The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.C.(OAC) No. 05 of 2019 In the matter of an application under Section 19 of the Administrative Tribunal’s Act, 1985. ……………… Jogendra Kumar Mohanty …. Petitioner -versus- State of Odisha & Ors. …. Opposite Parties For Petitioner : Mr. A.K. Biswal (Advocate) For Opp. Parties : Mr. S. Jena, Addl. Govt. Advocate PRESENT: THE HON’BLE JUSTICE BIRAJA PRASANNA SATAPATHY --------------------------------------------------------------------------------------- Date of Hearing: 08.08.2024 & Date of Judgment: 08.08.2024 --------------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. 1. This matter is taken up through hybrid mode.
Legal Reasoning
2. Heard Mr. A.K. Biswal, learned counsel appearing for the Petitioner and Mr. S. Jena, learned Addl. Govt. Advocate appearing for the Opp. Parties. 3. Petitioner has filed the present writ petition inter alia challenging order dtd.08.02.2018 so passed by Opp. Party No. 5 under Annexure-12. Vide // 2 // the said order period of service for the period from 27.09.2016 to 30.10.2017 was regularized as leave due and admissible. 4. It is the case of the Petitioner that Petitioner while continuing as a Junior Teacher in Ranipokhari Upgraded High School, Ranipokhari in the district of Mayurbhanj, he was put under transfer vide order dtd.26.09.2016 under Annexure-3. Challenging the said order Petitioner approached the Tribunal in O.A. No. 3492(C) of 2016. The Tribunal vide order dtd.29.09.2016 under Annexure-4 while disposing the matter with a direction on the Opp. Party No. 1 to consider the grievance of the Petitioner, passed an interim order to the effect that till such consideration no coercive action will be taken against the Petitioner pursuant to the order of transfer issued on 26.09.2016. It is contended that in terms of the order passed by the Tribunal when claim of the Petitioner to cancel the order of transfer was rejected by the Govt.-Opp. Party No. 1 vide order dtd.10.04.2017 under Annexure-6, Petitioner challenging the same once again approached the Tribunal in O.A. No. 984(C) of 2017. The Tribunal vide order dtd.19.04.2017 while issuing notice of the matter passed an interim order by staying the operation of order dtd.26.09.2016 so issued under Annexure-3 and subsequent order dtd.10.04.2017 so issued under Annexure-6. 4.1. However, vide order dtd.28.08.2017 the Tribunal when dismissed the Original Application in O.A. No. 984(C) of 2017 vide order under Annexure-8, Petitioner challenging the same approached this Court in W.P.(C) No. 19387 of 2017. This Court vide order dtd.20.09.2017 while disposing the writ petition held the very order of transfer issued on 26.09.2016 having been issued in violation of the guideline issued by the Govt. of Odisha in the School & Mass Education Department. This Court Page 2 of 11 // 3 // further held that Opp. Party No. 1 while considering the claim of the Petitioner has not taken into consideration the said aspect. Accordingly, while quashing order dtd.28.08.2017, this Court directed Opp. Party Nos. 4 & 5 therein to adjust the Petitioner in any of the three upper primary schools, where the vacancy is available within the Block immediately on production of certificate copy of the order. Relevant portion of the direction so issued by this Court in its order dtd.20.09.2017 reads as follows:- “In view of the discussion made hereinabove, the transfer order dated 26.09.2016 was issued in violation f the guideline issued by the Government of Orissa in School & Mass Education Department dated 4.6.2016. The opposite party No. 1 has not taken into consideration the aforesaid guideline as directed by the Tribunal in O.A. No. 3492(C) of 2016 while rejecting the representation of the petitioner. During pendency of the original application the petitioner has not been allowed to resume his duty. Accordingly, we set aside the impugned order dated 28.8.2017 passed by Odisha Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No. 984(C) of 2017 and direct opposite party Nos. 4 and 5 to adjust the petitioner in any of the aforesaid three Upper Primary Schools where the vacancy is available within the block immediately on production of the certified copy of the order. After the petitioner joined in Upper Primary School, let him file a representation to regularise the period of his service when opposite party Nos. 4 and 5 have not allowed him to discharge his duty, in such event the opposite party Nos. 4 and 5 shall take a decision on the same within a period of four weeks from the date of filing of the representation.” 