Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.22958 of 2019 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Jayanta Kumar Jena …. Petitioner(s) -versus- State of Orissa &Ors. …. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: For Petitioner(s) For Opposite Party (s) : : Mr.Sidheswar Mallik, Adv.. Mr. G.R. Mohapatra, ASC CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-12.09.2024 DATE OF JUDGMENT: -17.12.2024 Dr. S.K. Panigrahi, J. 1. The petitioner, through this Writ Petition, petitioner challenges the inaction on the part of the opposite parties in not sanctioning & paying his arrear salary for the period from 20.03.2012 to 26.02.2018, increments from 2012 andrevision of pay as per ORSP Rules, 2017. I. FACTUAL MATRIX OF THE CASE: 2. The brief fact of the case is that: (i) The petitioner was serving as a Tailor Sepoy in the 6th Battalion, O.S.AP., Cuttack, when a departmental proceeding was initiated against Page 1 of 15
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 him under Proceeding No. 12 dated 21.02.2012. The petitioner submitted a written explanation on 08.03.2012, denying the charges. However, by order dated 20.03.2012, the Commandant dismissed the petitioner from service without conducting any inquiry, purportedly exercising powers under Article 311(2)(b) of the Constitution of India. The dismissal order neither assigned reasons for dispensing with the inquiry nor appointed an Inquiry Officer, and no exceptional circumstances were cited to justify the decision to forgo the inquiry. (ii) Aggrieved, the petitioner filed O.A. No. 1041(C)/2012 before the Odisha Administrative Tribunal. By order dated 16.02.2018, the Tribunal quashed the dismissal order and directed the petitioner’s reinstatement with all consequential service benefits. (iii) Pursuant to the Tribunal’s order/ an inquiry was conducted/ culminating in a final punishment order dated 29.08.2018. The punishment imposed was limited to a censure/ and the petitioner’s suspension period from 25.01.2012 to 20.03.2012, totaling 56 days, was treated as such. The petitioner was reinstated into service effective 26.02.2018, albeit without a formal order, through a command certificate retained by the authority. However, the dismissal period with effect from 21.03.2012 to 25.02.2018 a total of 2168 days which was treated as “No work, No pay.” (iv) On 28.03.2018, the Commandant requested the Accountant General to restore the petitioner’s GPF account to enable GPF subscriptions from his monthly salary beginning March 2018. Page 2 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 (v) The petitioner retired from government service upon superannuation on 31.03.2019. Post-retirement, the petitioner received benefits such as final pension, gratuity, and leave salary. However, increments due from 2012, following his reinstatement, were not sanctioned. (vi) Additionally, revisions in pay under the ORSP Rules, 2017, and the RACP under the ORSP Rules, 2008, were not granted, resulting in the calculation of pension, gratuity, and leave salary at a lower pay scale and reduced rates. Thus, this petition. II. SUBMISSIONS ON BEHALF OF THE PETITIONER: 3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions. (i) The petitioner was dismissed from service on 20.03.2012. As a result, his increments from 2012 until his retirement were not sanctioned, and he was denied the benefits of the RACP Scheme, effective from 01.01.2013. Furthermore, the petitioner was not granted the revision of pay under the ORSP Rules, 2017, which became effective from 01.01.2016. Consequently, his pension, gratuity, and leave salary were calculated at a lower pay scale. (ii) Following the quashing of the dismissal order and the petitioner’s reinstatement into service, he became entitled to all consequential benefits, including the sanction of increments, pay fixation, RACP benefits, and revision of pay under the ORSP Rules, 2017. Had these benefits been duly granted, his post-retirement dues, including pension, gratuity, and leave salary, would have been fixed at the appropriate scale. Page 3 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 (iii) Since the dismissal order was quashed, the petitioner is entitled to arrears of salary for the period from 20.03.2012 to 26.02.2018, during which he was unlawfully kept out of service. However, despite the Tribunal’s direction and the petitioner’s reinstatement on 26.02.2018/ the arrear salary for this period has not been sanctioned or paid. (iv) It is well-settled law that in cases of wrongful termination, the employee is entitled to reinstatement with continuity of service and full back wages, unless specific circumstances justify a deviation. The employer cannot be relieved of its obligation to pay back wages for the wrongful dismissal, as affirmed by the Supreme Court. (v) After the dismissal order was quashed, the authority conducted an inquiry and passed a final order on 29.08.2018, treating the suspension period from 25.01.2012 to 20.03.2012 (56 days) as such. Accordingly, the petitioner is entitled to subsistence allowance for the suspension period and arrears of salary for the dismissal period from 20.03.2012 to 26.02.2018. No specific order denying arrears has been passed, but the petitioner has yet to receive the same. (vi) Under the RACP Scheme, introduced on 06.02.2013 and effective from 01.01.2013, a government employee is entitled to three financial upgradations upon completion of 10, 20, and 30 years of service if no promotion is availed. The petitioner entered service on 01.07.1980 as a Sepoy and retired on 31.03.2019 in the same rank, without any promotion. Having completed 30 years of service on 01.07.2010, the petitioner became entitled to three financial upgradations from 01.01.2013. However, these benefits were denied due to his dismissal in Page 4 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 2012. After reinstatement, the opposite parties were obligated to grant him these RACP benefits, along with increments and pay revisions. