Orissa High Court
Gunabati Dei vs State Of Odisha & Others on 1 November, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.10193 of 2023
Gunabati Dei .... Petitioner
Mr. K.K. Swain, Advocate
-versus-
State of Odisha & Others
.... Opposite Parties
Mr. B.P. Tripathy, AGA
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
Order No. 01.11.2023
06. 1. This matter is taken up through Hybrid
Arrangement (Virtual/Physical) Mode.
2. Heard learned counsel appearing for the Parties.
3. Petitioner has filed the present Writ Petition inter
alia challenging the Office Order dtd.24.12.2018 so
passed by Opposite Party No.2 under Annexure-10.
4. Vide the said order, the prayer of the Petitioner to
get the benefit of regularization and release of salary for
the period from 01.03.2005 to 04.05.2009 has been
rejected.
4.1. It is contended that Petitioner while continuing as
an Asst. Teacher, she remained on leave for the period
from 21.08.2002 to 28.02.2005. After remaining on such
leave, Petitioner when submitted her joining on
01.03.2005 before the then D.I. of Schools, Jharsuguda,
but the same was never accepted and the Petitioner
accordingly moved the Tribunal in O.A No.2102 (C)/2008.
Pursuant to the order passed by the Tribunal on
// 2 //
29.01.2009 and consequential order passed by Opposite
Party No.2, Petitioner was allowed to join on 05.05.2009.
4.2. On such joining of the Petitioner on 05.05.2009
when the Petitioner was not released with the salary for
the period from 01.03.2005 to 04.05.2009, Petitioner
approached the Tribunal once again in O.A
No.4230(C)/2013. The Tribunal vide order
dtd.04.12.2017 under Annexure-9 while disposing the
matter passed the following order:-
"Heard Mr. K.K. Swain, learned counsel for the applicant
and Mrs. P. Priyambada, learned Standing Counsel, S & ME.
The grievance of the applicant is that she was on leave
on health ground from 21.08.2002 to 28.02.2005 and thereafter
had submitted her joining report on 1.3.2005 which was
accepted by the DI of Schools, Jharsuguda vide Annx.2, but
subsequently the B.D.O., Rengali vide Annx.4, dt.28.3.2005
relieved the applicant from her duties on the ground that no
clarification has been received from the Director, Elementary
Education, Orissa. Thereafter, she had moved the Tribunal in
O.A No.2102(C)/2008 and the Tribunal in its order
dtd.29.1.2009 (Annx.6) had sent the paper book to the Respd.
No.2 to pass appropriate order and accordingly the Dist.
Inspector of Schools, Jharsuguda on the instruction of the
Director had allowed her to join in a school on 5.5.2009 as at
Annx.7. In the meantime from the rejoinder it is revealed that
the relieve for the period 21.8.2002 to 28.2.2005 has already
been regularized but period from 1.3.2005 to 4.5.2009 has not
yet been regularized. In the counter, it is mentioned in para-9
that the said period from 1.3.2005 to 4.5.2009 will be
regularized and salary be paid after receipt of clarification and
allotment from the Director, Elementary Education, Orissa,
Bhubaneswar.
Hence, it is observed that for no fault of the applicant he
was not allowed to work from 28.3.2005 to 4.5.2009.
Accordingly, the O.A is disposed of directing Respd. No.2, to
take a decision regarding regularization of the period of service
of the applicant from 1.3.2005 to 4.5.2009 within a period of
two months from the date of receipt of a copy of this order and
convey the result thereof to the applicant soon thereafter".
4.3. It is contended that the Tribunal while disposing the
matter clearly held that Petitioner without any fault of her
// 3 //
own was not allowed to discharge her duty from
01.03.2005 to 04.05.2009. While holding so, the
Tribunal directed Opposite Party No.2 to take a decision
with regard to regularization of the period of service from
01.03.2005 to 04.05.2009. But Opposite Party No.2
without proper appreciation of the observation and
direction of the Tribunal so contained in order
dtd.04.12.2017, rejected the claim vide the impugned
order under Annexure-10.
