No Work, No pay principle cannot be applied when the employee is willing to work but is prevented by the employer unlawfully, reiterates HC

 

In a writ petition for non-payment of salary, Justice Sashikanta Mishra noted that according to the facts, the employer had prevented the employee to work when he was willing to work and therefore, the principle of No Work, No pay cannot be applied in the given circumstances.

Brief Facts:

The petitioner in the current writ petition is aggrieved by the non-payment of his salary for the period from 27^th October 2010 to 31^st October 2015.

The petitioner was appointed as an Asst. teacher on 31^st July 1984 in Labanya Devi Ucha Vidyapitha, Santara in the district of Jajpur. The petitioner was a trained Arts graduate and he was appointed to the same post by the Managing Committee. There was a controversy relating to receiving a grant-in-aid by the petitioner for which he had approached this court and the court ordered that the petitioner’s case for the grant was to be considered afresh by the authorities and some other directions were given.

However, no action was taken and the petitioner filed a writ petition which was disposed of by directing the authorities to dispose of the Petitioner’s representation within three weeks. Again, nothing was done and the petitioner approached the court again. During that case, the opposite party through an order dated 24^th September 2010 held that the appointment of the petitioner was against a non-sanctioned post in 1994 without following rules, and in the meantime, the post of TGT Arts was abolished. The petitioner again approached this court by way of a writ petition, whereby this order of the opposite party was quashed and the petitioner was ordered to be treated as an approved staff in the school and that he should be granted all the consequential benefits. 

 Accordingly, the Director of the school held that the petitioner should be treated as a staff of the school and his appointment was approved. Based on this order the headmaster of the school informed that the Petitioner had not attended the school from 27^th October 2010 to 31^st October 2015 without any intimation and therefore, submitted his bill statement only for the period from 1^st June 1994 to 26^th October 2010.

 

The petitioner through the current petition is praying for the issuance of a writ of mandamus commanding the opposite parties to pay the salaries of the petitioner for the period 27.10.2010 to 31.10.2015 within other consequential benefits along with 12% interest. The petitioner has contended that he never remained away from the work of his own volition but instead, he was prevented to discharge his duties by the school authorities because of the order dated 24^th September 2010 and he cannot be deprived of his legitimate dues.

Observations of the court:

The court noted that there was nothing on record to show that the Petitioner’s services were terminated. While going through the headmaster's letter regarding the petitioner's absence for the period in question, the court noted that according to that, the petitioner was never terminated from service nor was he allowed to work. Further, the court noted the well-settled law that when an employee is willing to work but is prevented by the employer to do so unlawfully, then the employee cannot be blamed much less denied his legitimate benefits such as salary, etc. by invoking the principle of no work no pay. And the principle of ‘no work no pay’ is not absolute as was held by the Apex Court in various instances. The court then concluded that there is no way by which the Petitioner can be deprived of his legitimate dues for the period during which he was wrongfully refused employment.

The Decision of the Court:

The writ petition was allowed and the Concerned authorities were directed to release all admissible dues in favor of the petitioner. 

 

Case Title: Partha Sarathi Dash v. State of Odisha and others

Coram: Justice Shasikanta Mishra

Case No.: W.P.(C) No. 8092 of 2016 

Advocate for the Petitioner:  Mr. P.K.Mishra, Advocate

Advocate for the Respondent: Mr. P.K. Panda, Addl. Standing Counsel (S and M.E. Department)

Read Judgment ;

 

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