Orissa High Court
Niranjan Panda vs State Of Odisha & Ors on 30 October, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.23572 of 2022
Niranjan Panda .... Petitioner
Mr. A.K. Pandey, Advocate
-versus-
State of Odisha & Ors. .... Opposite Parties
Mr. B. Panigrahi, ASC
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
30.10.2023
Order No
06. 1. This matter is taken up through Hybrid Arrangement
(Virtual/Physical) Mode.
2. Heard Mr. A.K. Pandey, learned counsel for the Petitioner and
Mr. B. Panigrahi, learned Addl. Standing Counsel appearing for the
Opp. Parties.
3. The Petitioner has filed the present writ petition challenging the
order dtd.26.08.2022 so passed by the Opp. Party No. 2 under
Annexure-7.
4. It is contended that the Petitioner was initially appointed as a Jr.
Clerk-cum-Typist under the provisions of Rehabilitation Assistance
Scheme vide order dtd.08.06.1999. Pursuant to the said order and
while continuing as such, Petitioner was illegally retrenched from
his services vide order dtd.31.03.2001, so issued by the Opp. Party
No. 3 under Annexure-1. Petitioner was so retrenched on the
ground that Petitioner since was continuing under the N.F.E.
Scheme, due to abolition of the scheme w.e.f.01.04.2001, the
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services of the Petitioner is no more required because of non-
availability of the post of Jr. Clerk.
4.1. Learned counsel for the Petitioner vehemently contended that
Petitioner at no point of time was engaged under the N.F.E. scheme
and the said fact is also apparent on the face of the order issued on
08.06.1999. It is further contended that the authorities subsequently
when found that the Petitioner has been illegally retrenched, he was
suo moto reinstated in his service vide order dtd.28.07.2003 under
Annexure-2. It is contended that since for the fault of the Opp.
Party No. 3, Petitioner was retrenched from his service
w.e.f.01.04.2001 and subsequently reinstated vide order
dtd.28.07.2003, the period from 01.04.2001 to 28.07.2003 is
required to be regularized with all service and financial benefits. It
is further contended that claiming such benefits, the Petitioner had
earlier approached this Court in W.P.(C) No. 3039 of 2022. This
Court vide order dtd.09.02.2022 when directed the Opp. Party No. 2
to consider the Petitioner's claim, the same was rejected vide the
impugned order dtd.26.08.2022 under Annexure-7.
4.2. It is contended that since the Petitioner was illegally terminated
from his service, though at no point of time he was engaged under
the N.F.E. scheme and because of such illegal order of termination
he was kept out of employment for the period in question, he is
eligible and entitled to get the benefit of regularization of the said
period with all service and financial benefits. Accordingly, it is
contended that the impugned order passed by the Opp. Party No. 2
under Annexure-7 is not sustainable in the eye of law.
5. Mr. Panigrahi, learned Addl. Standing Counsel on the other hand
made his submission basing on the stand taken in the counter
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affidavit so filed by Opp. Party No. 3. It is the sole contention of the
Opp. Party No. 3 that since the Petitioner never discharged his work
for the period from 01.04.2001 to 28.07.2003, applying the
principle of "no work no pay", Petitioner is not eligible to get the
benefit of regularization of his service.
6. Mr. Pandey, learned counsel for the Petitioner taking into
account the stand taken in the counter affidavit contended that since
the Petitioner for no fault of his own was kept out of employment
from 01.04.2001 to 28.07.2003, principle of "no work no pay"
cannot be made applicable. In support of his aforesaid submission,
Mr. Pandey, 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 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).
6.1. Hon'ble Apex Court in Para 3 & 4 of the Judgment in the case
of Vasant Rao Roman has held as follows:-
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"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."
6.2. 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
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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."
6.3. 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
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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."
6.4. 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 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."
6.5. 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-
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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."
7. Having heard learned counsel appearing for the Parties and
considering the materials available on record, this Court finds that
the Petitioner w as appointed under the provisions of Rehabilitation
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Assistance Scheme as a Junior Clerk -cum-Typist vide office order
dtd.08.06.1999 of Opp. Party No. 3 so issued vide Annexure-A/3 to
the counter. From the said order it is found that the Petitioner was
never appointed under the N.F.E. Scheme. Since the Petitioner was
never appointed under the provisions of N.F.E. Scheme, the ground
on which he was terminated from his services vide order
dtd.31.03.2001 is found to be illegal. However, considering the fact
that the Petitioner was suo moto reinstated in his service by the self
same Opp. Party No. 3 vide order dtd.28.07.2003 under Annexure-
2, it is the view of this Court that the period in question is required
to be regularized and principle of "no work no pay" as contended
by the Opp. Party No. 3 cannot be made applicable. Accordingly,
this Court directs Opp. Party No. 3 to regularize the said period
within a period of six (6) weeks from the date of receipt of this
order.
7.1. However, placing reliance on decisions as cited supra and
considering the fact that the Petitioner has not discharged his duty
for the period in question and Petitioner is raising the claim with
much delay, this Court directs that for the period from 01.04.2001
to 28.07.2003 the Petitioner will be eligible to get financial benefit
to the tune of 50% as due and admissible. This Court directs Opp.
Party No. 3 to release the amount in question after due computation
within a further period of 6 (six) weeks from the date of
regularization.
8. The writ petition is disposed of accordingly.
Signature Not Verified (Biraja Prasanna Satapathy)
Digitally Signed
Signed by: SNEHANJALI PARIDA Judge
Designation: Sr. Stenographer
Reason: Authentication Sneha
Location: High Court of Orissa, Cuttack
Date: 01-Nov-2023 18:44:10
