UPEN TALUKDAR Vs. STATE OF ASSAM AND 3 ORS
LAWS(GAU)-2018-11-96
HIGH COURT OF GAUHATI
Decided on November 29,2018

Upen Talukdar Appellant
VERSUS
State Of Assam And 3 Ors Respondents

JUDGEMENT

Songkhupchung Serto, J. - (1.) Heard Mr. I. Choudhury, learned Senior Counsel for the petitioner and also heard Mr. C. Bhattacharya, learned Standing counsel, Secondary Education Department for all the respondents except respondent No. 4.
(2.) This is a case of non-payment of back wages to a Government Servant during the period beginning from the date of termination of his service till the date of his reinstatement. The facts and circumstances leading to the filing of this writ petition by the petitioner may be briefly stated as follows; The petitioner was appointed to the post of Assistant Teacher at Jagara High School, vide order dated 07.05.1991, Memo No. EST-3/85/88/869-74, issued by the Inspector of Schools, Nalbari District Circle in pursuance of the recruitment process which was initiated in the year 1988 by issuance of advertisement and conducting of recruitment test. While serving as such, on 24.07.1998, a notice was served to him wherein he was asked to show cause as to why his service should not be terminated as his name was not found in the select list prepared by the respondents in the year 1995-96. The petitioner answered the show cause notice, in written stating that he was appointed prior to 1995-96, therefore, he is not connected in any way with the select list of 1995-96. However, ignoring his explanation, the petitioner was terminated from service by an order dated 25.01.1999, issued by the Inspector of Schools, Nalbari District Circle. Being aggrieved, the petitioner challenged the termination order before this Court by filing the WP(C) No. 474/1999. When the petition was moved on 08.02.1999, the petitioner was given interim protection. However, the writ petition was dismissed on 17.12.2005 for non-prosecution. Since, the petitioner was not informed about the same he came to know of it only on 08.10.2007 when he was terminated from his service. The petitioner filed another WP(C) No. 6182/2007 questioning the validity and legality of the order dated 08.10.2010, by which he was once again terminated. The writ petition was dismissed on 09.04.2009. Being aggrieved by the dismissal order, the petitioner filed a Writ Appeal against the order of dismissal which was registered as Writ Appeal No. 154/2009. The writ appeal was disposed of by the judgment and order dated 19.10.2012, wherein the termination order dated 08.10.2007, issued by the Inspector of Schools, Nalbari District Circle was set aside. In pursuance of the judgment and order passed in the Writ Appeal, the respondents re-instated the petitioner in service vide order dated 30.11.2012, issued by the Inspector of Schools, Nalbari District Circle which was followed by another order dated 17.07.2013, issued by the Inspector of Schools of the same District Circle. In the second order of re-instatement it was mentioned that the back wages of the petitioner would be released only after passing of appropriate order by the Hon'ble High Court. Being not satisfied, the petitioner served a legal notice through his legal counsel on 02.06.2014 to the respondents asking them to release his back wages for the period beginning from 01.10.2007 to 30.11.2012 i.e. the period during which his service was terminated as stated above. On 5th March, 2006, the Director of Secondary Education, Assam, issued the impugned order vide his Office Memo No. GB-EST/DSE/CC/86/2009/Pt/174, denying the claim of the petitioner. Being aggrieved, the petitioner has come before this Court by filing the writ petition challenging the impugned order.
(3.) Mr. I. Choudhury, learned senior counsel appearing for the petitioner submitted that the petitioner's services was terminated on wrong premises because he was not in any way connected with the select list of 1995-96, since he was already in service by then by virtue of his appointment order issued on 07.05.1991 in pursuance of the properly conducted recruitment process. He also submitted that for that reason the Division Bench of this Court in the Writ Appeal filed by the petitioner i.e. Writ Appeal No. 154/2009 had set aside the termination order. The learned senior counsel thereafter took me through para-28 of the said judgment wherein the findings of the Appellate Court were recorded as follows; "28. The view taken by the learned Single Judge qua the case of the appellant may require reconsideration. Admittedly, the appointment of the appellant is prior to the issuance of the advertisement dated 03.09.1991. The respondents could not show that the post held by the appellant is covered by the advertisement dated 03.09.1991. The only ground for terminating the appointment of the appellant is that his name did not figure in the select list dated 04.01.1995 which was published pursuant to the advertisement dated 03.09.1991. In out considered opinion that could not be the ground for terminating the service of the appellant when the appellant was appointed prior to the advertisement dated 03.09.1991 and when he did not apply and participate in the selection process pursuant to the advertisement dated 03.09.1991, the question of his name appearing in the select list dated 04.01.1995 published pursuant thereto, does not arise. It there is any irregularity in the appellant's selection dated 12.04.1988 and his appointment based thereon, the respondents could have taken appropriate steps at the relevant time. But certainly, his service cannot be terminated on the ground on which the impugned termination order was issued". After having gone through the above portion of the judgment, the learned senior counsel submitted that the termination order was illegal and without any basis whatsoever therefore, void ab initio. As such, for no fault of his, the petitioner should not be made to suffer the consequences of the same. The learned Senior Counsel further submitted that the Appellate Court in the order dated 19.10.2012, had refrain from passing any order on the back wages of the petitioner, since there was no prayer for the same from the petitioner. He also submitted that no such prayer was made since the petition was filed immediately after the termination order was issued. Therefore, the question of payment of back wages had not arisen at that point of time. The learned counsel further submitted that cause of action for payment of back wages arose only when his claim was denied by the impugned order, therefore, the principle of constructive res judicata would not apply in this case. Lastly, the learned senior counsel submitted that the impugned order has to be read as it is and cannot be improved by the submissions made by the respondents either through their affidavit or through their learned counsel. In support of his submission as stated above, the learned Senior counsel cited para-3, 4, 5, 6, 31, 33 and 34 of the judgment passed by the Hon'ble Supreme Court