Allowed

Ghasiram Behera v. State of Odisha

Orissa HC10 Jul 2025WA/441/2025

Case brief

AI extract

What is this about?

The Orissa High Court allowed a writ appeal, holding that a government employee reinstated after being acquitted of corruption charges is entitled to full salary and allowances for the suspension period. The bench ruled that 'honourable acquittal' occurs when the prosecution fails to prove its case, shifting the case under Rule 91(2) of the Odisha Service Code. Consequently, the 'no work, no pay' principle was inapplicable as the delay was due to the department's inaction and unlawful suspension, warranting full restitution of dues and benefits.

What did the court decide?

Allowed the appeal and the W.P.; set aside the impugned order; directed the respondents to consider the respondent's pay, allowances, and all service benefits as admissible under Rule 91(2) and (4) of the Odisha Service Code within three months.

Ghasiram Behera Vs State of Odisha — Pension and Retirement Benefits | Orissa HC (2025)

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ORISSA HIGH COURT : CUTTACK

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WA No.441 of 2025

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In the matter of an Appeal under Article 4 of the Orissa High Court Order, 1948

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read with

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Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna

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and

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Rule 6 of Chapter-III and Rule 2 of Chapter-VIII of the Rules of the High Court of Orissa, 1948

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Ghasiram Behera Aged about 59 years Son of Anirudh Behera At: Boinda, P.S.: Handipada District: Angul.

… Appellant

-VERSUS-

1. State of Odisha

Represented through Under Secretary to Government Finance Department, Odisha Bhubaneswar District: Khordha.

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2. Directorate of Treasuries and Inspection Odisha, Bhubaneswar At/P.O.: Bhubaneswar District: Khordha.

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W.A. No.441 of 2025

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3. The Assistant Directorate of Treasuries and Inspection, Odisha, Bhubaneswar At/P.O.: Bhubaneswar, District: Khordha.

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4. District Treasury Officer, Dhenkanal At/P.O./District: Dhenkanal … Respondents

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Counsel appeared for the parties:

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For the petitioner : Mr. Chitta Ranjan Pattnaik, Ms. Riza Das, Advocate

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For the opposite parties

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: Mr. Bimbisar Dash, Additional Government Advocate

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P R E S E N T:

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HONOURABLE CHIEF JUSTICE MR. HARISH TANDON

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AND

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HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN

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Date of Hearing : 01.07.2025 :: Date of Judgment : 10.07.2025

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JUDGMENT

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MURAHARI SRI RAMAN, J.—

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Assailed in the writ appeal is the Judgment dated 30.01.2025 rendered in W.P.(C) No.25707 of 2024, craving for the following relief(s):

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“It is, therefore, respectfully prayed that, this Hon‟ble Court may graciously be pleased to admit this appeal, call for records of the writ petition, issue notice to the respondents/opposite parties and after hearing the parties may graciously be pleased to set aside the order of Hon‟ble Single Judge dated 03.01.2025 passed in W.P.(C) No.25707 of 2024 as well as the order of the authority dated 03.09.2024;

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And further may direct the authority to sanction all service benefits like arrear salaries from the date of suspension till his reinstatement in service dated 04.09.2024 and other consequential benefits like promotion and arrear salaries in his favour forthwith preferably within a stipulated period as this Hon‟ble court deems fit and proper.

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And further may pass any other order/s, direction/s as this Hon‟ble Court deems just and proper to give relief to the petitioner.

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And for this act of kindness, the petitioner as in duty bound shall ever pray.”

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FACTS:

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2. Facts leading to filing of this writ appeal are narrated infra .

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2.1. By virtue of Order dated 27.01.1982 of the Government of Odisha in Finance Department, Bhubaneswar, the appellant, being appointed, joined as Junior Clerk in the District Treasuries, Kalahandi and was transferred to different places. The appellant, while discharging duties

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in the Treasury Office, Pallahara, a vigilance case being P.S. Case No.64 of 2003 under Section 7 and Section 13(1)/(2) of the Prevention of Corruption Act, 1988 was initiated against him and being arrested by the vigilance department, the Director of Treasuries and Inspection, Odisha at Bhubaneswar in exercise of power conferred under sub-rule (2) of Rule 12 of Odisha Civil Services (Classification, Control and Appeal) Rules, 1962 (“CCA Rules”, for brevity) placed him under suspension with effect from 27.11.2003 for his detention in custody exceeding forty-eight hours.

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2.2. A preliminary explanation was called for and thereafter memorandum of charges was issued against him by the Directorate of Treasuries and Inspection, Odisha, Bhubaneswar on 10.05.2004. The appellant filed his written explanation denying charges levelled against him. Turning down his explanation, the Treasury Officer, Angul was appointed as an Enquiry Officer to undertake an enquiry into the said allegations.

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2.3. During pendency of the departmental proceeding, the Special Judge, Vigilance, Cuttack, vide Judgment dated 19.05.2017 in TR No.314 of 2007 with respect to offences punishable under Section 13(2) read with Section 13(l)(d) and Section 7 of the Prevention of Corruption Act 1988, besides holding him guilty of the charges, sentenced him to undergo rigorous

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imprisonment for period of one year and directed to pay fine of Rs.1,000/- (rupees One Thousand only) and, in default, rigorous imprisonment for two months for the said offences. Consequent upon such order of conviction in the criminal trial, the Directorate of Treasuries and Inspection, Odisha, Bhubaneswar, dismissed him from service under Rule 18(1) of the CCA Rules and by Office Order vide Letter dated 20.10.2017 relieved him of the duties.

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2.4. Aggrieved by the Judgment and Order of conviction, an appeal, bearing CRLA No. 379 of 2017, was preferred before this Court, which was allowed vide Judgment dated 09.10.2023, and thereby, the Judgment and Order of conviction under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and sentence passed thereunder came to be set aside with observation that the petitioner “is acquitted of all the charges”.

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2.5. The petitioner made approaches before the Directorate of Treasuries and Inspection, Odisha, Bhubaneswar, to reinstate him in service with all service benefits, but in vain, which led him to file a writ petition, registered as W.P.(C) No.12883 of 2024. Said writ petition was disposed of with the following Order dated 21.05.2024:

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“3. The present writ petition has been filed by the Petitioner with the following prayers:

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„Under such circumstance it is therefore prayed that your Lordship‟s would be graciously pleased to admit this writ application, call for records and after hearing the parties, may be pleased to issue a writ/s/order/s/direction/s in the nature of mandamus directing the opposite parties to reinstate him in service along with all service benefits admissible to him under law, forthwith, preferably within a stipulated period as this Hon‟ble court deem fit and proper.

