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2017 DIGILAW 1318 (ORI)

Jagabandhu Dash v. State of Orissa

2017-11-16

SUJIT NARAYAN PRASAD

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JUDGMENT : S.N. Prasad, J. This writ petition is for issuance of direction upon the opposite parties to quash the order 28.12.1992 passed by the Presiding Officer, State Education Tribunal, Orissa, Bhubaneswar under Annexure-2 whereby whereunder the Appellate Authority, while allowing the appeal, has reinstated the petitioner in service within three months from the date of the order, but, however, holding him not entitled to the back wages as also the order dated 15.1.1996 passed by the Inspector of Schools, Sundargarh under Annexure-7, especially the decision taken by him at paragraph-2 which relates to non-payment of arrear of salary. 2. The grievance raised by the petitioner in this case is that he, while working as Clerk in the P.S. High School, Jareikela in the district of Sundargarh w.e.f. 19.7.1977, was terminated from service w.e.f. 9.5.1984. The petitioner has challenged his termination by filing the appeal before the State Education Tribunal, Orissa, Bhubaneswar being Appeal No.6 of 1989 whereby and whereunder the Appellate Authority, while disposing of the appeal vide order dated 28.12.1992, has allowed the appeal in part, reinstated the petitioner in service, but holding him not entitled to the back wages. 3. The petitioner has approached before this Court by filing a writ petition being O.J.C. No. 3801 of 1994 praying inter alia therein to call for the records of Appeal No.6 of 1989 decided on 28.12.1992 and after perusing the same, a direction has been sought for upon the opposite parties to immediate reinstatement of the petitioner in his former post, deeming continuance of petitioner’s service without any break whatsoever from 9.5.1984 till his reinstatement and payment of back wages of the petitioner from 9.5.1984 till his reinstatement and declaring that the order dated 2.1.1992 passed in O.J.C. No. 5008 of 1991 is neither binding on the petitioner nor affecting the rights of the petitioner in any manner. A Division Bench of this Court has disposed of the said writ petition vide order dated 25.7.1995 whereby and whereunder the petitioner has been directed to make representation before the Inspector of Schools regarding the claim related to back wages from 9.5.1994. A Division Bench of this Court has disposed of the said writ petition vide order dated 25.7.1995 whereby and whereunder the petitioner has been directed to make representation before the Inspector of Schools regarding the claim related to back wages from 9.5.1994. The petitioner has made a representation and in the light of the same, the Inspector of Schools has passed the order dated 15.1.1996 whereby and whereunder the back wages have been refused to be extended in his favour on the ground that one Sri N.P. Verma was appointed against his termination vacancy and was paid his salary in pursuant to the order dated 21.1.1992 passed in O.J.C. No. 5008 of 1991. 4. The petitioner, being aggrieved with these two orders, i.e., under Annexures-2 and 7, is before this Court by way of this instant writ petition. 5. Learned counsel for the petitioner has submitted that the petitioner is claiming his back wages as also the continuity, increment and due seniority to be counted from the date of his initial appointment. 6. Learned Standing Counsel appearing for the School and Mass Education Department has submitted that the petitioner cannot be held to be entitled for the back wages for the period when he was opt for service for the reason that the other person, namely, Sri N.P. Verma was engaged against the termination vacancy of the petitioner and when he was not been disbursed with his salary for the said period, he has approached before this Court by filing a writ petition being O.J.C. No. 5008 of 1991 wherein this Court has directed to disburse the arrear of salary in favour of Sri N.P. Verma and in the light of the said direction, the salary has been disbursed in his favour and as such, for a single post, there cannot be disbursement, since the salary is to be given on the post not on the individual. As such, it has been submitted that the claim of the petitioner for back wages is not justified. He has further submitted that the Appellate Authority has taken into consideration this aspect of the matter and has specifically denied the back wages on the ground that in spite of several directions, the petitioner did not join the duties. 7. As such, it has been submitted that the claim of the petitioner for back wages is not justified. He has further submitted that the Appellate Authority has taken into consideration this aspect of the matter and has specifically denied the back wages on the ground that in spite of several directions, the petitioner did not join the duties. 7. Learned counsel for the petitioner in rebuttal has submitted that in O.J.C. No. 5008 of 1991, the petitioner was not been impleaded as party and as such, the order passed by this Court in the said writ petition is not binding upon him and in view thereof, denial of salary for the said period will be not proper. He has further submitted that even accepting that the back wages has been denied, but his pay scale cannot be fixed at the initial stage of reinstatement otherwise the period of service rendered by him from the date of initial engagement will be said to be nullity and the same will be contrary to the settled position, since there is an order of reinstatement passed by the Appellate Authority which has been accepted by the State-opposite parties having not been assailed before any higher forum and when there is an order of reinstatement, the entire service period from the date of engagement will have to be taken into consideration and in that view of the matter, the entire consequential benefits from the date of initial engagement has to be extended in favour of the petitioner. He has further submitted that the back wages can be denied on the principle of “no work no pay”, but the denial of the back wages does not amount that his past service will not be taken into consideration, since the increment is different to that of the back wages and placing him at initial pay scale amounts to denial of entire increments which he has accrued by virtue of remaining in service from the date of initial appointment and as such, on this account, the authorities have committed gross error. 