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2019 DIGILAW 1013 (GAU)

Krishna Kanta Bhuyan v. Oil India Ltd.

2019-09-10

MICHAEL ZOTHANKHUMA

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JUDGMENT : Michael Zothankhuma, J. Heard Mr. I.H. Saikia, learned counsel for the petitioner. Also heard Mr. S.N. Sarma, learned Standing Counsel for Oil India Ltd. Mr. G. Pegu, learned Govt. Advocate appears for the respondent Nos. 5,6 & 7. 2. The petitioner has prayed for a direction to be issued to the respondent Nos. 1 to 4 for payment of back wages w.e.f. 10.05.2005 to 14.07.2010 along with adequate interest, by holding the period from 10.05.2005 to 14.07.2010 as period spent on active duty. 3. The petitioner's case in brief is that the petitioner was appointed as a Special Police Officer (SPO) under Section 17 of the Assam Police Act,1861 by the District Magistrate, Dibrugarh vide order dated 25.02.2004 and was thereafter made to join the Indian Oil Ltd. (OIL). The petitioner thereafter joined OIL and was working for the OIL. However, the petitioner was given a letter dated 09.05.2005 by the OIL, wherein, he was informed that his service was terminated. The petitioner ventilated his grievance before the District Magistrate concerned and the District Magistrate vide order dated 16.09.2006 gave a fresh appointment to the petitioner as SPO. He preferred an appeal against the order dated 16.09.2006 before the Divisional Commissioner, Upper Assam Division, Govt. of Assam. However, no decision was made in the appeal. Suffice to say that subsequent to the above, the petitioner was again reappointed as SPO vide order dated 23.07.2010, issued by the District Magistrate, Dibrugarh. The petitioner thereafter rejoined OIL on 30.07.2010. The petitioner's case is that as his service was illegally terminated by OIL, he should be given his back wages for the period he was not allowed to work, i.e. from 09.05.2005 to 30.07.2010. 4. The learned counsel for the petitioner submits that in view of the letter dated 09.05.2005, issued by OIL, the petitioner was restrained from joining his duty w.e.f 09.05.2005. He also submits that no notice was issued to the petitioner, prior to issuing the letter dated 09.05.2005 by OIL. He submits that as the termination of the petitioner's service vide letter dated 09.05.2005 was illegal and as there was no termination order issued by the District Magistrate, his prayer for payment of back wages should be considered by OIL. In this regard, the petitioner's counsel has referred to the District Magistrate's letter requesting OIL to consider the petitioner's case. 5. Mr. In this regard, the petitioner's counsel has referred to the District Magistrate's letter requesting OIL to consider the petitioner's case. 5. Mr. S.N. Sarma, learned Senior Counsel appearing for the OIL submits that the petitioner is not a Government Servant and that the petitioner was never appointed by OIL. He accordingly submits that there is no master-servant relationship between the petitioner and OIL. He also submits that the initial appointment order of the petitioner clearly shows that the petitioner's service was purely temporary and that he could be released from duty as and when it was felt necessary. The learned Senior Counsel for OIL submits that as the service of the petitioner, who was given daily remuneration was found to be unsatisfactory, he had been released from service vide letter dated 09.05.2005. However, only due to the request made by the District Magistrate, Dibrugarh, he was again allowed to rejoin OIL w.e.f. 30.07.2010. 6. I have heard the learned counsels for the parties. 7. In the case of Tanil Dutta v. Oil India Ltd. & 3 Others, WP(C) No. 1191/2015, which was decided vide Judgment & Order dated 08.05.2019, this Court has held that the appointment of an SPO is need based and that they are not a Civil Servant within the meaning of Article 311 of the Constitution of India or a Government Servant within the meaning of Section 2(e) read with section 5 of the Assam Services (Discipline And Appeal) Rules,1964. Thus, the SPO does not hold any Civil post. 8. The initial appointment order of the petitioner as an SPO vide order dated 25.02.2004 states that he has been appointed under Section 17 of the Assam Police Act,1861 and that "the appointment is on need and requirement basis and is purely temporary on daily remuneration basis. The IOL authority will pay 200/- as daily remuneration to the incumbent and extend necessary service facilities as necessary and will be at their freedom to release the Office from duty as and when they feel like". The above clause in the petitioner's appointment order dated 25.02.2004, which has been exercised by OIL in the letter dated 09.05.2005 has never been put to challenge by the petitioner till date. 9. The above clause in the petitioner's appointment order dated 25.02.2004, which has been exercised by OIL in the letter dated 09.05.2005 has never been put to challenge by the petitioner till date. 9. The letter dated 09.05.2005, issued by OIL to the District Magistrate, Dibrugarh is to the effect that the petitioner's service in OIL has been found to be unsatisfactory and that he often left his place of duty without giving any information to the OIL authorities. The District Magistrate was accordingly requested to terminate the petitioner's service w.e.f 10.05.2005 and to appoint another SPO immediately. A copy of the said letter dated 09.05.205 was also given to the petitioner, wherein, he was informed that it should be treated as a termination letter. This letter dated 09.05.2005 has never been put to challenge by the petitioner. 10. Though the petitioner had filed an appeal against the subsequent order dated 16.09.2006, issued by the District Magistrate, Dibrugarh, giving fresh appointment as an SPO, no decision was taken on the said appeal. The petitioner has also not put the said order dated 16.09.2006 to challenge in any Court till date. Thereafter, the petitioner was reappointed as SPO, vide order dated 23.06.2010, issued by the Addl. District Magistrate, Dibrugarh. This order has also not been put to challenge by the petitioner till date. The above clearly goes to show that the petitioner has accepted the validity of the 3 appointment orders mentioned above. 11. In the present writ petition, the petitioner has only prayed for payment of back wages. In the present case, the petitioner was working as an SPO on daily wage basis. Even assuming that he was working on a monthly salary, the petitioner would not be entitled to payment of back wages as the Division Bench of this Court, in Harendra Chandra Nath v. State of Tripura & Others, (2013) 2 GauLT 1094 has held that employees have no right to recover arrears beyond 3 years from the date of filing the original writ petition. In the present case, the petitioner has prayed for payment of back wages from 10.05.2005 to 14.07.2010. However, the writ petition has been filed only on 20.06.2017. In view of the judgment of the Division Bench of this Court in Harendra Chandra Nath v. State of Tripura & Others (supra), the petitioner's prayer cannot be allowed. In the present case, the petitioner has prayed for payment of back wages from 10.05.2005 to 14.07.2010. However, the writ petition has been filed only on 20.06.2017. In view of the judgment of the Division Bench of this Court in Harendra Chandra Nath v. State of Tripura & Others (supra), the petitioner's prayer cannot be allowed. As the petitioner has not put to challenge the condition put in the order dated 25.02.2004, order dated 16.09.2006, order dated 23.07.2010 and letter dated 09.05.2005, this Court finds that the petitioner cannot claim to be in continuous service since 10.05.2005. Also, OIL is not the appointing authority of the petitioner. Accordingly, for the reasons stated above, this Court finds no merit in the writ petition and the same is accordingly dismissed.