in the Case of Commissioner Karnataka Housing Board -Vs- C. Muddaiah reported in, 2007 7 SCC 689; the judgment of the Hon'ble Supreme Court passed in the case of Union of India and Anr., Vs. Baburam Lalla, 1987 Supp1 SCC 71 and the judgment of the Hon'ble Supreme Court passed in the case of Mohinder Singh Gill Vs- Chief Election Commissioner, New Delhi & Ors.reported in, 1978 1 SCC 405, para-8. The relevant portions of the judgments cited by the learned senior counsel are given here below one after the other; (1). Commissioner Karnataka Housing Board -Vs- C. Muddaiah reported in, 2007 7 SCC 689, para- 3, 4, 5, 6, 31, 33 & 35 "3- The facts of the case are that the respondent herein (writ-petitioner) joined service in Karnataka Housing Board ('Board' for short) in the year 1972. He was appointed as a Second Division Assistant and was promoted as First Division Assistant on February 15, 1972. On December 30, 1974, a seniority list of the First Division Assistants was published. The writ-petitioner challenged the said seniority list by approaching the High Court under Article 226 of the Constitution. The Writ Petition No. 1848 of 1992 was allowed on October 27, 1997 by a Single Judge of the High Court of Karnataka. The Court directed the Board to reassign seniority of the writ-petitioner by placing him above respondent Nos. 2 to 34 and to grant 'other consequential benefits'. 4- It appears from the record that Writ Appeal filed by the State against the order passed by the learned Single Judge was dismissed on March 30, 1998 by the Division Bench. Even Special Leave Petition (Civil) No. 5487 of 1998 was dismissed by this Court. The order passed by the learned Single Judge thus became final. 5- It is the case of the Board that the order passed by the Court was implemented and the writ- petitioner was reassigned seniority above respondent Nos. 2 to 34 as per the direction of the Court and was also granted consequential benefits. The grievance of the writ-petitioner, however, was that he was not granted consequential benefits as awarded to him by the learned Single Judge and confirmed even by this Court. The writ- petitioner retired from service on February 28, 1998. 6- Since consequential benefits were not extended to him, the writ-petitioner filed Contempt Petition No. 12 of 1998 which was dismissed. Similarly, another Contempt Petition No. 1134 of 1999 was also dismissed. He, thereafter, filed a substantive petition, being Writ Petition No. 10722 of 2000 contending that though an order was passed in the writ petition filed by him wherein directions were issued to reassign him seniority and consequential benefits, arrears of salary to which he was entitled, was not paid to him. The said action was clearly illegal, unlawful and not sustainable at law. A prayer was, therefore, made that the Board may be directed to extend monetary benefits as per the judgment rendered in the earlier litigation. The learned Single Judge, as observed above, dismissed the petition observing that the Division Bench disposed of Contempt Petitions observing that the Board had complied with the directions issued by the learned Single Judge in W.P. 1848 of 1992. According to the learned Single Judge, if it were so, the writpetitioner could not contend that he was entitled to monetary benefits from the date he was denied seniority in the final gradation list of First Division Assistant prepared and published by the Board. The petition was, therefore, dismissed. Intra court appeal, however, was allowed by the Division Bench. The Board has challenged the order passed by the Division Bench of the High Court of Karnataka in this Court by filing this appeal. 31- Bare reading of the above order makes it more than clear that the salary to be paid to the writ petitioner was from October 27, 1997 to February 28, 1998. It was expressly stated that the writ-petitioner would not be entitled to arrears of pay and allowances for any earlier period "since he has not actually worked in the cadre of Superintendents and Assistant Revenue Officers". It is thus obvious that in spite of clear direction issued by a competent Court, no payment was made and an express order was passed to the effect that the writ- petitioner would not be entitled to pay as he had not worked. The writ-petitioner, therefore, had legitimate grievance against such direction. A fresh substantive petition, hence, could be filed by him and since he was entitled to such relief, the Division Bench was justified in granting the prayer. 33- Bare reading of the above order makes it more than clear that the salary to be paid to the writ petitioner was from October 27, 1997 to February 28, 1998. It was expressly stated that the writ-petitioner would not be entitled to arrears of pay and allowances for any earlier period "since he has not actually worked in the cadre of Superintendents and Assistant Revenue Officers". It is thus obvious that in spite of clear direction issued by a competent Court, no payment was made and an express order was passed to the effect that the writ- petitioner would not be entitled to pay as he had not worked. The writ-petitioner, therefore, had legitimate grievance against such direction. A fresh substantive petition, hence, could be filed by him and since he was entitled to such relief, the Division Bench was justified in granting the prayer. 34- The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the Court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the Court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a Court of Law. The Court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The Court, in the circumstances, directs the Authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the Authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. 35- We are conscious and mindful that even in absence of statutory provision, normal rule is 'no work no pay'. In appropriate cases, however, a Court of Law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The Court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The Court may in the circumstances, direct the Authority to grant him all benefits considering 'as if he had worked'. It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a Court of Law and if such directions are issued by a Court, the Authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant-Board, therefore, has no substance and must be rejected." (2). Union of India and Anr. Vs. Baburam Lalla reported in, 1987 Supp1 SCC 71, para-1 "We agree wholly with the reasoning and conclusion of the High Court. Since the order of termination of service of the respondent was rightly held to be a nullity he was entitled to be paid salary on the footing that he had always continued in service and the void order was never in existence in the eyes of law". (3). Mohinder Singh Gill Vs- Chief Election Commissioner, New Delhi & Ors., 1978 1 SCC 405, para-8. "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.";


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