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTY : 4. (i) In reply, learned counsel for the Opposite Party earnestly made the following submissions in support of his contentions: The petitioner was arrested on 25.01.2012 in connection with Cuttack Mahila PS Case No. 99 dated 25.11.2011 under Sections 498(A)/506 IPC and was released on bail on 02.02.2012. Subsequently, he was placed under suspension with effect from 25.01.2012, and Departmental Proceeding No. 12 dated 21.02.2012 was initiated for gross misconduct for failing to inform the authority about his arrest, violating Odisha Government Order No. 15371(77) dated 19.01.1958 and Odisha Government Servant Conduct Rule 20(A), 1959. (ii) The inquiry, conducted by Shri B.B. Patnaik, confirmed prima facie evidence against the petitioner, whose explanation was deemed unsatisfactory. Consequently, Respondent No.3 dismissed him from service with effect from 20.03.2012 under Article 311(2)(b) of the Constitution and Appendix-49(12)(c) of the Odisha Police Manual, citing adverse impacts on Battalion morale and community life. (iii) After the order of the Administrative Tribunal, while his suspension period (56 days) was treated as such, the dismissal period (21.03.2012 to 26.02.2018, totaling 2168 days) was treated as “No Work No Pay” per B.O. No. 4449 dated 29.08.2018. Upon reinstatement, the Departmental Proceeding was reopened, and an inquiry confirmed his guilt, leading to the imposition of censure in his Service Book. Page 5 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 (iv) The petitioner’s pay was revised to Rs. 33,000 in Level-5, Cell-15 with effect from 01.01.2016, with subsequent increments. The petitioner completed 30 years of service on 01.07.2010 and was allowed the 3rd upgradation in ACP at Rs. 10,330 + 2,000 with effect from 01.07.2010. Subsequently, he was granted an increment to Rs. 10,700 + 2,000 effective from 01.07.2011. However, due to 2168+190 = 2358 days of "No Pay" in various phases, his next increment became due on 15.12.2018. The petitioner’s pay was fixed at Rs. 33/000 in Level-5 Cell-15 with effect from 01.01.2016, as per ORSP-2017. He was not entitled to further upgradation, having already availed three upgradations during his career. (v) The period treated as “No Pay” deferred his next increment to 15.12.2018. All admissible benefits were sanctioned post-reinstatement, and his contention of constitutional violations lacks merit.. IV. COURT’S REASONING AND ANALYSIS: 5. I have heard the representations of the counsels appearing for the respective parties at length. 6. At the heart of this matter lies the fact that the petitioner was dismissed from his service following a criminal complaint lodged against him in 2012. However, it is undisputed that, subsequent to the filing of the complaint, the petitioner was acquitted on the grounds that the complaint had been retracted within the same year. In light of this development, the Odisha Administrative Tribunal passed an order in 2018 directing the reinstatement of the petitioner to his position. In the Page 6 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 7. 8. course of further proceedings related to the petitioner’s case/ a censure was imposed upon him in his service records, and the period of his suspension was determined to amount to 56 days. The key issue before this Court is whether, under the unique circumstances of this case—where the petitioner was precluded from working for six years due to a dismissal later quashed—the doctrine of “No work/ No pay” can justly be applied. The law in this regard is no longer res integra. The legal framework guiding the "no work, no pay" principle is unequivocal: it applies to cases where an employee’s absence from duty is self-imposed or unjustifiably prolonged. It cannot, however, be extended to circumstances where the employee is wrongfully ousted from service and his dismissal is subsequently overturned. 9. In such cases, the absence from duty is not attributable to any fault of the employee, but to the administrative and disciplinary actions of the employer, which were found to be unjust. The law recognizes that where an employee is reinstated after wrongful dismissal, he is entitled to the benefits of continuity in service, including the back payment of wages and other service-related benefits, unless there are compelling and justifiable reasons to deny them. 10. In further affirmation of this principle, the Supreme Court, in Union of India v. K.V. Jankiraman,1 observed with clarity that the conventional rule of “no work no pay” does not find application in circumstances where the employee, though eager and prepared to fulfil his duties, is 11991 AIR SC 2010. Page 7 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 nonetheless unjustly kept away from his work. The relevant excerpt from the judgment is produced below: “..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..” 11. The principles outlined above find clear application in the present case. The petitioner was exonerated in the criminal proceedings, and the tribunal, upon careful scrutiny of the facts, found no justification for his dismissal. Furthermore, the subsequent departmental proceedings initiated post-reinstatement resulted in nothing more than a censure, along with a suspension period of only 56 days. Viewed in their entirety, these circumstances lead to an inescapable conclusion: the petitioner’s inability to discharge his duties for six years was not a consequence of his own actions but arose solely from the employer’s unjust compulsion. 