VIJAY KUMAR AGARWAL Vs. UNION OF INDIA AND ANR.

 

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 6393 of 2012, Judgment Date: Oct 06, 2015

When the order of suspension is revoked and the suspended employee is  asked
to join the duty, he is required to do so.  How the period of suspension  is
to be treated is another aspect.  At the most, such  an  employee  would  be
entitled to full salary during the suspension period if no order  is  passed
as to how the suspension period would be  governed.   That  would  not  mean
that order revoking suspension itself becomes bad in law. 

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

             PETITION FOR SPECIAL LEAVE (CIVIL) NO. 6393 OF 2012


VIJAY KUMAR AGARWAL                                        .....APPELLANT(S)            

                                   VERSUS                                                                  

UNION OF INDIA AND ANR.                                   .....RESPONDENT(S)           


                               J U D G M E N T


A.K. SIKRI, J.
                 Though, the issue raised in this Special Leave Petition  is
very short and in a  narrow  campus,  it  has  a  chequered  history.    The
question is only as to whether the petitioner is  entitled  to  full  salary
from June 05, 1996.  However, the background facts under  which  the  issues
have cropped up for discussion need to be recapitulated.

Eschewing the unnecessary details, we confine the narration  to  only  those
facts which are absolutely essential and relevant to decide the  controversy
at hand.

The petitioner herein, after emerging  as  a  successful  candidate  in  the
Civil Services  Examination,  was  selected  in  the  Indian  Administrative
Service ('IAS') and was allocated to Maharashtra cadre, where he  joined  on
September 01, 1982.  There were certain jerks and upheavals in  the  service
career of  the  petitioner  from  the  very  beginning  which  need  not  be
mentioned.  Suffice it to state that the petitioner was denied  senior  time
scale and he challenged the same by filing writ petition in the  High  Court
of Bombay claiming that he was  entitled  to  the  senior  time  scale  with
effect  from  January  01,  1986.   With   the   constitution   of   Central
Administrative Tribunal (hereinafter referred  to  as  the  'Tribunal'),  on
passing of the Administrative Tribunal Act, 1986,  this  writ  petition  was
transferred to the Tribunal bearing Transfer Application  No.  283  of  1986
and the Tribunal ultimately dismissed the aforesaid transfer application  of
the petitioner on January 19, 1987. The petitioner  assailed  the  order  of
the Tribunal by filing Special Leave Petition in this Court in  which  leave
was granted and the case was registered as Civil Appeal No. 3446 of 1987.

During the pendency of the Civil Appeal, the petitioner was  suspended  vide
orders dated May 26, 1988 and a charge sheet was served upon him  for  major
penalty proceedings on July 06, 1988. This order of suspension  as  well  as
validity of the charge-sheet was challenged  by  the  petitioner  by  filing
Writ Petition (C) No. 1037 of 1988 under Article 32 of the Constitution,  in
this Court. In this writ petition, interim orders dated  November  02,  1988
were passed staying the proceedings in the  charge-sheet  which  was  served
upon the petitioner on July 06, 1988.   Significantly,  the  prayer  of  the
petitioner in the writ petition for staying the order of suspension was  not
allowed and, therefore, the petitioner remained under suspension  since  May
26,  1988.

Civil Appeal No. 3464 of 1987, against the non-denial of  the  senior  time-
scale to the petitioner, was also allowed by this  Court  vide  order  dated
August 30, 1988, i.e., two  months  before  the  stay  of  charge-sheet  was
granted. The petitioner, thus, became entitled to be placed  in  the  senior
time-scale.

In the meantime, since direction of this Court to  grant  him  senior  time-
scale was to be complied with by the  Government,  the  Collector,  Kolhapur
sent a bill to be signed by the petitioner  so  that  subsistence  allowance
could be paid.  However,  notwithstanding various communications written  to
him in this behalf he did not sign the  same  nor  submitted  non-employment
certificate.  On  the  other  hand,  the  petitioner  resorted  to  multiple
litigation before the Tribunal and also in this Court directly.  It may  not
be necessary to give the details of  these  proceedings  except  to  mention
that virtually all these proceedings were decided  against  the  petitioner,
with the exception of  one  case  where  the  Tribunal  granted  him  relief
directing the Authorities to issue 'No Objection Certificate' to enable  him
to obtain a passport for going abroad.