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And further may pass any other order/s/directions/s as this Hon‟ble Court deems fit and proper to extend relief to the petitioner.‟

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***

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4. *** He also submitted that the Opposite Party No.2 has sought for clarification from the vigilance authorities. Since no clarification has been received by the Opposite Party No.3, the Opposite Party No.2 has not taken any final decision with regard to the reinstatement in service of the Petitioner after his acquittal in criminal case. Learned counsel for the Petitioner further referred to the judgment of the Hon‟ble Supreme Court in Ram Lal Vrs. State of Rajasthan and Others, Civil Appeal No.7935 of 2023, arising out of SLP (C) No.33423 of 2018, decided on 4th December, 2023. Referring the aforesaid judgment, learned counsel for the Petitioner submitted that the case of the Petitioner is squarely covered by the ratio laid down by the Hon‟ble Supreme Court in the above noted judgment. Therefore, the Opposite Parties be directed to reinstate the Petitioner in service by

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following the aforesaid judgment of the Hon‟ble Supreme Court.

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***

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6. Considering the submissions of the learned counsels appearing for the respective parties, this Court deems it proper to dispose of the writ petition at the stage of admission by directing the Opposite Party No.2 to consider the representation of the Petitioner under Annexure-4 to the writ petition and dispose of the same within a period of two months from the date of communication of a certified copy of this order by the Petitioner by passing a speaking and reasoned order. It is further made clear that if any clarification is required by the Opposite Party No.2, the same shall be furnished by the Opposite Party No.3 as expeditiously as possible, preferably within a period of four weeks from the date of communication of a certified copy of this order by the Petitioner. The final decision so taken by the Opposite Party No.2 be communicated to the Petitioner within ten days thereafter.”

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2.6. The Director of Treasuries and Inspection vide Office Order in File No.PRS-50/2017/Lt. No.10897, dated 03.09.2024 in compliance of aforesaid direction of this Court reinstated the petitioner in service without allowing any pay or allowances to him for the dismissal period and directed that “the period of his absence from duty shall not be treated as a period spent on duty under Rule 91 of the Odisha Service Code”.

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2.7. Dissatisfied thereby, the petitioner knocked the doors of this Court again by way of writ petition, being W.P.(C) No.25707 of 2024, which stood dismissed by a Judgment dated 30.01.2025 of the learned Single Judge with the following observations:

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“13. The perusal of the aforementioned judicial precedents, when juxtaposed with the facts of the present case, leaves no ambiguity in the conclusion that the petitioner‟s entitlement to back wages hinges upon the discretionary powers vested in the competent authority under Rule 91 of the Orissa Service Code. The petitioner was acquitted on grounds that the prosecution failed to prove the charges beyond reasonable doubt, with specific observations by this Court that the recovery of bribe money was a doubtful feature and the defense plea was established by a preponderance of probability. Such a finding falls within the category of acquittals rendered on the benefit of doubt, rather than one that fully exonerates the petitioner of the allegations.

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14. The authority exercised its discretion, as empowered under Rule 91, to deny back wages for the period of dismissal, citing the absence of complete exoneration. Such an exercise of discretion cannot be deemed arbitrary or capricious, given the context of the acquittal and the precedential guidance. The petitioner, while reinstated in service, cannot claim an automatic entitlement to back wages unless it is demonstrably established that his suspension and dismissal were wholly unjustified, which is not the case here.

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15. Beyond the issue concerning the nature of the petitioner‟s acquittal, his claim for back wages is constrained by the well-established principle of “no work, no pay.” This doctrine, rooted in equity and the moral fabric of service jurisprudence, dictates that one cannot seek the fruits of labour not rendered, particularly when the absence from duty stems from one‟s own actions or mis-judgments.

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16. When an individual becomes entangled in criminal proceedings as a consequence of his own deeds, and later secures an acquittal based on the benefit of doubt rather than a clean exoneration, the claim for full salary and allowances cannot be asserted as an inherent right.

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17. In this context, the Supreme Court, in Reserve Bank of India, New Delhi Vrs. Bhopal Singh Panchal, (1994) 1 SCC 541 addressed the application of the principle of “no work, no pay” within the framework of service jurisprudence, particularly concerning a bank employee. The Court further emphasized that when an employee is unable to discharge their responsibilities due to circumstances attributable to their own actions, such as involvement in legal or disciplinary proceedings, the claim for back wages cannot be asserted as a matter of right. The relevant excerpts of the judgment is produced below:

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„The competent authority while deciding whether an employee who is suspended in such circumstances is entitled to his pay and allowances or not and to what extent, if any, and whether the period is to be treated as on duty or on leave, has to take into consideration the circumstances of each case. It is

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only if such employee is acquitted of all blame and is treated by the competent authority as being on duty during the period of suspension that such employee is entitled to full pay and allowances for the said period. In other words, the Regulations vest the power exclusively in the Bank to treat the period of such suspension on duty or on leave or otherwise. The power thus vested cannot be validly challenged. During this period, the employee renders no work. He is absent for reasons of his own involvement in the misconduct and the Bank is in no way responsible for keeping him away from his duties. The Bank, therefore, cannot be saddled with the liability to pay him his salary and allowances for the period. That will be against the principle of „no work, no pay‟ and positively inequitable to those who have to work and earn their pay. ‟

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18. Akin to the aforementioned judicial precedents, the present petitioner‟s case is similarly governed by the principle of “no work, no pay.” In the present case, the petitioner‟s absence from service was a direct consequence of his involvement in criminal proceedings. While this Court subsequently acquitted the petitioner, the acquittal was not one of unequivocal honour but rather based on the benefit of doubt, leaving the charges unproven beyond reasonable doubt.

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V. Conclusion:

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19. In light of the foregoing discussion and the established principles of law, this Court finds no merit in the petitioner‟s claim for back wages. The competent authority lawfully exercised its

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discretion to deny back wages, given the nature of the petitioner‟s acquittal, which was rendered on the benefit of doubt. Granting such relief would contravene the principle of “no work, no pay” and undermine the discipline and equity integral to public service.

