IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13111 of 2008 Kanchanmala Kumari, aged about 37 years Daughter of Late Ram nath Pathak, resident of Village+P.O. Lakri Dargah, P.S. Barharia, District-Siwan, A/P posted as A.N.M. Primary Centre, Chenari, District-Rohtas. ……………………Petitioner. Versus 1.The State Of Bihar through the Secretary, Department of Health, Patna. 2.Director-in-Chief, Health Services, Bihar, Patna. 3. Civil Surgeon-cum-Chief Medical Officer, Rohtas at Sasaram. 4.Medical Officer, In-Charge, Primary Health centre, Chenari, District Rohtas. ……………Respondents., ------------ For the Petitioner : Mr.Amar Nath Singh,Adv. For the State : Mr.Nand Kumar Singh, A.C. to AAG-XI ------------ 2 23/09/2010 Petitioner has filed this writ application for quashing of annexure-7, an order of the Director-in-Chief, Health Services dated 26.11.2007, whereby she has been denied arrears of salary of certain period on the principle of ‘No Work No Pay’. She has also prayed for a direction to the respondents to pay her arrears of salary from July, 1997 to December, 1999. Facts are that petitioner was appointed as ANM by the respondents some time in 1995. She continued as such for a few years. However, pursuant to an order dated 30.6.1997, as contained in Annexure-8 series with the supplementary affidavit, her services were terminated. She challenged the said order - 2 - before this Court through CWJC No. 6374 of 1997. The said writ application was disposed of on 25.7.1997 vide Annexure-1. This Court found that she had been relieved from service pending some inquiry. This court observed that the respondents were at liberty to hold an inquiry in respect of appointment of any person and were also at liberty not to take work from him but they were bound to pay salary of the person till he is allowed to continue in service. Accordingly while disposing of the writ application, this Court directed the respondents to pay arrears as well as current salary of the petitioner even if they do not chose to take work from her. It appears that some inquiry was held and another termination order was issued terminating the services of the petitioner on 27.11.1997, copy whereof is also annexed with the supplementary affidavit. The said order was also challenged by the petitioner through CWJC No. 11544 of 1997. The said writ application of Petitioner was heard and disposed of along with other analogous cases on 3.7.1998, vide Annexure-2. The impugned order of termination was quashed. This Court - 3 - found that proper opportunity was not given to the petitioner before her services were terminated. As a consequence of the said order of this Court, petitioner joined her services on 10.8.1998. She continued in service for four months only when another termination order was issued on 21.12.1998, copy of the same is also annexed with the supplementary affidavit. Pursuant to the said order, she was relieved from service with effect from 30.12.1998. Petitioner challenged this order also before this Court through CWJC No. 875 of 1999. This writ application was also allowed by order dated 8.12.1999, vide Annexure-3. Order was passed in the light of order passed in one CWJC No. 735 of 1999 on 6.10.1999. Thereafter petitioner joined her services on 16.12.1999 and since then she is continuing in service and getting her salary. Her claim now is only for payment of arrears of salary of intervening period during which, after termination, she moved this Court and her termination orders were quashed. Learned counsel for the petitioner has drawn the attention of this Court to another order passed by this Court in CWJC No. 4827 of - 4 - 2000 on 21.9.2001, a copy whereof is at page 21 of the writ application. This order shows that the petitioners of the said writ application, namely, CWJC No. 735 of 1999 had moved the Court for payment of salary of the intervening period. While quashing the order of termination, this Court had earlier granted liberty to respondents to proceed in the matter afresh. But since the termination order stood quashed, this Court held that petitioner was entitled for her salary and therefore the said writ application, namely, CWJC No. 4827 of 2000 preferred by the petitioner of CWJC No. 735 of 1999 was allowed and directions were issued for payment of his salary. Learned counsel for the petitioner submits that the case of the petitioner is squarely covered by the said order of the Court wherein in identical circumstances, this Court had directed for payment of arrears of salary of the intervening period. Counter affidavit has been filed in the case and learned counsel for the respondents has tried to defend the impugned order of the Director-in-Chief on the ground that as per principle of ‘No Work No Pay’ petitioner was - 5 - not entitled for the salary of the period during which she did not work and pursued her remedy before this court. In support of his submission, he has referred to a judgment of the Apex Court in the case of Talwara Co- operative Credit Service Society Ltd. Vs. Sushil Kumar, reported in (2008) 9 SCC 486 wherein the Apex Court has laid down that payment of salary cannot be an automatic consequence of termination of service and various circumstances have to be considered before such arrears of salary is paid. However the Apex Court has observed that it will depend on facts and circumstances of each case and the orders have to be passed taking into account the individual case at hand. So far as principle of ‘No Work No Pay’ is concerned, that applies where the employees, on his own, does not render work with the respondents which in course of employment he is duty bound to do, in spite of opportunity and liberty granted to him. If in spite of valid service and in spite of opportunity granted by the employer, the employee does not render work, surely he will not be entitled for salary. However, where the - 6 - employee is prevented by the employer from rendering service, for no fault of his, and without any specific order dispensing with his services or terminating the relationship of master and servant, the employee will be entitled to salary or wages notwithstanding the fact that for reasons beyond his control he could not render service. In the present case it is apparent that respondents prevented the petitioner from rendering service on account of termination orders which were quashed again and again by this Court. Thereafter the respondents have allowed the petitioner to join and she continues in service and is getting her salary. Since the petitioner was deprived from performing her duties for no fault of her and the orders of termination passed by the authorities were found unsustainable by this Court and were quashed, the petitioner is definitely entitled for arrears of salary of the intervening period. In the supplementary affidavit, it is stated that the arrears of salary of petitioner of specific periods between 4.7.1997 to 9.8.1998 and 31.12.1998 to - 7 - 15.12.1999 is due. In the circumstances, following the orders passed by this Court in CWJC No. 4827 of 2000, the order of the Director-in-Chief, as contained in Annexure-7, in this respect is quashed, and this Court directs the Respondent No.3 to pay the arrears of salary of petitioner of the said periods, as admissible to her at the relevant time, within a period of three months from the date of receipt/ production of copy of this order. Pradeep/prakash (J.N.Singh, J)