4.2. Learned counsel for the Petitioner contended that in terms of the order passed by this Court, Petitioner vide order dtd.30.10.2017 under Annexure- 10 series was posted as an Asst. Teacher in L.N. U.P.M.E. School against the existing vacancy and the said order was issued in modification of original order dtd.26.09.2016. Pursuant to the said order, Petitioner joined in his duty on 31.10.2017. After such joining of the Petitioner, Petitioner when raised his claim for regularization of the period of service w.e.f.27.09.2016 to 30.10.2017, vide order dtd.28.12.2017 under Page 3 of 11 // 4 // Annexure-11 Opp. Party No. 5 while regularizing the period, held the Petitioner eligible to get all service benefits and seniority. Contents of order dtd.28.12.2017 so passed by Opp. Party No. 5 under Annexure-11 reads as under:- “In pursuant to order No-3 dt.20.9.17 passed by the Hon’ble High Court, Cuttack passed by Odisha in W.P.(C) No. 19387/2017 Sri Jogendra Ku. Mohanty, Asst. Teacher L.N. M.E. School is hereby informed that his service is regularised with effect from 27.9.16 along with all service benefits and seniority. The arrear salary will be released with immediate effect.” 4.3. It is contended that subsequent to passing of order under Annexure-11, the self-same Opp. Party No. 5 while complying the order dtd.20.09.2017 of this Court with regard to regularization of the break period of the service of the Petitioner, passed the impugned order dtd.08.02.2018 under Annexure-12. In the said order the period of service was regularized by treating the same as leave due and admissible. It is also contended that while issuing such an order on 08.02.2018 under Annexure-12, the earlier order passed by the self-same authority on 28.12.2017 under Annexure-11 was never cancelled nor modified nor recalled. 4.4. Learned counsel for the Petitioner contended that since this Court while disposing the writ petition vide order under Annexure-9, held the very initial order of transfer dtd.26.09.2016 being issued in violation of the guideline and accordingly Petitioner was deprived to continue in his service for the period in question, in view of such finding of this Court, the break period of service was rightly regularized by Opp. Party No. 5 vide order dtd.28.12.2017 under Annexure-11. But on the garb of compliance of order dtd.20.09.2017, the self-same authority held otherwise vide order dtd.08.02.2018 under Annexure-12. Page 4 of 11 // 5 // 4.5. It is also contended that on the face of the interim order passed by the Tribunal on 29.09.2016 in O.A. No. 3492(C) of 2016 and further interim order passed by the self-same Tribunal on 19.04.2017 under Annexure-7 in O.A. No. 984(C) of 2017, Petitioner was never allowed to discharge his duty in his original place of posting at Ranipokhari Upgraded High School. It is accordingly contended that on the face of such interim order passed by the Tribunal, without any fault of the Petitioner, he was not allowed to continue and accordingly Petitioner is eligible and entitled to get the benefit of salary for the entire period in question. It is also contended that considering the claim of the Petitioner in terms of the order passed by this Court under Annexure-9, Opp. Party No. 5 rightly allowed his claim vide order dtd.28.12.2017 under Annexure-11 and the same could not have been modified vide the impugned order under Annexure-12. It is accordingly
Decision
contended that the impugned order is not sustainable in the eye of law and Petitioner is eligible and entitled to get the benefit of salary for the entire period i.e. 27.09.2016 to 30.10.2017. 4.6. In support of his aforesaid submission, Mr. Biswal, learned counsel for the Petitioner relied on various decisions of the Hon’ble Apex Court reported in the case of (i) Vasant Rao Roman Vs. Union of India through the Central Railway, Bombay & Ors. (1993 Supp. (2) SCC 324), (ii) State of Kerala & Ors. Vs. E.K. Bhaskaran Pillai ((2007) 6 SCC 524 (iii) Shiv Nandan Mahto ((2013)11 SCC 626) as well as the decision in the case of Shobha Ram Raturi Vs. Haryana Vidyut Prasaran Nigam Limited & Ors. ((2016) 16 SCC 663). Learned counsel for the Petitioner also relied on an order passed by this Court in the case of Muralidhar Pal Vs. State of Odisha & Ors. (W.P.C.