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20. This Writ Petition is, therefore, dismissed.”

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2.8. Still dissatisfied, the Appellant preferred the present appeal questioning propriety of non-extension of legitimate dues by application of “no work, no pay” principle.

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Hearing:

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3. The matter came up before this Court for consideration for admission of the writ appeal.

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3.1. Since the application of principle of “no work, no pay” vis-à-vis Rule 91 of the Odisha Service Code (“OSC”, for short) to deny service benefits upon being reinstated in service on the facts and in the circumstances where the prosecution failed to prove the charges levelled against the appellant under the Prevention of Corruption Act, 1988, is involved, on consent of counsel for the respective parties, the writ appeal is heard finally for disposal on merits.

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3.2. Heard Sri Chitta Ranjan Pattnaik, learned Advocate representing the appellant and Sri Bimbisar Dash,

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learned Additional Government Advocate for the respondents.

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3.3. Upon conclusion of hearing, the matter was kept reserved for preparation and delivery of Judgment/ Order.

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Contentions and submissions of rival parties:

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4. Refuting application of the principle “no work, no pay”, as held by the learned Single Judge, it is vehemently contended by the learned counsel that when the prosecution has failed to establish the charges against the appellant and the appellate Court having appreciated the evidence on record acquitted him from all charges under the provisions of the Prevention of Corruption Act, there is no scope for the respondents to say that the appellant-petitioner was responsible for his absence from duty during the period of suspension as well as the period between date of acquittal and reinstatement in service. Therefore, Sri Chitta Ranjan Pattnaik, learned Advocate would urge that the appellant is entitled to the relief(s) claimed for.

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4.1. He strenuously argued that the learned Single Judge omitted to have regard to provisions of sub-rule (2) of Rule 91 of the OSC; rather emphasis being laid on subrule (3) ibid. is misplaced. Drawing attention of this Court to the finding returned by the appellate Court in

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CRLA No.379 of 2017, vide Judgment dated 09.10.2023, it is submitted that “the prosecution cannot derive any advantage from the falsity or other infirmities of the defence version, so long as it does not discharge its initial burden of proving its case beyond all reasonable doubt” is indicative of fact that the acquittal of the appellant is clean and honourable. Therefore, he argued that the approach of the learned Single Judge is erroneous inasmuch as he considered the Judgment in criminal appeal as if the order of acquittal by the learned appellate Court was on account of “benefit of doubt” as distinguished from connotation of “fully exonerated”.

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4.2. Relying on the decision of the Hon’ble Supreme Court of India in the case of Ram Lal Vrs. State of Rajasthan, (2023) 15 SCR 808 = 2023 INSC 1047 Sri Chitta Ranjan Pattnaik, learned Advocate buttressed his argument by stating that without being biased by the use of the terminologies like “benefit of doubt” and “honourably acquitted”, the learned Single Judge ought to have considered that in the criminal appeal, the appellant was acquitted of all charges as the prosecution has failed to bring home charges levelled against him under the provisions of the Prevention of Corruption Act. Therefore, he vociferously submitted that the appellant was not only to have been reinstated, but also should have been extended all consequential service benefits including

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pay, allowance, seniority, promotions, fitment of salary and the like.

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5. Per contra, Sri Bimbisar Dash, learned Additional Government Advocate, supporting the findings and observations of the learned Single Judge vide Judgment dated 30.01.2025, sought to justify the decision contained in the Office Order dated 03.09.2024 of the Director of Treasuries and Inspection, Odisha, Bhubaneswar.

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5.1. Referring to Rule 91(3) of the OSC, he would submit that the learned Single Judge was correct in arriving at the conclusion for by way of the Judgment the appellate Court in criminal appeal did not observe that the acquittal was clean one, but the same was tainted with infirmity in the defence version and the trial Court, in fact, convicted him and awarded sentence. Therefore, the Judgment in CRLA No.379 of 2017 cannot be construed to have completely exonerated the appellant of all the charges. As a consequence thereof, in view of unambiguous provisions contained in Rule 91(3)(a) of the OSC, it could not have been stated that the competent authority utilized his judicious discretion by denying pay and allowances as claimed by the appellant. Thus, fervently praying to dismiss the writ appeal, he submitted not to show indulgence in the Judgment dated 30.01.2025 of the learned Single Judge.

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5.2. The learned Additional Government Advocate cited a decision of the Hon’ble Supreme Court of India rendered in Union of India Vrs. Jaipal Singh, (2004) 1 SCC 121 to contend that the appellant is rightly not allowed by the learned Single Judge arrear pay and allowances and he emphatically urged that the appellant is not entitled to any relief.

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DISCUSSIONS AND ANALYSIS:

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6. The pleadings, grounds of appeal and arguments of counsel for the respective parties takes this Court to consider whether the appellant can be said to be “fully exonerated” in terms of Rule 91(2) of the OSC.

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6.1. The provisions of Rule 91 of the Odisha Service Code are reproduced herein below for better comprehension of the issue at hand:

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“Rule 91.—

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(1) When a Government servant who has been dismissed, removed, compulsorily retired or suspended is reinstated or would have been reinstated but for his retirement on superannuation while under suspension the authority competent to order the reinstatement shall consider and make a specific order:

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(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty or for the period of

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suspension ending with the date of his retirement on superannuation, as the case may be, and

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(b) whether or not the said period shall be treated as a period spent on duty.

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(2) Where such competent authority holds that the Government servant has been fully exonerated or in the case of suspension, that it was wholly unjustified, the Government servant shall be given the full pay to which he would have been entitled had he not been dismissed , removed, compulsorily retired or suspended, as the case may be, together with any allowances of which he was in receipt prior to his dismissal , removal or suspension.

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(3) (a) In the case of dismissal, removal and compulsory retirement when a Government servant who is not completely exonerated of the charges , is reinstated in service, it shall be open to the competent authority to decide not to allow any pay or allowances to him.

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(b) In the case of suspension when a Government servant, not having been exonerated of the charges fully, is reinstated in service, he may be allowed subsistence allowance only for the period of suspension as admissible under Rule 90.

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(4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes .

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(5) In a case falling under clause (3) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose:

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Provided that if the Government servant so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Government servant.”

