Dismissed

State of Odisha v. MD Motiullah

Orissa HC15 Jul 2025WA/573/2025

Case brief

AI extract

What is this about?

This writ appeal challenged a single judge's order granting an employee arrears of salary despite his non-attendance, caused by authorities' failure to post him. The Division Bench held the authorities at fault, denied the 'no work, no pay' defense, and upheld the lower court's decision directing the release of arrears.

What did the court decide?

The writ appeal is dismissed, and the Single Judge's judgment allowing the release of arrears of salary from 01.04.1993 to 21.12.2010 is upheld. The deadline to comply with this direction is extended

State of Odisha Vs MD Motiullah — Pension and Retirement Benefits | Orissa HC (2025)

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ORISSA HIGH COURT : CUTTACK

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WA No.573 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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1. State of Odisha Represented through Commissioner- cum- Secretary to Government School and Mass Education Department, Odisha Lok Seva Bhawan, Bhubaneswar, District: Khordha.

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2. Director of Secondary Education, Odisha At: Heads of Department Building P.O.: Bhubaneswar, District: Khordha.

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3. Inspector of Schools, Jajpur Circle At/P.O./District: Jajpur.

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4. Inspector of Schools, Bhadrak Circle At/P.O./District: Bhadrak … Appellants (Opposite parties in the writ petition)

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-VERSUS-

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Md. Motiullah Aged about 55 years Son of Late Rahim Bux Village: Dhamnagar, P.O.: Dhamnagar District: Bhadrak. … Respondent (Petitioner in writ petition)

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W.A. No.573 of 2025

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Counsel appeared for the parties:

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For the appellants : Mr. Saswat Das, Additional Government Advocate For the respondent : M/s. Biren Sankar Tripathy,

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: M/s. Biren Sankar Tripathy, Mihir Kanta Rath, J. Pati, P.P. Tripathy and M. Gupta Advocates

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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 : 14.07.2025 :: Date of Judgment : 15.07.2025

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JUDGMENT

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MURAHARI SRI RAMAN, J.—

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Assailed in the writ appeal filed at the instance of the functionaries of the Government of Odisha in School and Mass Education Department is the Judgment dated 23.08.2024 rendered by a learned Single Judge of this Court in W.P.(C) No.20442 of 2012, craving for the following relief(s):

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“It is, therefore, most humbly and respectfully prayed that this Hon‟ble Court may graciously be pleased to admit the appeal, issue notice to the respondents, call for the records and after hearing the parties the Hon‟ble Court may be pleased to set aside the impugned Order dated 03.08.2024 under Annexure-1 passed by the Hon‟ble Single Judge in W.P.(C) No.20442 of 2012 in the interest of justice;

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And, further be pleased to pass any other Order/Orders as the Hon‟ble Court may deem fit and proper in the facts and circumstances of the case;

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

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FACTS:

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2. Facts leading to filing of this writ appeal as adumbrated by the appellants-functionaries of the Government of Odisha in School and Mass Education Department and undisputed factual matrix depicted in the impugned Judgment of the learned Single Judge are described infra .

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2.1. Appointed by the Managing Committee as untrained Moulvi in Madrasa Islamia at Sukinda in the District of Jajpur on 10.12.1987, the respondent having joined on 20.12.1987, was permitted to undergo Certificate in Teaching Course in Urdu Language (“CT”, in short) from 14.09.1991 to 31.03.1993 as in-service teacher. Failing to join his duty on completion of the said Course, the

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Managing Committee having terminated his services, the respondent approached the Director of Secondary Education, Odisha, Bhubaneswar, who after affording opportunity of hearing to both the Managing Committee and the respondent, allowed the latter to continue with the service against the previous post of Moulvi vide Directorate Letter No.3205, dated 20.09.1996 with direction to disburse his entitlement as due and admissible from the date of joining in the said Institution.

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2.2. On refusal of the Secretary of the Institution to allow the respondent to join, the Director of Secondary Education by Order directed vide Letter No.49454, dated 31.10.2000 to adjust the respondent against the retirement vacancy of Matric Certificate Teacher (Urdu) in the Government Junior and Senior Madrasa at Binjharpur in the District of Jajpur. Accordingly, the Inspector of Schools, Jajpur Circle issued Office Order No.12109, dated 03.11.2000 by approving the Moulvi Teacher of Madrasa of Islamia , Sukinda and posted him against a vacant post of Matric Certificate Teacher in the said School in the scale of pay Rs.3,200/- - 85 – Rs.4,900/- with usual allowances as sanctioned by Government from time to time with effect from the date he would actually join. However, due to public protest at Binjharpur, the Principal of said Madrasa did not allow

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him to join, though the respondent reported his joining in the Inspectorate of Schools on 07.11.2000 (as acknowledged by the Inspector of Schools, Jajpur Circle in Letter No.13421, dated 23.11.2000).

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2.3. The respondent then approached this Court by way of filing writ application, being OJC No.5908 of 2001, which being disposed of vide Order dated 20.07.2001, a Letter bearing Memo No.2523, dated 12.04.2002 has come to be issued by the Inspector of Schools, Jajpur Circle, Jajpur, stating that:

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“Md. Motiullah, approved Moulvi Teacher, Madrasa Islamia, Sukinda has been directed to proceed to join at your Madrasa as per instruction of the Directorate in order to implement the Court Order but he reported that the Secretary and President of the Managing Committee did not allow him to join at the Madrasa. Therefore, you are once again requested to allow him to join the Madrasa under intimation to the undersigned failing which the Director of Secondary Education, Odisha will be moved for taking necessary action against the Managing Committee as per Rules.”

