1. State of Odisha
Represented through
Commissioner-cum-Secretary to Government
School and Mass Education Department, Odisha
Lok Seva Bhawan, Bhubaneswar, District: Khordha.
2. Director of Secondary Education, Odisha
At: Heads of Department Building
P.O.: Bhubaneswar, District: Khordha.
3. Inspector of Schools, Jajpur Circle
At/P.O./District: Jajpur.
4. Inspector of Schools, Bhadrak Circle
At/P.O./District: Bhadrak ... Appellants
(Opposite parties in
the writ petition)
Assailed in the writ appeal filed at the instance of the
functionaries of the Government of Odisha in School and
Mass Education Department is the Judgment dated
23.08.2024 rendered by a learned Single Judge of this
Court in W.P.(C) No.20442 of 2012, craving for the
following relief(s):
Rs.4,900/- with usual allowances as sanctioned by
Government from time to time with effect from the date
he would actually join. However, due to public protest at
Binjharpur, the Principal of said Madrasa did not allow
him to join, though the respondent reported his joining
in the Inspectorate of Schools on 07.11.2000 (as
acknowledged by the Inspector of Schools, Jajpur Circle
in Letter No.13421, dated 23.11.2000).
2.3. The respondent then approached this Court by way of
filing writ application, being OJC No.5908 of 2001,
which being disposed of vide Order dated 20.07.2001, a
Letter bearing Memo No.2523, dated 12.04.2002 has
come to be issued by the Inspector of Schools, Jajpur
Circle, Jajpur, stating that:
2.4. A Letter No.6228, dated 22.08.2002 of Inspector of
Schools, Jajpur Circle, Jajpur addressed to the Director,
Secondary Education, Odisha, Bhubaneswar (Annexure-
10 to the writ petition) reveals the following facts:
2.5. Even so, though nothing materialised in favour of the
respondent, ultimately pursuant to intervention of this
Court in yet another case, being W.P.(C) No.11827 of
2003 [Sk. Julfukar Ali Vrs. Md. Motiullah], disposed of
vide Order dated 29.09.2010 with a direction to
implement the decision, the respondent was adjusted
against a vacant post of HSC CT (Urdu) in Madrasa
Gousia Roufia, Dhamnagar (Aided) in the District of
Bhadrak, as directed by Order vide Directorate Letter
No.28104, dated 04.06.2010. An Office Order
No.57045/2C-VI-74-10, dated 27.11.2010, has been
issued from the Directorate of Secondary Education,
Odisha, Bhubaneswar, directing adjustment of
respondent as "Assistant Teacher" in said Madrasa
Gousia Roufia at Dhamnagar under Bhadrak Circle,
Bhadrak against existing vacancy. Said Office Order,
however, instructed for consideration of arrears for
intervening period from 01.04.1993 till the date of
joining in the new place of posting at a later date.
2.6. The respondent joined as Assistant Teacher at Madrasa
Gousia Roufia, Dhamnagar and made representation for
fixation of pay attached to the Trained Matric CT post,
which being not taken care of, a writ application, being
W.P.(C) No.22619 of 2011, was filed. This Court vide
Order dated 03.11.2011 disposed of said writ application
with the following observation and direction:
2.7. In pursuance thereto, Order No.40504/2C-192-2012-VI,
dated 28.09.2012 was issued from the Directorate of
Secondary Education, Odisha, which reads thus:
The Hon‟ble High Court in their order dated
15.05.2004 passed in Misc. Case No.11573 of 2003
arising out of W.P.(C) No.11827 of 2003 directed the
Inspector of Schools, Jajpur not to take action
against the Managing Committee and did not allow
the petitioner in the said Madrasa and further
directed the Inspector of Schools, Jajpur to take
steps for suitable adjustment of petitioner
elsewhere.
4. The Hon‟ble High Court in their Order No.8, dated
29.09.2010 in W.P.(C) No.11827 of 2003 directed to
this Director of Secondary Education, Odisha to take
steps for implementation of his own decision in term
of Directorate Letter No.22104, dated 04.06.2010.
5. Pursuant to this Directorate Order No.57045, dated
27.11.2010 the petitioner was adjusted as Assistant
Teacher (C.T. Urdu) in Madrasa Gousia Roufia,
Dhamnagar in the District of Bhadrak against the
existing vacancy with an instruction that the
intervening period from 01.04.1993 to the date of
joining in new place of posting shall be decided later
on its own merit. Accordingly the petitioner
submitted the joining report on 22.12.2010 in the
said school pursuant to Order No.8890, dated
22.12.2010 of the District Education Officer,
Bhadrak.
6. That despite of aforesaid phenomenon the petitioner
has not performed his duties physically for the
period from 01.04.1993 to 21.12.2010 for which he
is not entitled to receive any arrear salary of the
said period on the Principle of "No Work, No Pay".
In view of the aforesaid facts the prayer of the petitioner
is considered and rejected being devoid of merit."
2.8. Against such decision of the Director of Secondary
Education, the petitioner came up before this Court in
W.P.(C) No.20442 of 2012, wherein a counter affidavit
"*** the present deponent has taken all steps within his
jurisdiction and competence to redress the grievance of
the present petitioner and due to non-availability of LPC
from the previous station salary at exact and appropriate
rate cannot be paid to him and as regards his claims for
arrear salary the same is to be answered by the Inspector
of Schools, Jajpur or the Director, Secondary Education,
Odisha, Bhubaneswar."
2.9. The District Education Officer, Jajpur Circle, Jajpur
asserted by way of counter affidavit that,
"9. That it is respectfully submitted that the petitioner
has not discharged duty from 01.04.1993 to
21.12.2010 in any institution for which he is not
entitled grant-in-aid for the above period.