(OA) Nos. 878 & 879 of 2015). Page 5 of 11 // 6 // 4.7. Hon’ble Apex Court in Para 3 & 4 of the Judgment in the case of Vasant Rao Roman has held as follows:- “3. We have heard learned counsel for the parties and have also perused the order of the Tribunal. The Tribunal has denied the entitlement of emoluments and other benefits to the appellant on the basis of a memorandum of the Government of India, Ministry of Home Affairs in GI.MHA OM No. E. 7/28/63-Ests (A) issued on December 22, 1964. A perusal of the aforesaid memorandum as detailed in para 14 of the order of the Tribunal shows that it applied to the case of an officer who remained suspended and could not be promoted due to his suspension or in case of officers who could not get promotion due to departmental proceeding. The Tribunal placing reliance on the aforesaid memorandum has taken the view that on the analogy of the instructions mentioned in the aforesaid memorandum and on the principle of 'no-work no-pay on a particular post, the appellant was not entitled to any arrears of pay. 4. In our view, the Tribunal was wrong in applying the aforesaid memorandum in the case of the appellant before us. Admittedly, neither the appellant had been put under suspension nor any disciplinary proceedings were pending against him. On the contrary, he had been made to suffer on account of administrative reasons for which the appellant was not responsible. There was shortage of literate Shunters at Gwalior during 1960. The appellant being literate was deputed for table work and therefore for administrative reasons he could not complete requisite number of firing kilometers. Thus, with no fault on his part his juniors had been promoted as Shunters and Drivers and his claim was ignored on account of having not completed the requisite number of firing kilometers. The Tribunal itself has allowed the claim of the appellant regarding seniority over his juniors, considering force in the contention of the appellant. Thus, in the facts and circumstances of this case, we find no justification whatsoever for not allowing the arrears of emoluments to the appellant of the post of Shunter 'B' from June 12, 1961 and that of the post of Driver 'C' from December 17, 1965.” 4.8. Similarly, Hon’ble Apex Court in Para 4 of the Judgment in the case of E.K. Bhaskaran Pillai has held as follows:- “4. Learned counsel for the State has submitted that grant of retrospective benefit on promotional post cannot be given to the incumbent when he has not worked on the said post. Therefore, he is not entitled to any benefit on the promotional post from 15-6-1972. In support thereof, the learned counsel invited our attention to the decisions of this Court in Paluru Ramkrishnaiah v. Union of India, Virender Kumar v. Avinash Chandra Chadha, State of Haryana v. O.P. Gupta, A.K. Soumini v. State Bank of Travancore and Union of Page 6 of 11 // 7 // India v. Tarsem Lals. As against this, the learned counsel for the respondent has invited our attention to the decisions given by this Court in Union of India v. K.V. Jankiraman, State of A.P. v. K.V.L. Narasimha Rao. Vasant Rao Roman v. Union of India and State of U.P. v. Vinod Kumar Srivastava. We have considered the decisions cited on behalf of both the sides. So far as the situation with regard to monetary benefits with retrospective promotion is concerned, that depends upon case to case. There are various facets which have to be considered. Sometimes in a case of departmental enquiry or in criminal case it depends on the authorities to grant full back wages or 50 per cent of back wages looking to the nature of delinquency involved in the matter or in criminal cases where the incumbent has been acquitted by giving benefit of doubt or full acquittal. Sometimes in the matter when the person is superseded and he has challenged the same before court or tribunal and he succeeds in that and direction is given for reconsideration of his case from the date persons junior to him were appointed, in that case the court may grant sometimes full benefits with retrospective effect and sometimes it may not. Particularly when the administration has wrongly denied his due then in that case he should be given full benefits including monetary benefit subject to there being any change in law or some other supervening factors. However, it is very difficult to set down any hard-and-fast rule. The principle "no work no pay" cannot be accepted as a rule of thumb. There are exceptions where courts have granted monetary benefits also.” 4.9. Similarly, Hon’ble Apex Court in Para 8 & 9 of the Judgment in the case of Shiv Nandan Mahto has held as follows:- “8. Having heard the learned counsel for the parties, we are constrained to observe that the High Court failed to examine the matter in detail in declining the relief to the appellant. In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, obvious that the appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the appellant was entitled to be paid full back wages for the period he was kept out of service. 