Orissa High Court
Dr. Pabitra Mohan Nanda vs State Of Odisha & Ors. .... Opposite ... on 12 May, 2023
Author: Biraja Prasanna Satapathy
Bench: Biraja Prasanna Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 8893 of 2021
Dr. Pabitra Mohan Nanda .... Petitioner
Mr. S.K. Das, Advocate
-versus-
State of Odisha & Ors. .... Opposite Parties
Mr. B. Panigrahi, ASC
CORAM:
JUSTICE BIRAJA PRASANNA SATAPATHY
ORDER
12.05.2023 Order No
08. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical) Mode.
2. Heard Mr. S.K. Das, learned counsel for the Petitioner and Mr. B. Panigrahi, learned Addl. Standing Counsel appearing for the Opp. Parties.
3. The Petitioner has filed the present writ petition challenging the order passed by the Opp. Party No. 1 on 27.12.2019 under Annexure-11 and subsequent order passed on 08.02.2021 under Annexure-14 by treating the period of service of the Petitioner from 01.07.2018 to 27.12.2019 as "no work no pay".
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4. It is contended that the Petitioner while continuing as a lecturer in Physics in Talcher College, Talcher, vide order dtd.12.06.2018 under Annexure-1, he was transferred and posted to Rairakhol College, Rairakhol. Against such order of transfer the Petitioner initially moved an application before the Govt. seeking its cancellation on 14.06.2018 vide Annexure-2. As the same was not considered, the Petitioner approached this Court in W.P.(C) No. 10162 of 2018 challenging the order of transfer dtd.12.06.2018. This Court vide order dtd.21.06.2018 disposed of the matter with a direction on the Opp. Party No. 1 to take a decision on Petitioner's representation so filed on 14.06.2018. However, in the meantime the Petitioner was relieved from Talcher College, Talcher on 01.07.2018.
4.1. It is contended that after receipt of the order so passed by this Court in W.P.(C) No. 10162 of 2018, though Govt.-O.P. No. 1 cancelled the order of transfer so issued on 12.06.2018 and reposted the Petitioner to Talcher College, Talcher vide order dtd.19.07.2018 under Annexure-3, but in terms of the said order the Petitioner was not allowed to join in Talcher College, Talcher by the Principal in absence of the consequential order to be passed by the O.P. No. 2 basing on the order passed by the Govt. on 19.07.2018. Page 2 of 10
// 3 // 4.2. As the Petitioner in terms of order dtd.19.07.2018 was not allowed to join in Talcher College, Talcher, he again moved the Govt. to modify the order of transfer and to give him a definite posting vide Annexure-6. Pursuant to the said request though the Petitioner vide order dtd.21.12.2018 was transferred and posted to Parjang College, Parjang vide Annexure-7, but the Petitioner in absence of consequential order by the Director, also was not allowed to join in Parjang College.
4.3. The Petitioner accordingly again moved the Govt. to give him a definite posting and to pay his salary on dt.18.03.2019 under Anenxure-9. As no action was taken on the claim of the Petitioner as made in Annexure-9, the Petitioner approached this Court in W.P.(C) No. 7259 of 2019. This Court vide order dtd.08.04.2019 directed the Opp. Party No. 1 to consider the case of the Petitioner and in consideration of the same vide order dtd.27.12.2019 the Petitioner was again posted to Talcher College, Talcher. In terms of the order dtd.27.12.2019 under Annexure-11 the Petitioner joined in Talcher College on 28.12.2019.
