Bimbadhar Bhuina vs State Of Odisha And Others
2025 Latest Caselaw 739 Ori

Orissa High Court

Bimbadhar Bhuina vs State Of Odisha And Others on 1 July, 2025

Author: M.S. Sahoo

Bench: M.S. Sahoo

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   WA No.3101 of 2024

            Bimbadhar Bhuina                        ....             Appellant

                                                     Represented By Adv. -
                                                    Mr. S.S. Patra, Advocate
                                         -versus-

            State of Odisha and others              ....          Respondents
                                                    Represented By Adv. -
                                                Mr. Debaraj Mohanty, AGA
                              CORAM:
                              JUSTICE DIXIT KRISHNA SHRIPAD
                              JUSTICE M.S. SAHOO

                                          ORDER

01.07.2025

WA No.3101 of 2024 & I.A. No.8082 of 2024 Order No.

01. 1. This Intra-Court appeal by the employee call in question a learned Single Judge's order dated 28.08.2024, whereby his W.P.(C) No. 24075 of 2022 has been negative on the ground of res judicata. The appellant had sought for a direction in the said writ petition to the respondents to release the arrears of his salary for a period of ten years.

2. There is a short delay of 30 days in filing the appeal and that an application supported by affidavit seeking its condonation accompanies it. No objections are filed to the said application. A

plausible explanation is offered for the delay brooked. Even otherwise, delay is short. Therefore, application is favoured and delay is condoned.

3. On notice, learned Additional Government Advocate appearing for the respondents resisted the petition before the learned Single Judge contending that it was a second one for the same prayer, when already his first petition in W.P.(C) No.8082 of 2015 on the same set of facts was disposed of on 01.05.2015 with a direction to consider the claim of the appellant herein and therefore the impugned judgment cannot be faltered, in view of doctrine of res judicata applicable to the writ proceedings as well.

4. We have heard learned counsel appearing for the parties and perused the appeal papers. We are inclined to grant indulgence in the matter as under and for the following reasons:

(a) In the earlier round of litigation, the matter was not decided on merits. Only an innocuous direction was given to the respondents to consider the claim of employee. Nothing is demonstrated before us that the claim was considered pursuant to the direction. Therefore, the respondents are not justified in swaying away the learned Single Judge by invoking the doctrine of res judicata, that too without taking up such a plea by filing objections.

(b) Non-payment of arrears of salary, when complained of, has to be looked into by the Court, inasmuch as the employee is not

seeking a money decree but raising a service dispute. Arrears of salary payable to a public servant like the appellant herein are not debts pure and simple; they are something more; they are, in a kind, a property of the citizen, right to which is constitutionally guaranteed under Article 300A. Withholding of salary results into arrears, hardly needs to be stated. This aspect has not been considered in the impugned judgment.

(c) The case of the appellant-employee that right to claim arrears of salary is a continuing cause of action, is also arguable. We do not much examine this aspect of the matter, since matter is being remanded to the portals of the Roster Judge for consideration afresh.

In any circumstance, litigants cannot be turned away empty handed, by quoting some jurisprudential theory. It was Justice Oliver Wendell Holmes, who in DAVIS v. MILLS, 194 US 451 (1904) observed as under:

"Constitutions are intended to preserve practical and substantial rights, not to maintain theories..."

In the above circumstances, this appeal succeeds in part; the impugned order of the learned Single Judge having been set at naught, matter is remitted to the portals of Roster Bench for consideration afresh. Liberty is reserved to the respondents to file their pleadings, if any, within four weeks before the learned Single Judge failing which right to file one stands forfeited.

This is a fit case for imposition of cost and in our considered view a cost of ₹10,000/- (Rupees Ten Thousand) to be

paid to the appellant herein within a period of four weeks, failing which delay will entail an additional sum of ₹50/- per day. This amount may be recovered from the erring officials of the Government.

(Dixit Krishna Shripad) Judge

(M. S. Sahoo) Judge

Radha/dutta