IMPORTANT POINT
In cases of wrongful termination, reinstatement with back wages is the norm unless the employer can prove the employee was gainfully employed during the termination period; the burden of proof lies with the employer to demonstrate the employee's employment status.

JUDGMENT

Sashikanta Mishra, J.

The short point that falls for consideration in the present application is, whether the petitioner is entitled to back wages consequent upon her reinstatement in service after the order of termination was declared illegal by the competent authority.

2. The facts, shorn of unnecessary details are as follows:

2.1 The petitioner was appointed as Lecturer in History against the 1st post in Joda Women's College, Joda on 05.09.1988. Her services were terminated by the governing body of the College by order dated 23.09.1995. She challenged the order of termination in an appeal before the Director, Higher Education, Odisha. By order dated 12.08.1996, the appeal was allowed by holding that proper procedure had not been followed before terminating her services. The governing body was directed to take back the petitioner in her former service granting liberty to it to take action against her in accordance with the Rules.

2.2 The order of the Director was not complied with by the governing body for which the petitioner approached this Court in OJC No. 14838 of 1996. Said writ petition was disposed of by order dated 16.09.1995 directing the concerned authority to take effective steps for implementation of the appellate order of the Director.

2.3. The governing body also filed writ application being OJC No. 4024 of 1997, which came to be dismissed by order dated 22.09.2005 as this Court did not find any infirmity in the order passed by the Director.

2.4. Under such circumstances and as instructed by the office of the Director vide letter dated 23.12.2006, the petitioner was allowed to join in the College on 10.01.1996. Since that date she performed her duties continuously till 01.08.2018, when she was transferred to Siddheswar College, Amarda Road, Balasore from where she retired on attaining the age of superannuation on 31.01.2023.

2.5. The petitioner claims that neither her current salary for the period from 10.01.2006 was paid nor the period during which she was illegally terminated i.e. 23.09.2005 to 09.01.2006 was regularized. On the above facts, the petitioner has filed the present writ application with the following prayer:

'Under these circumstances, the petitioner most humbly prays that this Hon'ble Court may be graciously pleased to issue a Rule Nisi calling upon the opp.parties to show cause as to why;

(i) the opp.parties shall not be directed to release the current salary of the petitioner with effect from 10.01.2006.

(ii) The opp.parties shall not be directed to regularize the service of the petitioner the illegal termination, period from 23.09.1995 to 09.01.2006 and provide all other consequential benefit.

If the opp.parties fail to show cause or show insufficient cause, the Rule be made absolute.

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

3. Counter affidavit has been filed on behalf of the Director, Higher Education, Odisha. It is stated that in compliance of the direction of this Court, the provisional differential salary amounting to Rs.8,61,343/- for the period from 10.01.2006 to 29.02.2012 was released as per letter dated 13.03.2012, which the petitioner has received on 14.03.2012. As regards the prayer of the petitioner for regularization of her service from 23.09.2005 to 09.01.2006, it is stated that the petitioner has not performed any duty during such period due to inaction on the part of the governing body and therefore, is not entitled to claim any financial benefit from the Government, but it is the sole responsibility of the governing body to regularize the said period. Accordingly, the Director vide letter dated 25.07.2006 has sought for guidelines from the Government and at the same time directed the governing body to do the needful.

4. Despite sufficient notice, there was no appearance on behalf of the governing body of the College (opposite party No.5), Principal (opposite party No.3) and Secretary (opposite party No.4) of the College.

5. Heard Mr. Supriyo