"Principle of 'No Work No Pay' Inapplicable Where Authorities Denied Duty Resumption; Gauhati High Court Orders Arrear Salary with 6% Interest"
Sanchayita Lahkar
The Gauhati High Court, Single Bench of Justice Robin Phukan, has directed the State of Assam and its concerned authorities to release arrear salary amounting to Rs.12,02,666/- to a petitioner covering the period from April 6, 2012, to February 29, 2016. Additionally, the Court ordered interest at the rate of 6% per annum from the date of due till the date of actual payment. The decision came after prolonged litigation concerning the refusal of the authorities to allow the petitioner to resume his duties following acquittal from criminal charges.
The petitioner, Hussain Ahmed Mazumder, was serving as an Assistant Teacher at 69 North Nityanandapur L.P. School in Hailakandi district, Assam. He, along with others, was convicted in Sessions Case No. 38/2005 by the Sessions Judge, Hailakandi, under Section 302 IPC, and sentenced to life imprisonment on November 29, 2007. Following this conviction, the petitioner appealed to the Gauhati High Court in Criminal Appeal No.10/2008. On April 3, 2012, the High Court acquitted him, and he was released from custody on April 5, 2012.
Subsequently, on May 25, 2012, the petitioner submitted a representation to resume duties and sought reinstatement with all service benefits, including back wages. Despite this, his plea received no response. This compelled him to file WP(C) No.6420/2012, which was disposed of on May 23, 2014, with a direction to reinstate him and release his salaries.
Due to non-compliance, the petitioner-initiated contempt proceedings through Cont.Cas(C) No.230/2015. During the pendency of this case, the Director of Elementary Education issued a speaking order on November 23, 2016, stating that the petitioner was not entitled to back wages for the period of his incarceration but permitted him to rejoin duty. However, the District Elementary Education Officer (DEEO), Hailakandi, in a speaking order dated March 7, 2017, also denied back wages for the period from November 29, 2007, to April 5, 2012.
A proposal was later prepared for payment of arrear salary from April 6, 2012, to February 29, 2016, amounting to Rs.12,02,666/-. However, despite filing WP(C) No.5006/2018 and a favourable order dated January 21, 2019, from the Court directing the release of arrear salary, the respondent authorities failed to comply. Another contempt petition, Cont.Cas(C) No.296/2019, was filed. During the pendency of this proceeding, a proposal was forwarded to the government, but the process stalled due to the COVID-19 lockdown. Ultimately, the respondent authorities, through an order dated July 30, 2021, held that the petitioner was not entitled to arrear salary for the said period since he had not performed his duties.
Justice Robin Phukan extensively analysed the principles governing the applicability of 'no work no pay' under FR-17(1), observing that the rule applies only when an employee is absent from duty due to personal reasons or fault. The Court noted: "The principle of ‘no work no pay’ is applicable only when an employee is absent due to his own act or omission/fault. But, when the employee is kept away from the work by an act or omission on the part of the employer, the employee cannot be denied salary on the principle of ‘No Work No Pay’."
The Court further referred to landmark decisions, including Commr., Karnataka Housing Board v. C. Muddaiah (2007) 7 SCC 689, where it was stated: "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’."
Similarly, in Union of India vs. K.V. Jankiraman, the Supreme Court held: "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."
The Court concluded that since the petitioner had submitted a representation on May 25, 2012, immediately after release from jail, and was not permitted to resume his duties despite continuous legal efforts, the principle of 'no work no pay' could not be invoked. Justice Phukan observed: "In the given facts and circumstances, this Court is of the considered opinion that the principle of ‘no work no pay’ as enunciated in FR-17(1), cannot be gainfully applied by the respondent authorities in case of the petitioner."
The Court set aside the impugned order dated July 30, 2021, and allowed the writ petition. It directed: "The respondent No.3 is directed to pay the arrear salary to the petitioner covering the period from 06.04.2012 till 29.02.2016 within a period of 3 (three) months from the date of receipt of certified copy of this order."
Additionally, the Court granted interest on the arrear salaries at the rate of 6% per annum from the due date i.e. 06.04.2012, till the actual payment, as an equitable relief. The petitioner was instructed to obtain a certified copy of the judgment and submit it to the authorities within one week.
Advocates Representing the Parties
For the Petitioner: Mr. A.H.M.R. Choudhury, Advocate
For the Respondents: Mr. N.J. Khataniar, Standing Counsel, Elementary Education Department
Case Title: Hussain Ahmed Mazumder vs. The State of Assam and Others
Neutral Citation: GAHC010178212021
Case Number: WP(C)/5771/2021
Bench: Justice Robin Phukan
[Read/Download order]
