The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C)(OAC) No.188 of 2012 Brijlal Dharua …. Petitioners -versus- State of Odisha & Ors. …. Opposite Parties CORAM: JUSTICE BIRAJA PRASANNA SATAPATHY ORDER 10.03.2023 Order No 03. 1.This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
Legal Reasoning
2. Heard Mr. B.B. Mohanty, learned counsel for the Petitioner and Mr. S.K. Samal, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. The Petitioner has filed the present writ petition challenging the order dtd.19.12.2011 passed by the Opp. Party No. 2 under Annexure-10, wherein the period of service of the Petitioner from 11.12.2003 to 09.11.2005 has been treated as No work no pay. 4. Learned counsel for the Petitioner contended that the Petitioner while continuing in the Establishment of Executive Engineer, Upper Indrabati Irrigation Project, he was illegally deployed vide order under Annexure-1. The Petitioner challenging such order of deployment approached the Tribunal in O.A. No. 1380 of 2003. The Tribunal while issuing notice of the matter vide order dtd.08.09.2003 passed an order of status-quo and the said order of status-quo was extended from time to time. It is contended that on the face of such order of status-quo, the Collector, Ganjam while implementing the order of deployment, passed an order on // 2 // 29.11.2003 under Annexure-2 by posting the Petitioner to ICDS Project, Belaguntha. It is also contended that even though the order of status-quo passed by the Tribunal on 08.09.2003 was extended from time to time, but Opp. Party No. 4 basing on the order passed under Annexure-2, showed the Petitioner to have been relieved w.e.f.10.12.2003. Because of such order of relieve issued on 10.12.2003, the Petitioner was not allowed to continue in the establishment of O.P. No. 4. 4.1. Learned counsel for the Petitioner contended that the Original Application filed by the Petitioner before the Tribunal in O.A. No. 1380 of 2003 was ultimately allowed vide order dtd.28.07.2005. The Tribunal while allowing the same, passed the following order:- “Accordingly Annexure-2 orders in both the O.As for re-deployment of the applicants under I.C.D.S. Projects and their appointment in the said Projects are hereby quashed.” 4.2. It is contended that while implementing the order passed by the Tribunal the Petitioner was again posted in the establishment of O.P. No. 4 vide order dtd.07.11.2005 under Annexure-6 and in terms of the said order the Petitioner joined on 10.11.2005. 4.3. Learned counsel for the Petitioner contended that since because of the fault committed by the O.P. No. 4 in relieving him from his work on the face of the interim order passed by the Tribunal on 10.12.2003 vide Annexure-4, since the Petitioner was deprived to discharge his duty for the period from 11.12.2003 to 09.11.2005, he approached the Opp. Parties to extend the benefit of salary for the said period. When the same was not extended, he approached the Tribunal in O.A. No. 2678(C) of 2011. Page 2 of 6 // 3 // 4.4. While considering the direction of the Tribunal, Opp. Party No. 2 vide his order under Annexure-10 rejected the prayer of the Petitioner to get the benefit of salary for the period from 11.12.2003 to 09.11.2005 on the ground that the Petitioner since has not discharged his duty for the period in question, applying the principle of no work no pay, the Petitioner is not entitled to get the benefit. It is contended that since the Petitioner has no fault for not discharging his duty for the period in question, in view of the decisiond of this Court reported in 2009 (Supp.-I) OLR-620 (Narottam Kumar Jha Vs. Union of India & Ors.) and 2011 (I) OLR -960 (Kuni Shoo Vs. State of Odisha & Ors.) the Petitioner is eligible and entitled to get the benefit and the order of rejection so passed is not sustainable in the eye of law. 4.5. In the case of Narottam Kumar Jha as cited supra, this Court in Para-4 has held as follows: “4. This being the position, the irresistible conclusion would be that the order, which has been passed by the appellate authority in terms of FR-54, shall be final. In the decision of the apex Court rendered in Union of India v. K.V. Jankiraman, reported in AIR 1991 SC 2010, it is held that the normal rule of "no work no pay" is not applicable to such cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his. In the case at hand, the petitioner could not get promotion to the next higher grade because of his removal from service, which