10. That it is respectfully submitted that the petitioner
has been paid his GIA up to 31.08.1991. The Last
Pay Certificate has been transmitted to the District
Education Officer, Bhadrak for further necessary
action at his end."
2.10. The Director of Secondary Education, Odisha through
the Deputy Director having filed counter affidavit in the
aforesaid writ petition, sought to justify the Order dated
28.09.2012.
2.11. By Judgment dated 23.08.2024 said writ petition came
to be disposed of, whereby the learned Single Judge
considering the issue as to whether denial of arrear
salary for the circumstances demonstrated above that
prevented the respondent to discharge duty in the
Madrasa from 01.04.1993 to 21.12.2010 by the Director
of Secondary Education, Odisha on the principle of "No
Work, No Pay" is legal, held as follows:
2.12. Dissatisfied thereby, the appellants filed the present writ
appeal with the ground that there is no occasion for
grant of arrear salary for the period from 01.04.1993 to
21.12.2010 during which the respondent has not
actually worked as a Trained Urdu Teacher.
3.2. As conceded by the learned counsels for both the sides,
this Court took up the matter for final hearing at the
stage of admission as short point whether the principle
"No Work, No Pay" would attract on the facts and in the
circumstances of the instant case is involved.
3.3. Accordingly this Court heard the arguments advanced
by Sri Saswat Das, learned Additional Government
Advocate representing the appellants and Sri Biren
Sankar Tripathy, Advocate appearing for the respondent
with respect to merit of the matter vis-à-vis grounds of
appeal.
3.4. Upon conclusion of hearing, the matter was directed to
be placed for "Orders" on 14.07.2025 vide Order dated
09.07.2025 and the matter is directed to be listed for
delivery of judgment on 15.07.2025. Accordingly, the
judgment is pronounced today.
Contentions and submissions of rival parties:
4. Sri Saswat Das, learned Additional Government
Advocate submitted that the details of facts and the
conclusion as stated in the Order dated 28.09.2012 of
the Director of Secondary Education, Odisha being lucid,
reasoned and reasonable to deny arrear salary for the
period from 01.04.1993 to 21.12.2010, the writ Court
should not have upturned the decision of the authority
concerned, though it is well settled that it is the domain
under Article 226/227 of the Constitution of India to
appraise decision making process, but not the decision
itself.
4.1. Expanding his argument further, he canvassed that the
ratio of decision in Union of India Vrs. K.V. Jankiraman,
(1991) 4 SCC 109 contemplates different situation in the
context of Rule 17(1) of the Fundamental Rules. Valiant
attempt is made by the learned Additional Government
Advocate to make out a case that when the rules are
silent to comprehend allowance of arrear salary for non-
functioning of employee actually, and in the fact-
situation of the present case, it is the respondent who
kept himself out of the service, but not the authority
concerned, the learned Single Judge has misdirected
himself by acceding to the prayers made in the writ
petition by the respondent.
4.2. He vehemently objected to the view expressed by the
learned Single Judge by contending that the respondent
having physically/actually not performed as Teacher/
Moulvi, and thereby did not discharge duties during the
relevant period, sustaining the decision rendered in the
writ petition would be against the well-accepted norm
set forth by the Hon'ble Supreme Court of India in
service jurisprudence, i.e., "No Work, No Pay".
5. Per contra, opposing with vehemence, Sri Biren Sankar
Tripathy, learned counsel would submit that only to
thwart payment of arrear salary for the period during
which the respondent was not allowed to work despite
his willingness and in fact, joining report was submitted
to the concerned Inspector of Schools/District Education
Officer, the appellants have preferred the present writ
appeal.
5.1. He strenuously argued that the learned Single Judge is
justified in appreciating the factual details which
prevented the respondent from discharging his duty in
spite of the fact that his joining report(s) was
acknowledged by the Inspector of Schools/District
Education Officer. Non-discharge of duty as Teacher/
Moulvi could at no stretch of imagination be attributable
to the respondent on the afore-noted undisputed facts
and overwhelming documents which formed part of the
writ petition.
5.2. Taking this Court to various letters/communications
(inter-departmental) and the orders of this Court passed
in earlier round of litigations, Sri Biren Sankar Tripathy,
learned Advocate would contend that the learned Single
Judge has not committed any flaw in directing the
appellants to release arrear salary from 01.04.1993 to
21.12.2010 in favour of the respondent by fixing his pay
as a Training Urdu Teacher and he, therefore,
emphatically urged to dismiss the writ appeal.
DISCUSSIONS AND ANALYSIS:
6. This Court at the outset examines the contention of the
respondent that the grounds taken at paragraph 10 of
the writ appeal for inviting indulgence in the matter are
ingenious design to avoid payment of arrear salary and
allowances so that the appellants would overstep
compliance of direction contained in the impugned
Judgment of the learned Single Judge.
6.1. This Court takes up for consideration each ground of
attack against the Judgment dated 23.08.2024 in
seriatim:
i. Grounds-A and E are hazy, evasive and are general
in nature without eliciting specific substance.
ii. Ground-B alleges non-adherence to the principles
of natural justice for the learned Single Judge did
not afford opportunity to file counter-affidavit.