We would, however, like to mention that in a  Criminal  Appeal  No.  605  of
1991, this Court passed the orders dated October  31,  1991  requesting  the
Attorney General to look into his representation  as  he  wanted  change  of
allocation of Maharashtra cadre to any other State.  This was  done  with  a
view to put an end to various cases which were initiated by  the  petitioner
and were found to be unnecessary or without any merit.  Be that as  it  may,
in deference to the wishes of this Court expressed in the  aforesaid  order,
the Central Government informed the Court on December 16,  1993  that  State
of Punjab was willing to take the petitioner on  deputation  for  one  year.
In order to enable the petitioner to  join  there,  the  suspension  of  the
petitioner was also withdrawn vide orders dated May 13,  1996.  However,  in
the application submitted by the petitioner to the  Central  Government  for
his being transferred on deputation to the State of Punjab  he  put  certain
conditions which were not acceptable to  the  State  of  Maharashtra.   Vide
another order dated June 07, 1996, he was directed to take charge as  Deputy
Secretary,  Social  Welfare,  Cultural  Affairs   and   Sports   Department,
Government of Maharashtra to finalize the  procedural  formalities  required
to be completed for the State of Punjab  to  take  him  on  deputation.  The
petitioner, however, did not join the said  posting  because  of  which  his
joining State of Punjab on deputation also could not materialize.

On the other hand, as the petitioner had not joined the  services  in  spite
of revocation of suspension on May 13, 1996, another charge-sheet dated  May
04, 1998 was issued to  the  petitioner  on  the  ground  that  he  remained
unauthorisedly absent from duty and had also left the  headquarters  without
permission of the  Competent  Authority.  The  petitioner,  promptly,  filed
contempt petition in Civil Appeal No. 3464 of 1987 alleging that service  of
such a charge-sheet amounted to contempt of court.  This  contempt  petition
was, however, dismissed by this Court.

In the meantime, third charge-sheet dated October 05, 1998 was  also  served
upon him.

Finally, the request of the petitioner to send  him  on  deputation  to  the
State of Punjab was also turned down by the Government of India on  February
27, 1997, going by the aforesaid subsequent events which have taken place.

The petitioner once again filed another contempt petition  in  Civil  Appeal
No. 3464 of 1987 and raised many other grievances therein as well  including
non-grant of subsistence allowance.  The State of Maharashtra  informed  the
Court that his suspension had been  revoked  but  he  was  not  joining  the
duties. It was also pointed out that  subsistence  allowance  could  not  be
paid as he had not signed the bills sent  to  him.  Orders  were  passed  on
September 19, 2001 by the Court  for  payment  of  complete  salary  to  the
petitioner from May 01, 1988 to May 13, 1996. The amount was calculated  and
salary for this period, which was in the sum of  ?6,82,290/-,  was  tendered
to the petitioner in the Court, however, he refused to accept  the  same  on
the ground that this salary was calculated as per the senior time-scale  but
in the meantime persons junior to him had been promoted and,  therefore,  he
should be given the salary of promotional post. The Court,  taking  note  of
the obstinate stand of the petitioner, dismissed the  contempt  petition  as
well as all pending applications of October 18, 2001.  In the process,  this
Court observed that the issue of payment of salary  at  higher  scale  could
not be decided  in  the  contempt  petition.   Pertinently,  the  petitioner
received the amount of ?6,82,290/- later on.

There were yet various  writ  petitions,  contempt  petitions  and  criminal
appeals filed by the petitioner in this Court, all of which  were  dismissed
in default on October 07, 2002. The order dated October 07, 2002  passed  in
Writ Petition (C) No. 1037 of 1988 records : “Despite the service of  notice
of hearing to the petitioner for remaining present the  petitioner  has  not
remained present. In spite of that petitioner  who  appears  in  person  has
filed an application for transfer of the matter to  another  Bench.  In  our
view, enough indulgence is shown to the petitioner and he  has  misused  the
same.  The petition therefore does not require  any  further  consideration.
The writ petitions, contempt petitions, criminal appeal  and  the  I.A.  are
dismissed for default. Interim order stands vacated.”    Thereafter,  on  an
application filed, the writ petition was restored. Rather than  arguing  the
writ petition, the petitioner filed another writ petition  No.  75  of  2003
claiming multifarious reliefs pertaining to his service which was  dismissed
on June 16, 2003. Thereafter, vide  order  dated  December  09,  2005,  Writ
Petition (C) No. 1037 of 1988 was also dismissed with a direction  that  the
petitioner may avail the  alternative  remedy  of  approaching  the  Central
Administrative Tribunal.

