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2016 DIGILAW 498 (GAU)

Nanda Chutia v. State of Assam

2016-06-02

MANOJIT BHUYAN

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JUDGMENT AND ORDER : Manojit Bhuyan, J. The common thread in the writ petitions is non-payment of salary due to the petitioners. Whereas the claim in WP(C) 6032/2007 and WP(C) 1104/2012 pertains to non-payment of salary w.e.f. October, 2007, WP(C) 4670/2008 is a claim for salary w.e.f. August, 2007. 2. In so far as the writ petitions filed by Sri Nanda Chutia and others are concerned they were appointed as Assistant Teachers at various schools under Dhemaji districts in the year 1989. Similar is the case in respect of the lone petitioner in WP(C) 4670/2008. Although in the course of their employment they were not paid salary on regular basis, however, at the intervention of this Court they were paid the same. Salary stood withheld completely w.e.f. October, 2007 and August, 2007 respectively. In this proceeding the order of this Court dated 09.05.2008 records that the salaries of the petitioners had been stopped as per direction of the Joint Secretary to the Government of Assam, Education Department in terms of the letter dated 09.02.2007. The subsequent order of this Court dated 26.05.2008 also records the submission of the Joint Secretary to the Government of Assam, Education Department that the said order of 09.02.2007 was passed without having the knowledge that the order of termination issued against the petitioners in WP(C) 6032/2007 and WP(C) 1104/2012 had been set aside by order of this Court. There is yet another order of this Court dated 11.06.2008 indicating that the petitioner i.e. Nanda Chutia and others were adjusted against regular vacancies. 3. Mr. P.P. Barua, learned counsel representing the petitioners in WP(C) 6032/2007 and WP(C) 1104/2012 makes reference to the various orders enclosed to the writ petition to show that, save and except the petitioner no. 9 i.e. Subitri Dutta, the rest of the petitioners were granted regular time scale-of-pay on being adjusted against non-plan regular vacant post. The withholding of salary was basically on account of the fact that the services of the petitioners stood terminated way back in the year 1992. In this respect Mr. P.P. Barua refers to various judgments of this Court to say that the termination orders issued against each of the writ petitioners in WP(C) 6032/2007 and WP(C) 1104/2012 were interfered with and set aside by this Court. To be precise, interference made in the termination order issued against the petitioner no. In this respect Mr. P.P. Barua refers to various judgments of this Court to say that the termination orders issued against each of the writ petitioners in WP(C) 6032/2007 and WP(C) 1104/2012 were interfered with and set aside by this Court. To be precise, interference made in the termination order issued against the petitioner no. 1 i.e. Nanda Chutia can be had from the order passed in Civil Rule 518/1996. So is the case in respect of the petitioner no. 2 i.e. Krishna Chetia in Civil Rule 4102/1994. Similarly, in respect of Rohini Konwar (petitioner no.3); Harendra Gogoi (petitioner no. 4); Dibya Jyoti Gogoi (petitioner no.10) and Promila Gogoi (petitioner no.11), their orders of termination were interfered with in Civil Rule 4171/1994. In so far as Dharmeswar Saikia (petitioner no. 7) and Sashidhar Chutia (petitioner no. 8) are concerned, similar benefits were extended to them in Civil Rule 1557/1994. The termination order of Padmeswari Kachari (petitioner no. 5) and Sabitri Dutta (petitioner no.9) were interfered in Civil Rule No. 2383/1995 and lastly the termination order of Arup Sarma (petitioner no. 6) was interfered in Civil Rule No. 2633/1992. 4. The matter claiming salary which remained unpaid from August/September, 2007 had also come up for consideration before a Division Bench of this Court in WP(C) 3149 of 2008. In the said judgment, reference was made to the Civil Rule Nos. 4102/1994, 518/1996 and 4971/1994. An observation was also made to the effect that if any of the petitioners in the said WP(C) 3149/2008 is able to produce necessary Court orders showing interference with the terminations made in the year 1992, consequential orders with regard to their entitlement to salary will be made by the respondent authorities. At-least, in so far as the present common eleven writ petitioners in WP(C) 6032/2007 and WP(C) 1104/2012 are concerned, due interference with their termination had been made by orders passed in various writ petitions. These eleven writ petitioners are certainly entitled to salary, more so, because of the fact that meantime they have also been adjusted against regular vacancies and granted regular time-scale-of-pay. 5. In so far as WP(C) 4670/2008 is concerned, the petitioner Smt. Gunama Das, her payment of salary has been withheld since August, 2007. As against the alleged termination letter dated 18.05.1992, statement made on oath is that at no point of time the petitioner was served with any termination notice. 