Perusal of record of writ petition would reveal:
a. Counter affidavit dated 04.12.2019 sworn to
by the Deputy Director working in the Office
of the Directorate of Secondary Education,
Odisha, Bhubaneswar on behalf of the
opposite party No.2 (Director of Secondary
Education) was filed on 05.12.2019.
b. The District Education Officer, Bhadrak
(opposite party No.3) filed sworn counter
affidavit dated 25.02.2014.
c. The District Education Officer, Jajpur
(opposite party No.4) filed sworn counter
affidavit dated 07.03.2015. Additional
affidavits dated 21.06.2016 and 30.09.2019
sworn to by said District Education Officer
were filed on 23.06.2016 and 01.10.2019
respectively.
d. Perusal of orders of proceedings, it transpires
that the writ Court issued notice on
10.12.2012 calling upon the opposite
parties/appellants herein to file response.
Furthermore, on very many occasions the
matter before the writ Court stood adjourned
for filing counter affidavit on the prayer of the
counsel for the appellants.
e. Therefore, this Court finds such a ground
agitated by the appellants is frivolous and
vexatious being not borne on record.
iii. Ground-C reads thus:
"For that the Hon‟ble Single Judge has been pleased
to direct the State Authorities to re-consider the
application of the Respondent without quashing or
interfering with the impugned order No.40504,
dated 19.08.2012 as at Annexure- (also under
Annexure-8 of the Writ Petition), whereby the
claim of the Petitioner was considered under the
available provisions of law i.e. and has been rightly
& justly considered."
Verification of record shows that impugned Order
No.40504, in the writ petition is dated 28.12.2012,
but not "19.08.2012" and said order is available at
Annexure-16, but not at Annexure-8. It is apparent
having a glance at Annexure-8 enclosed to the writ
petition that said document is a communication
between the Inspector of Schools, Jajpur Circle,
Jajpur and the Director of Secondary Education,
Odisha, Bhubaneswar. It is manifest from bare
perusal of paragraph 14 of impugned Judgment
dated 23.08.2024 that the learned Single Judge
has observed,
"For the foregoing reasons therefore, the writ
application is allowed. The impugned Order dated
28.09.2012 is hereby quashed."
It seems, therefore, that such a ground is taken
mere for the sake of challenging without any
substance borne on record. Such a false ground
taken by the functionaries of the Government is not
appreciated; rather this Court deprecates such plea
being taken.
iv. So far as Ground-D is concerned, the same is
relating to applicability of principle of "No Work, No
Pay" on the facts and in the circumstances of the
instant case, which is discussed herein below.
7. The pleadings, grounds of appeal, documents enclosed
to writ petition and arguments of counsel for the
respective parties take this Court to consider whether
the respondent could be in any way responsible for his
non-performance in duties.
7.1. The documents available on record evince that despite
the Orders of Director, Secondary Education vide Letter
dated 27.05.1998 upon the respondent having
completed Certificate in Teaching Course to accept him
as Matric CT (Urdu) Teacher in Government Junior and
Senior Madrasa, Binjharpur, due to apathy of the
Managing Committee, he was not allowed to join.
Further, the Office Order No.12109, dated 03.11.2000 of
the Inspector of Schools, Jajpur Circle clearly spelt out
that the respondent was posted against vacant post of
Matric CT in Government Junior and Senior Madrasa
with a scale of pay being sanctioned by Government
from time to time. The Inspector of Schools in his Letter
dated 23.11.2000 addressed to the Director of Secondary
Schools acknowledged the factum of the Principal of said
Madrasa having not allowed him to join; but said Letter
also contained the fact that "Md. Motiullah is attending
this office from 07.11.2000 praying for his further
instruction regarding his appointment elsewhere". It
emanates from the record that by virtue of orders of this
Court in writ petitions the respondent was required to be
posted against a vacancy. The Secretary of Madrasa
Islamia of Sukinda was also requested by Letter dated
16.02.2004 issued by the Inspector of Schools, Jajpur
Circle to see that the respondent is allowed to work in
the Institution. By way of Letter dated 04.06.2010
issued by the Deputy Director (H&S) addressed to the
Joint Secretary to Government in Department of School
and Mass Education, Odisha it is impressed upon that
the respondent was adjusted against vacant post in
Madrasa Gousia Roufia at Dhamnagar in the district of
Bhadrak.
7.2. The above narration of events clearly leads to indicate
that it is the action of the appellants which did not allow
the respondent from discharging his duties; rather the
joining of the respondent in his office was accepted by
the Inspector of Schools. Therefore, it can be gainsaid as
contended by the appellants that non-discharge of
duties is attributable to the respondent.
8. From the impugned Judgment it is elicited that no fault
can be attributed to the respondent as he was prevented
from performing duties though he was ready and willing
to do so at all times. Such glaring finding as returned
would carve out exception for application of the norm of
"No Work, No Pay".
8.1. The learned Single Judge has relied on the following
dicta of the Hon'ble Supreme Court of India laid down in
the case of Union of India Vrs. K.V. Jankiraman, (1991) 4
SCC 109:
"We are not much impressed by the contentions advanced
on behalf of the authorities. The normal rule of „no work
no pay‟ is not applicable to cases such as the present
one where the employee although he is willing to
work is kept away from work by the authorities for
no fault of his. This is not a case where the
employee remains away from work for his own
reasons, although the work is offered to him. It is for
this reason that F.R. 17(1) will also be inapplicable to
such cases."