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6.2. Perusal of record relating to writ petition reveals that:

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i. The appellant was suspended by Office Order dated 27.11.2003 issued by the Director of Treasuries and Inspection, for having remained in custody for more than forty-eight hours in view of Rule 12(2) of the CCA Rules.

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ii. The appellant due to dismissal from Government service was relieved from duties by Office Order vide Memo No.3090, dated 20.10.2017, issued by the Treasury Officer, Dhenkanal.

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iii. After order of acquittal in criminal appeal, the petitioner was reinstated in Government service and posted as Junior Assistant at District Treasury, Dhenkanal by Office Order dated 03.09.2024 issued by the Directorate of Treasuries and Inspection, Odisha, Bhubaneswar.

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6.3. By rendering Judgment dated 09.10.2023, the criminal appeal, being CRLA No.379 of 2017, stood allowed with the following pertinent observations:

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“16. *** It is not in dispute that an accused is not supposed to establish his defence plea by proving it beyond reasonable doubt like the prosecution but by preponderance of probability. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstance upon which the accused relies. The burden can be discharged by an accused adducing cogent and reliable evidence which must appear to be believable or by bringing out answers from the prosecution witnesses or showing circumstances which might lead the Court to draw a different inference. The prosecution cannot derive any advantage from the falsity or other infirmities of the defence version, so long as it does not discharge its initial burden of proving its case beyond all reasonable doubt. If the defence version is incorrect, it does not mean that the prosecution version is necessarily correct. The prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. The learned trial Court seems to have not considered the defence plea of the appellant on the touchstone of preponderance of probability.

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Conclusion:

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17. In view of the foregoing discussions, when the prosecution has not successfully established

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the demand aspect of bribe by the appellant beyond all reasonable doubt , the acceptance of bribe money by the appellant and the recovery of bribe money from the possession of the appellant is a doubtful feature and moreover the defence plea put forth by the appellant has been established by preponderance of probability, it would not be legally justified to hold the appellant guilty of the offences charged. Accordingly, the criminal appeal succeeds and is allowed. The impugned judgment and order of conviction of the appellant under Section 7 and Section 13(2) read with Section 13(1)(d) of the 1988 Act and the sentence passed thereunder is hereby set aside and the appellant is acquitted of all the charges. The appellant is on bail by virtue of the order of this Court. He is discharged from liability of his bail bond. The personal bond and the surety bond stand cancelled.”

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6.4. To come to such conclusion as extracted above, the appellate Court analysed the evidence of witnesses and weighed the veracity of defence version as also the burden which lay on the prosecution vis-à-vis gravamen of offences under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. It is held by the learned appellate Court on merit that there has been “failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction”. On the issue whether there was occasion for

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the appellant to demand bribe with respect to any pending work, if any, on threadbare discussion with regard to material on record, the appellate Court came to hold that there was no occasion for the appellant to demand any bribe as there was no work pending with the appellant as on 14.11.2003. The learned appellate Court inter alia observed that:

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“*** Exhibit 14 reveals that it was received only on 11.11.2003 in the Sub-Treasury which would be evident from the official seals and signatures. Therefore, there is neither any oral evidence or documentary evidence that any bills of the mother of P.W.1 had come to Sub-Treasury Office, Pallahara prior to 11.11.2003. *** P.W.5, the Treasury Officer also deposed that the bills file dealt by the appellant was sent to the accountant on 12.11.2003 and it was approved by him on 14.11.2003 on being placed by the accountant. *** Therefore, I am of the humble view that there was no occasion on the part of the appellant prior to 11.11.2003 to demand bribe and there was no pending work of P.W.1 as on 14.11.2003 with the appellant to make demand of bribe.”

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6.5. With respect to acceptance of bribe by the appellant, it is observed in the Judgment in criminal appeal as follows:

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“14. P.W.1 has stated that he brought out the tainted money of Rs.1,100/- from his left side chest pocket and gave the same to the appellant which was accepted by the appellant and was kept it in his left side pocket of his wearing shirt and then the appellant kept the money below some files in the Office steel almirah. In the cross-examination,

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however P.W.1 has stated that he himself had kept the money in the shirt pocket of the appellant, but he did not remember the exact pocket in which he kept the money. He further stated that the GC notes were recovered from the pocket of the appellant. Therefore, the evidence of P.W.1 in the chief examination is contrary to the evidence in the crossexamination. The overhearing witness P.W.3 is completely silent regarding acceptance of bribe money by the appellant from P.W.1. The word „acceptance‟ connotes receipt or acknowledgment with consenting mind. It is a deliberate act by which one was willing to receive or acknowledge something for the act/favour he intends to show. Accidental, unintentional receipt or receipt under misrepresentation or planting of money clandestinely without the knowledge of the person or thrusting of money into the possession of the accused would not be „acceptance‟ as is required to constitute one of the ingredients of offence under Section 13(1)(d) or Section 7 of 1988 Act. If as per the evidence of P.W.1, he himself thrust the money into the shirt pocket of the appellant, it cannot be said that the appellant voluntarily accepted the money. Therefore, the prosecution has not successfully established that on the date of trap, there was acceptance of bribe money by the appellant from P.W.1.”

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6.6. From aforesaid material particulars discussed in the Judgment rendered in criminal appeal, this Court reached at the clear and untrammelled conclusion that the appellant is completely cleared of all charges. Thus, it can be said that the appellant is “fully exonerated”.

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6.7. The background factual matrix when read juxtaposed with provisions contained in Rule 91 of the OSC, it is crystal clear that when the Government servant is held to be cleared from all charges due to laxity of the prosecution, no fault can be attributed to the accused/ delinquent; thereby sub-rule (2) thereof would attract in such situation, but not sub-rule (3). The present case, hence, falls squarely within the ambit of sub-rule (2) read with sub-rule (4) of Rule 91 of the OSC.

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6.8. In Ram Lal Vrs. State of Rajasthan, (2023) 15 SCR 808, the Hon’ble Supreme Court has been pleased to observe that,

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“25. Expressions like “benefit of doubt” and “honorably acquitted”, used in judgments are not to be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Exh. P-3, the original marksheet carries the date of birth as 21.04.1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used.