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2.4. A Letter No.6228, dated 22.08.2002 of Inspector of Schools, Jajpur Circle, Jajpur addressed to the Director, Secondary Education, Odisha, Bhubaneswar (Annexure10 to the writ petition) reveals the following facts:

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“Inviting a reference to the letter on the subject cited above, I beg to inform you that as per instruction given in the above letter, the petitioner was directed to proceed to

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join at his former post i.e. at Madrasa Islamia, Sukinda against which his appointment has been approved vide this Office Letter No.1192 dated 16.02.2002 with intimation to the Secretary vide Momo No.1195 dated 16.02.2002.

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The petitioner in his representation dated 09.03.2002 reported that the Secretary and President of the Managing Committee did not allow him to join the Madrasa for which the Secretary of the Madrasa has been requested again vide this Office Latter No.2522 dated 12.04.2002 to allow him to join failing which the Director, Secondary Education, Odisha will be moved for taking necessary action against the Managing Committee as per Rules, but no reply to the effect has been received from the Managing Committee. Again the petitioner reported that on 21.04.2002 he attended the Madrasa to join but the Secretary refused to allow him to join. The copy of representation of the petitioner dated 09.03.2002 and dated 21.04.2002 are attached herewith for perusal.

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The term of Managing Committee has been completed on 02.09.2001 and proposal for re-constitution of the Managing Committee has been submitted to the Directorate vide this Office Letter No.12478 dated 20.09.2001.

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The Hon'ble High Court, Orissa in Order No.2 dated 26.07.2001 while disposing the above case directed that the Inspector of Schools shall do well to post the petitioner in any other school and take steps to see that the order works out. Necessary action be taken against the person/ authority who will flout the order of the

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Inspector of Schools. The entire exercise will be completed within 2 months .

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The date fixed by the Court has already been over. The detailed fact has been reported to the Directorate vide this Office Letter No. 14470 dt.1.12.2001.

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Therefore, I request you to kindly take necessary stops for absorption of the petitioner in the said Madrasa or in any other vacancy in order to comply the Court Order.”

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2.5. Even so, though nothing materialised in favour of the respondent, ultimately pursuant to intervention of this Court in yet another case, being W.P.(C) No.11827 of 2003 [Sk. Julfukar Ali Vrs. Md. Motiullah] , disposed of vide Order dated 29.09.2010 with a direction to implement the decision, the respondent was adjusted against a vacant post of HSC CT (Urdu) in Madrasa Gousia Roufia , Dhamnagar (Aided) in the District of Bhadrak, as directed by Order vide Directorate Letter No.28104, dated 04.06.2010. An Office Order No.57045/2C-VI-74-10, dated 27.11.2010, has been issued from the Directorate of Secondary Education, Odisha, Bhubaneswar, directing adjustment of respondent as “Assistant Teacher” in said Madrasa Gousia Roufia at Dhamnagar under Bhadrak Circle, Bhadrak against existing vacancy. Said Office Order, however, instructed for consideration of arrears for intervening period from 01.04.1993 till the date of joining in the new place of posting at a later date.

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2.6. The respondent joined as Assistant Teacher at Madrasa Gousia Roufia , Dhamnagar and made representation for fixation of pay attached to the Trained Matric CT post, which being not taken care of, a writ application, being W.P.(C) No.22619 of 2011, was filed. This Court vide Order dated 03.11.2011 disposed of said writ application with the following observation and direction:

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“Considering the limited prayer without going into the merits of the case, this Court directs the opposite party No.2 to consider and dispose of the representation dated 07.05.2011, if pending before him, in accordance with law preferably within a period of three months from the date of production of the certified copy of this order.”

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2.7. In pursuance thereto, Order No.40504/2C-192-2012-VI, dated 28.09.2012 was issued from the Directorate of Secondary Education, Odisha, which reads thus:

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“1. That the applicant was appointed by the Managing Committee as untrained Moulvi in Madrasa Islamia, Sukinda on 20.12.1987 and undergone in-service CT Training during the year 1991. After return from the C.T. Training the petitioner-Md. Motiullah did not report his joining on duties for which the Managing Committee of the school terminated him from service. Considering the representation of the petitioner and counter reply of the Managing Committee, the Director, Secondary Education, Odisha examined the matter and instructed the Managing Committee vide Directorate Letter No.3205 dated 20.09.1996 to allow the applicant to continue against the previous post of Moulvi of the said institution and further

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directed that the entitlement of the petitioner as due admissible from that date be released after rejoining in the institution. The Secretary of the school not allowed the petitioner to join there, accordingly the Director of Secondary Education, Odisha vide Order No.49454, dated 31.10.2000 adjusted the petitioner against the retirement vacancy of MCT (Urdu) in Government Junior and Senior Madrasa, Binjharpur in the District of Jajpur. But the principal of the concerned Madrasa not allowed the applicant to join in the said post due to public litigation.

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2. While the matter stood thus the applicant filed a case before the Hon‟ble Court in OJC No.5908 of 2001 with a prayer to allow him to join in any other Madrasa in the District of Jajpur and to disburse the arrear salary from 07.11.2000. Pursuant to the Order No.2 dated 26.07.2001 of Hon‟ble High Court passed in the aforesaid OJC with a direction ta Inspector of School, Jajpur to post the petitioner in any other school and take steps to see that the order is carried out.

