The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.A. NO. 2576 OF 2024 Arising out of judgment dated 31.07.2024 passed by a learned Single Judge of this Court in W.P.(C) No. 4427 of 2017. Rabindranath Behera -Versus- Tata Power Distribution Central Odisha Limited (TPCODL) & Ors. Advocates appeared in this case: …. …. Appellant Respondents For Appellant
Legal Reasoning
: M/s. A. Patnaik, S. Patnaik, (Ms.) S. Mohapatra, S. Deepak, S. Pal, R.K. Pati, S.P. Moharana & A.N. Das, Advocates For Respondents : Mr. Debendra Kumar Mohanty (1), Advocate CORAM: THE HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD AND THE HON’BLE MR. JUSTICE SANJAY KUMAR MISHRA J U D G M E N T -------------------------------------------------------------------------------------- -------------------------------------------------------------------------------------- Decided on: 18.07.2025 PER DIXIT KRISHNA SHRIPAD, J. This intra-Court appeal by the employee seeks to call in question a learned Single Judge’s order dated 31.07.2024, whereby his petition in WP(C) No. 4427 of 2017 has been negatived. In the said petition, he had challenged a part of the order dated 20.09.2010 made by the disciplinary authority inter alia to the effect that the period of suspension was treated as leave due & admissible and the period of dismissal was treated as without pay & allowances. He had Page 1 of 6 also challenged the consequential orders dated 25.01.2011, appellate order dated 01.08.2012 & review order dated 27.10.2016. After service of notice, the respondents, having entered appearance through their panel counsel, resist the appeal. 2. Learned counsel for the appellant made the following submissions for invalidation of the impugned order: (a) The disciplinary authority & appellate authority had completely absolved the appellant from all charges whatsoever and therefore, the Reviewing Authority could not have made the impugned order to his prejudice, absolutely there being no material on record. (b) Even otherwise, review was impermissible after the expiry of six months, that is the period of limitation prescribed under the provisions of CESCO Officers Service Regulations. The said order is cryptic & non-speaking and therefore is liable to be set aside. (c) Learned Single Judge having approached the matter in a juridically defective angle has rendered the impugned order and that he has not considered the ground of limitation for review in the right perspective and as a result the back wages and emoluments wrongly stand denied to the employee. 3. Learned Panel Counsel appearing for the respondent management makes submission in justification of the impugned order and the reasons on which it has been constructed. He contends that the learned Single Judge having duly considered all aspects of the matter has made the impugned order and it does not merit a deeper examination at the hands of this Court. Lastly, he contended that even if review order is set aside, full back wages cannot be accorded to the employee on the principle of “no work, no pay”. So contending he seeks dismissal of appeal. Page 2 of 6 4. Having heard the learned counsel for the parties and having perused the appeal papers, we are inclined to grant indulgence in the matter as under and for the following reasons: 4.1. The appellant was in long & spotless service from 12.03.1979 to 31.10.2016; we need not advert to earlier rounds of litigation which eventually resulted into fresh consideration of the matter at the hands of Jurisdictional Authorities who had completely absolved the appellant from all charges. However, to his dismay, the Review Authority took a view in variance in respect of de novo inquiry and thereby modified the orders of disciplinary authority and the appellate authority, which had gone in favour of the employee and held him guilty of misconduct, although providing prospective financial benefits. There is absolutely no material for review order of the kind. Learned counsel for the appellant-employee is right in telling us that the review order is not a speaking order and its perusal shows its apparent arbitrariness. 4.2. There is force in the submission of learned counsel for the appellant that the review was to be made within the prescribed period of six months whereas in this case it was four years and therefore the same is liable to be set at naught. Admittedly, the appellate order was made on 01.08.2012 exonerating the employee. After expiry of six months prescribed as limitation period vide Regulation-50(1), matter should have rested, more particularly when there is no provision in the extant Rules for condoning delay and examining the review petition on merits. In fact, the Reviewing Authority does not advert to the delay aspect at all. Same error is committed by the learned Single Judge. In the pleadings of the appellant, a specific contention in regard to limitation was