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26. We are satisfied that the findings of the appellate judge in the criminal case clearly indicate that the charge against the appellant was not just, “not proved”— in fact the charge even stood “disproved” by the very prosecution evidence. As held by this Court, a fact is said to be “disproved” when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. A fact is said to be “not proved” when it is neither “proved” nor “disproved” [See Vijayee Singh and Others v. State of U.P. (1990) 3 SCC 190].”

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6.9. In the case of Union of India Vrs. Jaipal Singh, (2004) 1 SCC 121, relied on by the learned Additional Government Advocate, it has been observed as follows:

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“4. On a careful consideration of the matter and the materials on record, including the judgment and orders brought to our notice, we are of the view that it is well accepted that an order rejecting a special leave petition at the threshold without detailed reasons therefor does not constitute any declaration of law by this Court or constitute a binding precedent. Per contra, the decision relied upon by the appellant is one on merits and for reasons specifically recorded therefor it operates as a binding precedent as well. On going through the same, we are in respectful agreement with the view taken in Ranchhodji, (1996) 11 SCC 603. If prosecution, which ultimately resulted in acquittal of the person concerned was at the

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behest of or by the department itself, perhaps different considerations may arise. On the other hand, if as a citizen the employee or a public servant got involved in a criminal case and if after initial conviction by the trial court, he gets acquittal on appeal subsequently, the department cannot in any manner be found fault with for having kept him out of service, since the law obliges a person convicted of an offence to be so kept out and not to be retained in service. Consequently, the reasons given in the decision relied upon, for the appellants are not only convincing but are in consonance with reasonableness as well. Though exception taken to that part of the order directing reinstatement cannot be sustained and the respondent has to be reinstated in service, for the reason that the earlier discharge was on account of those criminal proceedings and conviction only, the appellants are well within their rights to deny back wages to the respondent for the period he was not in service. The appellants cannot be made liable to pay for the period for which they could not avail of the services of the respondent. The High Court, in our view, committed a grave error, in allowing back wages also, without adverting to all such relevant aspects and considerations. Consequently, the order of the High Court insofar as it directed payment of back wages is liable to be and is hereby set aside.”

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6.10. The present case is a case where the criminal case was instituted by the department and, therefore, it was for the prosecution to prove the charges to the hilt; nonetheless, by virtue of appellate Court Judgment, the

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charges levelled against the appellant in criminal case under the Prevention of Corruption Act ultimately resulted in acquittal. In such circumstance, the view expressed by the Hon’ble Supreme Court in Jaipal Singh (supra) is different considerations would arise. Thus, the said case instead of aiding the submission of the respondents assists the cause of the appellant.

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6.11. Under the aforesaid premise, as the appellant is held to be “fully exonerated” in view of tenor of Judgment dated 09.10.2023 in criminal appeal and ratio of decision of the Hon’ble Supreme Court in Ram Lal (supra) and Jaipal Singh (supra) it can safely be said that the learned Single Judge has mistaken the fact as if the instant case is a case where the appellant has “entangled” himself. Such erroneous perception as flagged at paragraph 16 of the impugned Judgment landed the learned Single Judge to arrive at wrongful conclusion.

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6.12. As this Court comes to the conclusion that the nature and tenor of the Judgment dated 09.10.2023 rendered in CRLA No.379 of 2017 leads to construe that the appellant is “fully exonerated” as envisioned in sub-rule (2) of Rule 91, the absence of the appellant from duty is required to be treated “as a period spent on duty for all purposes” in terms of sub-rule (4). Further, the provisions of sub-rule (2) and sub-rule (4) read conjointly leads this Court to construe the appellant

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“fully exonerated”, he would be entitled to “full pay to which he would have been entitled had he not been dismissed” or “suspended” together with all allowances of which he was in receipt prior to his dismissal or suspension.

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7. On a careful reading of Judgment dated 09.10.2023 in CRLA No.379 of 2017 it is given to understand that this Court has discussed evidence and material available on record relating to trial Court and came to the positive conclusion that the prosecution could not discharge its burden to prove the charges levelled against the appellant and consequently, the appellant was acquitted of all charges.

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7.1. Scrutiny of Office Order dated 03.09.2024 issued by the Directorate of Treasuries and Inspection emanates that the authority has misconstrued the acquittal of the appellant as if it was on account of “benefit of doubt”. Relevant portion of the said Office Order reads as follows:

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“9. The Hon‟ble High Court, Orissa while disposing of the CRLA No.379 of 2017 vide Order dated 09.10.2023 set aside the Order of the conviction dated 19.05.2017 passed by the Special Judge (Vigilance), Cuttack in Vigilance in PS Case No. 64/2003, sentence passed thereunder Section 7 and Section 13(2) read with Section 13(1)(d) of the 1988

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Act, acquitting Sri Behera from all the charges on the benefit of doubt.”

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7.2. It may not be out of place to have a reference to Delhi Police Vrs. Mehar Singh, (2013) 7 SCC 685 to appreciate the concept of “honourable acquittal”/“acquitted of blame”/“fully exonerated”. In the said case it has been observed that,

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“25. The expression “honourable acquittal” was considered by this Court in Inspector General of Police Vrs. S. Samuthiram, (2013) 1 SCC 598. In that case this Court was concerned with a situation where were initiated disciplinary proceedings against a police officer. Criminal case was pending against him under Section 509, IPC and under Section 4 of the Eve-Teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in RBI Vrs. Bhopal Singh Panchal, (1994) 1 SCC 541, where in somewhat similar fact situation, this Court upheld a bank‟s action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal , this Court held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings. This Court observed that the expressions “honourable acquittal”, “acquitted of blame” and “fully exonerated” are unknown to the Criminal Procedure Code or

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the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression “honourably acquitted”. This Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.

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26. In light of the above, we are of the opinion that since the purpose of the departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude, out of the department, if found necessary, because they pollute the department, surely the above principles will apply with more vigour at the point of entry of a person in the Police Department i.e. at the time of recruitment. If it is found by the Screening Committee that the person against whom a serious case involving moral turpitude is registered is discharged on technical grounds or is acquitted of the same charge but the acquittal is not honourable, the Screening Committee would be entitled to cancel his candidature. Stricter norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it.”

