The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No19925 of 2013 (Application under Articles 226 and 227 of the Constitution of India) A.F.R. Sunil Kumar Bej … Petitioner -versus- State of Odisha & others … Opposite Parties Advocates appeared in the case through hybrid mode: For Petitioner : Mr.Bimbisar Dash, Advocate. -versus- For Opposite Party Nos.1 to 4 : Mr. A.R.Dash, A.G.A --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 16.04.2024. Sashikanta Mishra,J. The Petitioner has approached this Court seeking the following relief; W.P.(C) No.19925 of 2013 Page 1 of 12 “It is therefore humbly prayed on behalf of the petitioner that the Writ Petition may be allowed. A writ in the nature of mandamus may be issued directing the opp. parties to clear up the arrear back wages from 27.9.2003 and to give him due seniority from that date and any other order(s)/direction(s)/writ(s) may be issued in giving complete relief to the petitioner.” 2. The facts of the case are that pursuant to a Notification dated 11.8.1997 issued by the State Project Director, Orissa Primary Education Programme Authority (OPEPA) (Opposite Party No.2) for appointment of Peons on contractual basis, the Petitioner submitted his application. He was called upon to attend test/interview on 20.11.1997. He was selected by District Selection Committee and was appointed as Peon on 02.2.1998 on consolidated remuneration of Rs.1,000/- per month by order dated 17.11.1998 ofthe District Project Coordinator, Sarba Sikshya Abhiyan, DPEP, Keonjhar (Opposite Party No.3). While he was working as such he was disengaged. However, two of his Juniors namely, Trilochan Mallick, who was engaged as Attendant- cum-Sweeper-cum-Watchman and Susanta Kumar Nayak, who was engaged as Attendant without going W.P.(C) No. 19925 of 2013 Page 2 of 12 through any selection process were continued in service. The Petitioner therefore approached this Court in W.P.(C) No.3401/2002 which was disposed of directing him to submit a representation to the Opposite Party No.2, which was to be disposed of within two months. Opposite Party No.3 by order dated 13.6.2003 engaged the Petitioner temporarily till closure of the project i.e. 30.6.2003. The Petitioner was not paid his arrear or current salary and suddenly he was prevented to work w.e.f. 16.6.2003. He ventilated his grievance before the Opposite Party No.3, but without addressing the same the Opposite Party No.2, vide order dated 27.9.2003 re-engaged some staff who were also disengaged since 30.6.2003. The Petitioner therefore approached this Court again in W.P.(C) No.1316/2004. By order dated 16.9.2008, this Court found that the Petitioner was senior to the other two employees who had been reengaged and quashed the order of reengagement passed in their favour. Further, the Opposite Parties authorities were directed to consider the case of the Petitioner, he being senior to W.P.(C) No. 19925 of 2013 Page 3 of 12 the said other persons. Pursuant to such order the Petitioner on 27.9.2008 submitted a representation before the State Project Director with prayer to adjust him against one of the resultant vacancies caused by removal of the said two re-engaged candidates. There being no response, he submitted another representation on 27.3.2009. There being no response, the Petitioner filed contempt petition being CONTC No.2659/2009. During pendency of the Contempt Petition, on being instructed by the Opposite Party No.2, the Opposite Party No.3 vide order dated 9.9.2011 engaged the Petitioner temporarily as Peon on contractual basis with consolidated remuneration of Rs.8716/- per month. The Petitioner joined on 12.9.2011. He submitted a representation on 23.10.2011 requesting for grant of salary for the period of disengagement i.e. from 27.9.2003 to 11.9.2011, but as no action was taken he has approached this Court. 3. Counter affidavit has been filed by the State- Opposite Parties admitting most of the facts. It is W.P.(C) No. 19925 of 2013 Page 4 of 12 however, reiterated that the Petitioner along with 10 others who were working as Attendants in the Block Resource Centers were disengaged from the project w.e.f. 28.1.2002. But taking into account the satisfactory performance of Trilochan Mallick and Susanta Kumar Nayak they were allowed to continue as such. It is also admitted that the staff disengaged on disclosure of DPEP Scheme on 30.6.2003 were reengaged. As regards the arrear salary claimed by the Petitioner, it is stated that he is not entitled to the same for not having rendered work during such period. It is further stated that pursuant to the order of this Court in W.P.(C) No.1316/2004 Trilochan Mallick and Susanta Kumar Nayak were disengaged from contractual engagement w.e.f. 09.9.2011. Thereafter, the Petitioner joined as 1st Peon on 12.9.2011 while Trilochan Mallick joined as 2nd Peon on 13.9.2011. The Petitioner has filed a rejoinder stating that he cannot be blamed for the inordinate delay caused W.P.(C) No. 19925 of 2013 Page 5 of 12 by the authorities in reengaging him pursuant to the order of this Court. It is further stated that he cannot be blamed for not discharging duties as the authorities prevented him from doing so. Had he been reengaged in the year 2003 like his juniors Trilochan Mallick and Susanta Kumar Nayak, he could also have discharged duties. In course of healing a further affidavit has been filed by the Petitioner stating that he was never gainfully employed under any employer during the period from 27.9.2003 till his reappointment on 09.9.2011. 4.