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3. The Secretary of the Madrasa Islamia, Sukinda, Jajpur has filed a counter case before the Hon‟ble High Court in W.P.(C) No.11827 of 2003 with a prayer not to post the petitioner in the said Madrasa. The Hon‟ble High Court in their order dated 15.05.2004 passed in Misc. Case No.11573 of 2003 arising out of W.P.(C) No.11827 of 2003 directed the Inspector of Schools, Jajpur not to take action against the Managing Committee and did not allow the petitioner in the said Madrasa and further directed the Inspector of Schools, Jajpur to take

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steps for suitable adjustment of petitioner elsewhere.

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4. The Hon‟ble High Court in their Order No.8, dated 29.09.2010 in W.P.(C) No.11827 of 2003 directed to this Director of Secondary Education, Odisha to take steps for implementation of his own decision in term of Directorate Letter No.22104, dated 04.06.2010.

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5. Pursuant to this Directorate Order No.57045, dated 27.11.2010 the petitioner was adjusted as Assistant Teacher (C.T. Urdu) in Madrasa Gousia Roufia, Dhamnagar in the District of Bhadrak against the existing vacancy with an instruction that the intervening period from 01.04.1993 to the date of joining in new place of posting shall be decided later on its own merit. Accordingly the petitioner submitted the joining report on 22.12.2010 in the said school pursuant to Order No.8890, dated 22.12.2010 of the District Education Officer, Bhadrak.

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6. That despite of aforesaid phenomenon the petitioner has not performed his duties physically for the period from 01.04.1993 to 21.12.2010 for which he is not entitled to receive any arrear salary of the said period on the Principle of “No Work, No Pay”.

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In view of the aforesaid facts the prayer of the petitioner is considered and rejected being devoid of merit.”

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2.8. Against such decision of the Director of Secondary Education, the petitioner came up before this Court in W.P.(C) No.20442 of 2012, wherein a counter affidavit

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was filed by the Inspector of Schools, Bhadrak by affirming that,

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“*** the present deponent has taken all steps within his jurisdiction and competence to redress the grievance of the present petitioner and due to non-availability of LPC from the previous station salary at exact and appropriate rate cannot be paid to him and as regards his claims for arrear salary the same is to be answered by the Inspector of Schools, Jajpur or the Director, Secondary Education, Odisha, Bhubaneswar.”

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2.9. The District Education Officer, Jajpur Circle, Jajpur asserted by way of counter affidavit that,

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“9. That it is respectfully submitted that the petitioner has not discharged duty from 01.04.1993 to 21.12.2010 in any institution for which he is not entitled grant-in-aid for the above period.

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10. That it is respectfully submitted that the petitioner has been paid his GIA up to 31.08.1991. The Last Pay Certificate has been transmitted to the District Education Officer, Bhadrak for further necessary action at his end.”

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2.10. The Director of Secondary Education, Odisha through the Deputy Director having filed counter affidavit in the aforesaid writ petition, sought to justify the Order dated 28.09.2012.

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2.11. By Judgment dated 23.08.2024 said writ petition came to be disposed of, whereby the learned Single Judge considering the issue as to whether denial of arrear

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salary for the circumstances demonstrated above that prevented the respondent to discharge duty in the Madrasa from 01.04.1993 to 21.12.2010 by the Director of Secondary Education, Odisha on the principle of “No Work, No Pay” is legal, held as follows:

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“11. From the sequence of facts narrated hereinbefore, it is clear that the petitioner, after completion of training wanted to join but was prevented by the Managing Committee of the Institution to do so. This is said to be because of some protest made by the Muslim public but this Court finds that another person namely, Jahed Ali Khan had been appointed against the post of Moulvi held by the petitioner during his absence for the period of training. The appointment of said Jaheed Ali Khan had also not been approved. For such reason the Deputy Director vide letter dated 24.01.1998 took note of such fact and requested the Government to pass orders to adjust the petitioner in any primary school so that his salary could be paid. This Court is therefore, not willing to accept that the petitioner was prevented by the Management of Madrasa Islamia from joining in his post because of public resentment but apparently because another person had been appointed in his place during the period when he was undergoing training as an in-service candidate. This is entirely unconscionable and in any event the petitioner cannot be blamed.

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12. What is surprising to note is, the inaction of the State authorities to take action the any against

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Management for filling up the temporary vacancy caused due to training of the petitioner by appointing

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another person whose services were never approved. Be that as it may, the petitioner was sought to be adjusted in Government Sr. and Jr. Madrasa, Binjharpur. Here also the petitioner was not allowed to join by the Principal on the ground of public resentment. Despite taking note of such facts, the authorities did precious little to enforce their own orders. Ultimately, the petitioner, as already stated, was adjusted in Madrasa Gousia Raufia at Dhamnagar. So in between 01.04.1993 till 21.12.2010 i.e. for a period of 17 long years the petitioner was not allowed to join, for whatever reason and the State authorities remained a helpless spectator to the whims and fancies of the Managing Committee/Principal of the concerned educational institutions. This does reflect a very sorry state of affairs as was observed by a Coordinate bench of this Court in the earlier writ application filed by the petitioner being OJC No. 5908 of 2001, wherein, the following was observed.

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„Heard learned counsel for the petitioner and Mr. Mishra, learned Standing Counsel for the Education Department.