8.2. With respect to entitlement to back wages upon
reinstatement in service on account of order of
conviction being set aside, the following observations
made by the Hon'ble Supreme Court in Maharashtra
State Road Transport Corporation Vrs. Mahadeo Krishna
Naik, (2025) 3 SCR 100 may have significance to
consider the issue at hand:
"43. We cannot but endorse our wholehearted
concurrence with the views expressed in the
aforesaid decisions. Taking a cue therefrom, it can
safely be concluded that ordering back wages to be
paid to a dismissed employee-- upon his dismissal
being set aside by a court of law-- is not an
automatic relief; grant of full or partial back wages
has to be preceded by a minor fact-finding exercise
by the industrial adjudicator/court seized of the
proceedings. Such exercise would require the
relevant industrial court or the jurisdictional High
Court or even this Court to ascertain whether in the
interregnum, that is, between the dates of
termination and proposed reinstatement, the
employee has been gainfully employed. If the
employee admits of any gainful employment and
gives particulars of the employment together with
details of the emoluments received, or, if the
employee asserts by pleading that he was not
gainfully employed but the employer pleads and
proves otherwise to the satisfaction of the court, the
quantum of back wages that ought to be awarded on
reinstatement is really in the realm of discretion of
the court. Such discretion would generally
necessitate bearing in mind two circumstances:
the first is, the employee, because of the order
terminating his service, could not work for
a certain period under the employer and
secondly, for his bare survival, he might not have
had any option but to take up alternative
employment.
It is discernible from certain precedents, duly noticed
in Deepali Gundu Surwase Vrs. Kranti Junior
Adhyapak Mahavidyala, (2013) 9 SCR 1, that the
courts are loath to award back wages for the
period when no work has been performed by
such an employee. Such a view is no doubt
debatable, having regard to the ratio decidendi in
Hindustan Tin Works (P) Ltd. Vrs. Employees, (1979)
1 SCR 563, Surendra Kumar Verma Vrs. Central
Government Industrial Tribunal-cum-Labour Court,
(1981) 1 SCR 789 and Deepali Gundu Surwase
(supra). Though the latter decision was cited before
the coordinate bench when it decided Rajasthan
State Road Transport Corporation, Jaipur Vrs. Phool
Chand, (2018) 11 SCR 448, any thoughtful
discussion appears to be absent.
44. There is one other aspect that would fall for
consideration of the court. In certain decisions,
noticed in Deepali Gundu Surwase (supra), it has
been opined that whether or not an employee has
been gainfully employed is within his special
knowledge and having regard to Section 106 of the
Evidence Act, 1872, the burden of proof is on him.
What is required of an employee in such a case? He
has to plead in his statement of claim or any
subsequent pleading before the industrial
tribunal/labour court that he has not been gainfully
employed and that the award of reinstatement may
also grant him back wages. If the employee pleads
that he was not gainfully employed, he cannot
possibly prove such negative fact by adducing
positive evidence. In the absence of any contra-
material on record, his version has to be accepted.
Reference in this connection may be made to Section
17-B of the Industrial Disputes Act, 1947, which
confers a right on an employee to seek "full wages
last drawn" from the employer while the challenge of
the employer to an award directing reinstatement in
a higher court remains pending. There too, what is
required is a statement on affidavit regarding non-
employment and with such statement on record, the
ball is in the court of the employer to satisfy the
court why relief under such section ought not to be
granted by invoking the proviso to the section. We
see no reason why a similar approach may not be
adopted. After the employee pleads his non-
employment and if the employer asserts that the
employee was gainfully employed between the
dates of termination and proposed reinstatement,
the onus of proof would shift to the employer to
prove such assertion having regard to the cardinal
principle that „he who asserts must prove‟. Law,
though, seems to be well settled that if the
employer by reason of its illegal act deprives
any of its employees from discharging his work
and the termination is ultimately held to be
bad in law, such employee has a legitimate
and valid claim to be restored with all that he
would have received but for being illegally kept
away from work. This is based on the principle
that although the employee was willing to
perform work, it was the employer who did not
accept work from him and, therefore, if the
employer‟s action is held to be illegal and bad,
such employer cannot escape from suffering
the consequences. However, it is elementary but
requires to be restated that while grant of full
back wages is the normal rule, an exceptional
case with sufficient proof has to be set up by
the employer to escape the burden of bearing
back wages.
45. We hasten to add that the Courts may be confronted
with cases where grant of lumpsum compensation,
instead of reinstatement with back wages, could be
the more appropriate remedy. The courts may, in
such cases, providing justification for its approach
direct such lumpsum compensation to be paid
keeping in mind the interest of the employee as well
as the employer."
8.3. The propositions as laid down in Deepali Gundu Surwase
Vrs. Kranti Junior Adhyapak Mahavidyala, (2013) 9 SCR
1 are reproduced hereunder for benefit:
"33. The propositions which can be culled out from the
aforementioned judgments are:
i) In cases of wrongful termination of service,
reinstatement with continuity of service and back
wages is the normal rule.
ii) The aforesaid rule is subject to the rider that while
deciding the issue of back wages, the adjudicating
authority or the Court may take into consideration
the length of service of the employee/workman, the
nature of misconduct, if any, found proved against
the employee/workman, the financial condition of
the employer and similar other factors.
iii) Ordinarily, an employee or workman whose services
are terminated and who is desirous of getting back
wages is required to either plead or at least make a
statement before the adjudicating authority or the
Court of first instance that he/she was not gainfully
employed or was employed on lesser wages. If the
employer wants to avoid payment of full back
wages, then it has to plead and also lead cogent
evidence to prove that the employee/workman was
gainfully employed and was getting wages equal to
the wages he/she was drawing prior to the
termination of service. This is so because it is settled
law that the burden of proof of the existence of a
particular fact lies on the person who makes a
positive averments about its existence. It is always
easier to prove a positive fact than to prove a
negative fact. Therefore, once the employee shows
that he was not employed, the onus lies on the
employer to specifically plead and prove that the
employee was gainfully employed and was getting
the same or substantially similar emoluments.
