NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5372 OF 2012
(Arising out of SLP (C) No. 23219 of 2010)
R.S. Misra … Appellant
Versus
Union of India and others … Respondents
J U D G M E N T
G. S. Singhvi, J.
1. This appeal is directed against order dated 5.2.2010 passed by the
Division Bench of the Delhi High Court whereby the civil miscellaneous
application filed by the appellant in Writ Petition No.3902/2008 for issue
of a direction to the respondents to pay him salary for the period between
5.11.2003 and 24.1.2006 was dismissed.
2. While he was holding the post of Post Graduate Teacher (Chemistry) in
Kendriya Vidyalaya Sangathan (for short, ‘KVS’), the appellant’s services
were terminated by the Commissioner, KVS under Article 81 (b) of the
Education Code. CWP No.3354 of 1994 filed by the appellant was allowed by
the learned Single Judge of the Delhi High Court vide order dated 19.9.1994
and the termination of his service was quashed. The operative portion of
that order reads as under:
“In the result I allow the writ petition, quash the order of
dismissal dated February 11, 1988 and direct that the petitioner
shall be reinstated in service forthwith with all consequential
benefits from the date of his dismissal. Needless to say it
would be open to the respondents, if so advised, to proceed
against the petitioner afresh as per the Rules of the Education
Code.”
3. LPA No.116/1994 filed by the respondents was dismissed by the
Division Bench of the High Court. Thereafter, the Commissioner, KVS
passed order dated 3.10.2000 for reinstatement of the appellant with a
stipulation that the period during which he had not worked, i.e., from
11.2.1988 to the date of joining the duty shall be treated as ‘dies-non’.
4. Since the appellant was not given consequential benefits, he filed
Contempt Petition No. 550/2000 which was disposed of by the learned Single
Judge of the High Court vide order dated 25.1.2001, the relevant portion of
which is reproduced below:
“In this case judgment of the learned Single Judge has merged in
the judgment passed in LPA. There is no dispute about one aspect
that the petitioner has been appointed vide annexure-2 vide
order 3.10.2000 at page 33. In case there is non compliance of
order of Division Bench then petitioner is at liberty to file a
fresh petition. With the above observations, the application and
petition stand disposed of.”
5. The appellant sent legal notice dated 20.2.2001 through his advocate
for grant of consequential benefits but the same was rejected vide letter
dated 4.4.2001. Thereupon, he filed Contempt Petition No. 151/2001. The
learned Single Judge noted that the appellant had already been reinstated
and a sum of Rs.11,48,625/- were paid to him by way of arrears of pay and
allowances and directed the non-petitioner in the contempt petition to
consider his case for grant of such benefits to which he may be found
entitled. The learned Single Judge also made it clear that if the appellant
feels aggrieved by the decision of the competent authority then he shall be
free to avail appropriate legal remedy.
6. In the meanwhile, the appellant was served with memorandum dated
11.3.2002 and was called upon to explain as to why disciplinary action
should not be taken against him under Article 81(b) of the Education Code
on six allegations, three of which related to misbehaviour with girl
students. The Enquiry Officer/Summary Enquiry Committee submitted report
dated 9.4.2002 with the finding that allegations leveled against the
appellant have been proved. After considering the Enquiry Report, the
Commissioner issued memorandum dated 31.3.2003 proposing to pass final
order under Article 81(b) of the Education Code and gave opportunity to the
appellant to make representation in the context of the findings recorded
against him. The appellant submitted detailed representation dated
15.4.2003 to contest the findings recorded in the Enquiry Report. After
considering the same, the Commissioner, KVS passed order dated 5.11.2003
and terminated the appellant’s service with immediate effect.
7. The appellant challenged memorandum dated 31.3.2003 by filing an
application under Section 19 of the Administrative Tribunals Act, which was
registered as OA No.2008/2003. He also filed a miscellaneous application
for stay of order dated 5.11.2003 passed by the Commissioner, KVS for
termination of his service. By an order dated 29.12.2003, the Principal
Bench of the Central Administrative Tribunal (for short, ‘the Tribunal’)
stayed the operation of order dated 5.11.2003. The Commissioner, KVS
challenged that order in WP(C) No. 3141/2004, which was disposed of by the
Division Bench of the High Court vide order dated 16.8.2004, the
substantive portion of which reads as under:
“Petition is disposed of by providing that the termination order
passed against the petitioner shall remain in abeyance for two
months from this period. Tribunal is directed to dispose of the
OA of the respondent expeditiously.
During this period, respondent will be deemed to be in service
and petitioner shall pay 50% of his salaries subject to the
outcome of the OA. Respondent will not however enter the school
premises for discharge of his duties during this period in view
of the nature of allegations levelled against him. This will
not, however be any expression of opinion on the merit of the OA
or the nature of charges against the respondent.”