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The petitioner is admittedly working as Moulavi at Madrasa Islamia, Sukinda. After taking training, he joined in his post, the Secretary of the said institution did not accept his joining report as a result of which the petitioner was constrained to submit his joining report before the Inspector of Schools, Jajpur and thereafter he was directed to join in Government Junior and Senior Madrasa, Binjharpur vide Annexure-4. The petitioner submits that he was also not permitted to join in the said

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institution, as a result of which the petitioner was constrained to submit his joining report in the establishment of Inspector of Schools and attending the office every day.

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If the facts are true, definitely it reveals a very sorry of state of affair, in as much as, a trained Moulavi has not been posted in any educational institution and rather has been allowed to continue in the office of the Inspector of Schools.

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I feel no useful purpose will be served by admitting, the writ application. Accordingly the same is disposed of with a direction that the Inspector of Schools, Jajpur shall do well to post the petitioner in any other School and take steps to see that the order works out. Necessary action be taken against any person/authority who will flout the order of the Inspector of Schools, (opposite Party No.3). The entire exercise shall be completed within two months from today if there is no impediment.

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The claim for arrear salary of the petitioner will be considered thereafter.

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The order being passed without hearing the opposite parties, liberty is given to move this Court if it is found necessary.

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Requisites for communication of this order along with copy of the writ petition shall be filed within three days.‟

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13. From what has been narrated hereinbefore, this Court feels persuaded to echo the same sentiment as expressed by the coordinate Bench referred above. It is a matter of concern that repeated orders passed

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by the State functionaries where openly flouted by the Managing Committees of educational institutions including a Government institution with impunity and no action appears to have been taken against the persons responsible. This Court therefore, holds that the fact of non-joining of the petitioner in his post after completion of training cannot be cited to his detriment at least in so far as his claim for payment of salary during the said period is concerned. The impugned order not having addressed the above issues is therefore, rendered unsustainable in the eye of law.

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14. For the foregoing reasons therefore, the writ application is allowed. The impugned order dated 28.09.2012 is hereby quashed. The Director, Secondary Education and Inspector of Schools, Bhadrak and Jajpur are directed to pass necessary orders to release the arrear salary of the petitioner for the period from 01.04.1993 to 21.12.2010 by fixing his pay as a trained Urdu Teacher within two months from the date of production of certified copy of this judgment by the petitioner.”

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2.12. Dissatisfied thereby, the appellants filed the present writ appeal with the ground that there is no occasion for grant of arrear salary for the period from 01.04.1993 to 21.12.2010 during which the respondent has not actually worked as a Trained Urdu Teacher.

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Hearing:

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3. The matter came up before this Court on 06.05.2025 for consideration of petition registered as I.A. No.1390 of

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2025 for condonation of delay of 166 days in filing writ appeal which was allowed on the appearance of counsel for the respondent. Accordingly, the writ appeal is directed to be listed for admission/entertainment on 30.06.2025.

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3.1. When the matter was taken up on adjourned dates (01.07.2025 and 09.07.2025), Sri Biren Sankar Tripathy, learned Advocate submitted that although the respondent was deprived of joining the post by the Secretary/the Managing Committee of Madrasa and it took long years to settle the score with the intervention of this Court and the Director of Secondary Education, Odisha, which being appreciated by the learned Single Judge relief has been granted, in order to protract the litigation further the functionaries of the Government of Odisha have preferred this appeal. The learned Additional Government Advocate raised no objection for final hearing of the matter at this stage. The pleadings are completed before the learned Single Judge and the record relating the writ petition is made available for perusal.

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3.2. As conceded by the learned counsels for both the sides, this Court took up the matter for final hearing at the stage of admission as short point whether the principle “No Work, No Pay” would attract on the facts and in the circumstances of the instant case is involved.

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3.3. Accordingly this Court heard the arguments advanced by Sri Saswat Das, learned Additional Government Advocate representing the appellants and Sri Biren Sankar Tripathy, Advocate appearing for the respondent with respect to merit of the matter vis-à-vis grounds of appeal.

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3.4. Upon conclusion of hearing, the matter was directed to be placed for “Orders” on 14.07.2025 vide Order dated 09.07.2025 and the matter is directed to be listed for delivery of judgment on 15.07.2025. Accordingly, the judgment is pronounced today.

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Contentions and submissions of rival parties:

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4. Sri Saswat Das, learned Additional Government Advocate submitted that the details of facts and the conclusion as stated in the Order dated 28.09.2012 of the Director of Secondary Education, Odisha being lucid, reasoned and reasonable to deny arrear salary for the period from 01.04.1993 to 21.12.2010, the writ Court should not have upturned the decision of the authority concerned, though it is well settled that it is the domain under Article 226/227 of the Constitution of India to appraise decision making process, but not the decision itself.

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4.1. Expanding his argument further, he canvassed that the ratio of decision in Union of India Vrs. K.V. Jankiraman,

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(1991) 4 SCC 109 contemplates different situation in the context of Rule 17(1) of the Fundamental Rules. Valiant attempt is made by the learned Additional Government Advocate to make out a case that when the rules are silent to comprehend allowance of arrear salary for nonfunctioning of employee actually, and in the factsituation of the present case, it is the respondent who kept himself out of the service, but not the authority concerned, the learned Single Judge has misdirected himself by acceding to the prayers made in the writ petition by the respondent.

