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2016 Supreme(Gau) 500
IN THE HIGH COURT OF GAUHATI (ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
HRISHIKESH ROY, L.S. JAMIR, JJ.
Smti Sakuntala Basumatary- Appellant
Versus
The Union of India – Respondent
Writ Appeal No.266 of 2013
Decided on : 10-11-2016
For the Petitioners:Mr. B. Banerjee, Mr. P. K. Barman & Ms. D. D. Barman, Advocates.
For the Respondents: Mr. S. C. Keyal, Asstt. SGI.
Headnote:
Constitution of India - Service was abruptly terminated - Medically unfit - Termination order - Appellant was appointed as a Constable on in Central Reserve Police Force organization but after she completed her year-long training her service was abruptly terminated by order as she was declared to be medically unfit by Chief Medical Officer, Base Hospital - Questioning outcome of purported medical examination and claiming herself to be fully fit, constable filed Civil Rule, to challenge termination order - Court ordered for a fresh medical examination but found that second report is based on earlier report, without necessary medical investigation of lady constable - Appeal was disposed of with direction to convene a fresh Medical Board with Cardiology Specialist and authorities were allowed to act on report of Medical Board - Appellant was then examined by Medical Board and a positive report was furnished in her favour on - Thus Commandant of CRPF Battalion ordered for reinstatement of Appellant - But back wages was withheld on principle of no work, no pay - Nevertheless break in service during was counted for limited purpose of Rule of CCS Rules, through office order – Held, reinstatement is ordered for an employee, normal rule is of reinstatement with continuity of service and back wages, in case of wrongful termination - Here continuity of service for purpose of pension is only allowed, whereas nothing by way of back wages is granted and accordingly it is argued that Appellate Court should order disbursal of wages for period when Appellant was unjustly kept out of service - Case filed by appellant, she not only applied for reinstatement but also prayed for disbursal of back wages - But only reinstatement of terminated constable was ordered and next relief of arrear wages was not granted by learned Court - Reinstatement order was challenged by employer before Division Bench but conspicuously, writ petitioner never pursued her claim for arrear wages, by making a challenge to judgment - But no Writ Appeal was filed by her at relevant time - Eventually when constable was reinstated without any back wages on principle of no work, no pay, second case came to be filed to claim arrear wages - However noticing want of challenge to verdict in earlier round, relief sought in 2nd case i.e. WP(C) No.1497/2004, was denied by learned Single Judge – Appeal is accordingly dismissed
(Hrishikesh Roy, J).
Heard Ms. D.D. Barman, the learned counsel appearing for the appellant (writ petitioner). Also heard Mr. SC Keyal, the learned Asstt. Solicitor General of India representing the respondents.
2. The appellant was appointed as a Constable (General Duty) on 20.02.1995, in the Central Reserve Police Force (CRPF) organization but after she completed her year-long training on 20.03.1996, her service was abruptly terminated by the order dated 11.10.1996, as she was declared to be medically unfit by the Chief Medical Officer, Base Hospital, New Delhi. Questioning the outcome of the purported medical examination and claiming herself to be fully fit, the constable filed the Civil Rule No. 1553/1997, to challenge the termination order. The Court ordered for a fresh medical examination but found that the second report is based on the earlier report, without the necessary medical investigation of the lady constable. Thus the termination order was quashed by the Court on 7.12.1999 (page-27) and the authorities were directed to take back the petitioner in service.
3. The reinstatement order was challenged by the Union of India but the Writ Appeal was disposed of on 14.2.2001 (page-40), with direction to convene a fresh Medical Board with Cardiology Specialist and the authorities were allowed to act on the report of the Medical Board.
4. The appellant was then examined by the Medical Board and a positive report was furnished in her favour on 27.3.2001. Thus the Commandant of the CRPF Battalion ordered for reinstatement of the Appellant on 7.7.2001 (Annexure-D). But back wages was withheld on the principle of no work, no pay. Nevertheless the break in service during 11.10.1996 — 02.08.2001 was counted for the limited purpose of Rule 28 of the CCS (Pension) Rules, 1972, through the office order dated 14.8.2001 (Annexure-E).
5. Aggrieved by the denial of back wages, the CRPF constable re-approached the Court through the WP(C) No.1497/2004. However the learned Judge noted that when the Civil Rule No. 1553/1997 was allowed earlier with direction for reinstatement, the Court did not pass any order for payment of arrear wages. Yet the petitioner failed to file any Appeal to seek back wages. The Court also noted that service was not received during 11.10.1996 — 02.08.2001. Thus it was observed that it will be incongruous and will not be the spirit of the earlier order passed by the Court that, back wages be granted. Thus the writ petition was dismissed on 29.1.2013 (Annexure-A) and this order is challenged in this Writ Appeal.
6. The learned counsel Ms. D. D. Barman contends that the appellant was unjustly removed from service, as is apparent from the earlier Court proceeding and accordingly it is argued that payment of back wages along with reinstatement should have been the appropriate relief, for the CRPF constable.
7. The appellant relies on Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya reported in (2013) 10 SCC 324, to contend that when reinstatement is ordered for an employee, the normal rule is of reinstatement with continuity of service and back wages, in case of wrongful termination. Here continuity of service for the purpose of pension is only allowed, whereas nothing by way of back wages is granted and accordingly it is argued that the Appellate Court should order disbursal of the wages for the period when the Appellant was unjustly kept out of service.
8. The plea for back wages is however opposed by the Asstt. Solicitor General of India Mr. SC Keyal, who submits that when service was not received from the CRPF constable, payment of arrear wages can’t be a matter of norm.
9. In the first case (Civil Rule No. 1553/1997), filed by the appellant, she not only applied for reinstatement but also prayed for disbursal of back wages. But only reinstatement of the terminated constable was ordered and the next relief of arrear wages was not granted by the learned Court. The reinstatement order