8. OA No.2008/2003 was finally disposed of by the Tribunal vide order
dated 15.12.2005 and a direction was issued to the Commissioner, KVS to
pass fresh order after considering the representation made by the appellant
and keeping in view his forthcoming superannuation with effect from
31.12.2005. Simultaneously, it was directed that the respondents shall
continue to pay 50% salary till the decision was taken in the matter.
9. In view of the aforesaid order of the Tribunal, the Commissioner
considered the appellant’s representation and passed order dated
20/24.01.2006 whereby he again terminated the appellant’s service with
immediate effect under Article 81(b) of the Education Code and directed
that the amount payable to him in terms of the Tribunal’s order and 3
months pay and allowances in lieu of notice be paid to him immediately. The
operative portion of that order reads as under:
“Considering the gravity of the proven immoral behaviour towards
girl students, I hereby terminate the services of Shri R.S.
Misra with immediate effect pursuant to the provisions of
Article 81(b) of Education Code for Kendriya Vidyalaya. This
order is issued in compliance to the Orders dated 15.12.2005 of
Hon’ble CAT, Principal Bench, New Delhi in Original Application
No.2008 of 2003. The amount payable to Sh.R.S. Misra in terms of
Hon’ble CAT’s order as well as three month’s pay and allowances
in lieu of notice period also in terms of Article 81(b) be paid
to him immediately.”
10. The appeal filed by the appellant against the order of the
Commissioner was dismissed by the Vice-Chairman, KVS vide order dated
18/21.4.2006.
11. The appellant challenged the order of termination as well as the
appellate order in OA No. 996/2006, which was dismissed by the Tribunal by
observing that the exercise of power by the Chairman, KVS under Article
81(b) did not suffer from any legal error. The writ petition filed by the
appellant was dismissed by the Division Bench of the Delhi High Court. The
same was the fate of review petition filed by him before the High Court and
SLP(C) Nos.8219-8220/2010 filed before this Court.
12. Having failed to convince the Tribunal, the High Court and this Court
to quash the termination of his service, the appellant filed Civil
Miscellaneous Application No. 14140/2009 in Writ Petition No.3902/2008 and
prayed that a direction be issued to the respondents to pay him full salary
for the period between 5.11.2003 and 24.1.2006.
13. The Division Bench of the High Court referred to the earlier order
passed in WP(C) No. 3141/2004 whereby direction was given to the
respondents to pay 50% of salary to the appellant subject to the outcome of
OA No.2008/2003, order dated 15.12.2005 passed by the Tribunal in OA
No.2008/2003 and held that in view of the directions contained in those
orders, the appellant is not entitled to more than 50% salary.
14. We have heard the appellant, who has appeared in person and Shri S.
Rajappa, learned counsel for the respondents and carefully perused the
record. In our opinion, the impugned order is liable to be set aside
because the view taken by the High Court on the appellant’s entitlement to
get full salary for the period between 5.11.2003 and 31.12.2005 is ex-facie
erroneous. Once the Tribunal allowed OA No.2008/2003 and directed the
Commissioner to pass fresh order under Article 81(b) of the Education Code
after considering the representation submitted by the appellant, the
earlier order terminating his service will be deemed to have become
redundant and the appellant will be deemed to be continuing in service for
all purposes. This conclusion is buttressed by the fact that vide order
dated 24.1.2006, the Commissioner passed fresh order under Article 81(b) of
the Education Code and terminated the appellant’s service with immediate
effect. The order passed by the High Court in WP(C) No. 3141/2004 was a
sort of interim arrangement made to dilute the impact of the stay order
passed by the Tribunal on 29.12.2003. Therefore, the same could not be
relied upon by the respondents and the High Court for denying the appellant
of his right to get full salary between 5.11.2003 and 31.12.2005.
15. It is neither the pleaded case of the respondents nor it was argued
before us that during the pendency of the enquiry, the appellant was kept
under suspension and he was paid subsistence allowance. This being the
position, there could be no justification to deny full salary to the
appellant for the period between 5.11.2003 and 31.12.2005.
16. In the result, the appeal is allowed, the impugned order is set aside
and the respondents are directed to pay full salary and allowances to the
appellant for the period between 5.11.2003 and 31.12.2005. The needful be
done within a period of two months from today by getting prepared a demand
draft in the appellant’s name, which shall be delivered at his residential
address on or before the end of two months period.
…..…...……..….………………….…J.
[G.S. Singhvi]
….…………..….………………….…J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi,
August 22, 2012.
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