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4.2. He vehemently objected to the view expressed by the learned Single Judge by contending that the respondent having physically/actually not performed as Teacher/ Moulvi, and thereby did not discharge duties during the relevant period, sustaining the decision rendered in the writ petition would be against the well-accepted norm set forth by the Hon’ble Supreme Court of India in service jurisprudence, i.e., “No Work, No Pay”.

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5. Per contra, opposing with vehemence, Sri Biren Sankar Tripathy, learned counsel would submit that only to thwart payment of arrear salary for the period during which the respondent was not allowed to work despite his willingness and in fact, joining report was submitted to the concerned Inspector of Schools/District Education

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Officer, the appellants have preferred the present writ appeal.

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5.1. He strenuously argued that the learned Single Judge is justified in appreciating the factual details which prevented the respondent from discharging his duty in spite of the fact that his joining report(s) was acknowledged by the Inspector of Schools/District Education Officer. Non-discharge of duty as Teacher/ Moulvi could at no stretch of imagination be attributable to the respondent on the afore-noted undisputed facts and overwhelming documents which formed part of the writ petition.

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5.2. Taking this Court to various letters/communications (inter-departmental) and the orders of this Court passed in earlier round of litigations, Sri Biren Sankar Tripathy, learned Advocate would contend that the learned Single Judge has not committed any flaw in directing the appellants to release arrear salary from 01.04.1993 to 21.12.2010 in favour of the respondent by fixing his pay as a Training Urdu Teacher and he, therefore, emphatically urged to dismiss the writ appeal.

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DISCUSSIONS AND ANALYSIS:

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6. This Court at the outset examines the contention of the respondent that the grounds taken at paragraph 10 of the writ appeal for inviting indulgence in the matter are

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ingenious design to avoid payment of arrear salary and allowances so that the appellants would overstep compliance of direction contained in the impugned Judgment of the learned Single Judge.

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6.1. This Court takes up for consideration each ground of attack against the Judgment dated 23.08.2024 in seriatim:

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i. Grounds-A and E are hazy, evasive and are general in nature without eliciting specific substance.

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ii. Ground-B alleges non-adherence to the principles of natural justice for the learned Single Judge did not afford opportunity to file counter-affidavit.

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Perusal of record of writ petition would reveal:

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a. Counter affidavit dated 04.12.2019 sworn to by the Deputy Director working in the Office of the Directorate of Secondary Education, Odisha, Bhubaneswar on behalf of the opposite party No.2 (Director of Secondary Education) was filed on 05.12.2019.

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b. The District Education Officer, Bhadrak (opposite party No.3) filed sworn counter affidavit dated 25.02.2014.

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c. The District Education Officer, Jajpur (opposite party No.4) filed sworn counter affidavit dated 07.03.2015. Additional affidavits dated 21.06.2016 and 30.09.2019 sworn to by said District Education Officer were filed on 23.06.2016 and 01.10.2019 respectively.

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d. Perusal of orders of proceedings, it transpires that the writ Court issued notice on 10.12.2012 calling upon the opposite parties/appellants herein to file response. Furthermore, on very many occasions the matter before the writ Court stood adjourned for filing counter affidavit on the prayer of the counsel for the appellants.

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e. Therefore, this Court finds such a ground agitated by the appellants is frivolous and vexatious being not borne on record.

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iii. Ground-C reads thus:

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“For that the Hon‟ble Single Judge has been pleased to direct the State Authorities to re-consider the application of the Respondent without quashing or interfering with the impugned order No.40504, dated 19.08.2012 as at Annexure- (also under Annexure-8 of the Writ Petition), whereby the claim of the Petitioner was considered under the

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available provisions of law i.e. and has been rightly & justly considered.”

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Verification of record shows that impugned Order No.40504, in the writ petition is dated 28.12.2012, but not “19.08.2012” and said order is available at Annexure-16, but not at Annexure-8. It is apparent having a glance at Annexure-8 enclosed to the writ petition that said document is a communication between the Inspector of Schools, Jajpur Circle, Jajpur and the Director of Secondary Education, Odisha, Bhubaneswar. It is manifest from bare perusal of paragraph 14 of impugned Judgment dated 23.08.2024 that the learned Single Judge has observed,

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“For the foregoing reasons therefore, the writ application is allowed. The impugned Order dated 28.09.2012 is hereby quashed .”

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It seems, therefore, that such a ground is taken mere for the sake of challenging without any substance borne on record. Such a false ground taken by the functionaries of the Government is not appreciated; rather this Court deprecates such plea being taken.

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iv. So far as Ground-D is concerned, the same is relating to applicability of principle of “No Work, No

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Pay” on the facts and in the circumstances of the instant case, which is discussed herein below.

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7. The pleadings, grounds of appeal, documents enclosed to writ petition and arguments of counsel for the respective parties take this Court to consider whether the respondent could be in any way responsible for his non-performance in duties.