After the aforesaid order, the  petitioner  filed  O.A.  No.  1714  of  2003
before the Central Administrative Tribunal, Principal Bench, New Delhi.   He
challenged order dated May 13, 1996,  revoking  his  suspension  and  prayed
that it be set aside on the ground that composite  order  of  revocation  of
suspension should have been  passed  which  should  have  included  pay  and
allowances that are to be paid during the period of suspension  ending  with
reinstatement and also whether or not the period  of  suspension  is  to  be
treated as period on duty.  In this O.A., he also justified his  non-joining
the duty in terms of orders dated June 07, 1996 on the ground that the  post
of Deputy Secretary was below his entitlement  as  the  persons  immediately
junior to him had earned a promotion. The petitioner, thus, also  challenged
his posting as Deputy Secretary, he also  questioned  the  validity  of  two
charge-sheets dated May 04, 1998 and October 05, 1998  and  sought  quashing
thereof including quashing of the order dated September 18, 2002 whereby  an
enquiry officer was appointed. He also challenged  orders  dated  March  27,
2003 wherein he was intimated that salary could not be paid  to  him  as  he
was not reporting for duty.

This OA was decided by the  Tribunal  on  November  18,  2003  quashing  the
orders dated May 13, 1996. The said order was quashed on the ground  that  a
composite order contemplated by Rule 5B had to be  passed  with  respect  to
the manner in which suspension period was to be reckoned or the  entitlement
of payment of salary.  At the same time, liberty was granted  to  the  State
of Maharashtra to pass a fresh order on issue of revocation  of  suspension.
However, salary for the period  after  June,  1996  was  declined  with  the
observation that if the petitioner joins service as  Deputy  Secretary,  the
salary shall be paid.  No other relief was granted to the petitioner on  the
ground that in one OA, the petitioner had  joined  multifarious  causes.  It
was observed that qua other reliefs, the petitioner was free to take  resort
to necessary action.  The petitioner filed review application  in  the  said
OA on the ground that  once  the  order  of  revocation  of  suspension  was
quashed, the Tribunal  could  not  have  granted  permission  to  the  State
Government  to  pass  a  fresh  order.   This  application  for  review  was
dismissed.  He  filed  one  more  application  for  review  which  was  also
dismissed.  Challenging the orders of the  Tribunal,  the  petitioner  filed
Writ Petition (Civil) No. 916 of 2007 in the High Court of Delhi.

The petitioner thereafter filed another OA but confined his  relief  insofar
as it related to charge-sheet dated May 04, 1998 and penalty imposed on  him
vide orders dated April 02, 2007.  This  OA  is  still  pending  before  the
Tribunal.

After the Tribunal had decided  OA  No.  1714  of  2003  and  permitted  the
Department to  pass  an  order  pertaining  to  the  period  the  petitioner
remained under suspension, the Government passed the orders dated  July  29,
2004 declining to pay full pay and allowances  to  the  petitioner  for  the
period May 26, 1988 to May 12,  1996,  viz.,  the  period  during  which  he
remained under suspension. This order was challenged by  the  petitioner  by
filing OA No. 2507 of 2005.  In this OA, he  also  filed  six  miscellaneous
applications seeking various other reliefs.  The said OA No.  2507  of  2005
as well as miscellaneous applications  were  disposed  of  by  the  Tribunal
holding that order dated July 29,  2004  was  repugnant  to  the  directions
issued by the Supreme Court to pay full salary  for  the  aforesaid  period.
At the same time, the Tribunal also noted that in any  case  the  petitioner
had already  received  full  salary  for  this  period,  that  is,  some  of
?6,82,290/-.

The petitioner had filed three more OAs, namely, OA No.  2947  of  2003,  OA
No. 3092 of 2003 and OA No. 3141 of 2003  which  were  disposed  of  by  the
Tribunal by common order dated May 18, 2004. In OA No.  2947  of  2003,  the
petitioner sought  quashing  of  inquiry  report  dated  November  01,  2003
pertaining to the second charge-sheet in  which  he  was  charged  with  the
misconduct of unauthorisedly remaining absent from duty.