was subsequently set aside by the appellate authority. No fault can be found with the petitioner for not working in the subsequent promotional post. Mr. J.K. Mishra, learned Assistant Solicitor General of India. relies upon the decision of the apex Court in Union Territory, Chandigarh v. Brijmohan reported in (2007) 11 SCC 488, wherein it is stated that it is settled law that when an incumbent does not discharge any duty, the principle of "no work no pay" would be applicable.” Page 3 of 6 // 4 // 4.6. Similarly, in the case of Kuni Sahoo as cited supra, this Court in Para-7 & 8 has held as follows:- “7. So admittedly, due to fault or illegal action of the opposite parties, the petitioner was kept away from her job for the period now she is claiming, i.e., 1.11.1998 to 25.3.2003. When there is no breakage of service, there is no reason as to why the petitioner cannot be allowed to get the salary, for which she was kept out of job for the faulty action of the opposite parties. 8. Law in this regard is well settled that the normal rule of "no work no pay" is not applicable to such cases where the employee although he is willing to work is kept away from work by the authorities for no fault of his. (See Union of India Vrs. K.V. Jankiraman AIR 1991 SC 2010).” 5. Mr. Samal, learned AGA on the other hand made his submission basing on the stand taken in the counter affidavit. It is contended that the Tribunal while issuing notice of the matter in O.A. No. 1380 of 2003 passed the order of status-quo on 08.09.2003 the said interim order was continued from time to time. Vide order dtd.10.12.2003 though the interim order was extended up to 31.01.2004, but the said order was only communicated on 23.12.2003. Therefore, the Opp. Party No. 4 without having a copy of the order showing such extension, relieved the Petitioner vide order under Annexure-4. It is also contended that since the Petitioner never challenged the relieve order under Annexure-4 till he was again posted vide order dt.07.11.2005 under Annexure-6, the Petitioner is not entitled to get the benefit of salary for the period he did not discharge his duty. The rejection of the Petitioner’s prayer is therefore just and proper. Page 4 of 6 // 5 // 6. Heard learned counsel appearing for the Parties at length, perused the materials available on record. It is not disputed that the Petitioner challenging the order of deployment so passed under Annexure-1, approached the Tribunal in O.A. No. 1380 of 2003. It is also not disputed that the Tribunal while issuing notice of the matter, passed an order of status-quo on 08.09.2003. The said order of status-quo passed by the Tribunal was extended from time to time and vide order dtd.10.12.2003 the interim order was extended up to 31.01.2004. Therefore, the stand taken by the Opp. Parties that in absence of extension of the interim order beyond 10.12.2003 the Petitioner was relieved from 10.12.2003 vide order at Annexure-4 is not acceptable. It is also found that even though the Tribunal while issuing notice of the matter passed an order of status-quo on 08.09.2003, but the Collector, Ganjam without following the same order, implemented the order of deployment with passing of an order on 29.11.2003 under Annexure-2. In the relieve order issued under Annexure-4 the Opp. Party No. 4 has relied on such an order. As per the considered view of this Court when an order of status-quo is there since 08.09.2003, Collector, Ganjam should not have issued the office order dtd.29.11.2003. The Tribunal therefore while disposing the matter finally, rightly quashed the order dt.29.11.2003 under Annexure-2 along with the order of deployment under Annexure-1. 6.1. Hence, since the Petitioner because of the admitted illegality committed by the Opp. Party No. 4 in relieving the Petitioner w.e.f.10.12.2003 and consequentially was not allowed to discharge his duty from 11.12.2003 to 09.11.2005, the Petitioner in view of the decisions as cited supra cannot be denied the benefit of salary for the said period. Therefore, this Court while quashing the order at Annexure-10, direct the Opp. Party No. 2 to take step for release Page 5 of 6 // 6 // of the salary of the Petitioner as due and admissible for the period from 11.12.2003 to 09.11.2005. The entire exercise shall be completed within a period of two (2) months from the date of receipt of this order.
Decision
7. The writ petition is disposed of accordingly. (Biraja Prasanna Satapathy) Judge Sneha Page 6 of 6