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7.1. The documents available on record evince that despite the Orders of Director, Secondary Education vide Letter dated 27.05.1998 upon the respondent having completed Certificate in Teaching Course to accept him as Matric CT (Urdu) Teacher in Government Junior and Senior Madrasa, Binjharpur, due to apathy of the Managing Committee, he was not allowed to join. Further, the Office Order No.12109, dated 03.11.2000 of the Inspector of Schools, Jajpur Circle clearly spelt out that the respondent was posted against vacant post of Matric CT in Government Junior and Senior Madrasa with a scale of pay being sanctioned by Government from time to time. The Inspector of Schools in his Letter dated 23.11.2000 addressed to the Director of Secondary Schools acknowledged the factum of the Principal of said Madrasa having not allowed him to join; but said Letter also contained the fact that “Md. Motiullah is attending this office from 07.11.2000 praying for his further instruction regarding his appointment elsewhere”. It

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emanates from the record that by virtue of orders of this Court in writ petitions the respondent was required to be posted against a vacancy. The Secretary of Madrasa Islamia of Sukinda was also requested by Letter dated 16.02.2004 issued by the Inspector of Schools, Jajpur Circle to see that the respondent is allowed to work in the Institution. By way of Letter dated 04.06.2010 issued by the Deputy Director (H&S) addressed to the Joint Secretary to Government in Department of School and Mass Education, Odisha it is impressed upon that the respondent was adjusted against vacant post in Madrasa Gousia Roufia at Dhamnagar in the district of Bhadrak.

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7.2. The above narration of events clearly leads to indicate that it is the action of the appellants which did not allow the respondent from discharging his duties; rather the joining of the respondent in his office was accepted by the Inspector of Schools. Therefore, it can be gainsaid as contended by the appellants that non-discharge of duties is attributable to the respondent.

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8. From the impugned Judgment it is elicited that no fault can be attributed to the respondent as he was prevented from performing duties though he was ready and willing to do so at all times. Such glaring finding as returned would carve out exception for application of the norm of “No Work, No Pay”.

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8.1. The learned Single Judge has relied on the following dicta of the Hon’ble Supreme Court of India laid down in the case of Union of India Vrs. K.V. Jankiraman, (1991) 4 SCC 109:

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“We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of „no work no pay‟ is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases.”

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8.2. With respect to entitlement to back wages upon reinstatement in service on account of order of conviction being set aside, the following observations made by the Hon’ble Supreme Court in Maharashtra State Road Transport Corporation Vrs. Mahadeo Krishna Naik, (2025) 3 SCR 100 may have significance to consider the issue at hand:

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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

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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 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

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(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 contramaterial 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 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 nonemployment 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

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adopted. After the employee pleads his nonemployment 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 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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8.3. The propositions as laid down in Deepali Gundu Surwase Vrs. Kranti Junior Adhyapak Mahavidyala, (2013) 9 SCR 1 are reproduced hereunder for benefit:

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“33. The propositions which can be culled out from the aforementioned judgments are:

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i) In cases of wrongful termination of service, reinstatement with continuity of service and back wages is the normal rule.

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ii) The aforesaid rule is subject to the rider that while deciding the issue of back wages, the adjudicating authority or the Court may take into consideration the length of service of the employee/workman, the nature of misconduct, if any, found proved against the employee/workman, the financial condition of the employer and similar other factors.

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iii) Ordinarily, an employee or workman whose services are terminated and who is desirous of getting back wages is required to either plead or at least make a statement before the adjudicating authority or the Court of first instance that he/she was not gainfully employed or was employed on lesser wages. If the employer wants to avoid payment of full back wages, then it has to plead and also lead cogent evidence to prove that the employee/workman was gainfully employed and was getting wages equal to the wages he/she was drawing prior to the termination of service. This is so because it is settled law that the burden of proof of the existence of a particular fact lies on the person who makes a positive averments about its existence. It is always easier to prove a positive fact than to prove a

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negative fact. Therefore, once the employee shows that he was not employed, the onus lies on the employer to specifically plead and prove that the employee was gainfully employed and was getting the same or substantially similar emoluments.

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iv) The cases in which the Labour Court/Industrial Tribunal exercises power under Section 11-A of the Industrial Disputes Act, 1947 and finds that even though the enquiry held against the employee/workman is consistent with the rules of natural justice and / or certified standing orders, if any, but holds that the punishment was disproportionate to the misconduct found proved, then it will have the discretion not to award full back wages. However, if the Labour Court/Industrial Tribunal finds that the employee or workman is not at all guilty of any misconduct or that the employer had foisted a false charge, then there will be ample justification for award of full back wages.

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v) The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the concerned Court or Tribunal will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employers obligation to pay the same. The Courts must always be kept in view that

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in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the and there is no employee/workman justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages.

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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 are not responsible for such delays. Lack of infrastructure and manpower is the principal cause for delay in the disposal of cases. For this the litigants cannot be blamed or penalised. 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 course suggested in Hindustan Tin Works Private Limited Vrs. Employees of Hindustan Tin Works Private Limited, (1979) 1 SCR 563 = (1979) 2 SCC 80.

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vii) The observation made in J.K. Synthetics Ltd. Vrs. K.P. Agrawal, (2007) 2 SCR 60 = (2007) 2 SCC 433

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that on reinstatement the employee/workman cannot claim continuity of service as of right is contrary to the ratio of the judgments of three Judge Benches referred to hereinabove and cannot be treated as good law. This part of the judgment is also against the very concept of reinstatement of an employee/workman.”

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8.4. Though the exposition of law in Deepali Gundu Surwase (supra) was with respect to award of back wages in the event of reinstatement in service after setting aside of order which led the employee to have been kept out of service wrongfully with reference to the Industrial Disputes Act, 1947, such proposition of law can be of aid in deciding the present nature of case as guiding principles.

