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IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
ARUN DEV CHOUDHURY, J.
Debmohan Rajbongshi S/o Lt. Ralan Moni Rajbongshi – Appellant
Versus
The State Of Assam And Ors - Respondent
WP(C) 3594 of 2012
Decided on : 13-12-2023
Back Wages - Service Termination - The court dismissed the petition for back wages for the period of illegal termination, citing a previous decision that the petitioner was not entitled to back wages. The court also declined to interfere with the claim for back wages from the date of the court's direction until actual reinstatement. The petitioner's request for pension in pro-rata basis was not entertained as it was not part of the present writ petition.
Fact of the Case:
The petitioner, an ex-serviceman, was terminated from service as Constable (B) under the Prevention of Infiltration of Foreigners (PIF) scheme due to poor performance. The petitioner was reinstated following a court order but was not entitled to back wages. The petitioner later filed a writ petition seeking back wages from the date of the court's direction until actual reinstatement and pension in pro-rata basis after retirement.
Finding of the Court:
The court dismissed the petition for back wages for the period of illegal termination, citing a previous decision that the petitioner was not entitled to back wages. The court also declined to interfere with the claim for back wages from the date of the court's direction until actual reinstatement. The petitioner's request for pension in pro-rata basis was not entertained as it was not part of the present writ petition.
Issues: The issues involved the entitlement to back wages for the period of illegal termination, the claim for back wages from the date of the court's direction until actual reinstatement, and the request for pension in pro-rata basis after retirement.
Ratio Decidendi: The court's decision was influenced by a previous ruling that the petitioner was not entitled to back wages, and the absence of pleading or prayer in the present writ petition regarding the request for pension in pro-rata basis after retirement.
Final Decision: The writ petition was dismissed, and the parties were directed to bear their own costs.
JUDGMENT :
1. Heard Mr. A. R. Tahbildar, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned Additional Senior Government Advocate for the State of Assam.
2. The present writ petition is filed with the following prayers:-
3. The undisputed facts leading to the present writ petition are as under:-
II. By an order dated 07.08.2004, the service of the petitioner as Constable (B) under the scheme was not renewed w.e.f. 08.07.2004 for the reason of poor performance.
III. Subsequently, such order was interfered with by this Court under its order dated 02.06.2010 passed in WP(C) No.3099/2006.
IV. This Court relying on the decision of the Hon’ble Apex Court passed in Md. Abdul Kadir –Vs- Director General of Police interfered with the order of discontinuation and held that the annual termination and re-appointment in case of person appointed under the scheme is not permissible in terms of the determination made by the Hon’ble Apex Court in Md. Abdul Kadir (supra). Accordingly, a direction of reinstatement of the petitioner was issued subject to assessment of medical fitness. However, it was made clear that the petitioner shall not be entitled for any back wages.
V. Thereafter, the petitioner was allowed to rejoin in the service in terms of this Court’s order dated 02.06.2010 passed in WP(C) No. 3099/2006 w.e.f. 09.07.2010.
VI. Subsequently, the present writ petition was filed with a prayer of payment of back wages w.e.f. 08.07.2004, when the petitioner’s service was discontinued till 09.07.2010.
4. In view of the determination made by this Court in WP(C) No. 3099/2006 (supra), preferred by the petitioner, wherein in no unambiguous term, it was held that the petitioner shall not be entitled for any back wages, this Court is of the view that such prayer cannot granted in the present writ petition filed by the petitioner against the same respondents and for the same period, which was subject matter of the previous writ petition being WP(C) No. 3099/2006.
5. So far relating to the claim of back wages for the period from the date of issuance of the direction by this Court in WP(C) No. 3099/2006 till actual reinstatement, in absence of any challenge to such decision, this Court is not inclined to interfere. Accordingly, this writ petition stands dismissed.
6. However, at this stage, the learned counsel for the petitioner referring to the Judgment of the Hon’ble Apex Court in Md. Abdul Kadir (supra), submits that in terms of the judgment of the Md. Abdul Kadir (supra), a person cannot be discontinued annually and subsequently, by an office memorandum dated 21.01.2019 issued by the Commissioner & Secretary to the Government of Assam, Pension & Public Grievances Department, a policy decision was taken to give pro-rata pension to those persons who were engaged under the PIF scheme on completion of 10 years service. It is a case projected at this stage by the petitioner that the petitioner during the pendency of the present writ petition has retired on 31.05.2014 and therefore, a direction should be issued to the respondent authorities to gra
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