12. Having established that the doctrine of “no work, no pay” is inapplicable to the petitioner’s situation/ the next critical issue for consideration is whether the petitioner is entitled to back wages for the period during which he was deprived of the opportunity to work. 13. It is a well-settled principle that the standard of proof in criminal proceedings is distinct from that in disciplinary proceedings. An acquittal in a criminal trial does not automatically negate the findings of a disciplinary tribunal. However, this distinction does not hold in the Page 8 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 present case. The disciplinary authority, after thoroughly investigating the petitioner’s conduct/ deemed censure and a suspension of 56 days as sufficient punishment. This outcome speaks volumes, casting serious doubt on the legitimacy and proportionality of the original dismissal, which endured for six years. The disparity between the minimal penalty ultimately imposed and the excessively harsh initial punishment reveals the latter to be manifestly unjust and disproportionate. 14. To deny the petitioner the benefits of continuity in service and to withhold his rightful dues for the disputed period would amount to a flagrant miscarriage of justice. It is a settled principle of law that an employee who is wrongfully dismissed, and whose dismissal is subsequently quashed, is entitled to back wages and all other benefits that would have accrued but for the unlawful dismissal. This entitlement is not a matter of discretion but a legal right, rooted in the fundamental principle of restitutio in integrum, which seeks to restore the employee to the position they would have occupied had the wrongful dismissal not occurred. 15. There exists a sea of judicial authority reinforcing the notion that when an employee is wrongfully dismissed or suspended, the customary remedy is their reinstatement, accompanied by the payment of full back wages, save for exceptional circumstances that might justify otherwise. Page 9 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 16. A case in point is the Supreme Court decision in The Management of Hotel Imperial/ New Delhi v. Hotels Workers’ Union2. The relevant excerpt of this judgment is produced below: “..Ordinarily, therefore, the absence of such power either as an express term in the contract or in the rules framed under some statute would mean that the master would have no power to suspend a workman and even if he does so in the sense that he forbids the employee to work. he will have to pay wages during the so-called period of suspension. Where, however, there is power to suspend either in the contract of employment or in the statute or the rules framed thereunder, the suspension has the effect of temporarily suspending the relation of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay.” 17. Notwithstanding the principles laid down in the preceding case, it must be acknowledged that there is no rigid, unyielding rule that mandates the grant of back wages to an employee who has been dismissed. The matter of whether back wages should be awarded is one that must be judged in light of the unique facts and circumstances of each case. The Supreme Court, in its wisdom, aptly addressed this very issue in the case of RanchhodjiChaturjiThakore v. Superintendent Engineer, Gujarat Electricity Board.3 There, the Court recognized that the determination of back wages is not an automatic or mechanical process, but rather requires a careful consideration of the specific details surrounding the dismissal and the circumstances that followed. The relevant excerpts are produced below: 21959 AIR 1342. 3AIR 1997 SUPREME COURT 180. Page 10 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 “The only question is: whether he is entitled to back wages? It was his conduct of involving himself in the crime that was taken into account for his not being in service of the respondent. Consequent upon his acquittal, he is entitled to reinstatement for the reason that his service was terminated on the basic of the conviction by operation of proviso to the statutory rules applicable the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. In that context, his conduct becomes relevant, Each case requires to be considered in his own backdrops.” 18. In the case previously cited, the employee in question had, by his own actions, involved himself in criminal conduct, and though ultimately acquitted, his conviction and subsequent incarceration had effectively disabled him from performing his duties. The Court, in those circumstances, held that he was not entitled to back wages, for the simple reason that his absence from work was self-imposed, a consequence of his own actions. 19. However, the present case stands in stark contrast. Here, the petitioner was acquitted in the criminal case and released within a mere seven days of his arrest. The complaint against him was retracted, and, significantly, the dismissal order was nullified by the Administrative Tribunal. The circumstances at hand reveal that the petitioner’s absence from service was not of his own making but the result of an unjust dismissal. In such a case, where the employee’s wrongful dismissal is overturned, the presumption of continuity of service must prevail, Page 11 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 entitling the petitioner to the benefits of reinstatement, including back wages for the period during which he was unlawfully kept away from his duties. 