Ujjal Bhuyan, J.

Heard Mr. R.M. Choudhury, learned counsel for the petitioner and Mr. G. Pegu, learned Central Government Counsel, for the respondents.

2. Since the two writ petitions are inter-related, those were heard together and are being disposed of by this common order.

3. Petitioner is the widow of Late Samet Chandra Bordoloi who was a Havildar in the 10th Assam Rifles.

4. While the first writ petition was filed seeking a direction to the respondents to pay all the dues that her husband was entitled to as well as other terminal benefits, in the second writ petition, in addition to the above reliefs, petitioner seeks quashing of order, dated 31.08.2005, passed by the Commandant of 10th Assam Rifles dismissing petitioner's husband from service with effect from 11.05.2005.

5. Petitioner's husband joined Assam Rifles on 16.09.1980. According to the petitioner, her husband availed leave from 04.05.2000 to 09.05.2000. While he was on leave, he was diagnosed as suffering from tuberculosis, which required his treatment. After recovery, petitioner's husband went back to resume duty but was not allowed to resume duty. At that stage, petitioner's husband filed WP(C) No.3565/2002 before this Court seeking a direction to the respondents to allow him to join his duty as Havildar under the Commandant, 10th Assam Rifles. During the pendency of the aforesaid case, petitioner's husband expired on 19.08.2004. Application for substitution was filed by the present petitioner. It may be mentioned that the said writ petition was contested by the Assam Rifles by filing counter affidavit wherein it was stated that on 10.05.2000, petitioner's husband was declared deserter.

6. On 06.06.2007, WP(C) No.3565/2002 was dismissed with the observation that since the petitioner's husband had expired, no order could be passed directing resumption of duty by him. However, present petitioner, being the wife, was given liberty to file appropriate writ petition for financial benefits in accordance with law.

7. It was thereafter that WP(C) No.2907/2009 was filed by the petitioner. In the said proceeding, respondents filed an affidavit on 03.03.2010 wherein it was stated that an order was passed by the Commandant, 10th Assam Rifles, on 31.08.2005 whereby husband of the petitioner was dismissed from service with effect from 11.05.2005.

8. This led to filing of WP(C) No.5759/2010 by the petitioner assailing the legality and validity of the aforesaid order, dated 31.08.2005.

9. Mr. Choudhury, learned counsel for the petitioner, submits that the impugned order, dated 31.08.2005, is wholly untenable in law as well as on facts as the petitioner's husband was dismissed from service when he had already expired. A dead man cannot be dismissed from service. Secondly, dismissal was given retrospective effect from 11.05.2005 though the impugned order was passed on 31.08.2005. He submits that petitioner's husband had rendered valuable service to the Assam Rifles and it was only because of suffering from tuberculosis, which is considered to be a serious ailment in the rural parts of the country, that he could not resume his duty after availing leave. Petitioner's husband had taken leave for the period from 04.05.2000 to 09.05.2000 and was supposed to resume duty on 10.05.2000. For reasons beyond his control, petitioner's husband could not resume duty on 10.05.2000. However, without following any fair procedure, on 10.05.2000 itself, petitioner's husband was declared deserter and five years thereafter, he was dismissed from service, that too, with retrospective effect. This is not the way a soldier should be treated and now an unfortunate widow is before the Court seeking grant of terminal dues of her late husband to enable her to survive. He, therefore, submits that the present is a fit case for interference by this Court.

10. On the other hand, Mr. Pegu, learned Central Govt. Counsel, submits that petitioner's husband was granted leave from 04.05.2000 to 09.05.2000.