8. 8. Learned Standing Counsel appearing for the School and Mass Education Department, on the argument of the learned counsel for the petitioner regarding denial of benefit of increment and fixing of salary at the initial stage of reinstatement, has fairly submitted that he is not disputing about the settled position of law and if that is so, the appropriate order may be passed directing the authorities to take decision in this regard. 9. Heard the learned counsel for the parties and perused the documents available on record. 10. It is evident on appreciation of the rival submissions of the parties that the petitioner was appointed as Clerk in the School in question against the permanent vacancy on 19.7.1977. His service has been approved by the competent authority while working there. He has been terminated from service w.e.f. 9.5.1984. The petitioner has approached to the Appellate Authority by filing an appeal as per the provision of statute and the same has registered as Appeal No. 6 of 1989. The Appellate Authority has decided the appeal vide order dated 28.12.1992 and while deciding the appeal, the order of reinstatement has been passed directing the authority to reinstate him within three months from the date of order, but the petitioner has been held not entitled to get the back wages. 11. The petitioner has approached to this Court by filing a writ petition being O.J.C. No. 3801 of 1994 with the following prayers :- “The petitioner, above named, therefore prays that this writ application may kindly be admitted, the records of Appeal No.6/89 decided on 28.12.1992 may kindly be called for from the State Education Tribunal, Orissa, Bhubaneswar and examined and after hearing parties a writ of mandamus may kindly be issued to the Opposite Parties directing (i) immediate re-instatement of the petitioner in his former post (ii) deeming continuance of Petitioner’s service without any break whatsoever from 9.5.84 till his re-instatement (iii) payment of back wages of the petitioner from 9.5.84 till his re-instatement and declaring that the order dtd. 2.1.1992, passed in O.J.C.5008/91 is neither binding on the petitioner nor affecting the rights of the petitioner in any manner.” The Division Bench of this Court, while disposing of the said writ petition vide order dated 25.7.1995, has passed the following directions :- “Regarding the claim of back wages from 9.5.1984, we are not inclined to pass any order since determination of this question requires inquiry into facts for which this Court in writ jurisdiction is not the appropriate forum. We would, however, permit the petitioner to submit a representation relating to this claim (back wages from 9.5.1984) to the Inspector of Schools through the Headmaster. If such a representation is filed, the Inspector will consider the same and pas appropriate orders within four months of its receipt.” 12. The petitioner, in view of the said order, has filed a representation before the Inspector of Schools, Sundargarh and the Inspector of Schools, Sundargarh, has taken a decision on 15.1.1996 whereby and whereunder the following three decisions have been taken :- “1. Order dt.28.12.1992 on State Education Tribunal, Orissa, Bhubaneswar Appeal No.6 of 1989–Jagabandhu Das vrs. State & Others. 2. Sri N.P. Verma was appointed by the Managing Committee in place of the petitioner in his termination vacancy & was paid his Salary, pursuant to order No.3 dt.2.1.92 of O.J.C.No.5008 of 1991, hence two persons can not be paid for one post for the same period. 3. There is Government instruction to adopt the principle “No work no Pay”. 13. The petitioner, being aggrieved with the order of the Appellate Authority whereby and whereunder the back wages has been denied and as also the decision taken by the Inspector of Schools, Sundergarh under paragraph-2 which relates to denial of the back wages with assigning the reason therein, is before this Court by way of this instant writ petition challenging the said decision. 14. This Court, after appreciating the rival submissions of the parties and going through the material available on record, has found that the petitioner has been appointed as Clerk against the permanent vacancy of the School in question on 19.7.1977. The petitioner, while working, was terminated from service w.e.f. 9.5.1984 on account of the allegation of willful absence. 14. This Court, after appreciating the rival submissions of the parties and going through the material available on record, has found that the petitioner has been appointed as Clerk against the permanent vacancy of the School in question on 19.7.1977. The petitioner, while working, was terminated from service w.e.f. 9.5.1984 on account of the allegation of willful absence. Since the school in question is aided school and the post of Clerk is the sole post and as such, in order for smooth functioning of school, against the permanent vacancy of the petitioner, one Sri N.P. Verma has been engaged and he started discharging his duty. When the petitioner has been reinstated in service by virtue of the order passed by the Appellate Authority, Sri N.P. Verma has made a space for him and the petitioner has started discharging his duty. Sri N.P. Verma was initially not been paid the salary for the period for which he has discharged his duty. Hence, he has approached to this Court vide O.J.C. No.5008 of 1991 and this Court has passed an order directing the authorities to consider the claim of the petitioner and accordingly, the arrear of salary in favour of Sri N.P. Verma for the period for which he has rendered the duty has been released in his favour. 