EX-HAV. SATBIR SINGHversusTHE CHIEF OF THE ARMY STAFF, NEW DELHI & ANR.

                     [2012] 9 S.C.R. 1001


                   EX-HAV. SATBIR SINGH                              A
                                v.
 THE CHIEF OF THE ARMY STAFF, NEW DELHI & ANR.
         (Civil Appeal Nos. 7939-49 Df 2012)

                     NOVEMBER 9, 2012
                                                                     B
       [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,           D
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.
                                                                     E
     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
    1002    SUPREME COURT REPORTS               [2012] 9 S.C.R.


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

    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.           D

    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.
                                                                      F
     (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.
                                                                      H
    1004     SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A       (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".

F        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
                                                                        F
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
    1006      SUPREME COURT REPORTS                  [20121 9 S.C.R.

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,
  we hold that for the purpose of terminal benefits, the
8
  "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.