9. Consequently, the appeal is allowed. The order passed by the Division. Bench is quashed and set aside. The appellant has already been reinstated in service. The respondents are, however, directed to pay to the appellant the entire full back wages from the period he was kept out of service till reinstatement. The full back wages shall be paid to the appellant with 9% interest. Let the amount Page 7 of 11 // 8 // be paid to the appellant within a period of three months from the date of receipt of copy of this order.” 4.10. Similarly, Hon’ble Apex Court in Para 3 of the Judgment in the case of Shobha Ram Raturi has held as follows:- to “3. Having given our thoughtful consideration the controversy, we are satisfied, that after the impugned order of retirement dated 31-12-2002 was set aside, the appellant was entitled to all consequential benefits. The fault lies with the respondents in not having utilized the services of the appellant for the period from 1-1- 2003 to 31-12-2005. Had the appellant been allowed to continue in service, he would have readily discharged his duties. Having restrained him from rendering his services with effect from 1-1-2003 to 31-12-2005, the respondent cannot be allowed to press the self- serving plea of denying him wages for the period in question, on the plea of the principle of "no work no pay.” 4.11. Similarly, this Court in Para 6.3 of the order in the case of Muralidhar Pal has held as follows:- “6.3. Therefore it is the view of this Court that in view of the order passed by the Tribunal on 29.08.2001 under Annexure- 1, the petitioners became eligible and entitled to get the benefit of promotion to the rank of Under Secretary, Deputy Secretary and Joint Secretary from the date indicated in the orders under Annexure-4, 6 & 7. Since it is found that the petitioners were denied the benefit of promotion due to the inaction of the opp. Parties and in spite of the order passed by the Tribunal on 29.08.2001, this Court placing reliance on the decisions as cited supra by the learned Senior Counsel, held that the principle of “no work, no pay” cannot be made applicable to the case in hand. Since due to the admitted latches of the Opp. Parties, the petitioners were deprived to discharge the duties in the promotional post of under Secretary, Deputy Secretary and Joint Secretary from the date of their entitlement as indicated in Annexures-4, 6 & 7, the Petitioners are eligible and entitled to get the financial benefit for the period in question. However, since the petitioners during pendency of the matter before this Court retired from Government Services on 31.10.2006 and 28.10.2006, respectively, this Court taking into account the nature of claim vis-a-vis the stand taken by the Opp. Parties, is of the view that the petitioners are entitled to get 50% of the financial benefit for the period of their entitlement indicated in the order under Annexures - 4, 6 & 7. This Court while holding so, directs the Opp. Parties to calculate the entitlements of the petitioners for the period in question and release 50% of the same within a period of three months from the date of receipt of this order. This Court further directs the Opp. Parties to revise the pension accordingly and release the arrear differential pension also within the aforesaid time period.” Page 8 of 11 // 9 // 5. Mr. S. Jena, learned Addl. Govt. Advocate on the other hand made his submission basing on the stand taken in the counter affidavit so filed by Opp. Party No. 5. Though it is not disputed by the learned Addl. Govt. Advocate with regard to the orders passed by the Tribunal under Annexure- 4, 7, 8 and the order passed by this Court under Annexure-9, but it is contended that while disposing the writ petition vide order dtd.20.09.2017, this Court permitted the Petitioner to make a representation for regularization of the break period of service before Opp. Party Nos. 4 & 5 and for its consideration within a period of four (4) weeks from the date of filing of the representation. It is contended that in terms of the said order while considering the claim Govt.-Opp. Party No. 1 vide letter dtd.05.12.2017 under Annexure-F/5 directed the B.E.O.-Opp. Party No. 5 to treat the period of absence of the Petitioner as leave due and admissible as he has not rendered any duty during that period. 