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7.3. In Imtiyaz Ahmad Malla Vrs. State of J&K, (2023) 19 SCC 588 it has been reiterated that:

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“13. In State (UT of Chandigarh) Vrs. Pradeep Kumar, (2018) 1 SCC 797 also it was reiterated that if a

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person is acquitted or discharged, it cannot obviously be inferred that he was falsely involved, or he had no criminal antecedents. The precise observations made therein are reproduced hereunder:

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„10. The acquittal in a criminal case is not conclusive of the suitability of the candidates in the post concerned. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. What is honourable acquittal, was considered by this Court in Inspector General of Police Vrs. S. Samuthiram, (2013) 1 SCC 598, in which this Court held as under:

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„24. The meaning of the expression “honourable acquittal” came up for consideration before this Court in RBI Vrs. Bhopal Singh Panchal, (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions “honourable acquittal”, “acquitted of blame”, “fully exonerated” are unknown to the Code of Criminal Procedure or the Penal Code, which are

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coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression “honourably acquitted”. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. ‟

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11.-12. ***

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13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still, it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Delhi Police Vrs. Mehar Singh, (2013) 7 SCC 685 and State of M.P. Vrs. Parvez Khan, (2015) 2 SCC 591 cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably acquitted/completely exonerated. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide. The Screening Committee also must be alive to the importance of the trust reposed in it and must examine the candidate with utmost character.‟

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***”

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7.4. Ex facie the perception of the authority concerned is not borne on record as the Judgment in the criminal appeal recorded that “Accordingly, the criminal appeal succeeds and is allowed. The impugned Judgment and order of conviction of the appellant under Section 7 and Section 13(2) read with Section 13(1)(d) of the 1988 Act and the sentence passed thereunder is hereby set aside and the appellant is acquitted of all the charges”. It seems the Director of Treasuries and Inspection added the words “benefit of doubt” to the conclusion arrived at in the criminal appeal. Such interpretation of the Judgment of this Court by the respondent-authority concerned is unwholesome. As it appears such addition is made only to thwart the financial liability and extension of other service benefits to the appellant. For failure of the prosecution to prove the charges, the appellant could not be saddled with liability and thereby denied of his legitimate status and entitlement to the service benefits.

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7.5. This Court may fruitfully refer to the following view expressed by a 3-Judge Bench of the Hon’ble Supreme Court of India rendered in the case of Sudha Shrivastava Vrs. Comptroller and Auditor General of India, (1995) Supp.4 SCR 797:

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“Even otherwise, if the husband of the appellant was not to be promoted, he would certainly be entitled to receive salary in the lower post till the date of his death in

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October 1981. In Union of India Vrs. K.V. Jankiraman, (1991) 4 SCC 109, it was observed by this Court that when an employee is completely exonerated and is not visited with penalty, then he has to be given the benefit of salary of the higher post along with the other benefit on the date on which he would normally have been promoted but for the disciplinary/criminal proceedings. Moreover, this is not a case where the acquittal of the deceased was as a result of his being given the benefit of doubt or on account of non-availability of evidence. In the instant case, the High Court has held, while allowing the criminal appeal and setting aside the conviction that „one cannot but hold that late S.S. Shrivastava had not done anything, which would justify a charge of corruption against him, much less a charge of conspiracy‟.”

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7.6. In the present matter as has already been stated the Judgment in the criminal appeal clearly reveals that the appellant was acquitted of all charges on analysis of merit of the matter and appreciation of details of evidence available on record. It is not a case of acquittal on account of paucity of evidence so as to hold the acquittal on benefit of doubt.

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7.7. With respect to entitlement to back wages on reinstatement in service upon order of conviction being set aside, this Court is not unaware of following observations made by the Hon’ble Supreme Court in Maharashtra State Road Transport Corporation Vrs. Mahadeo Krishna Naik, (2025) 3 SCR 100 :

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“43. We cannot but endorse our wholehearted concurrence with the views expressed in the aforesaid decisions. Taking a cue therefrom, it can safely be concluded that ordering back wages to be paid to a dismissed employee— upon his dismissal being set aside by a court of law— is not an automatic relief; grant of full or partial back wages has to be preceded by a minor fact-finding exercise by the industrial adjudicator/court seized of the proceedings. Such exercise would require the relevant industrial court or the jurisdictional High Court or even this Court to ascertain whether in the interregnum, that is, between the dates of termination and proposed reinstatement, the employee has been gainfully employed. If the employee admits of any gainful employment and gives particulars of the employment together with details of the emoluments received, or, if the employee asserts by pleading that he was not gainfully employed but the employer pleads and proves otherwise to the satisfaction of the court, the quantum of back wages that ought to be awarded on reinstatement is really in the realm of discretion of the court. Such discretion would generally necessitate bearing in mind two circumstances:

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the first is, the employee, because of the order terminating his service, could not work for a certain period under the employer and

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secondly, for his bare survival, he might not have had any option but to take up alternative employment.

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It is discernible from certain precedents, duly noticed in Deepali Gundu Surwase Vrs. Kranti Junior

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Adhyapak Mahavidyala, (2013) 9 SCR 1, that the courts are loath to award back wages for the period when no work has been performed by such an employee. Such a view is no doubt debatable, having regard to the ratio decidendi in Hindustan Tin Works (P) Ltd. Vrs. Employees, (1979) 1 SCR 563, Surendra Kumar Verma Vrs. Central Government Industrial Tribunal-cum-Labour Court, (1981) 1 SCR 789 and Deepali Gundu Surwase (supra). Though the latter decision was cited before the coordinate bench when it decided Rajasthan State Road Transport Corporation, Jaipur Vrs. Phool Chand, (2018) 11 SCR 448, any thoughtful discussion appears to be absent.

