Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 340 (GAU)

Baharul Islam v. Union of India & Ors.

2009-05-19

B.K.SHARMA

body2009
B.K. Sharma, J.- Heard Mr. A. Rashid, learned counsel for the petitioner as well as Mrs. R. Borah, learned CGSC. 2. By means of this writ petition, the peti­tioner, a member of the Central Police Re­serve Force (CRPF), has prayed for a direc­tion to the respondents to pay the arrear sal­ary for the period from 20.02.95 to 22.04.05, alternatively for the period from 12.01.2001 to 22.04.05. The petitioner was dismissed from service by order dated 20.02.95 mak­ing a challenge to which he had filed a writ petition registered and numbered as C. R. No. 4289/95. The writ petition was allowed by judgment and order dated 12.01.01 to the extent of setting aside and quashing the order of dismissal dated 20.02.95. There was no consequential order for reinstatement in serv­ice and payment of arrear salary. 3. Being aggrieved by the aforesaid judg­ment and order, the Union Govt. preferred writ appeal No. 127/2001 and the same was disposed of by order dated 30.09.04. Be it stated here that the order of dismissal was set aside not on merit, but on technical ground of violation of the principles of natural justice. In the appeal the order passed by the learned Single Judge was not interfered with on the same very ground of violation of the princi­ples of natural justice in conducting the de­partmental proceeding against the petitioner pursuant to which he was dismissed from service. 4. Since a considerable period of time had elapsed by the time the writ appeal was dis­posed of, the Division Bench in its order dated 30.09.04 directed the respondents to consti­tute a medical board to determine the physi­cal eligibility of the petitioner for inclusion into the force at that belated stage. It was pro­vided that if the medical board so constituted found the petitioner physically fit to shoulder the responsibilities of a member of the com- (HQ805batant force, he would be reinstated in serv­ice. Alternatively, the respondents were di-4 rected to explore the possibilities to accom­modate the petitioner in any other non-com-batant job. 5. Pursuant to the aforesaid order passed by the Division Bench, the respondent author­ity passed Annexure-III office order dated 16.04.05 reinstating the petitioner in service. On perusal of the order, it appears that as per the direction of the Division Bench, a medical board was constituted to examine the medical fitness of the petitioner. The medical board categorised the petitioner in the par­ticular category. On perusal of the order, it appears that as per the direction of the Division Bench, a medical board was constituted to examine the medical fitness of the petitioner. The medical board categorised the petitioner in the par­ticular category. Pursuant to such medical examination, the authority in its order dated 16.04.05 recording the antecedent facts or­dered for reinstatement of the petitioner in service. As per the order, the period of sus­pension w.e.f. 01.08.94 to 19.02.95 was to be treated as such. It was stated that the pe­titioner would not get anything more than what he had earned during the period of suspen­sion. 6. As regards the intervening period from the date of dismissal to the date of reinstate­ment in service, the order provided that the period would not be treated as spent on duty and that the petitioner would not be entitled to any pay and allowances as per FR 54. It was also indicated in the order that the chargesheet having not been set aside by the Court, appropriate decision to conduct de novo enquiry against the petitioner would be taken. 7. According to the petitioner, he having been reinstated in service pursuant to the aforesaid orders of this Court followed by the order of reinstatement dated 16.04.03 passed by the CRPF authority, he is entitled to re­ceive arrear salary from the date of dismissal to the date of reinstatement in service or at least from the date of judgment and order dated 12.01.2001 passed by the learned Singe Judge. 8. Mr. A. Rashid, learned counsel for the petitioner placing reliance on the provisions of FR 54 (A) and the decision of the Apex Court reported in (2007) JOSCC 721 Union of India Vs. P. K. Kuttappan, submits that having regard to the facts and circumstances involved in the case, the petitioner is entitled to receive the arrear salary for the period in question. On the other hand, Mrs. R. Borah, learned C. G. S. C. referring to the order of reinstatement as well as the stand of the respondents in their affidavit, submits that having regard to the nature of the orders passed by this Court and the provision of the FR 54, the petitioner is not entitled to receive any arrear salary. 9. R. Borah, learned C. G. S. C. referring to the order of reinstatement as well as the stand of the respondents in their affidavit, submits that having regard to the nature of the orders passed by this Court and the provision of the FR 54, the petitioner is not entitled to receive any arrear salary. 9. When the order of dismissal dated 20.02.95 was set aside by the learned Single Judge by judgment and order dated 12.01.07, no direction was issued entitling the petitioner to receive the arrear salary for the intervening period. Rather, it was indicated that the writ petition was allowed to the "extent indicated" which was to the effect that the order of dis­missal dated 20.02.95 would stand set aside and quashed. 