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8.5. It is the case of nobody in the instant matter that during the period for which the respondent was prevented from discharging duty, he was gainfully employed. Further, there is nothing placed on record by the appellants to show that due to laches of the respondent, he was not allowed to work in the post of teacher. From the communications and the cases pending before this Court it is manifestly clear that the respondent has been persistently pursuing his remedy. Thus, in the considered opinion of this Court that the respondent is entitled to the pay and allowances to which he would have been entitled to had he been allowed to perform his

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usual duty in the Madrasa . Since no plea is advanced by the appellants that the respondent was in gainful employment during the period of non-discharge of duties till his joining in service at Dhamnagar in Bhadrak District, the principle of “No Work, No Pay” does not apply in the fact-situation of the present case.

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8.6. 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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8.7. 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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8.8. 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 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

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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

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had secured employment in the reserved category using a false caste certificate and the Court modified 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) ***‟.

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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

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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

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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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8.9. 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 finding fault with the employer:

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“3. Having given our thoughtful consideration to the controversy, we are satisfied, that after the 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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8.10. 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.

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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 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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8.11. The Hon’ble Supreme Court of India in State of U.P. Vrs. Charan Singh, (2015) 3 SCR 806 observed as follows:

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“15. Therefore, in view of the above stated facts and also on a perusal of the reasons given by the Industrial Tribunal in its Award on the contentious point, the contention urged on behalf of the appellant that the termination of the services of the workman was done in accordance with above mentioned Government order cannot be accepted by us as the same is erroneous in law. The fact that the persons junior to him as well as his contemporaries are still working for the appellant department, shows that the

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termination of the services of the respondent has been done in an unreasonable and unfair manner.

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16. Now, coming to the question of the entitlement of back wages to the respondent workman, the same is answered in the positive, in view of the fact that the workman had refused to accept the new job as fisherman which was offered to him pursuant to the Award passed by the Industrial Tribunal on the ground that the said post is not equivalent to the post of the Tube-well Operator. Even though the appellant had agreed to comply with the terms of the Award dated 24.02.1997 passed by the Industrial Tribunal and had offered reinstatement to him, it is well within the right of the workman to refuse the new job offered to him and the same cannot be said to be unjustified or erroneous on the part of the respondent-workman.

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***

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20. Thus, in view of the cases referred to supra, there was absolutely no justification on the part of the Industrial Tribunal to deny back wages to the respondent even when it is found that the order of termination is void ab initio in law for noncompliance of the mandatory provisions under Section 6-N of the Act. Keeping in view the fact that the period of termination was in the year 1975 and the matter has been unnecessarily litigated by the employer by contesting the matter before the Industrial Tribunal as well as the High Court and this Court for more than 40 years, and further, even after the Award/order of reinstatement was passed by the Industrial Tribunal directing the employer to give him the post equivalent to the post of Tube-well

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Operator, the same has been denied to him by offering the said post which is not equivalent to the. post of Tube-well Operator and thereby, attributing the fault on the respondent for non-reporting to the post offered to him, which is once again unjustified on the part of the employer.

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21. Thus, the principle „no work no pay‟ as observed by this Court in the catena of cases does not have any significance to the fact situation of the present case as the termination of the services of the workman from the post of Tube-well Operator is erroneous in law in the first place, as held by us in view of the above stated reasons. ”

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8.12. Conspectus of aforesaid decisions would leave no manner of ambiguity that where the employee was denied or the employer has conducted in such a manner which rendered the employee unable to discharge his duty for 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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8.13. On a cursory glance at the Order dated 28.09.2012 of the Director of Secondary School, Odisha, along with

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other material particulars available on record, it is transpiring that the Authority has considered that the respondent was not allowed to discharge his duty by the Managing Committee/Principal, even though orders of this Court is stated to have been complied with, but no dispute is raised with respect to acceptance of joining report before the Inspector of Schools/District Education Officer. This Court perceives that no fault can be attributable to the respondent, as such, there was no justification for the Authority concerned to deny arrear salary from 01.04.1993 to 21.12.2010, more so in absence of any finding in such order that the respondent was never ready and willing to perform duty. Such fact returned by the learned Single Judge remained unchallenged by the appellants in the writ appeal. This Court does not find any perversity in the findings of the learned Single Judge.

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Scope of interference in the Judgment of learned Single Judge in the writ appeal:

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9. The learned Single Judge on factual analysis of the matter and weighing scales of balance with respect to evidence available on record came to conclusion that it is a case of “sorry state of affairs” and observed that there was no reason which leads to indicate that the respondent was at fault in not discharging his duty; rather the authorities did not take appropriate step to

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see that the respondent could smoothly perform his duty in the place of posting. It is trite that it is not justice that is to be done, but it must manifestly and demonstrably seem to have been done. Even after intervention of this Court in earlier round of litigations, it took around 17 years for the appellants to allow the respondent to perform his duty. Therefore, it is held that the norm “No Work, No Pay” does not attract in the present case.