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44. There is one other aspect that would fall for consideration of the court. In certain decisions, noticed in Deepali Gundu Surwase (supra), it has been opined that whether or not an employee has been gainfully employed is within his special knowledge and having regard to Section 106 of the Evidence Act, 1872, the burden of proof is on him. What is required of an employee in such a case? He has to plead in his statement of claim or any subsequent pleading before the industrial tribunal/labour court that he has not been gainfully employed and that the award of reinstatement may also grant him back wages. If the employee pleads that he was not gainfully employed, he cannot possibly prove such negative fact by adducing positive evidence . In the absence of any contra-material on record, his version has to be accepted. Reference in this connection may be made to Section 17-B of the Industrial Disputes Act, 1947, which confers a right on an employee to seek “full

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wages last drawn” from the employer while the challenge of the employer to an award directing reinstatement in a higher court remains pending. There too, what is required is a statement on affidavit regarding non-employment and with such statement on record, the ball is in the court of the employer to satisfy the court why relief under such section ought not to be granted by invoking the proviso to the section. We see no reason why a similar approach may not be adopted. After the employee pleads his non-employment and if the employer asserts that the employee was gainfully employed between the dates of termination and proposed reinstatement, the onus of proof would shift to the employer to prove such assertion having regard to the cardinal principle that „he who asserts must prove‟. Law, though, seems to be well settled that if the employer by reason of its illegal act deprives any of its employees from discharging his work and the termination is ultimately held to be bad in law, such employee has a legitimate and valid claim to be restored with all that he would have received but for being illegally kept away from work. This is based on the principle that although the employee was willing to perform work, it was the employer who did not accept work from him and, therefore, if the employer‟s action is held to be illegal and bad, such employer cannot escape from suffering the consequences. However, it is elementary but requires to be restated that while grant of full back wages is the normal rule, an exceptional case with sufficient proof has to be set up by the

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employer to escape the burden of bearing back wages.

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45. We hasten to add that the Courts may be confronted with cases where grant of lumpsum compensation, instead of reinstatement with back wages, could be the more appropriate remedy. The courts may, in such cases, providing justification for its approach direct such lumpsum compensation to be paid keeping in mind the interest of the employee as well as the employer.”

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7.8. It is case of nobody in the instant matter that during the period of absence on account of suspension and subsequent dismissal from Government service till his reinstatement in such service, the appellant was gainfully employed. Further, with regard to the entitlement to full pay and allowances to which the appellant would have been entitled to had he not been suspended and/or dismissed, the authorities, particularly Director of Treasuries and Inspection, Odisha, Bhubaneswar ought to have adhered to what has been stipulated in sub-rule (2) read with sub-rule (4) of Rule 91 of the Odisha Service Code.

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8. As discussed in the foregoing paragraphs it has been evinced from the documents available on record that the respondents have not considered the case of the appellant in proper perspective and failed to appreciate that the matter should have been decided in conformity with the provisions contained in sub-rule (2) read with

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sub-rule (4) of Rule 91 of the OSC. Since no plea is advanced by the respondents that the appellant was in gainful employment during the period of suspension and from date of dismissal till his reinstatement in service, the principle of “no work, no pay” does not apply in the fact-situation of the present case.

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8.1. Noteworthy to have reference to Punjab National Bank Vrs. Virender Kumar Goel, reported in (2004) 2 SCC 193 , wherein it has been observed that,

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“17. *** The applicants shall be reinstated into their posts with continuity in service, back wages and all consequential benefits as are entitled to them under the law. They shall, however, refund the entire amount deposited into their bank accounts with interest accrued, if any, to the Bank. Full refund of the amount by the applicants would be the condition precedent for reinstatement. Mr Mukul Rohatgi, learned Additional Solicitor General submits that applying the principle of “no work no pay”, back wages should not be allowed to them on their reinstatement. We are unable to accept this contention. The applicants were out of their jobs for no fault of theirs. Even otherwise, party in breach of contract can hardly seek for any equitable relief.”

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8.2. In a contempt matter relating to non-extension of other consequential benefits on reassignment of seniority in Commissioner, Karnataka Housing Board Vrs. C. Muddaiah, (2007) 7 SCC 689 the perspective of principle

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of “no work, no pay” has been discussed illuminatingly in the following manner:

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“34. We are conscious and mindful that even in absence of statutory provision, normal rule is “no work no pay”. In appropriate cases, however, a Court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the authority to grant him all benefits considering “as if he had worked”. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of law and if such directions are issued by a Court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected.”

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8.3. In the case of Gowramma Vrs. Manager (Personeel), Hindustan Aeronautical Ltd., (2022) 1 SCR 734 it has been observed in the context where the employee was completely blameless in the matter and if the employee is not at all at fault and was kept out of work by reasons of the decision taken by the employer with respect to payment of back wages as follows:

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“9. It is true that no work no pay is a principle which is apposite in circumstances where the employee does

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not work but it is not an absolute principle, which does not admit of exceptions. In this regard we may notice that in one of the judgments relied upon by the respondents, namely, State of Kerala Vrs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524 which, in fact, dealt with issue as to monetary benefits when retrospective promotion is given, this Court held:

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„… 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.‟

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10. In the decision in P.V.K. Distillery Ltd. Vrs. Mahendra Ram, (2009) 5 SCC 705 again relied upon by respondent, the matter arose out of an award by the Labour Court where exercise of power under Section 11 of the Industrial Disputes Act was made. This is also a case where incidentally the court noted that the appellant-employer remained closed for years together and it was declared as a sick unit. In this regard, a fact which weighed with the court is found reflected in following statement:

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„18. Although direction to pay full back wages on a declaration that the order of termination was invalid used to be the usual result but now, with the passage of time, a pragmatic view of the matter is being taken by the Court realising that an industry may not be compelled to pay to the workman for the period during which he apparently contributed little or nothing at all to it and/or for a period that was spent unproductively as a result whereof the employer would be compelled to go back to a situation which prevailed many years ago, namely, when the workman was retrenched.‟

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11. In regard to interference in such matters, i.e., cases relating to back wages, we find similar approach adopted in other decisions which no doubt the respondent lays store by [see in this regard (2007) 5 SCC 742]. Though the decision reported in Canara Bank Vrs. Damodar Govind Idoorkar, (2009) 4 SCC 323 again relied upon by the respondent did involve the service of the employee being terminated as he had secured employment in the reserved category using a false caste certificate and the Court modified

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direction of the High Court which ordered full back wages by substituting the order by reducing it to 50%, we do not find that any principle has been laid down which could be treated as constituting it as a precedent. The decision in Deepali Gundu Surwase Vrs. Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) and Others, (2013) 10 SCC 324 involved the High Court setting aside the award of back wages on the ground that the appellant had not proved the factum of non-employment. The Court inter alia laid down as follows:

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„(vi) In a number of cases, the superior courts have interfered with the award of the primary adjudicatory authority on the premise that finalization of litigation has taken long time ignoring that in majority of cases the parties re not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the cannot be blamed or litigants penalized. It would amount to grave injustice to an employee or workman if he is denied back wages simply because there is long lapse of time between the termination of his service and finality given to the order of reinstatement. The courts should bear in mind that in most of these cases, the employer is in an advantageous position vis-à-vis the employee or workman. He can avail the services of best legal brain for prolonging the agony of the sufferer i.e. the employee or workman, who can ill-afford the luxury of spending money on a lawyer with certain amount of fame. Therefore, in such cases it would be prudent to adopt the

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course suggested in Hindustan Tin Works (P) Ltd., (1979) 2 SCC 80.

