-2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1-1-2003 to 31- 12-2005, the respondent cannot be allowed to press the self- serving plea of denying him wages for the period in question, on the plea of the principle of "no work no pay."

// 11 //

5.15. Similarly, this Court in Para 6.3 of the order in the case of

Muralidhar Pal has held as follows:-

"6.3. Therefore it is the view of this Court that in view of the order passed by the Tribunal on 29.08.2001 under Annexure- 1, the petitioners became eligible and entitled to get the benefit of promotion to the rank of Under Secretary, Deputy Secretary and Joint Secretary from the date indicated in the orders under Annexure-4, 6 & 7. Since it is found that the petitioners were denied the benefit of promotion due to the inaction of the opp. Parties and in spite of the order passed by the Tribunal on 29.08.2001, this Court placing reliance on the decisions as cited supra by the learned Senior Counsel, held that the principle of "no work, no pay" cannot be made applicable to the case in hand. Since due to the admitted latches of the Opp. Parties, the petitioners were deprived to discharge the duties in the promotional post of under Secretary, Deputy Secretary and Joint Secretary from the date of their entitlement as indicated in Annexures-4,6 & 7, the Petitioners are eligible and entitled to get the financial benefit for the period in question. However, since the petitioners during pendency of the matter before this Court retired from Government Services on 31.10.2006 and 28.10.2006, respectively, this Court taking into account the nature of claim vis-a-vis the stand taken by the Opp. Parties, is of the view that the petitioners are entitled to get 50% of the financial benefit for the period of their entitlement indicated in the order under Annexures - 4, 6 & 7. This Court while holding so, directs the Opp. Parties o calculate the entitlements of the petitioners for the period in question and release 50% of the same within a period of three months from the date of receipt of this order. This Court further directs the Opp. Parties to revise the pension accordingly and release the arrear differential pension also within the aforesaid time period."

6. Mr. S. Mishra, learned counsel appearing for the Opp. Party Nos. 2 &

3 while supporting the impugned order when contended that the

Petitioner since has not discharged her duty for the period from

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04.11.2017 to 27.05.2019 and pursuant to order dtd.05.07.2017, she was

relieved, in view of the principle of "no work no pay", her claim has

been rightly rejected vide the impugned order under Annexure-14.

6.1. Since it was contended by the learned counsel for the Petitioner that

in terms of order dtd.05.07.2017, Petitioner was never relieved and

pursuant to the interim order passed by this Court on 25.10.2017

Petitioner submitted her joining on 30.10.2017 under Annexure-10, this

Court vide order dtd.09.08.2019 sought for instruction from the learned

counsel appearing for the Opp. Party Nos. 2 & 3 as to whether pursuant

to the order dtd.05.07.2017, Petitioner was relieved from her duty in

order to enable her to join in the place of transfer.

6.2. Mr. S. Mishra, learned counsel appearing for the Opp. Party Nos. 2

& 3 produced the instruction provided by the University vide letter

dtd.11.08.2023. Basing on the said instruction, learned counsel appearing

for the Opp. Party Nos. 2 & 3 contended that the Petitioner in terms of

order dtd.05.07.2017 was never relieved. However, since the Petitioner

was getting the salary from the fund provided by ICAR and the same

since was withdrawn w.e.f.01.04.2017, Petitioner is not eligible to get

the benefit of salary for the period in question. It is also contended that

the Petitioner in the meantime has been released with her salary for the

period from 05.07.2017 to 03.11.2017 and in view of the fact that

// 13 //

necessary funding has been stopped and Petitioner since has never

discharged her duty for the period from 04.11.2017 to 27.05.2019,

applying the principle of "no work no pay", the Petitioner is not eligible

and entitled to get the benefit of salary for the period in question. It is

accordingly contended that no illegality has been committed by Opp.

Party Nos. 2 & 3 in rejecting the claim of the Petitioner.

7. I have heard Mr. S. Roy, learned counsel for the Petitioner and Mr. S.

Mishra, learned counsel appearing for the Opp. Party Nos. 2 & 3 at

length. Having gone through the materials available on record, this Court

finds that Petitioner vide office order dtd.05.07.2017 under Annexure-5

though was put under transfer, but Petitioner was never relieved in terms

of the said order. The said fact was also admitted by the Opp. Party Nos.

2 & 3 while providing the instruction to this Court vide letter

dtd.11.08.2023.

7.1.Not only that since the Petitioner has been released with her salary as

contended by the learned counsel appearing for the Opp. Party Nos. 2 &

3 for the period from 05.07.2017 to 03.11.2017, in view of the interim

order passed by this Court on 25.10.2017 and the submission of the

joining report on 30.10.2017 under Annexure-10, principle of "no work

no pay" cannot be made applicable to the case of the Petitioner as the

// 14 //

Petitioner in spite of her willingness was not allowed to discharge her

duty.

Therefore, placing reliance on the decisions as cited (supra), this

Court is of the view that principle of no work no pay is not applicable

and Petitioner is eligible and entitled to get the salary for the period from

04.11.2017 to 27.05.2019. However, taking into account the peculiar

facts and circumstances of this case, this Court is inclined to direct the

Opp. Party Nos. 2 & 3 to pay 50% of the salary as due and admissible

for the period from 04.11.2017 to 25.07.2019 in favour of the Petitioner.

The amount in question as due and admissible shall be assessed and

released within a period of three (3) months from the date of receipt of

this order.

8. The writ petition is accordingly disposed of.

(Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 14th of August, 2023/Sneha

Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 25-Aug-2023 18:46:39