HUSSAIN AHMED MAZUMDER Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. A.H.M.R. Choudhury, learned counsel for the petitioner and also heard Mr. N.J. Khataniar, learned standing counsel for the respondents in Elementary Education Department.

(2.) The grievance, being sought to be addressed in this petition, filed under Article 226 of the Constitution of India, by the petitioner, namely, Hussain Ahmed Mazumder, is that while he was serving as Assistant Teacher of 69 North Nityanandapur L.P. School in the district of Hailakandi, he along with some others were convicted in Session Case No.38/2005, by the learned Sessions Judge, Hailakandi, under Sec. 302 IPC, vide judgment and order dtd. 29/11/2007 and sentenced him to suffer rigorous imprisonment for life and also to pay a fine of Rs.2,000.00 in default imprisonment for another period of 6 months. The petitioner, being aggrieved by the aforesaid judgment and order of conviction, had preferred an appeal before this Court, being Criminal Appeal No.10/2008 and vide judgment and order dtd. 3/4/2012, the petitioner was acquitted by this Court of the charge under Sec. 302 IPC. Accordingly, he was released from jail on 5/4/2012.

(3.) Mr. Choudhury, learned counsel for the petitioner submits that the respondent No.3 while passing the order dtd. 23/11/2016 (Annexure-3), has categorically held that the petitioner is not entitled to back wages from the date of his arrest till the date of his release from jail and on the basis of the aforementioned finding, proposal for payment of the arrear salary has been prepared for a sum of Rs.12,02,666.00. But, subsequently, the respondent No.3 vide impugned order dtd. 30/7/2021 (Annexure-12) has held that the petitioner is not entitled to back wages. Mr. Choudhury further submits that immediately after release from jail, after his acquittal in Criminal Appeal No.10/2008, he had filed one representation on 25/5/2012, with a prayer to allow him to join the duties. But, he was not allowed to join, which led him to filing of writ petition, being WP(C) No.6420/2012 and the same was disposed of vide order dtd. 23/5/2014, granting the relief and directing the Director, Elementary Education to consider the representation dtd. 25/5/2012 filed by the petitioner. But, due to non-consideration of the same by the Director, Elementary Education, the petitioner had instituted Cont.Cas(C) No.230/2015 and during pendency of the aforesaid contempt case, the Director of Elementary Education vide speaking order dtd. 23/11/2016 allowed the petitioner to join his service, but his arrear salary was not paid, for which the petitioner again approached this Court by filing another writ petition, being WP(C) No. 5006/2018 and the same was also disposed of by directing the respondent authorities to release the arrear salary of the petitioner vide order dtd. 21/1/2019, but due to non-compliance of the same, Cont.Cas(C) No.296/2019 was filed and during pendency of the said petition, the letter dtd. 4/1/2020 (Annexure-11) was passed and proposal for payment of his back wages was prepared for a sum of Rs.12,02,666.00. But, due to declaration of nationwide lockdown on account of Covid-19 pandemic, the payment could not be made and subsequently, the Director of Elementary Education has passed the impugned order dtd. 30/7/2021, pursuant to order of this Court dtd. 21/1/2019, wherein it has been held that the petitioner is not entitled for arrear salary for the period from 6/4/2012 till 29/2/2016 as he had not performed his duties during the said period. However, the period of his suspension was counted as period in service without break and the same will be considered for pensionary benefit only.