Telangana High Court
The Union India Rep.By vs Mr.M.A Aleem on 24 February, 2022
Bench: Satish Chandra Sharma, Abhinand Kumar Shavili
THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
WRIT APPEAL No.1072 of 2009
JUDGMENT: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
The present writ appeal is arising out of order dated 24.04.2009
passed in W.P.No.25309 of 2008.
The facts of the case reveal that the writ petitioner came up
before this Court with a grievance that the respondents therein are
not paying salary to him from February, 1997 to 17.10.2008. The writ
petitioner/respondent in the present writ appeal was serving as Naik
in the Indian Army and he was discharged by the Bridge Commander
from service on 14.02.1997. He preferred a writ petition i.e.,
W.P.No.22230 of 1997 and the same was dismissed by the learned
Single Judge. However, in W.A.No.865 of 2007 the Division Bench of
this Court has set aside the order passed by the learned Single Judge
and remanded the matter back to the learned Single Judge to consider
the matter afresh and to pass an order in accordance with law. The
learned Single Judge by an order dated 26.03.2008 has allowed the
writ petition quashing the order of discharge and a liberty was granted
to the respondents therein to pass a fresh order in accordance with
law. In those circumstances, a fresh order of discharge was passed on
23.09.2008 and the writ petitioner claimed the salary from February,
1997 to till the date of fresh discharge order. It was argued before the
learned Single Judge that on account of quashment of the earlier
discharge order the writ petitioner has to be treated in service for all
purposes and therefore, he is entitled for salary. The learned Single
Judge has allowed the writ petition on the ground that after
quashment of discharge order the legal status of the writ petitioner
was as of an employee and therefore, he is entitled for salary for the
period between the two discharge orders.
In the considered opinion of this Court, the earlier discharge
order was set aside on a technical ground directing the authorities to
pass a fresh discharge order in accordance with law with due approval
of the next high commander and thereafter fresh discharge order has
been passed. For the period between two discharge orders the writ
petitioner was paid pension by the Union of India.
In the present case, the writ petitioner has not at all worked on
the post of Naik. The earlier discharge order was set aside only to
conclude the disciplinary proceedings for passing a fresh discharge
order by following due process of law. In the considered opinion of
this Court as the writ petitioner has not at all served as a Naik with
the Indian Army, the question of granting him to pay the salary for the
period in question does not arise. Back wages cannot be granted in a
mechanical manner and grant of back wages depends from case to
case keeping in view the facts and circumstances of the case. In the
present case, keeping in view the totality of the facts and
circumstances of the case, this Court is of the opinion that the order
passed by the learned Single Judge deserves to be set aside.
Accordingly, the writ appeal is allowed setting aside the order
passed by the learned Single Judge.
Miscellaneous applications pending, if any, shall stand closed.
There shall be no order as to costs.
________________________
SATISH CHANDRA SHARMA, CJ
_______________________
ABHINAND KUMAR SHAVILI, J
24.02.2022
ES