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12. The most important question is whether the employee is at fault in any manner. If the employee is not at all at fault and she was kept out of work by reasons of the decision taken by the employer, then to deny the fruits of her being vindicated at the end of the day would be unfair to the employee. In such circumstances, no doubt, the question relating to alternative employment that the employee may have resorted to, becomes relevant. There is also the aspect of discretion which is exercised by the Court keeping in view the facts of each case. As we have already noticed, this is a case where apart from the charge of the employee having produced false caste certificate, there is no other charge. Therefore, we would think that interests of justice, in the facts of this, would be subserved, if we enhance the back wages from 50% to 75% of the full back wages, which she was otherwise entitled. The appeals are partly allowed. The impugned judgments will stand modified and the respondents shall calculate the amount which would be equivalent to 75% of the back wages and disburse the amount remaining to be paid under this judgment within a period of six weeks from today to the additional appellants.”

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8.4. In Shobha Ram Raturi Vrs. Haryana Vidyut Prasaran Nigam Ltd. , (2016) 16 SCC 663 the observation of the Hon’ble Supreme Court of India runs as follows with respect to consideration of fault of employer:

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“3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the

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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 utilised the services of the appellant for the period from 01.01.2003 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 01.01.2003 to 31.12.2005, the respondent cannot be allowed to press the selfserving plea of denying him wages for the period in question, on the plea of the principle of „no work no pay‟.”

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8.5. Taking into account the view expressed in State of Kerala Vrs. E.K. Bhaskaran Pillai, (2007) 6 SCC 524 = AIR 2007 SC 2645, in the case of Ramesh Kumar Vrs. Union of India, AIR 2015 SC 2904, it has been observed as follows:

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“13. We are conscious that even in the absence of statutory provision, normal rule is “no work no pay”. In appropriate cases , a court of law may take into account all the facts in their entirety and pass an appropriate order in consonance with law. The principle of “no work no pay” would not be attracted where the respondents were in fault in not considering the case of the appellant for promotion and not allowing the appellant to work on a post of Naib Subedar carrying higher pay scale. In the facts of the present case when the appellant was granted promotion w.e.f. 01.01.2000 with the ante-dated seniority from 01.08.1997 and

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maintaining his seniority alongwith his batchmates, it would be unjust to deny him higher pay and allowances in the promotional position of Naib Subedar.”

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8.6. Conspectus of aforesaid decisions would leave no manner of ambiguity that where the employee was denied or the conduct of the employer rendered the Government servant unable to discharge duty as the fault lies with the employer, the rule of “no work, no pay” may not attract and, as such the principle “no work no pay” cannot be accepted as a rule of thumb. The imprimatur in aforesaid discussed cases shed light to demonstrate that said proposition is subject to variation “in appropriate cases”, and discretion has been left open to be exercised by the Court of law which “may take into account all the facts in their entirety”.

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8.7. On a cursory glance at the Office Order dated 03.09.2024 of the Director of Treasuries and Inspection, it is transpiring that the Disciplinary Authority has considered reinstatement of the appellant in service without allowing any pay or allowances to him for the dismissal period and the period of his absence from duty was not treated as a period spent on duly under Rule 91 of OSC. As has already been observed hitherto that subrule (2) read with sub-rule (4) of Rule 91 does not render any scope to the authorities but to say that the appellant is entitled to full pay together with any allowances to

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which he would have been entitled to had he not been suspended and dismissed inasmuch as the period of absence from duty is required to be treated as a period spent on duty for all purposes.

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CONCLUSION & DECISION:

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9. Having concluded in the Judgment rendered in the criminal appeal on appreciation of evidence on record to hold that the appellant is acquitted of all charges, there can arise no manner of doubt that the appellant is not “fully exonerated” and, thereby the instant case attracts provisions of sub-rules (2) and (4) of Rule 91 of the Odisha Service Code. Hence, the Office Order dated 03.09.2024 issued from Directorate of Treasuries and Inspection, Odisha, Bhubaneswar so far as it denied any pay or allowances to the appellant during the dismissal period by treating the period of his absence from duty as a period spent not on duty as if the case falls within the ambit of sub-rule (3) of Rule 91 of the Odisha Service Code cannot be countenanced, which warrants interference.

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9.1. Under the above precinct, the Judgment dated 30.01.2025 of learned Single Judge passed in W.P.(C) No.25707 of 2024 is not in consonance with evidence available on record on the anvil of sub-rules (2) and (4) of Rule 91 of the OSC and the approach of the learned

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W.A. No.441 of 2025

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Page 45 of 46

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Single Judge by proceeding to uphold the Office Order dated 03.09.2024 as if the case falls within the ken of sub-rule (3) is erroneous.

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9.2. Ergo, this Court intervening in such Judgment of learned Single Judge does set aside with direction to the respondents to consider the pay and the allowances along with all service benefits as admissible in consonance with provisions in sub-rule (2) and sub-rule (4) of Rule 91 of the Odisha Service Code.

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Signature Not Verified

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Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-inCharge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 11-Jul-2025 17:02:28

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9.3. As the appellant has already been reinstated in service, the above exercise shall have to be completed within a period of three months from date.

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10. In fine, the writ appeal is allowed and, as a consequence thereof the writ petition also stands allowed, but in the circumstances without any order as to costs. All pending interlocutory applications, if any, are disposed of accordingly.

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I agree.

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(HARISH TANDON) (MURAHARI SRI RAMAN) CHIEF JUSTICE JUDGE

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High Court of Orissa, Cuttack The 10^th July, 2025//Bichi/Laxmikant

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W.A. No.441 of 2025

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Page 46 of 46

Ghasiram Behera v. State of Odisha

Case brief

What is this about?

What did the court decide?

Ghasiram Behera v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

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