4.4. It is also contended that since for no fault of the
Petitioner, she was not allowed to discharge her duty for
the period from 01.03.2005 to 04.05.2009, Petitioner is
not only entitled to get the benefit of regularization but
also she is entitled to get the benefit of salary as due and
admissible.
5. Mr. K.K. Swain, learned counsel for the Petitioner
taking into account the stand taken in the counter
affidavit contended that since the Petitioner for no fault of
her own was kept out of employment from 01.03.2005 to
04.05.2009, principle of "no work no pay" cannot be made
applicable.
In support of his aforesaid submission, Mr. Swain,
learned counsel for the Petitioner relied on the 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
// 4 //
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).
5.1. 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
// 5 //
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."
5.2. 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"
// 6 //
cannot be accepted as a rule of thumb. There are exceptions
where courts have granted monetary benefits also."
5.3. 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."
5.4. 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
// 7 //
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."
5.5. 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. B.P. Tripathy, learned Addl. Government
Advocate for the State on the other hand contended that
since Petitioner remained on leave on health ground from
21.08.2002 to 28.02.2005, the said period was
regularized by treating it as extra ordinary leave. But
// 8 //
since Petitioner after remaining on such leave for an
indefinite period submitted her joining on 01.03.2005, the
same was not accepted by the then D.I. of Schools,
Jharsuguda. Pursuant to the order passed by the
Tribunal in O.A No.2102(C)/2008 and subsequent order
passed by Opposite Party No.2, Petitioner was allowed to
join on 05.05.2009.
6.1. It is accordingly contended that Petitioner since has
not discharged her duty for the period from 01.03.2005 to
04.05.2009, she is not eligible to get the benefit of salary
and the said period can only be regularized on notional
basis.
7. Having heard learned counsel for the Parties and
after going through the materials available on record, this
Court finds that Petitioner after remaining on leave on
health ground from 21.08.2002 to 28.02.2005 submitted
her joining on 01.03.2005. The said joining of the
Petitioner when was not accepted she approached the
Tribunal in O.A. No.2102(C)/2008. Pursuant to the order
passed by the Tribunal on 29.01.2009 and subsequent
order passed by the Director-Opposite Party No.2,
Petitioner was allowed to join on 05.05.2009. After such
joining of the Petitioner when she was not released with
the salary for the period from 01.03.2005 to 04.05.2009,
Petitioner approached the Tribunal once again in O.A No.
4230(C)/2013. The Tribunal in its order dtd.04.12.2017
clearly held that for no fault of the Petitioner, she was not
allowed to join from 28.03.2005 to 04.05.2009. The order
// 9 //
passed by the Tribunal remained unchallenged by the
State.
7.1. Therefore, in view of the observation & direction of
the Tribunal as reflected in its order dtd.04.12.2017 and
placing reliance on the decisions as cited (supra), this
Court is of the view that the period from 01.03.2005 to
04.05.2009 is required to be regularized by Opposite
Party No.3 with extension of the financial benefits. This
Court directs Opposite Party No.3 to regularize the period
from 01.03.2005 to 04.05.2009 within a period of six (6)
weeks from the date of receipt of this order.
7.2. Since Petitioner for no fault of her own was not
allowed to discharge her duty, in view of the decision of
the Hon'ble Apex Court as cited (supra) and taking into
account the fact that the Petitioner has not discharged
her duty for the said period in question, this Court thinks
it fit and proper to allow the Petitioner to get the benefit of
salary as due and admissible @ 50% all through. This
Court accordingly directs Opposite Party No.3 to calculate
the entitlement of the Petitioner as directed hereinabove
and release the same within a further period of six (6)
weeks from the date of regularization of the period from
01.03.2005 to 04.05.2009.
8. Accordingly, the Writ Petition stands disposed of.
Signature Not Verified (Biraja Prasanna Satapathy)
Digitally Signed
Signed by: SUBRAT KUMAR BARIK
Subrat Judge
Designation: Personal Assistant
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 03-Nov-2023 11:51:07