Legal Reasoning
by the authorities. In fact, this Court in the earlier Writ Petition has taken note of the seniority of the Petitioner while quashing the order of reengagement issued in respect of the juniors. Therefore, if any one was to be re-engaged after closure of the project, it was obviously the Petitioner at the first instance. This Court having quashed the order of reengagement in respect of the juniors and directed the authorities to consider the case of the Petitioner against the available vacancy, it was incumbent upon them to properly act upon it instead of keeping the matter in limbo for nearly 3 years and that too, without any justified reason. 8. It is well settled that the principle of no work ‘no pay’ cannot be applied lock, stock and barrel in every W.P.(C) No. 19925 of 2013 Page 9 of 12 case. The facts and the circumstances surrounding each case have to be taken into consideration. This is a case where inaction of the authorities in reengaging the Petitioner followed by the inordinate delay in complying with the order of this Court passed in the earlier Writ Petition prevented the Petitioner from discharging his duties as a Peon. It is also well settled that when a person is willing to work but is prevented from doing so by the authorities for no justified reason, the principle of no work no pay cannot be mechanically applied to deny him his legitimate benefits, more so when it is undisputed that he had not been gainfully employed during the relevant period. Be it noted that the assertion of the Petitioner that he was not gainfully employed during the relevant period placed before this Court in the form of an affidavit has gone unchallenged. This Court therefore, holds that the Petitioner is entitled to the salary for the period he was kept out of employment. W.P.(C) No. 19925 of 2013 Page 10 of 12 9. The Petitioner has claimed arrear salary from 27.9.2003 i.e. the date on which his juniors were reengaged ignoring him. This Court, in the earlier Writ Petition quashed such order of reengagement. However, there was no direction as such to treat the Petitioner as being engaged w.e.f. from the date his juniors were reengaged i.e. 27.9.2003. The authorities were directed to consider the case of the Petitioner against the available vacancy. This Court is therefore of the considered view that the Petitioner’s right to be considered for reengagement arises from the date on which this Court passed the order i.e. 16.9.2008. It was only held that the Petitioner being senior to the said persons had a better case for reengagement, but it was not specifically directed that he should be treated as being reengaged from the said date. Be that as it may, the right of reengagement/consideration for reengagement of the Petitioner can be said to have arisen positively from the date of passing of the order by this Court. It has already been held that there was no justified reason for the authorities to keep the W.P.(C) No. 19925 of 2013 Page 11 of 12 matter pending till 09.9.2011 to comply with the order of this Court. 10. For the foregoing reasons therefore, this Court holds that the Petitioner was prevented by the authorities from being engaged without any justified reason at least for the period from 16.9.2008. As such, he is held to be entitled to arrear salary for the period from 16.9.2008 till 11.9.2011.
Arguments
Heard Mr. Bimbisar Dash, learned counsel for the Petitioner and Mr. A.R.Dash, learned Addl. Government Advocate for the State. 5. Mr. Bimbisar Dash would argue that the Petitioner was initially appointed after being successful in the selection process whereas, both Trilochan Mallick and Susanta Kumar Nayak had not gone W.P.(C) No. 19925 of 2013 Page 6 of 12 through any selection process. In any case, the Petitioner is admittedly senior to them. When all the staff were decided to be disengaged on the ground of disclosure of project his juniors could not have been allowed to continue. The ground taken by the State in the earlier Writ Petition that is, satisfactory performance of his juniors did not find favour with this Court in W.P.(C) No.1316/2004 for which the order of reengagement passed in their favour was quashed. Such order was passed way back on 16.9.2008, but the authorities took an inordinately long time, i.e. till 12.9.2011 to comply with the same. Obviously, the Petitioner cannot be blamed for such delay. Moreover, the principle of ‘no work no pay’ cannot be made applicable as the authorities are themselves guilty of laches. That apart, the Petitioner has not been gainfully employed during the entire period and therefore, he is entitled to receive remuneration for such period. W.P.(C) No. 19925 of 2013 Page 7 of 12 6. Mr. A.R. Dash, learned Addl. Government Advocate, would argue that while it is a fact that the juniors of the Petitioner were allowed to continue and such engagement was quashed by this Court, yet fact remains that the Petitioner, for whatever reason has not rendered any work to the establishment during such period. He cannot therefore raise any valid claim for payment of arrear wages. 7. The relevant facts of the case are not disputed inasmuch as the Petitioner was appointed as Peon on contractual basis by order dated 17.11.1998. It is also not disputed that the authorities, for some reason decided to disengage the Petitioner but surprisingly allowed his juniors namely, Trilochan Mallick and Susanta Kumar Nayak to continue by reengaging them as per order dated 27.9.2003. This Court in W.P.(C) No.1316/2004 quashed the order reengaging the juniors of the Petitioner. Such being the factual scenario, it was for the authorities to either challenge the order passed by this Court as above or to W.P.(C) No. 19925 of 2013 Page 8 of 12 comply with the same. The authorities appear to have taken an inordinately long time i.e. till 9.9.2011 to comply with the order. In such a case, adherence to the Principle of ‘last come first go’ is a sine qua non in order to avoid arbitrariness in State action resulting in gross discrimination and ought to have been respected
Decision
11. In the result, the Writ Petition is allowed in part. The Opposite Parties authorities are directed to disburse the arrear salary/remuneration of the Petitioner as admissible for the period from 16.9.2008 till 11.9.2011 within a period of four months from the date of communication of this order or on production of the certified copy thereof by the Petitioner. …………….……………. Sashikanta Mishra, Judge Signature Not Verified Ashok Kumar Behera Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: Addl. Deputy Registrar-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Apr-2024 17:59:16 W.P.(C) No. 19925 of 2013 Page 12 of 12