15. It is not in dispute that in a case of termination made on the basis of misconduct, if an employee will not discharge duty, he will not be entitled to get arrears of the back wages for the said period that is on the basis of principle of “no work no pay”. Further, there is an exception to that, i.e., if the employee has forcefully been restrained from discharging his duty, then the principle of “no work no pay” will not be applicable. 16. So far as the fact of the case is concerned, admittedly, the petitioner has been terminated from service on account of his unauthorized absence meaning thereby it is not that he has forcefully been restrained from discharging his duty. He in his own has failed in discharging his duty and as such, his case will not come under the purview of exception of non-applicability of principle of “no work no pay”. Hence, the order passed by the Appellate Authority regarding the denial of back wages for the said period is not to be interfered with. He in his own has failed in discharging his duty and as such, his case will not come under the purview of exception of non-applicability of principle of “no work no pay”. Hence, the order passed by the Appellate Authority regarding the denial of back wages for the said period is not to be interfered with. This is also coupled with the reason as stipulated in order dated 15.1.1996 under Annexure-7 whereby and whereunder the reason for denial of the back wages has been mentioned, i.e., for the said period, one Sri N.P. Verma was appointed against the termination vacancy of the petitioner and for that period, i.e., period when he has discharged his duty, he has paid the arrear salary meaning thereby the school in question has already made payment in favour of Sri N.P. Verma against the one permanent vacancy for the post of Clerk which the petitioner was occupying and subsequently he has occupied by virtue of quashing of order of termination. It is settled that the salary is to be paid on the basis of post and not on the basis of individual working of an employee. It is further evident from Annexure-7 that Sri N.P. Verma has approached to this Court vide O.J.C. No.5008 of 1991 and in view of the said order, the salary has been disbursed in his favour. 17. Here submission has been made by the petitioner that the order dated 21.1.1992 passed in O.J.C. No. 5008 of 1991 in which he has not been impleaded as party and as such, the same is not binding upon him. This argument is not accepted for the reason that even accepting the plea of the petitioner that he was not impleaded as party in that proceeding, but proper course available to him was to file a review, but he has not done. Hence, this point is not available to him at this moment when the salary has been disbursed in favour of Sri N.P. Verma in the light of the order passed by this Court in O.J.C. No. 5008 of 1991. 18. In view thereof, the order dated 28.12.1992 passed by the Appellate Authority under Annexure-2 as also the order dated 15.1.1996 passed by the Inspector of Schools, Sundergarh under Annexure-7 declined to be interfered with. 19. 18. In view thereof, the order dated 28.12.1992 passed by the Appellate Authority under Annexure-2 as also the order dated 15.1.1996 passed by the Inspector of Schools, Sundergarh under Annexure-7 declined to be interfered with. 19. So far as the benefit of increment is concerned, it is not in dispute that in case of reinstatement, the salaried employee renew his status meaning thereby, if there will be an order of reinstatement, he will be deemed to have been in service and his services will be counted from the date of his initial appointment. 20. According to the petitioner, his services being counted from the date of initial appointment and on the basis of that if he has been made superannuated and he is getting pension, but the grievance of the petitioner is that on reinstatement in service, his pay has been fixed at the initial stage of the service meaning thereby the entire increment which he has accrued from the date of initial engagement has been taken away by the authority without any rhyme and reason and that is contrary to the acceptable proposition of law. 21. It is also not disputed that increment is related to the pay scale and it cannot be segregated when the petitioner has been reinstated in service after the termination order being quashed otherwise there will no difference in between reinstatement and fresh appointment, hence the increment which he has got from the date of initial appointment is ought to have been added in the pay scale of the petitioner, but that has not been done. Hence, decision of the authority in fixing the pay scale of the petitioner is contrary to the settled position of law. It is also for the reason that even the Appellate Authority has not said about withholding of increment, rather only back wages has been withheld. 22. In view thereof, the case of the petitioner in the light of this situation warrants consideration afresh. Accordingly, the matter is remitted before the Director, Secondary Education, Odisha, Bhubaneswar to consider this aspect of the matter and take a fresh decision within period of three months from the date of receipt of certified copy of this order. If the authority will take decision in favour of the petitioner, the Director, Secondary Education, Odisha, Bhubaneswar will take decision regarding his arrear of differential salary as also fixation of pension. If the authority will take decision in favour of the petitioner, the Director, Secondary Education, Odisha, Bhubaneswar will take decision regarding his arrear of differential salary as also fixation of pension. With the aforesaid observations and directions, the writ petition is disposed of.