Principle Of No Work No Pay Not Applicable If Order Of Termination Illegal: Delhi High Court

Background Facts

Manisha Sharma (Petitioner) was appointed as a Trained Graduate Teacher (English) (TGT) by Vidya Bhawan Girls Senior Secondary School (Respondent) in 2008 on probation. Her appointed was confirmed in 2009. In 2014, an alleged false complaint was filed with the Deputy Director alleging that when the Petitioner was initially appointed, she did not have the required qualifications. An inquiry was initiated and by an order dated 31.10.2016, the Competent Authority held that the Petitioner did not possess the required qualification for the post of TGT and an order of dismissal of services of Petitioner was passed.

The Petitioner filed a statutory appeal before the Delhi School Tribunal (Tribunal) which was allowed and the Tribunal held the order of termination of the Petitioner to be illegal and directed her reinstatement will full back wages from the date of the order. A writ petition was filed against the order of the Tribunal which was dismissed. Further an LPA and later an SLP were also filed, both of which were dismissed as well.

Thus, an order of reinstatement was issued by the Respondent on 22.04.2019 but there was no order with respect to back wages. Thus, the Petitioner filed a contempt petition for not granting back wages but before the contempt petition was taken up, an order dated 18.09.2019 was passed by the Director of Education wherein back wages were again denied to the Petitioner on the ground that the Petitioner did not work during the settlement period and on the principle of no work no pay, no back wages were payable. By a corrigendum dated 02.01.2020, backwages for a period from 28.07.2017 till 24.04.2019 i.e. the date on which the Petitioner was reinstated were directed to be paid

Thus, the writ petition was filed challenging the orders which had denied backwages to the Petitioner from the date of dismissal (31.10.2016) till the order of Tribunal was passed (28.07.2017).

Findings of the Court

The court relied on the Supreme Court judgment of Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya (E.ED.) and Others wherein it was held that if an employee is ordered to be reinstated based on a finding that the competent authority had taken an action against the relevant statutory provisions or against the principles of natural justice, then the employee is entitled to claim full back wages.

The court observed that the Tribunal had categorically found the dismissal of service to be illegal. Further the Tribunal held that the Petitioner was entitled full wages from the date of that order and that she would also be entitled for all consequential benefits.

The court further held that the principle of no work no pay as applied by the Deputy Director of Education was not applicable in view of the ratio laid down in the case of Deepali Gundu Surwase. The principle of no work no pay is attracted to many cases but the Deepali Gundu Surwase has carved an exception of this principle. It further held that

“A distinction has been drawn in those cases where the orders of termination have been held to be illegal and simultaneously it has been found that the terminated employee had shown his or her willingness to continue in services but was deprived by some reason or the other by the Authority. In such of those cases the employees have been held to be entitled to back wages.”

The court further relied on the case of Hena Dutta vs. The Director of Education and Ors. wherein the Delhi High Court held that where a person has not worked, he will not be entitled to any arrears of salary but in case the person is deprived/prevented from rendering the services, then the person would be entitled to arrears of pay and other emoluments.

With the aforesaid observations, the court allowed the writ petition and ordered back wages to be paid to the Petitioner from the period of 31.01.2016 to 28.07.2017.

Case No.- W.P.(C) 4217/2022

Case Name- Manisha Sharma Vs Vidya Bhawan Girls Senior Secondary School & Anr

Citation: 2024 LiveLaw (Del) 677

Counsel for Petitioners- Mr. Abhishek Kaushik and Ms. Swati Roy Prasad, Advocates

Counsel for Respondents- Mrs. Avnish Ahlawat, Standing Counsel (GNCTD) with Mr. Nitesh Kumar Singh, Ms. Laavanya Kaushik, Ms. Aliza Alam and Mr. Mohnish Sehrawat, Advocates

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