In O.A. No. 3092/2003, the  petitioner  had  challenged  third  charge-sheet
dated October 05, 1998 wherein the charge was that he had not  filed  annual
returns. Vide O.A. No. 3141 of 2003, the petitioner prayed for  quashing  of
orders dated June 07, 1996 vide which he was directed to report for duty  as
Deputy Secretary in the Social Welfare Department.  Vide  orders  dated  May
18, 2004, all these three OAs were dismissed by  the  Tribunal.  Challenging
the said order, the petitioner filed writ petition no. 2768 of 2007  in  the
High Court of Delhi.

Few more OAs were also filed by the petitioner in CAT which  were  dismissed
by the Tribunal.  Against those orders, writ petitions were also  preferred.
 These writ petitions were also  dismissed  by  the  same  common  judgment.
However, for the purpose of present special leave petition, it is  necessary
to refer to those writ petitions.

With this background, we revert  back  to  writ  petition  Nos.916/2007  and
2768/2007.  As far as writ petition No.916/2007  is  concerned,  let  it  be
recapitulated that it arises out of OA No.1714/2003 wherein  the  petitioner
had challenged the order dated May 13, 1996  by  which  his  suspension  was
revoked.  This OA was allowed by the Tribunal on  the  ground  that  it  was
necessary  for  the  Government  to  pass  composite  order  which  was  the
requirement of Rule 5B of  the  Rules  and  since  the  Government  had  not
indicated in the order as to how the suspension  period  would  be  reckoned
and the decision for payment of salary  during  the  suspension  period  was
also not taken, the order  was  bad  in  law.   The  liberty,  however,  was
granted to the State Government to pass  fresh  order  regarding  salary  of
suspension period.  This part of the order granting  liberty  to  the  State
Government was sought to be reviewed by  the  petitioner  by  filing  review
petition which was dismissed  and  this  dismissal  was  challenged  by  the
petitioner in the said writ petition No.916/2007.

The High Court while dealing with this writ petition took the view  that  in
case order revoking the suspension did not deal with the  suspension  period
or payment of the salary for suspension period,  order  revoking  suspension
cannot be treated as void or non est. The only effect thereof would be  that
the competent authority is precluded from exercising its power under FR  54B
and the legal position was that if while revoking the suspension  or  within
a reasonable  time  thereof  no  order  is  passed  pertaining  to  pay  and
allowances for the period of  suspension,  the  authority  is  denuded  from
passing such an order.  The necessary consequences  thereof  would  be  that
the Government servant, in such a situation, is entitled to full salary  for
the period he remained under suspension.  Therefore, High  Court  held  that
the petitioner was entitled to full pay and allowances  for  the  period  he
remained under suspension and in the present case,  the  Supreme  Court  had
already passed the order for grant of full salary for  the  period  May  01,
1988 to May 13,  1996  and  this  amount  had  also  been  received  by  the
petitioner though initially he had refused to accept the same  when  it  was
tendered to him in the Court.  Moreover, the State of  Maharashtra  had  not
revoked the suspension on its own  but  to  facilitate  petitioner's  inter-
cadre transfer from Maharashtra cadre to Punjab cadre  and,  therefore,  the
order of revocation of suspension was not in exercise  of  power  to  revoke
the suspension on the ground that the petitioner was no longer  required  to
kept under suspension and these peculiar  circumstances  were  not  kept  in
mind by the Tribunal.

According to us, the aforesaid approach of the High Court, under  the  given
circumstances, is without blemish.  The High Court has relied  upon  certain
judgments of this Court including the decision in the  case  of  Basant  Ram
Jaiswal v. Area Manager (North) MTNL Bombay[1] which held  that  in  such  a
situation, the competent authority cannot exercise the power under FR 54B.

When the order of suspension is revoked and the suspended employee is  asked
to join the duty, he is required to do so.  How the period of suspension  is
to be treated is another aspect.  At the most, such  an  employee  would  be
entitled to full salary during the suspension period if no order  is  passed
as to how the suspension period would be  governed.   That  would  not  mean
that order revoking suspension itself becomes bad in law.  It  is  pertinent
to  mention  that  even  the  Tribunal  did  not  say  that  order  revoking
suspension was bad in law (In fact that part of the order was favourable  to
the petitioner).  What  it  held  was  that  in  terms  of  Rule  5(b),  the
Government should have also decided how the period of suspension  is  to  be
treated and, therefore, directed the Government to pass necessary  order  to
that effect.