iv) The cases in which the Labour Court/Industrial
Tribunal exercises power under Section 11-A of the
Industrial Disputes Act, 1947 and finds that even
though the enquiry held against the
employee/workman is consistent with the rules of
natural justice and / or certified standing orders, if
any, but holds that the punishment was
disproportionate to the misconduct found proved,
then it will have the discretion not to award full back
wages. However, if the Labour Court/Industrial
Tribunal finds that the employee or workman is not
at all guilty of any misconduct or that the employer
had foisted a false charge, then there will be ample
justification for award of full back wages.
v) The cases in which the competent Court or Tribunal
finds that the employer has acted in gross violation
of the statutory provisions and/or the principles of
natural justice or is guilty of victimizing the employee
or workman, then the concerned Court or Tribunal
will be fully justified in directing payment of full
back wages. In such cases, the superior Courts
should not exercise power under Article 226 or 136
of the Constitution and interfere with the award
passed by the Labour Court, etc., merely because
there is a possibility of forming a different opinion on
the entitlement of the employee/workman to get full
back wages or the employers obligation to pay the
same. The Courts must always be kept in view that
in the cases of wrongful / illegal termination of
service, the wrongdoer is the employer and sufferer
is the employee/workman and there is no
justification to give premium to the employer of his
wrongdoings by relieving him of the burden to pay to
the employee/workman his dues in the form of full
back wages.
vi) In a number of cases, the superior Courts have
interfered with the award of the primary
adjudicatory authority on the premise that
finalization of litigation has taken long time ignoring
that in majority of cases the parties are not
responsible for such delays. Lack of infrastructure
and manpower is the principal cause for delay in the
disposal of cases. For this the litigants cannot be
blamed or penalised. It would amount to grave
injustice to an employee or workman if he is denied
back wages simply because there is long lapse of
time between the termination of his service and
finality given to the order of reinstatement. The
Courts should bear in mind that in most of these
cases, the employer is in an advantageous position
vis-à-vis the employee or workman. He can avail the
services of best legal brain for prolonging the agony
of the sufferer, i.e., the employee or workman, who
can ill afford the luxury of spending money on a
lawyer with certain amount of fame. Therefore, in
such cases it would be prudent to adopt the course
suggested in Hindustan Tin Works Private Limited
Vrs. Employees of Hindustan Tin Works Private
Limited, (1979) 1 SCR 563 = (1979) 2 SCC 80.
vii) The observation made in J.K. Synthetics Ltd. Vrs.
K.P. Agrawal, (2007) 2 SCR 60 = (2007) 2 SCC 433
that on reinstatement the employee/workman
cannot claim continuity of service as of right is
contrary to the ratio of the judgments of three Judge
Benches referred to hereinabove and cannot be
treated as good law. This part of the judgment is
also against the very concept of reinstatement of an
employee/workman."
8.4. Though the exposition of law in Deepali Gundu Surwase
(supra) was with respect to award of back wages in the
event of reinstatement in service after setting aside of
order which led the employee to have been kept out of
service wrongfully with reference to the Industrial
Disputes Act, 1947, such proposition of law can be of aid
in deciding the present nature of case as guiding
principles.
8.5. It is the case of nobody in the instant matter that during
the period for which the respondent was prevented from
discharging duty, he was gainfully employed. Further,
there is nothing placed on record by the appellants to
show that due to laches of the respondent, he was not
allowed to work in the post of teacher. From the
communications and the cases pending before this
Court it is manifestly clear that the respondent has been
persistently pursuing his remedy. Thus, in the
considered opinion of this Court that the respondent is
entitled to the pay and allowances to which he would
have been entitled to had he been allowed to perform his
usual duty in the Madrasa. Since no plea is advanced by
the appellants that the respondent was in gainful
employment during the period of non-discharge of duties
till his joining in service at Dhamnagar in Bhadrak
District, the principle of "No Work, No Pay" does not
apply in the fact-situation of the present case.
8.6. Noteworthy to have reference to Punjab National Bank
Vrs. Virender Kumar Goel, reported in (2004) 2 SCC 193,
wherein it has been observed that,
"17. *** The applicants shall be reinstated into their posts
with continuity in service, back wages and all
consequential benefits as are entitled to them under
the law. They shall, however, refund the entire
amount deposited into their bank accounts with
interest accrued, if any, to the Bank. Full refund of
the amount by the applicants would be the condition
precedent for reinstatement. Mr Mukul Rohatgi,
learned Additional Solicitor General submits that
applying the principle of "no work no pay", back
wages should not be allowed to them on their
reinstatement. We are unable to accept this
contention. The applicants were out of their jobs
for no fault of theirs. Even otherwise, party in
breach of contract can hardly seek for any
equitable relief."
8.7. In a contempt matter relating to non-extension of other
consequential benefits on reassignment of seniority in
Commissioner, Karnataka Housing Board Vrs. C.
Muddaiah, (2007) 7 SCC 689 the perspective of principle
of "No Work, No Pay" has been discussed illuminatingly
in the following manner:
"34. We are conscious and mindful that even in
absence of statutory provision, normal rule is
"no work no pay". In appropriate cases,
however, a Court of law may, nay must, take
into account all the facts in their entirety and
pass an appropriate order in consonance with
law. The Court, in a given case, may hold that
the person was willing to work but was
illegally and unlawfully not allowed to do so.
The Court may in the circumstances, direct the
authority to grant him all benefits considering
"as if he had worked". It, therefore, cannot be
contended as an absolute proposition of law that no
direction of payment of consequential benefits can
be granted by a Court of law and if such directions
are issued by a Court, the authority can ignore them
even if they had been finally confirmed by the Apex
Court of the country (as has been done in the
present case). The bald contention of the appellant
Board, therefore, has no substance and must be
rejected."
