Advocates:
['R L YADAV', '', 'K YADAV', 'P AGARWAL', 'D L MARSHILONG', 'B WANSWETT', 'S BORA', 'DR N MOZIKA ASG', '', 'T SUTNGA', 'L JANA']

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HIGH COURT OF MEGHALAYA

AT SHILLONG

WA No. 6 of 2021

Date of order: 09.03.2022

Bal Krishna Yadav

Vs.

The Union of India & Ors.

Coram:

Hon’ble Mr. Justice Sanjib Banerjee, Chief Justice

Hon’ble Mr. Justice W. Diengdoh, Judge

Appearance:

For the Petitioner/Appellant(s) : Ms. P. Agarwal, Adv.

For the Respondent(s)

: Dr. N. Mozika, ASG with

Ms. L. Jana, Adv.

i)

Whether approved for

Yes/No

reporting in Law journals etc.:

ii)

Whether approved for publication

Yes/No

in press:

JUDGMENT: (per the Hon’ble, the Chief Justice) (Oral)

The appellant questions the propriety of an order dated April 13,

2021 passed in the second round of proceedings between the parties.

2.

An earlier petition, WP(C) No. 288 of 2015, was carried by the

appellant to this Court complaining of the perceived illegal discharge of the

writ petitioner from Assam Rifles on August 24, 2010 on the ground that he

had not completed his training within the stipulated period of 24 months.

3.

Such petition was allowed by an order of this Court of June 16, 2016.

It is necessary to see the relief granted to the appellant herein by such order:

<11. Therefore, for the reasons discussed above, I find that the

decision taken by the respondents is arbitrary and irregular and has

no leg to stand. Hence, the discharge certificate i.e. annexure-1 is

hereby set aside and the respondents authorities are directed to re-

instate the writ petitioner forthwith and to allow him to continue the

rest of his training.=

4.

Thus, it is evident that the only relief that the relevant order of June

16, 2016 afforded to the appellant herein was for his re-instatement and to

Serial No. 06

Regular List

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allow him to complete his training. It is elementary that in matters of the

present kind, a prayer for back wages or service benefits or the like, which

is incidental to the principal relief of re-instatement or setting aside the order

of dismissal or the like, has to be made along with the main relief. Equally,

it is possible that the incidental reliefs are claimed with the main relief but

are not expressly granted by the order of the Court.

5.

The principle is that the relevant order has to be read like a decree in

a money suit. Whether interest is not claimed or claimed and not granted, an

appeal may be carried therefrom, if it has been claimed and not granted; but

upon an appeal not being filed, as in this case, the refusal to grant back wages

or to restore all service benefits attains finality and the issue becomes res

judicata. Such issue cannot be raked up upon obtaining the benefit of re-

instatement for a second round of proceedings to be initiated thereupon.

6.

To repeat, the entirety of the relief that a person in the position of the

appellant herein was entitled to ought to have been claimed in course of the

initial proceedings. If it was not claimed, it cannot be claimed at a

subsequent stage. If it was claimed and was not granted – even though there

is no express refusal thereof – unless the deemed refusal is challenged by

way of an appeal, the matter attains finality and the incidental relief that had

either not been sought or not granted, cannot be claimed subsequently.

7.

It is evident from the impugned order that the relevant aspect of the

matter has been appropriately discussed at paragraph 10. The writ court

observed that the writ petitioner would not be entitled to back wages since

he approached this Court after five years and not immediately after the

discharge order and, as such, the issue of non-payment of salary for the

period up to September 30, 2016 could have not arisen.

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8.

It is further evident that pursuant to the order dated June 16, 2016,

the appellant herein was taken back into the training school and was allowed

to complete the training. In a sense, the service benefit sought by the writ

petitioner ca