5. In so far as WP(C) 4670/2008 is concerned, the petitioner Smt. Gunama Das, her payment of salary has been withheld since August, 2007. As against the alleged termination letter dated 18.05.1992, statement made on oath is that at no point of time the petitioner was served with any termination notice. Accordingly, there was no occasion for her to approach the Court of law. This statement at paragraph 4 of the writ petition has remained uncontroverted. In fact, no affidavit-in-opposition has been filed by the State Respondents despite the writ petition being filed way back in the year 2008. Mr. Gohain, learned counsel for the petitioner relies in the case of Dulu Devi v. State of Assam & Others, reported in (2016) 1 SCC 622 . This is a case filed by a teacher similarly situated hailing from Dhemaji district, as in the case of the petitioner herein. The issue was with regard to alleged termination of her service as well as in respect of non-payment of salary w.e.f. August, 2007. While considering and answering the judgment of this Court where relief was denied to Dulu Devi, the Apex Court held that the approach of the High Court was not in accordance with law, in as much as, Dulu Devi had worked for considerable number of years and to that extent she cannot be deprived of her legitimate claim as regards salary. In so far as the alleged termination was concerned, the Apex Court relied upon the case of State of Punjab v. Amar Singh Harika reported in AIR 1966 SC 1313 as well as in the case of Union of India v. Dinanath Shantaram Karekar, reported in (1998) 7 SCC 569 to hold that although the service of a government servant comes to an end with an order of termination, however, if the termination order so passed is merely kept in the file, it would not be treated to be an order terminating the service. Nor the said order can be deemed to have been communicated to the person concerned. Dulu Devi's case was answered by holding that she is entitled to continue in service and also entitled to all arrears of salary in accordance with law. 6. In the present case i.e. WP(C) 4670/2008, apparently the petitioner has not been paid her salary since August, 2007. Dulu Devi's case was answered by holding that she is entitled to continue in service and also entitled to all arrears of salary in accordance with law. 6. In the present case i.e. WP(C) 4670/2008, apparently the petitioner has not been paid her salary since August, 2007. Also in so far as the alleged termination notice/order is concerned, the State Respondents have not been able to produce any record to show that such termination order/notice had been communicated to the petitioner. In view thereof, the judgment and order of the Apex Court in Dulu Devi (supra) squarely covers the instant case. 7. In all the aforesaid three writ petitions, no rebuttal is made by the State Respondents that the petitioners are no longer in employment. In fact, they are discharging duties until this date. Also, in so far as the petitioners in WP(C) 6032/2007 and WP(C) 1104/2012 are concerned, the clear case is that their services had been adjusted against regular vacancies and they had also been granted regular time-scale-of-pay. 8. It is well settled in law that the State Respondents are legally obliged to pay salaries to a person for the period he/she has actually been in service. The claim for salary is not based on tort but on the principles of quantum meruit, in as much as, it is not implicit that a person serves his employer ex-gratia or that the salary is in the nature of bounty. Apparently, the petitioners had not been paid their salary since August, 2007 and October, 2007 respectively. Neither their services have come to an end by way of any termination orders which is valid until this date. This is so in respect of the petitioner in WP(C) 4670/2008 whereas in respect of the petitioners in other two writ petitions, their termination orders had been interfered with by this Court. In this view of the matter the State Respondents cannot shirk its obligations and deny salary, arrear and current, to the petitioners. 9. From the discussion above, the inevitable conclusion is that the petitioners have been able to make out a case calling for interference of this Court as well as for a direction to the State Respondents to make payment of salary w.e.f. October, 2007 and August, 2007, as the case may be, less what may have been paid to the petitioners during the period from October/August, 2007 until this date. A direction is made to the State Respondents to do the needful towards payment of the arrear salary due to the petitioners from the period indicated above within a period of 5(five) months from today. As these writ petitions are only in respect of non-payment of salary to the petitioners, as such this Court refrains from making any observation as regards their future employment. 10. In view of the above, WP(C) 6032/2007, WP(C) 1104/2012 and WP(C) 4670/2008 stand accordingly allowed. In so far as the Contempt Case 59/2015 is concerned, the same stands closed in view of the order passed herein.