8.8. In the case of Gowramma Vrs. Manager (Personeel),
Hindustan Aeronautical Ltd., (2022) 1 SCR 734 it has
been observed in the context where the employee was
completely blameless in the matter and if the employee
is not at all at fault and was kept out of work by reasons
of the decision taken by the employer with respect to
payment of back wages as follows:
"9. It is true that „no work, no pay‟ is a principle which
is apposite in circumstances where the employee
does not work but it is not an absolute principle,
which does not admit of exceptions. In this regard
we may notice that in one of the judgments relied
upon by the respondents, namely, State of Kerala
Vrs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524 which,
in fact, dealt with issue as to monetary benefits
when retrospective promotion is given, this Court
held:
„... 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. In the decision in P.V.K. Distillery Ltd. Vrs.
Mahendra Ram, (2009) 5 SCC 705 again relied upon
by respondent, the matter arose out of an award by
the Labour Court where exercise of power under
Section 11 of the Industrial Disputes Act was made.
This is also a case where incidentally the court
noted that the appellant-employer remained closed
for years together and it was declared as a sick unit.
In this regard, a fact which weighed with the court is
found reflected in following statement:
„18. Although direction to pay full back wages on a
declaration that the order of termination was
invalid used to be the usual result but now,
with the passage of time, a pragmatic view of
the matter is being taken by the Court realising
that an industry may not be compelled to pay
to the workman for the period during which he
apparently contributed little or nothing at all to
it and/or for a period that was spent
unproductively as a result whereof the
employer would be compelled to go back to a
situation which prevailed many years ago,
namely, when the workman was retrenched.‟
11. In regard to interference in such matters, i.e., cases
relating to back wages, we find similar approach
adopted in other decisions which no doubt the
respondent lays store by [see in this regard (2007) 5
SCC 742]. Though the decision reported in Canara
Bank Vrs. Damodar Govind Idoorkar, (2009) 4 SCC
323 again relied upon by the respondent did involve
the service of the employee being terminated as he
had secured employment in the reserved category
using a false caste certificate and the Court modified
direction of the High Court which ordered full back
wages by substituting the order by reducing it to
50%, we do not find that any principle has been laid
down which could be treated as constituting it as a
precedent. The decision in Deepali Gundu Surwase
Vrs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.)
and Others, (2013) 10 SCC 324 involved the High
Court setting aside the award of back wages on the
ground that the appellant had not proved the factum
of non-employment. The Court inter alia laid down
as follows:
„(vi) ***‟.
12. The most important question is whether the
employee is at fault in any manner. If the employee
is not at all at fault and she was kept out of work by
reasons of the decision taken by the employer, then
to deny the fruits of her being vindicated at the end
of the day would be unfair to the employee. In such
circumstances, no doubt, the question relating to
alternative employment that the employee may have
resorted to, becomes relevant. There is also the
aspect of discretion which is exercised by the
Court keeping in view the facts of each case. As
we have already noticed, this is a case where apart
from the charge of the employee having produced
false caste certificate, there is no other charge.
Therefore, we would think that interests of justice, in
the facts of this, would be subserved, if we enhance
the back wages from 50% to 75% of the full back
wages, which she was otherwise entitled. The
appeals are partly allowed. The impugned
judgments will stand modified and the respondents
shall calculate the amount which would be
equivalent to 75% of the back wages and disburse
the amount remaining to be paid under this
judgment within a period of six weeks from today to
the additional appellants."
8.9. In Shobha Ram Raturi Vrs. Haryana Vidyut Prasaran
Nigam Ltd., (2016) 16 SCC 663 the observation of the
Hon'ble Supreme Court of India runs as follows with
respect to finding fault with the employer:
"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 utilised the services
of the appellant for the period from
01.01.2003 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 01.01.2003 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‟."
8.10. Taking into account the view expressed in State of
Kerala Vrs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524 =
AIR 2007 SC 2645, in the case of Ramesh Kumar Vrs.
Union of India, AIR 2015 SC 2904, it has been observed
as follows:
"13. We are conscious that even in the absence of
statutory provision, normal rule is "no work no pay".
In appropriate cases, a court of law may take
into account all the facts in their entirety and
pass an appropriate order in consonance with law.
The principle of "no work no pay" would not be
attracted where the respondents were in fault
in not considering the case of the appellant for
promotion and not allowing the appellant to
work on a post of Naib Subedar carrying higher
pay scale. In the facts of the present case when the
appellant was granted promotion w.e.f. 01.01.2000
with the ante-dated seniority from 01.08.1997 and
maintaining his seniority alongwith his batchmates,
it would be unjust to deny him higher pay and
allowances in the promotional position of Naib
Subedar."
8.11. The Hon'ble Supreme Court of India in State of U.P. Vrs.
Charan Singh, (2015) 3 SCR 806 observed as follows:
"15. Therefore, in view of the above stated facts and also
on a perusal of the reasons given by the Industrial
Tribunal in its Award on the contentious point, the
contention urged on behalf of the appellant that the
termination of the services of the workman was done
in accordance with above mentioned Government
order cannot be accepted by us as the same is
erroneous in law. The fact that the persons junior to
him as well as his contemporaries are still working
for the appellant department, shows that the
termination of the services of the respondent has
been done in an unreasonable and unfair manner.