20. It is both legally mandated and just that the petitioner be adequately compensated for the period he was kept out of service. While the denial of back wages may be viewed as part of the modified penalty, the refusal to compensate the petitioner for more than 6 years of lost wages is patently disproportionate and contrary to the principles of justice. 21. However, the court have kept in mind the dictum of the Supreme Court in Ramesh Chand v. Management of Delhi Transport Corporation,4 wherein it was observed that the award of back wages is not an automatic consequence and should be determined based on the facts and circumstances of each case. The court directed that, instead of granting back wages, a lump sum compensation should be awarded: “9. The law is very well settled. Even if Court passes an order of reinstatement in service, an order of payment of back wages is not automatic. It all depends on the facts and circumstances of the case. It is true that affidavit filed by the appellant on 18th July 2008 before the Labour Court making a categorical statement on oath that he was not employed from the date of termination was withdrawn and in the fresh affidavit filed by way of evidence, such a specific contention was not raised. But there are two factors in favour of the appellant. In the statement of claim, it is specifically asserted that till August 1997 when the statement of claim was filed, the appellant found it difficult to get employment and in fact he was unemployed. The second aspect is that there is a cross›examination of the appellant on this issue by the 4Civil Appeal No. 4208 OF 2023 Page 12 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41
Legal Reasoning
Advocate for the respondent and in the cross›examination, the appellant denied that he had a sufficient source of income to look after his family. However, considering the conduct of the appellant of withdrawing the affidavit filed earlier and not raising the contention of unemployment in the fresh affidavit, the appellant cannot be granted the benefit of back wages for the entire period from the date of termination till reinstatement. It is not possible to accept that for the entire period of thirteen years, the appellant had no source of income. However, the respondent has not come out with the case that from the date of his removal from service, the Civil Appeal @ S.L.P. (C) No.7137 of 2016 appellant had another source of income. Thus, the appellant discharged the burden on him by establishing that he was unemployed at least till August 1997. From the chart submitted on record by the learned counsel appearing for the respondent, we find that the gross salary of the appellant on the date of reinstatement was Rs.18,830/›. On the date of removal, his salary was approximately Rs.4,000/› per month. 10. We are of the view that considering the facts of the case, it will be appropriate if a sum of Rs.3 lakhs is ordered to be paid to the appellant in lieu of back wages. To that extent, the appeal must succeed.” 22. This court, while recognizing the petitioner’s right to seek back wages, must exercise caution in ensuring that such relief is not granted automatically. The principle established in judicial precedents is that back wages are not an inherent entitlement but are subject to the specific facts and circumstances of each case. In this matter, the petitioner’s claim to back wages must be evaluated on merits. Therefore, while the petitioner may not be automatically entitled to full back wages, their claim should not be dismissed outright without a reasoned assessment. Page 13 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 23. The counsel for the Opp. Parties has contended that the petitioner has already been granted the benefits under the RACP scheme. Upon completing 30 years of service on 01.07.2010, the petitioner received the 3rd upgradation under the ACP scheme, fixing his pay at Rs. 10,330 + Rs. 2,000 with effect from 01.07.2010, followed by an increment to Rs. 10,700 + Rs. 2,000 from 01.07.2011.His pay was subsequently revised to Rs. 33,000 in Level-5, Cell-15 with effect from 01.01.2016, and he was duly granted applicable increments. The petitioner has also not rebutted this contention. Hence, since the petitioner has already availed three upgradations during his service tenure, he is not entitled to any further upgradation under the RACP scheme. V. CONCLUSION: 24. In light of the foregoing analysis, this Court finds that the principle of continuity of service must apply, and as such, the petitioner is entitled to back wages that would have been due to him had his wrongful dismissal never occurred. 25. While this Court recognizes the principles laid down in the relevant precedents, it would not be proper for this Court to directly calculate the arrear amount owed to the petitioner, given the complex nature of the calculations involved. The matter, therefore, must be remitted to the relevant authorities for the determination of the arrears. 26. The concerned authorities are directed to calculate and disburse the due amount due to the petitioner within the next three months from the date of this judgment with cogent and transparent calculations. Page 14 of 15 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 25-Dec-2024 17:32:41 27. This Writ Petition is, accordingly, allowed. 28. Interim order, if any passed earlier, stands vacated. (Dr.S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated 17th Dec., 2024 Page 15 of 15