Termination of employment cannot be stayed, by passing an interim order: High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 25th May 2021 W.P.(C) 5503 2021 ROHIT SHARMA Petitioner Through: Mr. Jai Singh Mann Advocate. UNION OF INDIA & ANR. Respondents Through: Mr. Vikram Jetley CGSC for R 1. HON BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON BLE MR. JUSTICE AMIT BANSAL VIA VIDEO CONFERENCING] RAJIV SAHAI ENDLAW J. C.M.Nos.17048 2021 & 17049 2021(both for exemption) Allowed subject to all just exceptions and as per extant Rules. The applications stand disposed of. W.P.(C) 5503 2021 & C.M. No.17047 2021(for stay) The petition impugns the order dated 17th May 2021 of the Armed Forces TribunalPrincipal Bench New Delhi of while admitting the OA 890 2021 preferred by the petitioner impugning the order dated 5th April 2021 of his discharge from the respondents Indian Navy dismissing the application of the petitioner for interim relief of stay of the discharge order observing that “keeping in view the seriousness of W.P.(C) 5503 2021 the allegations we do not deem it appropriate at this stage to stay the discharge order”. 4. We have enquired from the counsel for the petitioner how can there be an interim stay of the order of discharge of the petitioner from service inasmuch as the same cannot be undone in the event of the OA of the petitioner being ultimately dismissed on the contrary if the OA ultimately succeeds the petitioner can be restored to the same position as would have been had the discharge order not been passed monetarily as well as in terms of seniority. The counsel for the petitioner contends that the discharge order has not been implemented as yet and thus the same status can be ordered to continue. It is also contended that the petitioner has a prima facie good case and the basic procedural requirements have not been fulfilled before passing the discharge order. It is yet further contended that if the petitioner is discharged he will not be receiving his pay and other emoluments and the petitioner is a poor person who would find it difficult to survive without the emoluments. It is yet further stated that the father of the petitioner is ailing. On enquiry when the discharge order was is to come in force the counsel for the petitioner states that the discharge order does not give any date but has not been served on the petitioner as yet. The counsel for the respondents Indian Navy appearing on advance notice states that the order could not be served on the petitioner since the petitioner has been on leave claiming to be in quarantine. W.P.(C) 5503 2021 As far as the other contentions of the counsel for the petitioner are concerned though our sympathies are with the petitioner but we in law are not empowered to pass an interim order the effect whereof cannot be undone at the final stage. The Court whenever passes an interim order at the time of final adjudication is required to and ought to balance the equities flowing from the said interim order. Reference in this regard may be made to Abhimanyoo Ram Vs. State of U.P. 17 SCC 73 Ramesh Chandra Sankla Vs. Vikram Cement 14 SCC 58 and Ruchika Cables Pvt. Ltd. Vs. The SecretaryMANU DE 1033 2010. No answer is forthcoming to how in the event of the OA being ultimately dismissed the presence of the petitioner on the rolls of the respondents Indian Navy after the date of the service of the order of discharge will be explained. Supreme Court in State of Haryana Vs. Suman Dutta10 SCC 311 has observed that by an interim order if an employee is allowed to continue in service and then ultimately the writ petition is dismissed then it would tantamount to usurpation of public office without any right to the same. Similarly in State of U.P. Vs. Sandeep Kumar Balmiki17 SCC 755 it was held that by an interim order termination of employment could not be stayed as giving such a relief amounted to allowing the writ petition itself. In Bhankra Byas Managing Board Vs. Suresh 7 SCC 515 also while setting aside an interim order of the High Court granting compassionate employment the Supreme Court observed that the High Court was not justified in granting such interim order at the admission stage and although a decree had been passed against the appellant directing the appellant to make compassionate W.P.(C) 5503 2021 appointment but at the interim stage of the second appeal the appellant could not be directed to appoint the respondent on the statement of the respondent that he was ready to forego the past benefit if he was taken in service. Reference may also be made to the dicta of this Court in Air India Ltd. Vs. Aditya Beri MANU DE 2781 2012 and The Co operative Store Ltd. Superbazar Vs. Superbazar Karamchari Hitesh Sangathan MANU DE 5089 2012SCC 680 though in different facts. It was held to be a well known rule of practice and procedure that at interlocutory stage a relief which was asked for and was available at the disposal of the matter is not granted. The writ petitioners in the said case wanted admission into post graduate course as the main relief in the writ petition. Supreme Court observed that unless there was any special reason to be indicated in clear terms in an interlocutory order as a rule no provisional admission should be granted and more so into technical courses. It was further held that grant of such a relief at the threshold creates a lot of difficulties and in a case where the petitioner ultimately loses in a case of this type a very embarrassing situation crops up if he has by then read for two to three years there is a claim of equity on the plea that one cannot reverse the course of time. 11. We also find merit in the reason given by the AFT of the seriousness of the ground on which the petitioner has been discharged not entitling the petitioner to any interim relief. Supreme Court in U.P. Rajya Krishi Utpadan Mandi Parishad Vs. Sanjiv Rajan 1993 Supp.SSC 483 held W.P.(C) 5503 2021 Dismissed. MAY 25 2021 that when the charge is of moral turpitude till the Court after examining the entire records finds that the conclusion reached by the disciplinary authority is wrong no stay of termination of employment should be 12. No perversity is found in the impugned order of the AFT. RAJIV SAHAI ENDLAW J AMIT BANSAL J W.P.(C) 5503 2021 

Summary: The Court, whenever passes an interim order, at the time of final adjudication is required to and ought to balance the equities flowing from the said interim order. This was held in ROHIT SHARMA. V. UNION OF INDIA &amp; ANR. [W.P.(C) 5503/2021] in the High Court of Delhi by a division bench consisting of JUSTICE RAJIV SAHAI ENDLAW And JUSTICE AMIT BANSAL. The facts are that the petitioner was a serviceman of respondent Indian Navy. An order was passed by the Armed Forces Tribunal (AFT), Principal Bench, New Delhi, of, his discharge from the respondents Indian Navy on the ground of having got inducted into the respondents Indian Navy by playing fraud wherein petitioner had applied for interim relief of stay of the discharge order, which was dismissed. The present writ has been filed against the same. The counsel for the petitioner contended that the discharge order has not been implemented as yet and thus the same status can be ordered to continue. It was also contended that the petitioner has a prima facie good case and the basic procedural requirements have not been fulfilled before passing the discharge order. The counsel for the respondents has submitted, while appearing on advance notice that the order could not be served on the petitioner since the petitioner has been on leave, claiming to be in quarantine. The court made reference to the judgment of Apex court in U.P. Junior Doctors’ Action Committee Vs. B. Sheetal Nandwani, wherein it was held that “a well-known rule of practice and procedure, that at the interlocutory stage, a relief which was asked for and was available at the disposal of the matter, is not granted. The writ petitioners in the said case wanted admission into post-graduate course as the main relief in the writ petition. Supreme Court observed, that unless there was any special reason to be indicated in clear terms in an interlocutory order, as a rule no provisional admission should be granted and more so into technical courses. It was further held that grant of such a relief at the threshold creates a lot of difficulties and in a case where the petitioner ultimately loses in a case of this type, a very embarrassing situation crops up if he has by then read for two to three years, there is a claim of equity, on the plea that one cannot reverse the course of time”. The court also made reference the judgment of the Apex court in  U.P. Rajya Krishi Utpadan Mandi Parishad Vs. Sanjiv Rajan., wherein it was observed that “when the charge is of moral turpitude, till the Court, after examining the entire records finds that the conclusion reached by the disciplinary authority is wrong, no stay of termination of employment should be granted”.