5.1. It is contended that communication dtd.05.12.2017 under Annexure- F/5 though was forwarded to the Opp. Party No. 5, but Opp. Party No. 5 initially passed the order under Annexure-11 by regularizing the break period of service and by granting all service and financial benefits. But, subsequently on coming across the direction issued in letter dtd.05.12.2017 of Opp. Party No. 1 under Annexure-F/5, Opp. Party No. 5 passed a fresh order vide order dtd.08.02.2018 under Annexure-12. Since Opp. Party No. 1 vide letter dtd.05.12.2017 directed Opp. Party No. 5 to treat the period of service as leave due and admissible, Opp. Party No. 5 in accordance with the said direction, issued the fresh order under Annexure-12. It is also contended that since Petitioner has never assailed the direction contained in letter dtd.05.12.2017 so issued by Opp. Party No. 1 under Annexure-F/5, challenge made to the impugned order is not maintainable. Page 9 of 11 // 10 // 6. Having heard learned counsel appearing for the Parties and considering the submissions made, this Court finds that Petitioner while continuing as a Junior Teacher, he was placed under transfer vide order dtd.26.09.2016 so issued by Opp. Party No. 3 under Annexure-3. The said order was initially assailed by the Petitioner before the Tribunal in O.A. No. 3492(C) of 2016 and the Tribunal vide order dtd.29.09.2016 under Annexure-4 while disposing the matter with a direction on the Opp. Party No. 1 to consider the grievance of the Petitioner, passed an interim order that till such consideration no coercive action will be taken against the Petitioner pursuant to the order dtd.26.09.2016. 6.1. Thereafter, when claim of the Petitioner as directed by the Tribunal was rejected vide order dtd.10.04.2017 under Annexure-6, the same was challenged by the Petitioner before the Tribunal in O.A. No. 984(C) of 2017. The Tribunal vide order dtd.19.04.2017 while issuing notice of the matter passed an interim order by staying the operation of order dtd.26.09.2016 and order dtd.10.04.2017 under Annexure-3 & 6. When the Tribunal ultimately dismissed the Original Application vide order dtd.28.07.2018 under Annexure-8, the matter was carried to this Court in W.P.(C) No. 19387 of 2017. This Court while disposing the matter came to a definite finding that Petitioner was put under transfer vide order dtd.26.09.2016 contrary to the guideline issued by the Govt.. While holding so, this Court directed the authority to adjust the Petitioner in any of the school, where vacancy is available within the Block. In terms of the said order Petitioner was given a fresh posting vide order dtd.30.10.2017 where he joined on 31.10.2017 vide Annexure-10 series. 6.2. In terms of the direction issued by this Court and on consideration of the claim of the Petitioner for regularization of the break period of service Page 10 of 11 // 11 // from 27.09.2016 to 30.10.2017, Opp. Party No. 5 regularized the same by holding the Petitioner entitled to get all service and financial benefits vide order dtd.28.12.2017 under Annexure-11. But as found from the record, without recalling or modifying or cancelling order dtd.28.12.2017, a fresh order was passed by the self-same Opp. Party No. 5 vide office order dtd.08.02.2018 under Annexure-12, wherein the break period of service was treated as leave due and admissible. 6.3. Considering the materials available on record and the order passed by the self-same authority under Annexure-11 and the finding of this Court in order under Annexure-9 that Petitioner was put under transfer contrary to the guideline issued by the Govt. as well as placing reliance on the decisions as cited (supra), this Court is of the view that the break period of service cannot be treated as leave due and admissible and Petitioner is eligible and entitled to get the benefit of salary for the period in question. 6.4. Therefore, this Court while upholding the order dtd.28.12.2017 so passed by Opp. Party No. 5 under Annexure-11 quashed order dtd.08.02.2018 so issued by the self-same authority under Annexure-12. 6.5. It is needless to mention that the benefit accruing to the Petitioner in terms of order at Annexure-11 shall be released within a period of two (2) months from the date of receipt of this order. 7. The writ petition is disposed of with the aforesaid observation and direction. Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Aug-2024 12:33:30 Orissa High Court, Cuttack Dated the 8th of August, 2024/Sneha (BIRAJA PRASANNA SATAPATHY) Judge Page 11 of 11