16. Now, coming to the question of the entitlement of
back wages to the respondent workman, the same is
answered in the positive, in view of the fact that the
workman had refused to accept the new job as
fisherman which was offered to him pursuant to the
Award passed by the Industrial Tribunal on the
ground that the said post is not equivalent to the
post of the Tube-well Operator. Even though the
appellant had agreed to comply with the terms of the
Award dated 24.02.1997 passed by the Industrial
Tribunal and had offered reinstatement to him, it is
well within the right of the workman to refuse the
new job offered to him and the same cannot be said
to be unjustified or erroneous on the part of the
respondent-workman.
***
20. Thus, in view of the cases referred to supra, there
was absolutely no justification on the part of the
Industrial Tribunal to deny back wages to the
respondent even when it is found that the order of
termination is void ab initio in law for non-
compliance of the mandatory provisions under
Section 6-N of the Act. Keeping in view the fact that
the period of termination was in the year 1975 and
the matter has been unnecessarily litigated by the
employer by contesting the matter before the
Industrial Tribunal as well as the High Court and
this Court for more than 40 years, and further, even
after the Award/order of reinstatement was passed
by the Industrial Tribunal directing the employer to
give him the post equivalent to the post of Tube-well
Operator, the same has been denied to him by
offering the said post which is not equivalent to the.
post of Tube-well Operator and thereby, attributing
the fault on the respondent for non-reporting to the
post offered to him, which is once again unjustified
on the part of the employer.
21. Thus, the principle „no work no pay‟ as
observed by this Court in the catena of cases
does not have any significance to the fact
situation of the present case as the
termination of the services of the workman
from the post of Tube-well Operator is
erroneous in law in the first place, as held by
us in view of the above stated reasons."
8.12. Conspectus of aforesaid decisions would leave no
manner of ambiguity that where the employee was
denied or the employer has conducted in such a manner
which rendered the employee unable to discharge his
duty for the fault lies with the employer, the rule of "No
Work, No Pay" may not attract and, as such the principle
"No Work, No Pay" cannot be accepted as a rule of
thumb. The imprimatur in aforesaid discussed cases
shed light to demonstrate that said proposition is
subject to variation "in appropriate cases", and
discretion has been left open to be exercised by the
Court of law which "may take into account all the facts
in their entirety".
8.13. On a cursory glance at the Order dated 28.09.2012 of
the Director of Secondary School, Odisha, along with
other material particulars available on record, it is
transpiring that the Authority has considered that the
respondent was not allowed to discharge his duty by the
Managing Committee/Principal, even though orders of
this Court is stated to have been complied with, but no
dispute is raised with respect to acceptance of joining
report before the Inspector of Schools/District Education
Officer. This Court perceives that no fault can be
attributable to the respondent, as such, there was no
justification for the Authority concerned to deny arrear
salary from 01.04.1993 to 21.12.2010, more so in
absence of any finding in such order that the respondent
was never ready and willing to perform duty. Such fact
returned by the learned Single Judge remained
unchallenged by the appellants in the writ appeal. This
Court does not find any perversity in the findings of the
learned Single Judge.
Scope of interference in the Judgment of learned Single
Judge in the writ appeal:
9. The learned Single Judge on factual analysis of the
matter and weighing scales of balance with respect to
evidence available on record came to conclusion that it is
a case of "sorry state of affairs" and observed that there
was no reason which leads to indicate that the
respondent was at fault in not discharging his duty;
rather the authorities did not take appropriate step to
see that the respondent could smoothly perform his duty
in the place of posting. It is trite that it is not justice that
is to be done, but it must manifestly and demonstrably
seem to have been done. Even after intervention of this
Court in earlier round of litigations, it took around 17
years for the appellants to allow the respondent to
perform his duty. Therefore, it is held that the norm "No
Work, No Pay" does not attract in the present case.
9.1. Under such premise, this Court in this intra-Court
appeal bears in mind the legal perspective as to scope of
interference discussed in State of Odisha & Others Vrs.
Shradhanjali Dash, Writ Appeal No.1204 of 2022 vide
Order dated 26.03.2025. It is observed in the said case
as follows:
"In the case of Management of Narendra & Company Pvt.
Ltd. Vrs. Workmen of Narendra & Company, reported in
(2016) 3 SCC 340, it has been observed as follows:
„5. *** Be that as it may, in an intra-Court appeal, on a
finding of fact, unless the Appellate Bench reaches a
conclusion that the finding of the Single Bench is
perverse, it shall not disturb the same. Merely
because another view or a better view is possible,
there should be no interference with or disturbance
of the order passed by the Single Judge, unless both
sides agree for a fairer approach on relief.‟
In the case of Wander Ltd. Vrs. Antox India (P) Ltd.,
reported in 1990 Supp. SCC 727, following observation
has been made:
„14. The appeals before the Division Bench were against
the exercise of discretion by the Single Judge. In
such appeals, the appellate court will not
interfere with the exercise of discretion of the
court of first instance and substitute its own
discretion except where the discretion has been
shown to have been exercised arbitrarily, or
capriciously or perversely or where the court
had ignored the settled principles of law
regulating grant or refusal of interlocutory
injunctions. An appeal against exercise of
discretion is said to be an appeal on principle.
Appellate Court will not reassess the material and
seek to reach a conclusion different from the one
reached by the Court below if the one reached by
that court was reasonably possible on the material.