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9.1. Under such premise, this Court in this intra-Court appeal bears in mind the legal perspective as to scope of interference discussed in State of Odisha & Others Vrs. Shradhanjali Dash , Writ Appeal No.1204 of 2022 vide Order dated 26.03.2025 . It is observed in the said case as follows:

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“In the case of Management of Narendra & Company Pvt. Ltd. Vrs. Workmen of Narendra & Company, reported in (2016) 3 SCC 340, it has been observed as follows:

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„5. *** Be that as it may, in an intra-Court appeal, on a finding of fact, unless the Appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief.‟

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In the case of Wander Ltd. Vrs. Antox India (P) Ltd., reported in 1990 Supp. SCC 727, following observation has been made:

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„14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below if the one reached by that court was reasonably possible on the material. The Appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the Appellate Court would have taken a different view may not justify interference with the trial court‟s exercise of discretion.‟

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In the case of Anindita Mohanty Vrs. The Senior Regional Manager, H.P. Co. Ltd., Bhubaneswar reported in 2020 (II) ILR-CUT 398, this Court had the occasion to examine the scope of intra-Court appeal and observed as follows:

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„11. *** Let us first examine the power of the Division Bench while entertaining a Letters Patent appeal against the judgment/order of the Single Judge. This

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writ appeal has been nomenclatured as an application under Article 4 of the Orissa High Court Order, 1948 read with Clause 10 of the Letters Patent Act, 1992. Letters Patent of the Patna High Court has been made applicable to this Court by virtue of Orissa High Court Order, 1948. Letters Patent Appeal is an intra-Court appeal where under the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in exercise of the same jurisdiction as vested in the Single Bench. (Ref: (1996) 3 SCC 52: Baddula Lakshmaiah Vrs. Shri Anjaneya Swami Temple). The Division Bench in Letters Patent Appeal should not disturb the finding of fact arrived at by the learned Single Judge of the Court unless it is shown to be based on no evidence, perverse, palpably unreasonable or inconsistent with any particular position in law. This scope of interference is within a narrow compass. Appellate jurisdiction under Letters Patent is really a corrective jurisdiction and it is used rarely only to correct errors, if any made.‟

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In the case of B. Venkatamuni Vrs. C.J. Ayodhya Ram Singh reported in (2006) 13 SCC 449, it is held that in an intra-Court appeal, the Division Bench undoubtedly may be entitled to reappraise both questions of fact and law, but entertainment of a Letters Patent Appeal is discretionary and normally the Division Bench would not, unless there exist cogent reasons, differ from a finding of fact arrived at by the Single Judge. Even a Court of first appeal which is the final Court of appeal on fact may have to exercise some amount of restraint. Thus a writ appeal is an appeal on principle where the legality and validity of the judgment

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and/or order of the Single Judge is tested and it can be set aside only when there is a patent error on the face of the record or the judgment is against established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing may be to the Division Bench; it is the view adopted by the Single Judge, which would, normally be allowed to prevail. If the discretion has been exercised by the Single Judge in good faith and after giving due weight to relevant matters and without being swayed away by irrelevant matters and if two views are possible on the question, then also the Division Bench in writ appeal should not interfere, even though it would have exercised its discretion in a different manner, were the case come initially before it. The exercise of discretion by the Single Judge should manifestly be wrong which would then give scope of interference to the Division Bench. ”

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9.2. With the delineated position as enunciated in the aforesaid judgment of this Court, there is no confusion in mind that in case of finding of fact which has gone into the decision making process of the learned Single Judge if found to be perverse or de hors the evidence/ materials available on record, this Court in exercise of the power under Article 4 of the Rules of Orissa High Court, 1948 read with Clause 10 of the Letters Patent constituting the High Court of Judicature at Patna can interfere with the impugned judgment. The appellants miserably failed to justify their conduct in the writ appeal.

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9.3. In the case at hand the view expressed by the learned Single Judge to release arrear salary from 01.04.1993 to 21.12.2010 is supported by well-reasoned order with lucid discussion on merit of the case of the appellants as also the respondent. Therefore, this Court does not find any perversity in returning factual finding or evaluation of evidence on record by the learned Single Judge.

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9.4. Even otherwise, it is not a case of possibility of two views; rather the evidence made available in the record relating to writ petition and not disputed by the appellants or the respondent before the learned Single Judge lead to suggest only one conclusion that the appellants could only be held responsible for failing to facilitate the respondent to discharge his duty. Hence, there is no scope for showing indulgence in the Judgement dated 23.08.2024 rendered in W.P.(C) No.20442 of 2012.

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CONCLUSION & DECISION:

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10. Having concluded in the Judgment dated 23.08.2024 that the respondent was not at fault; but on the contrary, he was ready and willing to perform duty entrusted to him, and it is the conduct of the Managing Committee which led the respondent not able to work in the place of posting, the grounds of appeal as set forth by the appellants-functionaries of Government of Odisha

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do not warrant interference with the decision of the learned Single Judge.

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10.1. Under the above precinct, the Judgment dated 23.08.2024 of learned Single Judge passed in W.P.(C) No.20442 of 2012 is above reproach. The approach of the learned Single Judge in the impugned Judgment is legally sound, well-reasoned and free from any error or flaw.

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10.2. Ergo, this Court is not inclined to intervene in the decision of the learned Single Judge, but for the period stipulated at paragraph 14 of impugned Judgment. Without disturbing the judgment, this Court extends the period for another two months hence to comply with the direction of the learned Single Judge.

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11. In fine, the writ appeal, being devoid of merit, is dismissed, as a consequence thereof the Judgment and Order of the learned Single Judge rendered in the writ petition stands upheld, but in the circumstances without any order as to costs. Pending interlocutory applications, if any, are disposed of accordingly.

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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: 15-Jul-2025 15:57:45

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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 15^th July, 2025//Aswini/Bichi/MRS/

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State of Odisha v. MD Motiullah

Case brief

What is this about?

What did the court decide?

State of Odisha v. MD Motiullah

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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