IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 7939-7940 OF 2012
(Arising out of SLP (C) Nos. 7597-7598 of 2011)
Ex-Hav.
Satbir
Singh
.... Appellant (s)
Versus
The Chief
of the Army Staff,
New Delhi
&
Anr.
.... Respondent(s)
J
U D G M E N T
P.
Sathasivam, J.
1)
Delay condoned.
2)
Leave granted.
3)
These appeals are filed against the final judgment and order
dated
02.05.2008
in Writ Petition (C) No. 3874 of 1995 and order dated 20.02.2009
in Review
Petition No. 244 of 2008 passed by the Division Bench of the High
Court of
Delhi insofar as rejection of salary and terminal benefits for the
“intervening
period” during which the appellant remained out of service.
4)
Brief facts:
(a)
The appellant herein was enrolled in the Army
on 31.08.1982. In
September,
1985, he was promoted to the rank of Lance Naik and in
April,
1986, he
was promoted to the rank of Naik. On 14.02.1990, he got
further
promotion
to the rank of Havildar and with the said promotion, his
tenure
of
service was extended to 24 years and his date of superannuation also got
extended
to 31.08.2006.
(b)
The Army Headquarters, Adjutant General Branch issued a letter
dated
28.12.1988,
laying down the procedure for removal
of undesirable and
inefficient
candidates by way of discharge/dismissal. Pursuant
to the
same, a
show-cause notice dated 16.03.1995 was served upon the appellant as
the
particulars in the service record reveal 4 ‘Red Ink
Entries’ in the
service
of 12 ½ (twelve and a half) years. On 21.03.1995,
the appellant
submitted
his reply and on 01.04.1995, the appellant was
discharged from
service.
(c)
Challenging the same, the appellant filed
petition being Writ
Petition
(C) No. 3874 of 1995 before the High Court of Delhi and prayed for
reinstatement
of service with all consequential benefits.
By
impugned
judgment
dated 02.05.2008, the High Court set aside the order of
discharge
and
directed the respondents to reinstate the appellant in service with
no
benefit
of salary and other allowances for the “intervening period.”
(d)
Feeling aggrieved by the said impugned judgment, the appellant
filed
review
petition being Review Petition No. 244 of 2008. By
impugned order
dated
20.02.2009, the review petition was also dismissed.
(e)
Feeling aggrieved by impugned judgment dated 02.05.2008
in W.P.(C)
No. 3874
of 1995 and order dated 20.02.2009 in R.P.(C) No. 244 of 2008, the
appellant
has filed these appeals by way of special leave.
5)
Heard Mr. C.M. Khanna, learned counsel for the appellant and Mr. A.S.
Chandhiok,
learned Additional Solicitor General for the respondents.
6)
On 07.03.2011, this Court issued notice calling upon the
respondents
to show
cause as to why “the intervening period should not be counted
for
the
purpose of terminal benefits”.
7)
Since the issue in this appeal is very limited, as
mentioned above,
in view
of narration of facts in the earlier part of our order, there is no
need to
traverse further factual details.
8)
We have to see whether the High Court having arrived at a
conclusion
that
the discharge/termination of the
appellant from service is
unsustainable
and after setting aside the termination order was justified
in
depriving the appellant from any salary for the intervening
period as
well as
for the purpose of terminal benefits, the intervening period during
which the
appellant remained out of job shall not be counted. Since we
have
issued notice only for the purpose of terminal benefits, there
is no
need to
go into the entitlement of salary during the intervening period.
9)
It is not in dispute that in the concluding paragraph, the
Division
Bench of
the High Court in categorical terms set
aside the order of
termination.
The relevant conclusion reads as under:
“Fact remains that he was discharged/terminated from service
on the
basis of show cause notice. This action is found to be unsustainable.
Therefore, we have no hesitation in setting aside the
termination
order.”
Having
found that the discharge/termination is legally
unsustainable, we
are of
the view that the incumbent, namely, the appellant, ought
to have
been
provided relief at least to the extent of counting
the intervening
period
for the purpose of terminal benefits. It is true that
during the
intervening
period, the appellant, admittedly, did not work, in that event,
the
Division Bench was justified in disallowing the salary
for the said
period.
However, for the terminal benefits, in view of
the categorical
conclusion
of the High Court that discharge/termination is bad,
ought to
have
issued a direction for counting the intervening period at
least for
the
purpose of terminal benefits. According to the
Division Bench, the
conduct
of the appellant, namely, securing 4 Red Ink Entries in the service
record is
the reason for not considering the intervening period
even for
the
purpose of terminal benefits. We hold that the said reasoning
adopted
by the
Division Bench of the High Court cannot be sustained in view of its
own
authoritative conclusion in setting aside the
discharge/termination
order.
10)
In the light of the conclusion that the termination is bad
and the
direction
to deprive the appellant the benefit of intervening
period for
the
purpose of terminal benefits is punitive imposing break in
service as
the
period involved amounts to dies non and the said direction
was based
without
considering any related issue and decided on merits by
the High
Court,
hence, the same is not sustainable and liable to be set aside.
11)
In the light of the above discussion, while upholding
the order of
the
Division Bench setting aside the termination order, we
hold that for
the
purpose of terminal benefits, the “intervening period” for
which the
appellant
remained out of job shall be counted. In view
of the same,
respondent
Nos. 1 and 2 are directed to pass appropriate
orders fixing
terminal
benefits within a period of two months from the date of receipt of
copy of
this judgment and intimate the same to the appellant.
12) The
appeals are allowed to the extent mentioned above.
...…………….…………………………J.
(P. SATHASIVAM)
.…....…………………………………J.
(RANJAN GOGOI)
NEW
DELHI;
NOVEMBER
09, 2012.
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