The Appellate Court would normally not be justified
in interfering with the exercise of discretion under
appeal solely on the ground that if it had considered
the matter at the trial stage it would have come to a
contrary conclusion. If the discretion has been
exercised by the Trial Court reasonably and in a
judicial manner the fact that the Appellate Court
would have taken a different view may not justify
interference with the trial court‟s exercise of
discretion.‟
In the case of Anindita Mohanty Vrs. The Senior Regional
Manager, H.P. Co. Ltd., Bhubaneswar reported in 2020
(II) ILR-CUT 398, this Court had the occasion to examine
the scope of intra-Court appeal and observed as follows:
„11. *** Let us first examine the power of the Division
Bench while entertaining a Letters Patent appeal
against the judgment/order of the Single Judge. This
writ appeal has been nomenclatured as an
application under Article 4 of the Orissa High Court
Order, 1948 read with Clause 10 of the Letters
Patent Act, 1992. Letters Patent of the Patna High
Court has been made applicable to this Court by
virtue of Orissa High Court Order, 1948. Letters
Patent Appeal is an intra-Court appeal where under
the Letters Patent Bench, sitting as a Court of
Correction, corrects its own orders in exercise of the
same jurisdiction as vested in the Single Bench. (Ref:
(1996) 3 SCC 52: Baddula Lakshmaiah Vrs. Shri
Anjaneya Swami Temple). The Division Bench in
Letters Patent Appeal should not disturb the
finding of fact arrived at by the learned Single
Judge of the Court unless it is shown to be
based on no evidence, perverse, palpably
unreasonable or inconsistent with any
particular position in law. This scope of
interference is within a narrow compass.
Appellate jurisdiction under Letters Patent is
really a corrective jurisdiction and it is used
rarely only to correct errors, if any made.‟
In the case of B. Venkatamuni Vrs. C.J. Ayodhya Ram
Singh reported in (2006) 13 SCC 449, it is held that in an
intra-Court appeal, the Division Bench undoubtedly
may be entitled to reappraise both questions of fact
and law, but entertainment of a Letters Patent
Appeal is discretionary and normally the Division
Bench would not, unless there exist cogent reasons,
differ from a finding of fact arrived at by the Single
Judge. Even a Court of first appeal which is the final
Court of appeal on fact may have to exercise some
amount of restraint. Thus a writ appeal is an appeal on
principle where the legality and validity of the judgment
and/or order of the Single Judge is tested and it can be
set aside only when there is a patent error on the
face of the record or the judgment is against
established or settled principle of law. If two views
are possible and a view, which is reasonable and logical,
has been adopted by a Single Judge, the other view,
howsoever appealing may be to the Division Bench; it is
the view adopted by the Single Judge, which would,
normally be allowed to prevail. If the discretion has been
exercised by the Single Judge in good faith and after
giving due weight to relevant matters and without being
swayed away by irrelevant matters and if two views are
possible on the question, then also the Division Bench in
writ appeal should not interfere, even though it would
have exercised its discretion in a different manner, were
the case come initially before it. The exercise of
discretion by the Single Judge should manifestly be
wrong which would then give scope of interference
to the Division Bench."
9.2. With the delineated position as enunciated in the
aforesaid judgment of this Court, there is no confusion
in mind that in case of finding of fact which has gone
into the decision making process of the learned Single
Judge if found to be perverse or de hors the evidence/
materials available on record, this Court in exercise of
the power under Article 4 of the Rules of Orissa High
Court, 1948 read with Clause 10 of the Letters Patent
constituting the High Court of Judicature at Patna can
interfere with the impugned judgment. The appellants
miserably failed to justify their conduct in the writ
appeal.
9.3. In the case at hand the view expressed by the learned
Single Judge to release arrear salary from 01.04.1993 to
21.12.2010 is supported by well-reasoned order with
lucid discussion on merit of the case of the appellants as
also the respondent. Therefore, this Court does not find
any perversity in returning factual finding or evaluation
of evidence on record by the learned Single Judge.
9.4. Even otherwise, it is not a case of possibility of two
views; rather the evidence made available in the record
relating to writ petition and not disputed by the
appellants or the respondent before the learned Single
Judge lead to suggest only one conclusion that the
appellants could only be held responsible for failing to
facilitate the respondent to discharge his duty. Hence,
there is no scope for showing indulgence in the
Judgement dated 23.08.2024 rendered in W.P.(C)
No.20442 of 2012.
CONCLUSION & DECISION:
10. Having concluded in the Judgment dated 23.08.2024
that the respondent was not at fault; but on the
contrary, he was ready and willing to perform duty
entrusted to him, and it is the conduct of the Managing
Committee which led the respondent not able to work in
the place of posting, the grounds of appeal as set forth
by the appellants-functionaries of Government of Odisha
do not warrant interference with the decision of the
learned Single Judge.
10.1. Under the above precinct, the Judgment dated
23.08.2024 of learned Single Judge passed in W.P.(C)
No.20442 of 2012 is above reproach. The approach of
the learned Single Judge in the impugned Judgment is
legally sound, well-reasoned and free from any error or
flaw.
10.2. Ergo, this Court is not inclined to intervene in the
decision of the learned Single Judge, but for the period
stipulated at paragraph 14 of impugned Judgment.
Without disturbing the judgment, this Court extends the
period for another two months hence to comply with the
direction of the learned Single Judge.
11. In fine, the writ appeal, being devoid of merit, is
dismissed, as a consequence thereof the Judgment and
Signature Not
Verified Order of the learned Single Judge rendered in the writ
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal petition stands upheld, but in the circumstances
Assistant (Secretary-in-
Charge)
Reason: Authentication
Location: ORISSA HIGH
without any order as to costs. Pending interlocutory
COURT, CUTTACK
Date: 15-Jul-2025 15:57:45
applications, if any, are disposed of accordingly.
I agree.
(HARISH TANDON) (MURAHARI SRI RAMAN)
CHIEF JUSTICE JUDGE
High Court of Orissa, Cuttack
The 15th July, 2025//Aswini/Bichi/MRS/
