[2012] 9 S.C.R. 1001

EX-HAV. SATBIR SINGH

THE CHIEF OF THE ARMY STAFF, NEW DELHI & ANR. (Civil Appeal Nos. 7939-49 Df 2012)

NOVEMBER 9, 2012

[P. SATHASIVAM AND RANJAN GOGOi, JJ.)

SERVICE LAW

Terminal benefits - Army - Havildar discharged/ c terminated from service prior to date of his superannuation on the ground that he had earned 4 "Red Ink Entries" - High Court directing reinstatement of incumbent, with no benefit of salary for interviewing period - Held: Admittedly, the incumbent having not worked during the intervening period, High Court was justified in disallowing the salary for that period

- However, having found the discharge/termination legally unsustainable, High Court ought to have issued direction for counting the intervening period for the purpose of terminal benefits - Ordered accordingly.

The appellant, who was enrolled in the Army on 31.8.1982, and promoted to the rank of Havildar on 14.2.1990, was to superannuate on 31.8.2006. However,

he was served with a show-cause notice dated 16.3.1995, stating that he had earned 4 'Red Ink Entries' in the F service of 12% years. Ultimately, he was discharged from service on 1.4.1995. The appellant challenged the order in a writ petition before the High Court, which, by order dated 2.5.2008, set aside the qrder of discharge and directed his reinstatement with no benefit of salary and G other allowances for the "intervening period".

In the instant appeals, the Court confined the notice to the respondents to show cause as to why "the

1001 H

A intervening period should not be counted for the purpose of terminal benefits."

Allowing the appeals in part, the Court

HELD: 1.1 It is not in dispute that the High Court in B categorical terms held the discharge/termination of the

appellant from service on the basis of the show cause notice as unsustainable, and set it aside. Therefore, the appellant ought to have been provided relief at least to the extent of counting the intervening period for the C purpose of terminal benefits. 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 D issue and decided on merits by the High Court.

Therefore, the same is not sustainable and is liable to be set aside. It is true that during the intervening period, the appellant did not work, in that event, the High Court was justified in disallowing the salary for the said period. [para

E 9, 10] (1005-B-E, G-H, 1006-A]

1.2 Therefore, while upholding the order of the Division Bench setting aside the termination order, this Court holds that for the purpose of terminal benefits, the F "intervening period" for which the appellant remained out of job shall be counted. Respondent Nos. 1 and 2 are directed to pass appropriate orders fixing the terminal benefits. [para 11] (1006-B-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No.

G 7939-7940 of 2012.

From the Judgment & Order dated 02.05.2008 and 20.02.2009 of the High Court of Delhi at New Delhi in Writ Petition (C) No. 3874 of 1995 and in Review Petition No. 244 H of 2008 respectively.

EX-HAY. SATBIR SINGH v. CHIEF OF THE ARMY 1003

STAFF, NEW DELHI

C.M. Khanna, Rameshwar Prasad Goyal for the Appellant.

A.S. Chandhiok, ASG, R. Balasubramanium, Vikas Bansal, B.V. Bairam Das, Yamini Khurana, Anil Katiyar for the Respondents.

The Judgment of the Court was delivered by B

P. SATHASIVAM, J. 1. Delay GOndoned.

2. Leave granted.

3. These appeals are filed against the final judgment and C 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 E 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 G particulars in the service record reveal 4 'Red Ink Entries' in the service of 12 Y2 (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 B 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 C 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 O 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 E 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 G 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 H

EX-HAV. SATBIR SINGH v. CHIEF OF THE ARMY 1005

STAFF, NEW DELHI [P. SATHASIVAM, J.]

have issued notice only for the purpose of terminal benefits, A 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 B 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." C

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 D 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, E 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 G 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 H

A 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,

8 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 C of copy of this judgment and intimate the same to the appellant.

12. The appeals are allowed to the extent mentioned above.

R.P.

Appeals Partly allowed.