An employee who is suspended generally feels aggrieved  by  such  suspension
order and would like his  suspension  to  be  revoked.   Curiously,  in  the
present case, when such an order was passed in the case of  the  petitioner,
instead of joining the duties, he started questioning the  validity  of  the
order of revocation on hyper-technical grounds claiming that  he  would  not
join the duties unless his period of suspension is also  dealt  with.   This
speaks volumes about the conduct of the petitioner  depicting  that  he  was
not interested in  joining  the  duties.   Had  the  petitioner  joined  the
duties, it would have even facilitated  his  change  of  cadre  as  well  by
allowing him Punjab cadre.  He did not allow it to happen and he himself  is
responsible for this state of affair.

Otherwise also, in any case,  we  feel  that  once  the  entire  salary  for
suspension period is received by the petitioner, there was  no  question  of
making any grievance in respect of order revoking suspension.

Insofar  as  writ  petition  No.2768/2007  is  concerned,  this  pertain  to
challenge to the second as well as third chargesheets and orders dated  June
07, 1996 by which he was directed to report for duty as Deputy Secretary  in
the Social Welfare Department.  The High Court dismissed this writ  petition
with the reason that the petitioner  had  made  repeated  attempts  and  re-
agitated this issue time and again.  We do not find any fault in  dismissing
this writ petition as well.

With this, we come to the real issue that  is  agitated  by  the  petitioner
and, in fact, no grievance was made by the petitioner insofar  as  dismissal
of the aforesaid writ petitions are concerned.  The petitioner  is  claiming
pay and allowances from June 05, 1996 onwards till date.  This was also  one
of the prayers in OA No.1714/2003 before the Tribunal.   The  Tribunal  had,
however, rejected this prayer in the following manner:
“26.  As regards claim of the applicant for  grant  of  pay  and  allowances
from 5.6.1996 is concerned, as the applicant, without express permission  of
the competent  authority,  has  failed  to  bring  on  record  any  credible
material showing that he has joined the post of Deputy Secretary  in  Social
Welfare Department, having not worked on  the  post  by  the  applicant,  at
present he is not entitled for  the  relief  of  grant  of  salary  for  the
aforesaid period.  However, the aforesaid period  shall  remain  subject  to
pending finalisation of the disciplinary  proceedings  and  on  culmination,
the law shall take its own course.  However, we observe that in  the  event,
the applicant joins the post of  Deputy  Secretary  in  the  Social  Welfare
Department, respondents shall start paying him  the  salary  as  per  rules.
We, at present, are not inclined to allow the prayer of  the  applicant  for
grant of salary for the period from 1996 till date.”


Significantly, the petitioner did not challenge this part of the  order.  As
pointed out above, though he filed two review petitions  seeking  review  of
that portion of the order by which Tribunal had given liberty to  the  State
Government to pass fresh order of  suspension  but  did  not  even  ask  for
review of the order denying him salary for the period after June  05,  1996.
The order of the Tribunal was not even  challenged  before  the  High  Court
and, thus, it became final.  That apart, the  petitioner  never  joined  the
duties and, therefore, he cannot claim salary on the principle of  'no  work
no pay' as well.

We may point out that the claim for salary for the  period  after  June  05,
1996 till date is on the ground  that  the  order  revoking  the  suspension
itself was illegal and, therefore, he was not supposed  to  join  the  duty.
It is stated at the cost  of  repetition  that  the  petitioner  could  have
claimed salary for the period of suspension but that was no  ground  not  to
join the duties once the suspension order was revoked.  The excuse  for  not
joining the duties has also been negatived.  It  may  be  recalled  in  this
behalf that he was asked to join the duties as   Deputy  Secretary  and  his
plea was that he was asked to join inferior post.  His  OA  in  this  behalf
was also dismissed.

As a result, present special leave petition is dismissed in limine.

                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                     (ROHINTON FALI NARIMAN)


NEW DELHI;
OCTOBER 06, 2015

-----------------------
[1]
      1996 (3) Supp. LLJ 855