4.4. However, it is contended that because of the in action of the Director as well as the Principal of Talcher College and Parjang College, the Petitioner could not join even though he was reposted Page 3 of 10 // 4 // to Talcher College, Talcher vide order dtd.19.07.2018 and to Parjang College vide Order dtd.21.12.2018. Petitioner because of such action of the O.P. No. 2 remained out of employment from 19.07.2018 to 27.12.2019. The period from 19.07.2018 to 27.12.2019 when was not regularized the Petitioner moved the O.P. No. 1 seeking regularization of the said period. In consideration of the same the impugned order was passed on 08.02.2021 under Annexure-14 by rejecting the claim and with a direction to treat the period from 30.06.2018 to 28.12.2019 as "No work no pay". 4.5. It is contended that in terms of order passed by the Govt. on 19.07.2018 under Annexure-3 the Petitioner though was ready and willing to join at Talcher College, Talcher, but he could not do so, due to the illegal action of the Principal in not allowing him to join as well as the action of the Director in not issuing a consequential order. Similarly Petitioner could not join in Parjang College, Parjang in terms of order dtd.21.12.2018 under Annexure-7 also because of the in action of the Director in not issuing any consequential order. Therefore, no fault can be found with the Petitioner for his not joining either in Talcher College in terms of order dtd.19.07.2018 and in Parjang College in terms of order dtd.21.12.2018. Only when the Govt. passed a fresh order on Page 4 of 10 // 5 // 27.12.2019 in terms of the order passed by this Court in W.P.(C) No. 7259 of 2019, the Petitioner was allowed to join in Talcher College on 28.12.2019. Therefore, the Petitioner is eligible and entitled to get the financial benefit for the period from 19.07.2018 to 28.12.2019 and the direction to treat the said period as "No work no pay" is not sustainable.
5. Mr. Panigrahi, learned ASC on the other hand made his submission basing on the stand taken in the counter affidavit so filed by O.P. Nos. 1 & 2. It is submitted that since the Petitioner in terms of original order passed on 12.06.2018 did not join and he made an application seeking modification of that order and in the meantime he was relieved from Talcher College, Talcher on 01.07.2018, the stand taken by the Petitioner with regard to his non- joining in Talcher College, Talcher in terms of order dtd.19.07.2018 is not justified. The stand taken by the Opp. Party Nos. 1 & 2 in Para 6 of the counter is reproduced hereunder:-
"6. That the Petitioner is an employee of Non-government aided educational institution. His service is governed under the Orissa Aided Educational Institutions Employee's Common Cadre and Inter- Transferability Rules-1979. Proviso to Rule-6 (3) of the said Rules prescribes that Government may transfer an employee in the Common Cadre in a Non-Government Aided Colleges in exigency of public interest. Accordingly, the Page 5 of 10 // 6 // petitioner while continuing in Bapuji College, Chhendipada, Angul w.e.f. 24.11.1986, he was transferred for the first time after 16 years to Bhima Bhoi College, Rairakhol vide order No. 21871, did. 12.06.2018. Instead of joining in the new place of posting he went on filing writ petitions after writ petitions. The Hon'ble Court in every case has declined to interfere into the transfer orders. It has only recommended the matter for consideration of the appropriate authority on the representation filed by the petitioner. It is relevant to submit that finally, when the Hon'ble Court declined to entertain then writ petition filed by the petitioner in W.P.(C) No.13552/2019 and the petitioner submitted a representation to resolve his issue, in consideration of the same, Hon'ble Court passed order on 08.04.2019 in W.P.(C) No.7259/2019. In obedience to the Hon'ble Courts order, he was posted to Talcher Autonomous College, Angul vide Higher Education Department Office Order No.31768/HE dated 27.12.2019 as under Annexure-12 and he joined thereon 28.12.2019 and he is continuing as such. The Office Order No. 6389, dtd.08.02.2021 is placed at Annexure-A/1. Since he has not contributed any work from 30.06.2018(the date of his relieve from Bapujee College, Chhendipada) till 27.12.2019, the said period was dealt as "No Wok No Pay" norm and hence, no wrong was committed by the opposite parties No.1 & 2 in addressing the claim of the petitioner. The Hon'ble Court's order in different writ petitions are placed as Annexure-B/1 (series)."
