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2016 DIGILAW 439 (GAU)

Rabison Konwar v. State of Assam

2016-05-19

MANOJIT BHUYAN

body2016
JUDGMENT AND ORDER : Manojit Bhuyan, J. Heard Mr. U. J. Saikia, learned counsel for the petitioners in W.P.(C) 5525/2007 as well as Mr. N. Bora, learned counsel, representing the petitioners in the other two analogous matters i.e. W.P.(C)4169/2010 and W.P.(C)3606/2008. I have also heard Mr. R. Mazumdar, learned counsel representing the Elementary Education Department. 2. The issues concern non-payment of salary for the period from August, 2007 for the petitioners in W.P.(C) 5525/2007 and from October, 2007 for the petitioners in W.P.(C)4169/2010 and W.P.(C)3606/2008 until this date. Each of the petitioners were appointed as Assistant Teacher in respective Lower Primary Schools by orders of the Deputy Inspector of Schools, Dhemaji. During the course of their employment they were not paid their salary on regular basis, as a result of which by intervention of this Court salaries were paid to them. However, on and from August/October 2007, the payment of salary was entirely stopped. 3. Pertinent to mention that in so far as the petitioner nos. 8, 12 and 14 in W.P.(C) 5525/2007 are concerned, they were issued with orders of termination way back on 18.5.1992. Challenge being made in Civil Rule No.1089/1993, the said termination orders were set aside by this Court by order dated 6.9.1995. In so far as most of the writ petitioners in W.P.(C) 5525/2007 along with the writ petitioner in W.P.(C)4169/2010 are concerned, payment of their salaries were stopped consequent upon two orders passed by the respondent authorities on 9.2.2007 and 17.3.2007. These two orders were the subject matter in W.P.(C) 1634/2007 where the petitioner herein were also amongst the petitioners in the said W.P.(C) 1634/2007. By judgment and order dated 9.5.2007, the said W.P.(C) 1634/2007 was disposed of with direction to the respondents concerned to submit the cases of the petitioners to the Committee which had been constituted by the Government of Assam in the Education (Elementary & Higher Secondary) Department in terms of the directions passed by this Court in another batch of writ petitions, the leading case being W.P.(C)2844/1999. A direction was made that the cases of the petitioners be examined and a decision to be taken thereon. A direction was made that the cases of the petitioners be examined and a decision to be taken thereon. In the said order dated 9.5.2007 passed in W.P.(C) 1634/2007 it was made clear that the entire exercise be completed within a period of six months and if the petitioners are aggrieved by any decision of the Committee, they would be at liberty to take recourse to such provisions of law as may be permissible. 4. Mr. Mazumdar submits that in the absence of clear instructions it is not known whether the Committee had taken a decision as directed to be taken by order dated 9.5.2007 passed in W.P.(C)1634/2007. 5. Stand taken by Mr. Mazumdar in the present writ petitions is that the non-payment of salary to the petitioners is a fall out of the orders of termination passed against the petitioners. It is submitted from records that termination orders were issued but unfortunately there are no records available in the office recording receipt of the termination orders by the petitioners. A statement to that effect has also been made at paragraph-4 (d) of the affidavit-in-opposition filed by the respondent no.5. This statement, however, reinforces the stand of the petitioners that although termination orders may have been issued against them, the fact remains that the same were not received by any of them, save and except, the petitioner nos. 8, 12 and 14 in W.P.(C) 5525/2007 who had the occasion to challenge the termination orders dated 18.5.1992 before this Court in C.R.No.1089/1993 and which orders had been set aside by order dated 6.9.1995. 6. Mr. Saikia brings to the notice of the Court the judgment dated 9.10.2015 passed by the Hon'ble Supreme Court of India in Civil Appeal No.8249/2015. The said Appeal was instituted by one Smti. Dulu Devi who is a teacher similarly situated as the petitioners herein. The case of Smti. Dulu Devi was against an order dated 6.4.2010 passed by this Court in W.P.