'No Work, No Pay' Can't Be Universally Applied, Especially Where Fault Lies With Employer: Orissa High Court

Brief Facts:

The Petitioner was appointed as Lecturer in History at Joda Women's College on 05.09.1988 and was subsequently terminated by the governing body of the College on 23.09.1995. She appealed the termination, and the appeal was allowed by the Director, Higher Education, Odisha. The governing body was instructed to reinstate the petitioner and take further action according to the rules.

However, the governing body failed to comply with the Director's order, leading the Petitioner to file a writ petition in 1996 in the Orrisa High Court (“High Court”), which was disposed of directing the concerned authority to implement the Director's order effectively.

Following instructions from the Director's office, the Petitioner rejoined the College on 10.01.1996 and continued her duties until her retirement on 31.01.2023, after being transferred to Siddheswar College. The Petitioner approached the High Court and filed a writ petition.

The Petitioner claimed that she was not paid her salary from 10.01.2006 onwards, nor was the period of illegal termination from 23.09.2005 to 09.01.2006 regularized. In response, the Director, of Higher Education, Odisha, stated that a provisional differential salary was released for a certain period, but regularization of the aforementioned period was pending due to inaction by the governing body.

Observations by the High Court:

The High Court noted that the Petitioner's termination was deemed illegal by the Director of Higher Education in a subsequent ruling. Despite this, the order to reinstate the petitioner was not adhered to until 10.01.2006. Throughout this period, both the Petitioner and the management sought legal recourse, with the Petitioner urging the governing body to enforce the Director's order and the governing body attempting to challenge the Director's decision.

The High Court noted that the petitioner filed a contempt application which eventually led to the release of her salary amounting to Rs. 1,23,746/- along with a provisional differential salary of Rs. 8,61,343/- for the period from 10.01.2006 to 29.02.2012. However, despite these efforts, the period during which the Petitioner was unlawfully terminated remained unrectified.

The High Court held that while reinstatement is typically granted when termination is deemed illegal, the award of back wages is not automatic. Various factors come into play, including whether the employee was gainfully employed during the relevant period. Furthermore, the High Court held that the "no work no pay" principle cannot be universally applied, especially when the employer is at fault for not utilizing the employee's services. (referred to J.K. Synthetics Ltd. v. K.P. Agrawal (2007) 2 SCC 433, and State Bank of India v. Ram Chandra Dubey and others AIR 2000 SC 3734).

The High Court held that there was no valid justification for the failure to reinstate the Petitioner into service following the Director's ruling that her termination was unlawful. While the Petitioner did not explicitly state that she was not gainfully employed during the relevant period, her consistent plea before the Director and the governing body, coupled with her multiple litigations seeking reinstatement, strongly suggest otherwise. Moreover, the Director's finding that the termination lacked proper procedural adherence further reinforces the illegality of the Petitioner's dismissal. Therefore, the High Court held that the Petitioner's reinstatement, albeit after a significant delay of nearly a decade and solely due to the Director's intervention, absolved her of any fault for not fulfilling her duties during the contested period. Consequently, it held that the "no work no pay" principle cannot be applied.

The High Court held that the Petitioner's services from 23.09.1995 to 09.01.2006 must be regularized, with all corresponding service and financial benefits granted as per the law. Any salary due from 10.01.2006 onwards, following the regularization of her service, shall be released after adjusting the previously disbursed amount, along with the provision for a full pension.

Case Title: Madhusmita Dutta vs State of Orissa & others

Case Number: W.P.(C) No. 13296 of 2006

Advocate for the Petitioner: M/s. Supriyo Ranjan Mahapatra, P.C. Mahapatra, S. Mishra & K. Dey, Advocates.

Advocate for the Respondent: Mr. A.R. Dash, Addl. Government Advocate

Click Here To Read /Download Order