taken, however, that remains unaddressed in the impugned order. That lacuna goes to the root of the matter. Page 3 of 6 4.3. We do not agree with the contention of the Panel Counsel appearing for the Management that in an intra-Court appeal Court cannot undertake a deeper examination of the matter, inasmuch as it is too broad a proposition to accept. The power of the appellate court is coextensive with that of the learned Single Judge, hardly needs to be stated in the absence of any law to the contrary being shown. An appellate Court cannot turn a Nelson’s Eye to the errors of great magnitude with which learned Single Judge’s order is fraught with. Those errors we have enlisted in the preceding paragraphs and therefore they need not be reiterated here. 4.4. A perusal of the appeal papers, which obviously include writ petition file, shows that appellant was absolved from the charges lock, stock & barrel on par with honourable acquittal obtaining in service jurisprudence. We have already discussed as to how order of review is wrong & unsustainable. We term it as the one without jurisdiction too. That having been done, the question arises how the suspension/dismissal period needs to be treated. Learned Panel Counsel contends that the case is governed by the traditional rule “no work, no pay”. Learned counsel for the appellant insists upon awarding entire back wages along with admissible allowances. We agree with the counsel for the appellant, inasmuch as his case is one of complete absolving in the disciplinary proceedings, the review order having been faltered. The rule of “no work, no pay” is ordinarily not invokable in such a case, especially when it was the Management which had prevented the employee from discharging his duties. 4.5. Learned counsel for the appellant is right in invoking Regulation 48(2)(a) & (b) of subject Regulations. It has the following text: “48.(2)(a).Where the Appointing Authority holds that the Officer has been fully exonerated or that the suspension was unjustifiable, the Officer shall be granted the full pay to which he would have been entitled, had he not been so suspended, Page 4 of 6 together with any allowance of which he was in receipt immediately prior to his suspension or may have sanctioned subsequently and made applicable to all Officers. The period of absence from duty in such a case shall, for all purposes, be treated as period spent on duty. In all cases other than those referred to in Sub-Rule (b) 48(1)(a) above and where the Officer has not been subjected to the penalty of dismissal, the period spent under suspension shall be dealt with in such a manner as the Disciplinary Authority may decide and the pay and allowances of the Officer during the period shall be adjusted accordingly.” The text of Clause (a) of this Regulation makes it abundantly clear that the back wages & admissible allowances cannot be denied to the delinquent employee of the kind. Any otherwise interpretation of this clause cannot be sustained without straining its language. Apparently, case of the appellant is miles away from the precincts of clause (b). 4.6. The employee, even as per the office order issued by the Senior General Manager on 27.10.2016, shows the salary & emoluments which he is entitled to, he having retired on 31.10.2016. Learned counsel for the appellant is justified in telling us that the money is payable to an employee by way of remuneration constitute his property which has constitutional protection under Article 300A, predecessor of the Management being an instrumentality of State under Article 12. It hardly needs to be mentioned that the employee has been in service since March, 1979 and he was superannuated on 31.10.2016. At least, within six months of superannuation, he could have had all the wages & emoluments, if no disciplinary proceeding was instituted against him. Years have passed since then. Therefore, all wages & admissible allowances need to be paid to the appellant in a time bound manner with a default clause of interest approval, @ 1% per mensem. Page 5 of 6 In the above circumstances, this appeal succeeds; the impugned order of the learned Single Judge is set at naught; appellant’s writ petition having been favoured, a Writ of Certiorari issues quashing the Review Order dated 27.10.2016. As a consequence, a Writ of Mandamus issues to the respondents to pay to the appellant herein all back wages & admissible allowances in terms of Senior Manager’s order no.25015 dated 27.10.2016 within eight weeks. Delay shall carry interest @ 1% per mensem. Reluctantly, costs made easy. (Dixit Krishna Shripad) Judge Judge (S.K. Mishra) Orissa High Court, Cuttack The 18thday of July, 2025/GDS Signature Not Verified Digitally Signed Signed by: GAYADHAR SAMAL Designation: JOINT REGISTRAR-CUM-PRINCIPAL SECRETARY Reason: Authentication Location: ohc, cuttack Date: 22-Jul-2025 10:35:10 Page 6 of 6