10. After the aforesaid order, the respond­ents preferred writ appeal being WA No. 127/2001. Although the Division Bench did not interfere with the order passed by the learned Single Judge, but made provision for medical examination of the petitioner to find out his suitability to continue in combatant service. It was also provided that if the medical board constituted as per the direction did not find the petitioner suitable to shoulder the responsibili­ties as a member of the combatant force, the respondents would explore the possibility to accommodate him in any other non- combatant job. Thus, the Division Bench also made provision for reinstatement of the petitioner in service conditionally, and no direction was issued to pay the arrear salary to the petitioner. 11. It was pursuant to the aforesaid order passed by the Division Bench, the respond­ents authority constituted the medical board which examined the petitioner. It was only upon such examination of the petitioner re­garding his medical capacity to continue in service, he was reinstated in service by An-nexure-3 order dated 16.04.05 with clear stipulation that he will not be entitled to any pay and allowance for the intervening period. In the writ petition, this order dated 16.04.05 is also not under challenge. 12. The petitioner after accepting the ap­pointment offered to him by the aforesaid or­der dated 16.04.05 filed the writ petition making the aforesaid prayer for arrear salary. In the writ petition, this order dated 16.04.05 is also not under challenge. 12. The petitioner after accepting the ap­pointment offered to him by the aforesaid or­der dated 16.04.05 filed the writ petition making the aforesaid prayer for arrear salary. The learned Single Judge as well as the Divi­sion Bench having not provided any back wages to the petitioner in the earlier round of litigation, I am of the opinion that the petitioner by initiating another round of litigation cannot pray for any direction to the respondents to pay him arrear salary. As indicated above, the order dated 16.04.05 by which the petitioner was reinstated in service with the aforesaid stipulation is also not under challenge. 13. FR 54 (A) on which Mr. Rashid, learned counsel for the petitioner has placed reliance, deals with the position where dis­missal, removal or compulsory retirement of a Govt. servant is set aside by a Court of law. It makes provisions for passing appropriate order regarding entitlement of pay and allow­ance for the intervening period. FR 54 also makes similar provision. FR 54 provides that in the event of reinstatement of a Govt. em­ployee, the authority competent to order re­instatement shall pass specific order regard­ing pay and allowances to be paid to the Govt. servant for the period of his absence from duty including the period of suspension. As indicated above, the order dated 16.04.05 also speaks of the decision of starting de novo proceeding against the petitioner. 14. The aforesaid provision will have to be applied taking into account the aforesaid factual aspect of the matter. As the learned Single Judge as well as the Division Bench passed the aforesaid orders making no pro­vision for payment of arrear salary to the pe­titioner, this Court entertaining the second writ petition filed by the petitioner cannot issue any direction to the respondents to pay the arrear salary to the petitioner. 15. As has been held by the Apex Court in the case of State Bank of India Vs. Ram Chandra Deubey reported in (2001) 1SCC 73, if the prayer is made for a particular relief and the same is not mentioned in the judg­ment and order, such a prayer shall be deemed to have been rejected by the Court. 15. As has been held by the Apex Court in the case of State Bank of India Vs. Ram Chandra Deubey reported in (2001) 1SCC 73, if the prayer is made for a particular relief and the same is not mentioned in the judg­ment and order, such a prayer shall be deemed to have been rejected by the Court. The Di­vision Bench also did not interfere with the order passed by the learned Single Judge, but provided for constitution of medical board to examine the physical fitness of the petitioner to continue in combatant service. It was also provided that in the event of not finding the petitioner suitable for combatant service, the respondents may explore the possibility of accommodating the petitioner in any other non-combatant job. 16. In view of such conditional reinstate­ment of the petitioner in service, the petitioner by initiating a second round of litigation can­not claim payment of arrear salary. He having accepted the order of reinstatement dated 16.04.05 with the conditions imposed therein without any iota of protest, cannot how be allowed to turn round the same so as to agi­tate that he is entitled to receive back wages irrespective of the said order. As indicated above, the order is also not under challenge. 17. In P. K. Kuttappan (supra) on which the learned counsel for the petitioner has placed reliance, the Apex Court provided for payment of 50% of the back wages, The matter was pertaining to labour law. The Spe­cial Leave Petition was filed on 23.06.05 on which notice was issued and there was no stay order operating. Noticing the particular feature of the case, it was provided that the respondent involved in the said case would be entitled to reinstatement from the particu­lar date with salary and other parks. Same is not the situation in the present case. The pe­titioner was reinstated in service pursuant to the aforesaid conditional order passed by the Division Bench. Needless to say that ratio of any decision will have to be understood and applied taking into account the factual aspects of the each case. Thus the aforesaid case is of no help to the case of the petitioner. 18. For all the foregoing reasons, I do not find any merit in this writ petition and accord­ingly it is dismissed.