(C)2560/2007. The issue was with regard to the alleged termination of her service as well as non-payment of salary since August, 2007. The Apex Court held that the approach of the High Court was not in accordance with law, in as much as, Smti. Dulu Devi who had worked for considerable number of years cannot be assumed to have been terminated and/ or be deprived of her legitimate claim. The Apex Court held that the approach of the High Court was not in accordance with law, in as much as, Smti. Dulu Devi who had worked for considerable number of years cannot be assumed to have been terminated and/ or be deprived of her legitimate claim. In so far as the alleged termination issue was concerned, the Apex Court relied upon the case of State of Punjab v. Amar Singh Harika, reported in AIR 1966 SC 1313 and in the case of Union of India v. Dinnath Shantaram Karekar reported in (1998) 7 SCC 569 . The ratio laid down is that although the service of a Government servant comes to an end with an order of termination, but if the termination order so passed is merely kept in the file, it would not be treated to be an order terminating the services nor the said order can be deemed to have been communicated. On the said discussion, the case of Smti. Dulu Devi was answered by holding that she is entitled to continue in service and also entitled to all arrear of salaries in accordance with law. 7. In the present case, what is not in dispute is that the petitioners had not been paid their salary since August, 2007 and October, 2007 respectively. In so far as their alleged termination from service is concerned, the State Respondents have not been able to produce any record to show that such termination orders had been communicated to the petitioners. In fact, the said stand is made absolutely clear from the records of the case as well as from the statements made in the affidavit-in-opposition itself. However, in so far as the petitioner nos. 8, 12 and 14 in W.P.(C) 5525/2007 are concerned, their cases stand in a different footing. They were terminated from service but brought back when termination orders were interfered with by this Court. 8. A technical plea is taken by Mr. Mazumdar by referring to the affidavit-in-opposition filed on 6.4.2016 on behalf of the respondents. The contention is that the petitioners had earlier moved this Court challenging the orders dated 9.2.2007 and 17.3.2007, which fact have not been disclosed in W.P.(C)4169/2010 and W.P.(C)3606/2008. While considering this plea it would also be important to notice that despite direction of this Court passed in W.P.(C)1634/2007, no action thereafter had been taken. The contention is that the petitioners had earlier moved this Court challenging the orders dated 9.2.2007 and 17.3.2007, which fact have not been disclosed in W.P.(C)4169/2010 and W.P.(C)3606/2008. While considering this plea it would also be important to notice that despite direction of this Court passed in W.P.(C)1634/2007, no action thereafter had been taken. In the meantime, the petitioners were allowed to serve in their respective schools and they have been doing so until this date. 9. The continuation of the services of the petitioners is one side of the story and non-payment of their salary for the period that they have rendered service is a different aspect altogether. This Court makes it clear that no impediment is made to the State Respondents in taking steps as regards the service of the petitioners in accordance with law but in so far as the arrear and current salary are concerned, interference and necessary direction of this Court is warranted. 10. It is too well settled in law that the State Respondents are legally obliged to give current and arrear salaries claimed by a person for the period he has actually been in service. The said claim is not based on tort but on the principles of quantum meruit because it is not implicit that a person serves his employer ex-gratia or that his salary is in the nature of bounty. 11. Apparently, the petitioners have not been paid their salaries since August, 2007 and October, 2007 respectively, nor their services have come to an end by way of issuance of any valid termination orders. In that event, there is no escape for the State Respondents but to provide/pay salary, arrear and current, to the petitioners for the period in service. 12. In view of the above, a direction is made to the State Respondents to take steps for payment of salaries to the petitioners in W.P.(C)5525/2007 w.e.f. August, 2007 an for the petitioners in W.P.(C)4169/2010 and W.P.(C)3606/2008 w.e.f. October, 2007. The necessary exercise for making payment shall be completed within a period of four months from today. It is made clear that this order shall not be construed to mean that the State Respondents have been restrained by judicial order not to proceed against the petitioner in so far as their future employment is concerned, if so advised. 13. The above three writ petitions stands disposed of accordingly.