6. To the submission made by the learned ASC, learned counsel for the Petitioner fairly contended that the Petitioner has no grievance with regard to regularization of the period from 12.06.2018 to 18.07.2018 as leave due and admissible. But for the period from Page 6 of 10 // 7 // 19.07.2018 to 27.12.2019, since the Petitioner in spite of his willingness to work could not do so because of the illegal action of O.P. No. 2 in not issuing a consequential order to orders issued under Annexure-3 & 7, Petitioner is eligible to get the salary for the period 19.07.2018 to 27.12.2019 and principle of no work no pay cannot be made applicable in view of the decision of this Court in the case of Narottam Kumar Jha Vs. Union of India & Ors. (2009 (Supp.-I) OLR-620) as well as in the case of Kuni Sahoo Vs. State of Odisha & Ors. (2011 (I) OLR -960).
7. Heard learned counsel for the Parties. Perused the materials available on record as well as the stand taken in Para 6 of the counter affidavit so filed by Opp. Party Nos. 1 & 2. From the record it is found that the Petitioner though was originally transferred vide order dtd.12.06.2018 from Talcher College, Talcher, but seeking cancellation of the said order the Petitioner not only moved the Govt. on 14.06.2018, but also this Court in W.P.(C) No. 10162 of 2018. This Court vide order dtd.21.06.2018 when directed the Govt. to reconsider his case, the Petitioner vide order dtd.19.07.2018 under Annexure-3 was reposted to Talcher College, Talcher. As found from the record, Petitioner on the face of such order was not allowed by the Principal to join in Talcher College, Talcher in Page 7 of 10 // 8 // absence of the order of O.P. No. 2. Petitioner when moved an application with a prayer to give him a definite posting on 15.09.2018 under Annexure-6, Petitioner was reposted to Parjang College vide order dtd.21.12.2018 under Annexure-7. In absence of the consequential order of the Director the Petitioner as found from the record was also not allowed join at Parjang College, Parjang. The Petitioner when moved the Govt. and approached this Court in W.P.(C) No. 7259 of 2019, Opp. Party No. 1 in terms of the order passed in W.P.(C) No. 7259 of 2019 vide order dtd.27.12.2019 under Annexure-11 reposted the Petitioner to Talcher College, Talcher where he joined on 28.12.2019.
7.1. In view of such factual position, the stand taken by the Opp. Parties that the Petitioner since did not work for the period from 19.07.2018 to 28.12.2019, the same was treated as "No work no pay" is not acceptable as the Petitioner was very much willing to discharge his duty after receipt of the order under Annexure-3 dtd.19.07.2018 and subsequent order dtd.21.12.2018 under Annexure-7. Since for the latches of the College Authority as well as the Director, the Petitioner could not join in terms of order dtd.19.07.2018 as well as 21.12.2018, the Petitioner is eligible and entitled to get the benefit of salary for the period from 19.07.2018 Page 8 of 10 // 9 // to 28.12.2019. The period from 01.07.2018 to 18.07.2018 however is to be treated as leave due and admissible. This Court in Para 4 of the case in Narottam Kumar Jha has held as follows:-
"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.
7.2. Similarly, this Court in Para 7 to 9 in the case of Kuni Sahoo (supra) 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, (e., 1.11.1998 to 25 the petition here 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.Page 9 of 10
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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).
9. It is further stated by the learned counsel for the petitioner that now the petitioner is suffering from Cancer and getting treatment. He further submits that if the entire amount is computed and paid to the petitioner, she can get better treatment. He also undertakes that if the said amount is paid within two months from today, the petitioner shall forego 25% of her total entitlement."
7.3. Taking into account the submissions made by the learned counsel appearing for the Parties and the decisions as cited supra, this Court while directing for payment of salary for the period from 19.07.2018 to 28.12.2019, held the Petitioner entitled to receive 50% of his entitlement for the said period. Opp. Party No. 1 is directed to pass an appropriate order in that regard within a period of two (2) months from the date of receipt of this order.
8. The writ petition is accordingly disposed of.
(Biraja Prasanna Satapathy) Judge Sneha Signature Not Verified Digitally Signed Signed by: SNEHANJALI PARIDA Designation: Jr. Stenographer Reason: Authentication Location: Cuttack Date: 15-May-2023 19:43:53 Page 10 of 10